HODGE V COMMUNITY PROBATION SERVICE HC PN CRI-2005-454-50 [2005] NZHC 106 (10 October 2005)

IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
                                                                  CRI-2005-454-50



                              REGINALD JOHN HODGE
                                    Appellant



                          
              v



                    COMMUNITY PROBATION SERVICE
                             Respondent



Hearing:      10 October
2005

Appearances: G J Woollaston for Appellant
             S Holt for Respondent

Judgment:     10 October 2005


            
         ORAL JUDGMENT OF F MILLER J



[1]    Mr Hodge appeals against a sentence of 110 hours community work imposed
on him for
breach of a community work order. That is an offence under s 71(1)(a) of
the Sentencing Act 2002. It carries a maximum penalty of
imprisonment of three
months or a fine of $1,000.


[2]    The appeal is brought on the grounds that Judge Bidois refused to hear
the
appellant's counsel on sentence.




HODGE V COMMUNITY PROBATION SERVICE HC PN CRI-2005-454-50 10 October 2005

The Facts


[3]    On 16 January 2003, the appellant appeared for sentence on 2 charges of
driving with excess breath alcohol and assault on
a police officer. He was sentenced
to 240 hours' community work. This sentence expired on 15 January 2005.


[4]    On 1 March 2004
the appellant failed to report to his probation officer as
required. As at 11 March 2004, 102 hours of his sentence remained uncompleted
according to the records held by Community Probation Service.


District Court Judgment


[5]    At the hearing on 21 June 2005,
the respondent indicated to the Judge that
counsel were agreed that a conviction and discharge would be the appropriate
sentence.
The Judge indicated that he was prepared to sentence on that basis, and
asked whether counsel for the appellant wished to be heard.
Counsel indicated that
he "did not wish to be heard on that basis".


[6]    The Judge accordingly convicted and discharged the appellant,
stating that he
was "not going to add to your troubles by giving you further community work" but
imposed a final warning. The Judge
added that Mr Hodge would complete the
community work that was outstanding.


[7]    Counsel for the appellant then brought to the
Judge's attention the fact that
his existing sentence of community work had expired. Counsel on both sides had
appreciated that,
but the Judge as unaware of it. The following exchange took place:

       Mr Woollaston

       Please, Your Honour. I just draw
to the Court's attention, Sir, the fact that
       the sentence has actually expired, Sir.

       Court

       So in that case,
so that was, sorry, expired in January did it?

       Mr Woollaston

       That's my understanding, Sir.

       Court

     
 Oh well then I'm not going to give you a conviction and discharge. How
       much hours was outstanding?

       Community Probation

       102

       Court

       102?

[8]    The Judge then amended the sentence, and sentenced Mr Hodge to 110 hours
community
work, saying "that is effectively the remaining part of the sentence that
you have not completed". He added that the final warning
would remain on the
appellant's record. Regrettably the Appellant's counsel did not seek to be heard
further.


[9]    It is a fundamental
principle that every person accused of an offence has the
right to be heard in his own defence. This principle extends to being heard
on
sentencing: Evans v Bradford  [1982] 1 NZLR 638, 640; R v Parkinson (CA 81/00,
25 May 2000). However, the Court will not necessarily intervene on appeal unless
there is a real likelihood
of prejudice: Evans v Bradford (above).


[10]   I accept that counsel for the appellant did not waive the right to make
submissions
on sentence. His decision not to make a plea in mitigation initially was
premised on his mistaken understanding of the sentence that
the Judge intended to
impose. He did not appreciate that the Judge had it in mind that the outstanding
hours of community work would
be completed.


[11]   That the Judge did so intend is plain. He accepted the proposal that the
appellant be convicted and discharged
on the assumption that he would have to
complete the original community work sentence.


[12]   Plainly the Judge did not mean to
deny counsel a hearing. He understood that
Mr Woollaston did not wish to be heard, presumably believing that counsel

understood
the sentence indication had been given on the basis that the appellant
would serve the balance of his community work sentence.


[13]    Before me, Mr Woollaston argued that in the result, there were substantial
and material facts relevant to the offender that
were not before the Court. Mr Hodge
had been in a community placement in which by his estimation he had completed his
sentence. He
pleaded guilty because he had accepted that he had failed to ensure that
the paperwork recording his hours was complete. It appears
that that position was
accepted by the Community Probation Service. Counsel on both sides had agreed
that the conviction and discharge
was appropriate. It is regrettable that these matters
were not raised in the District Court. On the summary of facts Mr Hodge had
completed only 138 hours of his 240-hour sentence. He has 26 previous convictions,
three of which relate to breaching Court orders.
On the basis set out in the summary
of facts the sentence that the Judge intended to impose was a lenient one.


[14]    In the circumstances
I do not think it is safe to conclude that further
submissions would have made no difference. The appeal will be allowed, and Mr
Hodge will be remanded to the District Court for resentencing.




                                                             
               F Miller J




Solicitors:
A Craven, Solicitors, Palmerston North for Appellant
B Vanderkolk, Crown Solicitor, Palmerston
North for Respondent