Department of Corrections v Waymouth (aka Barton) HC Auckland CRI-2007-404-299 [2011] NZHC 948 (5 August 2011)

Last Updated: 9 September 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-299
_{CRI-2006-004-23540}

DEPARTMENT OF CORRECTIONS

Applicant

v

DAVID ALLAN WAYMOUTH (AKA DAVID SIMON BARTON)

Respondent

Hearing: 5 August 2011

Appearances: S Wimsett for Applicant

T Clee for Respondent

Judgment: 5 August 2011

(ORAL) JUDGMENT OF LANG J

_{[on application for order cancelling sentence of community work]}

DEPARTMENT OF CORRECTIONS V WAYMOUTH HC AK CRI-2007-404-299 5 August 2011

[1] On 14 August 2008 I delivered a judgment in which I allowed an appeal against sentence by Mr Barton.[1] He had earlier been sentenced to 15 months imprisonment on a charge of burglary. I quashed that sentence and directed Mr Barton to pay reparation to the victim of his offending in the sum of $1,000 and ordered him to perform 200 hours community work.

[2] Mr Barton paid the reparation that I ordered, but difficulties have arisen in relation to the sentence of community work. He was required to serve his sentence of community work through the Community Probation Office at Mangere. The relationship between him and that branch of the service then broke down in a significant way. Mr Barton reported for induction, but thereafter had little, if anything, to do with the service. At one stage he advised the service that he was travelling to Northland and that he would report to the Northland branch of the service. He failed to do this however. It then transpired that he had not left the Auckland area on a permanent basis. Instead, he had remained residing here, but had taken no further steps to perform his sentence of community work.

[3] In those circumstances the Probation Service applied for an order that Mr Barton be re-sentenced. The period within which he was required to serve his sentence of community work had, in any event, expired.

[4] Originally I had in mind a sentence of community detention. For that reason I adjourned the application so that the appropriate enquiries could be made regarding the address at which Mr Barton might serve such a sentence. Today, however, Mr Barton asked me to re-sentence him to community work. He proposes to serve that sentence through the Whangarei branch of the Community Probation Service. He has arranged with that branch to serve the sentence by attending at the Whangarei Branch of the SPCA. That organisation has apparently indicated that it would be happy to use his services in that way.

[5] An additional issue arises because Mr Barton has, of his own accord and without oversight by the Community Probation Service, undertaken work for two

_{volunteer organisations. He submits that the work that he has performed for those}

organisations should be taken into account when the new sentence of community work is imposed.

[6] I propose to re-sentence Mr Barton to a new sentence of community work. I do so because I still consider that that is the most appropriate sentence for him notwithstanding the difficulties that have arisen in the past. I make it clear, however, that I expect Mr Barton to co-operate fully with the Whangarei branch of the Community Probation Service in performing the sentence. I say this because I have no doubt from what I have seen that Mr Barton is the kind of person who manipulates situations to his own advantage. I do not wish to see any repetition in the future of what I am sure has happened in the past.

[7] I am prepared to make some allowance for the voluntary work that Mr Barton has carried out at his own initiative. It is important, however, that offenders do not choose when, where and how they carry out sentences of community work. The need for oversight by an appropriate service arises because, in the absence of such oversight, the potential for abuse exists.

[8] I consider that the interests of justice will be served if I make an allowance of approximately one-third, or 68 hours, in relation to the new sentence. This means that, taking into account the two hours that Mr Barton served at his last induction, he will receive an overall deduction of 70 hours from the sentence that I originally imposed.

[9] I therefore grant the application. I re-sentence Mr Barton to 130 hours community work. I direct that immediately following this hearing he is to report to Mr Gibbons of the Mangere Branch of the Community Probation Service. I understand that Mr Gibbons will then direct him to report to the Whangarei Branch of the Community Probation Service where he will commence his sentence.

[10] Counsel have advised me that the usual practice of the Whangarei Branch would be to direct him back to the Dargaville Branch, which is closest to his home. I would hope that commonsense could prevail on this occasion and that the service’s policy could be relaxed so that Mr Barton could immediately begin serving his

sentence of community work in Whangarei without needlessly having to report back

_{to Dargaville.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

T Clee, Barrister, Auckland

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[1] Barton v New Zealand Police HC Auckland CRI-2007-404-299, 14 August 2008