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B v R HC Tauranga CRI 2009-070-4244 [2009] NZHC 2011 (29 October 2009)

Last Updated: 29 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY




CRI 2009-070-4244


B

Applicant




v




THE QUEEN

Respondent




Hearing: 29 October 2009 (Heard at Rotorua)

Appearances: Applicant in person

S Simmers for the Respondent

Judgment: 29 October 2009


ORAL JUDGMENT OF WOODHOUSE J



















Parties / Solicitors: Ms D J B

Ms S Simmers, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga



B V R HC TAU CRI 2009-070-4244 29 October 2009

[1] Ms B has applied under s 80F of the Sentencing Act to cancel the remainder of a sentence of home detention. Ms B was sentenced on 23 June

2009 to 5 months home detention. She had pleaded guilty to a charge of permitting premises to be used for the cultivation of cannabis. At today’s date the sentence has, it appears, 22 days to run.

[2] Ms B advanced two reasons for the application. One was so that she could have an opportunity to go to an award ceremony for her daughter. However, this ground does not require further consideration because it may no longer be practicable for Ms B to go, even if that could be arranged having regard to the home detention sentence.

[3] The other ground concerns an opportunity to develop a business in producing and selling a dietary supplement. This business opportunity first appeared somewhat by chance about six weeks ago. Ms B has produced some evidence of interest in her product. There are no specific dates related to the development of the business opportunity. However, one organisation in Vanuatu has expressed interest in proceeding, all going well, sometime in the new year.

[4] Ms Simmers, for the Crown, has, not unreasonably, drawn attention to the fact that there are no particular time constraints and submitted that insufficient grounds had been made out to warrant cancellation of the remainder of the sentence imposed for a serious offence.

[5] In assessing this application it is important to have regard to the observations of the Judge on sentencing. Ms B was sentenced by Lang J. In his principal sentencing notes of 19 June 2009 (the actual imposition of the sentence having been deferred for a few days for practical reasons) said:

[51] So far as you are concerned, Ms B , your counsel submits that you should serve a sentence of home detention rather than imprisonment. He points out that you appear for sentence at the age of 47 years. You are severely incapacitated as a result of a motor accident that you were involved in in 1983. ACC assesses you as being 85 per cent disabled. It is quite clear that you have very significant physical infirmities that you must deal with on a daily basis.

[52] The Court always hesitates when considering a sentence of home detention in respect of offenders who have committed offences, and particularly drug related offences, at their own homes. The concern arises in two ways.

[53] The first is that a sentence of home detention may, of itself, produce further offending. This is because the offender may be tempted to consume or become involved in drugs simply to pass the time and reduce the boredom of serving a sentence of home detention. The second is the fact that, as a matter of policy, it seems wrong to impose a sentence of home detention when the offending has been committed at home. That can send an entirely the wrong message to other people who are involved in activities such as this.

[54] In your case I have been persuaded that a sentence of home detention is appropriate. This is because I accept that you were not in any sense the mover or brains behind this operation. Mr Moss has taken full responsibility for that, as he had to do.

[55] I accept also that you have endeavoured to some extent from time to time to remonstrate with him about what he was doing. In addition, you will be serving your sentence of home detention in circumstances where I would hope it will be impossible for you to become involved in drug related activities undetected.

...

[57] ... A term of your sentence of home detention will be that you submit to regular, and that is not less than three weekly, tests for the presence of cannabis in your blood or urine. I would be grateful if your counsel could liaise with the probation service over the next five days to ensure that a suitable condition can be drafted to cover this.

[6] It appears reasonably clear from what the Judge said that, to an extent, a risk was being taken with Ms B in imposing the sentence that was imposed. But contained within that I believe, particularly having regard to the conditions that were imposed, there was a hope as well as an expectation that Ms B would take positive steps to sort her life out.

[7] The information available to me directly, or directly from Ms B ’s probation officer, is that she has responded positively to the sentence and to the supervision. Putting it broadly, the indications are simply positive. Ms Linda Ellis of the Community Probation & Psychological Services helpfully attended Court today for this application. Although she is not Ms B ’s probation officer Ms Ellis was able to confirm that all the relevant indicators are positive.

[8] In these circumstances – things implicit in what the Judge said on sentencing and Ms B ’s response – I take the view that Ms B ’s efforts deserve acknowledgement and she deserves encouragement to continue on this path. In my view those are matters the Court can properly take into account pursuant to s 80F. Relevant provisions are:

80F Application for variation or cancellation of sentence of home detention

(1) An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that—

...

(d) having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence, —

i) the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of any special conditions, or the imposition of additional special conditions; or

ii) the continuation of the sentence is no longer necessary in the interests of the community or the offender.

...

(4) On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been establish, —

...

(c) cancel the sentence; or

...

(5) An application under subsection (1), (2), or (3) may be made at any time before or after the sentence commences.

[9] For these reasons of substance, coupled with the fact that it has only a short period left to run, I consider that the application should be granted. Although there is no definite time constraint for Ms B I also accept that her ability to proceed sooner rather than later in trying to develop this business opportunity will be beneficial.

[10] Accordingly, I make an order that the sentence of home detention ceases

from 9:00 a.m. on 30 October 2009.











Peter Woodhouse J


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