Belmont v Police [2014] NZHC 3226 (15 December 2014)

Last Updated: 22 December 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000134 [2014] NZHC 3226

BETWEEN	CHRISTIAN BELMONT Appellant
AND	NEW ZEALAND POLICE Respondent

Judgment: 15 December 2014

_{JUDGMENT OF GENDALL J}

[1] This is an unusual case. It is an appeal against sentence in respect of one charge of theft¹ out of many for which Mr Belmont was sentenced by Judge O’Driscoll on 4 December 2014.² It is unusual because the Crown agrees that the appeal should be allowed.

[2] For convenience and expedience, I attach as Annexure A, a copy of Judge O’Driscoll’s sentencing notes in their entirety. As will be obvious from that judgment, the intention of Judge O’Driscoll was to impose an end sentence of

11 months in respect of all charges. However, because first, the charge relating to the theft of the mountain bike was laid later than the other charges (with a resulting later first appearance) and secondly, of the way the Department of Corrections calculates credit for time on remand, Mr Belmont did not get credit in relation to the theft charge until this matter came before the Court.

[3] If this matter had been brought to the attention of Judge O’Driscoll in the District Court I have little doubt that this would have been corrected so as to give effect to the intention of the sentence, namely to treat all sentences on the same

_{temporal footing, with the view to a release date in Mid-November (the result an}

¹ _{Crimes Act 1961, ss 219 and 223.}

² _{Police v Belmont DC Christchurch CRI-2014-009-3092, 4 December 2014.}

BELMONT v NEW ZEALAND POLICE [2014] NZHC 3226 [15 December 2014]

11 month sentence would otherwise yield). Due to this quirk, the intent of Judge O’Driscoll’s sentence has been unable to manifest into reality. In order to now rectify that, I allow the appeal to the following extent:

(a) The 10 month sentence imposed in respect of the theft of the mountain bike (CRN: 14009009459) concurrently with all other sentences is reduced to a sentence of four months’ imprisonment.

Result

[4] The appeal is allowed.

[5] I simply remark that if this outcome has the effect of permitting Mr Belmont to be released from custody, such release should be expedited as soon as possible.

[6] Given this result there is no need for the scheduled hearing of the appellant’s appeal against sentence to proceed on Wednesday 17 September 2014 as originally scheduled. That hearing date is vacated.

Solicitors:

Raymond Donnelly, Christchurch

Peter Dyhrberg, Christchurch

_{ANNEXURE A}

IN THE DISTRICT COURT AT CHRISTCHURCH

_{CRI-2014-009-003092}

NEW ZEALAND POLICE

Informant

v

CHRISTIAN BELMONT

_Defendant

Hearing:	04 December 2014
Appearances:	J Kay for the Informant P Dyrhberg for the Defendant
Judgment:	04 December 2014

_{NOTES OF JUDGE S J O'DRISCOLL ON SENTENCING}

[1] Mr Belmont, you are before me today for sentence on a number of charges. The charges are breaching release conditions, theft of a mountain bike, unlawfully taking a motor vehicle valued at $10,000, two breaches of protection orders on 22 May this year involving going on to land and sending correspondence, theft of a quad bike valued at $14,000 in May. There are driving charges of failing to stop, reckless driving and driving while forbidden. There is a further breach of a protection order, a charge involving threatening language and there are three charges of you being a male assaulted a female. There are in total some 13 or

14 charges before me.

[2] In terms of the aggravating factors, they are the number of charges, they are the fact that some of the offending occurred while you were on bail, the offending occurred while you were subject to release conditions and there has been repeat offending involving the same complainant and the same nature of offending, and by that I mean multiple charges of breaching a protection order and assaulting a female.

[3] In terms of the mitigating factors, there is your age, you were 18 at the time of the offending, you are now aged 19. Some of the charges there were early guilty pleas, other charges there were belated guilty pleas.

[4] There is a combination of various types of offences before me. There are the breach of the release conditions which might be seen as one set of offending. There is the dishonesty offending which might be seen as another set of offending. There are the offences involving violence, the male assaults female charges. There are the driving offences and there might also be what might be seen as the breach of the Court orders involving the protection orders. You were subject to release conditions at the time. You were released in July of last year and there is clearly concern that, not only has there been a breach of the release conditions, but there has been further offending.

