DUFF V NEW ZEALAND POLICE HC ROT CRI 2009-463-39 [2009] NZHC 792 (10 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                CRI 2009-463-39



               BETWEEN                    DUANE NEIL DUFF
                                          Appellant

              
AND                        NEW ZEALAND POLICE
                                          Respondent


Hearing:       10 July 2009

Counsel:       J P Temm for Appellant
               S-L Wootton for Crown

Judgment:      10 July 2009


                   (ORAL)
JUDGMENT (NO. 2) OF HEATH J




Solicitors:
Crown Solicitor, Rotorua
Counsel:
J P Temm, Rotorua


DUFF V NEW ZEALAND POLICE HC ROT
CRI 2009-463-39 10 July 2009

[1]    Mr Duff appeals against an effective sentence of two years and three months
imprisonment and
a reparation order in the sum of $4000. The background to the
appeal is set out fully in my earlier judgment of 29 June 2009. I do
not repeat that.


[2]    The outcome of my earlier judgment was a finding that the District Court
Judge erred in the way in which
he had structured the sentence and in imposing
inappropriate sentences on two of the charges.


[3]    I adjourned the appeal to
consider whether a sentence of home detention
might be ordered. I have now received a home detention Appendix from a probation
officer.
The purpose of today's hearing was to enable me to hear submissions on the
appropriate sentence to impose.


[4]    The home detention
Appendix makes it clear that the address proposed is
suitable, both from the perspective of proposed occupants and technological
monitoring of the sentencing.       The question is, therefore, what sentence of
imprisonment would otherwise be imposed and then,
if that fell within the period of
two years, is home detention appropriate.


[5]    There is no suggestion that the starting point
for sentence taken on the lead
cannabis charge was incorrect. That means that the Judge correctly used a starting
point of two years
six months imprisonment.


[6]    Mr Duff is entitled to some credit for remorse and his proposal to pay
reparation. I would allow
5% for that and a further 30% to recognise an early guilty
plea. Rounding down the figure that would mean that some 10 months should
be
deducted from the starting point to arrive at a finite prison sentence, one of one year
eight months imprisonment.


[7]    As
that is within the range for home detention, I consider whether home
detention would be an adequate sentencing response.

[8]  
 Home detention is intended by Parliament to be a real and effective
alternative to imprisonment. Its effect is to detain the offender
in his or her home for
the duration of the sentence.


[9]    The Court is required by the Sentencing Act 2002, to impose the least
restrictive outcome available in an appropriate case. For that reason, home detention
will generally be preferred to a period of
incarceration.


[10]   The pre-sentence report made available for sentencing in the District Court
confirms a pattern of alcohol
use on the part of Mr Duff. That is reflective of the
two convictions which have been entered since 2000 for driving with an excess
breath alcohol concentration. There does not appear, however, to be any similar
harmful pattern involved with drugs. It does appear
that Mr Duff has taken steps to
remove himself from involvement with any drugs. He realises the necessity to do
that if he were to
retain a good relationship within his family.


[11]   So far as the other charges are concerned, Mr Duff has expressed remorse
and
offered to pay reparation. There is nothing in the pre-sentence report to suggest
that Mr Duff would be other than a suitable candidate
for home detention.
Therefore, I must consider whether imprisonment is necessary to respond to this
particular offending.


[12]
  Given that Mr Duff has already spent over one month in custody, and has not
offended in a manner other than through transport offences
since 1998, I consider
that home detention is appropriate. However, notwithstanding the time spent in
custody I take the view that the maximum period of home detention available
should
be imposed.


[13]   The appeal against sentence is allowed.


[14]   I set aside the sentences imposed in the District Court
and, in lieu thereof,
make the following orders:

       a)      On the charge of cultivating cannabis, Mr Duff is sentenced to
12
               months home detention. That home detention shall be served at 45
               Patikura Place, Turangi. Mr Duff
shall go directly from the Court to
               that address to be met by a probation officer, so that appropriate
          
    arrangements can be put into place for the sentence to be commenced.


       b)      Mr Duff is required to attend and complete
an alcohol and drug
               counselling programme to the satisfaction of the probation officer.


       c)      Mr Duff shall
not purchase, possess or consume alcohol for the
               duration of the sentence of home detention.


       d)      On the
theft charge, Mr Duff is fined $1000 and ordered to pay
               reparation of $2000.


       e)      On the unlawful hunting
charge, Mr Duff is fined $500.


[15]   Mr Duff, you can consider yourself very fortunate. I have decided to take a
bit of a risk
in imposing this lesser sentence. I hope that I do not see you before this
Court again for sentencing. I trust that you will take
this opportunity to ensure that
no such offending occurs in the future.




                                                    
         ____________________
                                                                        P R Heath J