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High Court of New Zealand Decisions |
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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