Smith v Police [2014] NZHC 2896 (20 November 2014)

Last Updated: 28 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-313 [2014] NZHC 2896

BETWEEN	MICHAEL SMITH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 November 2014
Appearances:	S D Patel for Appellant J Barry for Respondent
Judgment:	20 November 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

SMITH, M v NEW ZEALAND POLICE [2014] NZHC 2896 [20 November 2014]

[1] Mr Smith pleaded guilty in the District Court to two charges, one of breaching community work and one of breaching supervision. The maximum sentence in respect of each charge was three months imprisonment.

[2] On 11 September 2014, Judge Coyle sentenced Mr Smith to eight weeks imprisonment.¹ Mr Smith appeals against that sentence on the basis that the Judge ought to have sentenced him to community detention.

[3] I record that Mr Smith spent a week in custody before being released on bail pending determination of his appeal. This means that he served approximately 25 per cent of the sentence the Judge imposed on him.

Background

[4] Mr Smith was sentenced to 80 hours community work on 19 March 2012. He reported for the first time on 24 March 2012, and was inducted into the rules and requirements of community work. He failed to report for community work on several occasions during the period between March and June 2012.

[5] On 22 June 2012, the Department of Corrections cancelled his agency placement, and changed it to the Community Work Centre in New Lynn. He was inducted at that Centre on 22 June 2012, and directed to report to that Centre every Tuesday until instructed otherwise. Mr Smith then failed to report to the Community Work Centre three days later, on 25 June 2013. After he failed to contact the Centre to explain his absence, numerous telephone calls and text messages failed to evoke any response. This led to the charge of breaching the sentence of community work.

[6] On 8 November 2013, Mr Smith was sentenced to 12 months supervision after being convicted on the charge of breaching his community work. A standard condition of that sentence was to report to a probation officer not later than 72 hours

_{after the sentence was imposed. Mr Smith failed to report within this timeframe.}

¹ Department of Corrections v Smith DC Waitakere CRI-2013-090-005088, 22 September 2014.

[7] On 18 November 2013, the Department of Corrections issued Mr Smith with a final warning for failing to report within 72 hours. He was instructed to report on

21 November 2013 and was advised that if he did not do so, enforcement action would be taken. This failed to prompt Mr Smith to report as required.

[8] On 27 November 2013, a probation officer delivered an instruction requiring Mr Smith to report on 28 November 2013. Mr Smith failed to report on that date. This led to the charge of breaching the sentence of supervision.

Decision

[9] Mr Patel advances a wide range of arguments in support of the appeal. They are all designed to persuade the Court that the Judge erred in sentencing Mr Smith to imprisonment, and should have imposed a sentence of community detention. I consider, however, that only one of these arguments has merit. As the Judge observed, Mr Smith was employed as a glazier at the time he was sentenced. The Judge acknowledged that fact in his sentencing remarks, and said he would keep it in mind.

[10] One fact that has emerged on appeal is that Mr Smith’s employment will be terminated in the event that he is required to spend a month in prison. Mr Patel has filed an affidavit by Mr Smith’s employer confirming that if Mr Smith was required to be absent from his employment for a period of one month, his employer will have no option other than to terminate his employment and find a replacement employee. The employer says that his firm recently terminated the employment of a staff member who was sentenced to home detention, and thereby prevented from attending employment.

[11] This evidence was not before the Judge. Although it cannot be regarded as fresh because it could no doubt have been provided at the time, I accept, however, that Mr Smith should not be penalised by the fact that his former counsel may not have thought it appropriate to obtain this information. I propose to receive the evidence, because it is material to the type of sentence that was appropriate.

[12] The fact that Mr Smith will lose his employment if he is required to spend further time in prison persuades me that another sentencing option should be considered. I note that the recommendation in the pre-sentence report was for a sentence of community detention. Mr Patel accepts that any such sentence should be lengthy to reflect the seriousness of Mr Smith’s offending. He suggests a sentence of six months community detention would be appropriate.

[13] I consider that concession to be appropriately made. Mr Smith has shown extremely poor judgment in failing to comply with the sentences of supervision and community work. His actions go beyond being negligent, and must be regarded as deliberate. As the Judge observed, any sentence must necessarily have a significant deterrent factor.

[14] I therefore consider that a starting point of six months community detention is appropriate, but I propose to reduce the sentence by one month to reflect the fact that Mr Smith has now served one-quarter of the prison sentence that he received. I am satisfied that this sentence provides a sufficient element of deterrence given the fact that it will require Mr Smith to remain at his home address and abstain from consuming alcohol throughout the summer months that lie ahead.

Result

[15] The appeal is accordingly allowed. The sentences of imprisonment are quashed. In their place, Mr Smith is sentenced to five months community detention on each charge to be served concurrently and subject to the following conditions:

(a) Mr Smith is to be subject to a curfew each night between the hours of

7 pm and 7 am at his home address of 5A Northall Road, New Lynn, Auckland.

(b) He is not to be in possession of, or consume, alcohol whilst subject to a curfew at that address.

(c) Mr Smith is to comply with a direction by his probation officer to be present at his home address at a nominated date and time so that the

installation of the monitoring equipment can be completed, and Mr

Smith can be inducted into the sentence.

(d) The sentence will commence as soon as Mr Smith is inducted into the electronic monitoring programme.

(e) Mr Smith is to attend an assessment for alcohol and drug counselling as directed by his probation officer. He is also to attend and complete any counselling treatment or programme as may be directed by, and to

_{the satisfaction of, his probation officer.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

S D Patel, Auckland