PROBATION SERVICE V PIDDUCK HC AK CRI 2009-092-10236 [2009] NZHC 1159 (1 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CRI 2009-092-10236



                          THE PROBATION SERVICE
                                 Applicant



                               
           v



                         ANGELA BEVERLY PIDDUCK
                                Respondent



Hearing:       1 September
2009

Appearances: R Reed for applicant
             C Hainsworth-Powrie for respondent

Judgment:      1 September 2009


     
                      JUDGMENT OF ALLAN J



Solicitors:
Hainsworth Powrie Law [e-mail]
Crown Solicitor Auckland




PROBATION SERVICE V PIDDUCK HC AK CRI 2009-092-10236 1 September 2009

[1]    This is an application by a probation officer made
pursuant to s 80F of the
Sentencing Act 2002 for an order cancelling a sentence of home detention imposed
on Ms Pidduck and substituting
an alternative penalty.


[2]    The background to the application may be briefly stated.          Ms Pidduck
appeared in this Court
for sentence on 25 August 2009, just a week ago. She had
pleaded guilty to possession of methamphetamine and cannabis and of utensils
for
methamphetamine use, and to a variety of charges involving dishonesty. She was
sentenced by Asher J to 21 months home detention
on each count; those sentences
to be concurrent.


[3]    Ms Pidduck duly reported to the home detention address as required by the
terms of Asher J's sentence, but voluntarily left the address later that same evening.
I am told she had become concerned at certain
activities that were taking place there.


[4]    The monitoring officer arrived at the address late at night. Ms Pidduck was
not
there. The next day she telephoned a detective who had been involved in the
case, and two days later she made a voluntary appearance
at the police station and
was then arrested. This application has followed.


[5]    After hearing from counsel today it has emerged
that there is a measure of
agreement between them, to the effect that the home detention address nominated by
Asher J on 25 August
2009 has proved to be unsuitable and that no suitable
alternative address is available. Against that background Ms Hainsworth-Powrie
does not oppose the application for cancellation of the sentence of home detention,
which is accordingly cancelled.


[6]    The
Court is now required to consider what alternative sentence ought to be
imposed. Section 80F(4)(d) empowers the Court to substitute
any sentence which
could have been imposed on the offender at the time she was convicted of the
offence for which the sentence was
imposed.

[7]     Although the section expressly empowers the Court to impose a fresh
sentence of home detention it is common ground
that such a sentence is not feasible
here, and that the only available alternative is a short term sentence of imprisonment.


[8]
    Where the Court is called upon to engage in the resentencing exercise
contemplated by s 80F(4), it has the assistance of the
decision of the Court of Appeal
in R v Morgan  [2008] NZCA 232 where at [15] the Court said there must be some
proportionality between the sentence originally imposed and the substituted
sentence,
but there need not be any strict correlation between them, much less some
mathematical formula. But the substituted sentence must
be one that could properly
have been imposed, and importantly, it must be imposed against the background that
a sentence of home
detention was thought initially to be appropriate.


[9]     In R v Bisschop CA251/08 the Court of Appeal emphasised that it will
not
automatically follow in every case that the appropriate term of home detention will
be half the appropriate sentence of imprisonment,
and the reverse of course will
apply in an appropriate instance.


[10]    When sentencing Ms Pidduck on 25 August, Asher J reviewed
the offending
in brief terms. The drug related charges refer to Ms Pidduck's presence in or at two
clandestine laboratories, and
her presence in a motor vehicle which appeared to
contain the elements of a mobile methamphetamine laboratory. The Judge accepted
however that she played no active role in offending related to the laboratories. She
was criminally liable because she fell within
the provisions of s 66 of the Crimes Act
1961.


[11]    The theft and dishonesty charges were significant in number and involved
items of considerable value. However, a large proportion of the value stolen has
been recovered. In respect of the drug related charges,
the Judge reviewed the
authorities and considered that a starting point of two years imprisonment was
appropriate. In respect of
the dishonesty offending, he thought again a starting point
of two years could have been warranted, but having regard to the totality
principle, a
total starting point of three years imprisonment represented the correct approach.

Today, neither counsel has argued
that the approach to the calculation of that starting
point was incorrect, and accordingly I adopt it.


[12]   The Judge then turned
to aggravating and mitigating features. He identified
Ms Pidduck's poor record in respect of prior dishonesty and thought that it
was such
as to warrant an uplift. Any such uplift would have been relatively minor and Ms
Reed says she does not press for something
to be added on account of Ms Pidduck's
past history. I decline to impose an uplift.


[13]   Ms Pidduck is entitled to a discount
of one-third on account of her guilty
plea, and there is a case to be made for a further much smaller discount to reflect the
remorse
which she has displayed, in particular to the probation officer who seems to
have been impressed by her potential for rehabilitation.


[14]   There are other factors, which it is unnecessary to discuss, but which take the
discount beyond the ordinary level. Asher
J thought the total discount including all
factors, could be as high as two-thirds.


[15]   In my view, the approach adopted by
Asher J was sound, and I am not
disposed to depart from it. But having said that, this is not a case in which it is
appropriate simply
to adopt a mathematical approach to the sentencing process by
doubling the term of imprisonment in order to achieve equality with
the sentence of
three months home detention. In fixing that period, the Judge took into account the
fact that Ms Pidduck had spent
approximately six months in custody awaiting
sentence, which was appropriate in the case of a sentence of home detention. But
where
a sentence of imprisonment is imposed, the relevance of the period already
spent in custody arises when parole calculations are conducted.
It is not a matter for
this Court.


[16]   The appropriate sentence is one of 12 months imprisonment which represents
a discount
of two-thirds from the starting point of three years imprisonment.


[17]   On each of the charges of possession of equipment with
intent to manufacture
methamphetamine; each of the charges of possession of precurser substances with

intent to manufacture methamphetamine,
and of possession of methamphetamine and
possession of utensils for methamphetamine use, Ms Pidduck is sentenced to 12
months imprisonment. On the remaining
charges she is sentenced to three months
imprisonment.


[18]   All sentences are to be served concurrently.




C J Allan J