HAYES V DEPARTMENT OF CORRECTIONS HC AK CRI 2005-404-438 [2006] NZHC 1294 (26 October 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CRI 2005-404-438



                          GEOFFREY WILLIAM HAYES
                                 Appellant



                              
             v



                       DEPARTMENT OF CORRECTIONS
                               Respondent



Hearing:       26
October 2006

Counsel:       A S Bloem for Appellant
               M R Harborow for Respondent

Judgment:      26 October 2006


                     ORAL JUDGMENT OF RANDERSON J




Solicitors: Crown Solicitors, PO Box 2213, Auckland
Counsel: A Bloem, PO Box
6627, Wellesley Street, Auckland



HAYES V DEPARTMENT OF CORRECTIONS HC AK CRI 2005-404-438 26 October 2006

Introduction


[1]
   This is an appeal against a sentence of one months imprisonment imposed in
the District Court on 19 December 2005 on one charge
of breaching community
work orders. Since that sentence was imposed the appellant has been granted bail
pending the appeal.


Background
Facts


[2]    The appellant was sentenced to community work in November 2004. There
is some confusion as to whether the total imposed
at that time was 130 hours or
whether two component parts of that number of hours were to be served
concurrent ly.


[3]    Then,
on 30 August 2005, the appellant was sentenced to 100 hours
communit y work to be served concurrently with the earlier order. Neither
of those
orders were complied with and an information was issued in September 2005 by the
Department of Corrections in which it was
stated that the appellant had been
sentenced to 100 hours and 80 hours to be served concurrently. For present purposes
I consider
it is appropriate to adopt the formulation the Department specified in the
informat ion.


[4]    When the matter came before the
Court on 5 December 2005 the appellant
appeared before Judge Mather who remanded him without plea to 19 December
2005. Bail was continued.
There was no notation on the Court record regarding a
sentence indication but the appellant has stated in an affidavit he was then
represented by the duty lawyer and he understood that the Judge, on that occasion,
told him that if he completed his community work
hours he would not be sentenced
to imprisonment. The appellant says he then spoke to a probation officer and he and
his mother outlined
to him the personal difficulties he was then facing.


[5]    The appellant set about serving the community work order and by the
time of
his appearance before Judge Johnson on 19 December 2005 had completed 36 hours
within a two week period. The recommendation
from Corrections was that he

should be ordered to come up for sentence if called upon. The Judge, according to
counsel, was aware
that 36 hours of community work had been performed up to that
date.


The Sentencing Remarks


[6]     The Judge noted that the appellant
had been given a final warning on
30 August 2005 when the last community work order was made. He made enquiries
to establish whether
there was any reason why the appellant should not be sentenced
to imprisonment over Christmas. Having established there was no such
reason, and
in view of the final warning if he continued to breach, he convicted the appellant and
sentenced him to imprisonment
for one month with no special conditions. He was
subsequent ly bailed pending appeal.


Discussion


[7]     It is common ground
that the appellant completed the full 100 hours of
communit y work very rapidly by the end of January 2006. He has since obtained
full-t ime employment and his mother is here to support him today. It seems that he
has stayed out of trouble since his appearance
in December 2005 other than a minor
traffic infringement.


[8]     The appellant is now just 20 years of age and is clearly making
an effort to
keep out of difficulties with the police. It is pleasing to note the progress that he has
made since December last year.


[9]     I was initially minded simply to allow the appeal and impose no further
penalt y. But I am persuaded by Mr Harborow's submission that it is appropriate to
mark the breach of the community work orders by some additional penalty. It does
not seem to me in the particular circumstances of
this case that any point would be
served in requiring the appellant to carry out his prison sentence. But in my view it
is appropriate
for some additional community work to be ordered.

Conclusion


[10]   In the circumstances I allow the appeal against sentence.
The sentence of
imprisonment is quashed and in substitution for that sentence the appellant is ordered
to complete 40 hours of community
work.




                                               ______________________________
                                        
                A P Randerson, J
                                                       Chief High Court Judge