[5] It seems that there was originally material placed before the Court for the Court to consider a sentence indication, that was declined in October, as I see it, by another Judge and that was because there was still other outstanding charges that needed to be resolved and they are now all resolved.

[6] In addition to the PAC before me, I have other material before me in the form of a report from a restorative justice conference and victim impact reports and I have, I think, three reports from a victim’s advisor. The last one is dated 19 November this year, and that is in relation to what might be described as the domestic related matters. It is quite clear that, from that report, the victim, in respect of that offending, takes a benevolent understanding and sympathetic view towards you to such an extent that she has been asked that you be granted a discharge without conviction. I also have victim impact reports from others who have been the victims of your offences. I have before me a PAC dated in August that sets out your background and personal circumstances. That makes a comment that the nature and seriousness of your offending has increased and you are assessed as being at high to very high risk of re-offending. There are various issues which the report indicates need to be addressed by you in order to reduce the risk of your reoffending, including issues relating to drugs, relationships and your attitude. The report writer has indicated that you have tended to minimise your non-compliance with the sentences and orders that have been imposed by the Court and that you have little insight. The last report before me is from the PAC dated 1 December, that updates your current situation. Again, the personal circumstances remain, the risk of re-offending and the risk of harm to others is also considered to be high. The recommendation in the report is for one of imprisonment.

[7] Your counsel has not asked me to consider any sentence other than imprisonment, but has hinted and suggested that perhaps the time that you have had in custody since May of this year might equate to about the appropriate sentence having been served.

[8] The purpose of sentencing, as I see it, is that of deterrence and to hold you accountable for your offending. In terms of the principles of sentencing, I am required to impose the least restrictive sentence on you, I am also required to take into account the seriousness of the offending, the gravity of the offending and your culpability. While the complainant in the domestic related matters has expressed empathy and understanding towards you, the reality of it is that, for some of those offences, they have involved breaches of Court orders and all offences, as I have said, have taken place while subject to release conditions.

[9] I can indicate to you, Mr Belmont, that I am really concerned about you. I am concerned, at the age of 19 now, where you are going to end up. I am concerned about your future and whether you have got the ability to stop offending and understand that you have the choice of going along one of two paths. You have already been subject to a sentence of imprisonment and I am going to impose another sentence of imprisonment on you on these matters. So you have already had sentences of imprisonment at the age at 19. Where you are going to go from here is going to be entirely a matter for you. I hope that you have got the intelligence, the understanding and the ability to remain in the community without further offending, but when I look at your list of convictions and look at the list of charges that are here before me involving violence, breaching Court orders, driving matters, the prospects do not look good and if you are going to commit further offences and come back before the Court then the purposes of sentencing may very well be to protect the community and that will require longer sentences of imprisonment to bring home to you that the community needs to be protected from you. I hope that that is not the case, but at the end of the day you are the person that makes the decisions and the choices and you will be held accountable for those decisions and choices that you make.

[10] I have some real difficulty in sentencing you because there are so many charges before me, because the charges are different in type and nature. I could look at the different types of charges and then uplift those charges for aggravating factors and whatever, but I have decided to deal with you on a totality basis to reflect the totality of your offending and the charges before me. I have decided to do it this way, standing back and looking at the requirement to impose the least restrictive sentence on you, my view is that the appropriate starting point on a totality basis for the offending is a sentence of imprisonment of 18

months. I then reduce that by three months to take into account your age and the views of the victim in respect of the domestic related matters. That then brings the sentence down to one of 15 months. I then intend to reduce that by four months to take into account your plea of guilty. So that the end sentence that I impose on you will be one of 11 months imprisonment.

[11] The way that I have decided to make that up is this: On the charge of unlawfully taking the $10,000 motor vehicle and the theft of the quad bike the sentences of imprisonment will be 11 months. On the charge of theft of the mountain bike the sentence of imprisonment will be 10 months. On the charges of assaulting a female the sentences will be eight months imprisonment. On the charges of breaching the protection order the sentences will be one of six months imprisonment. On the charge of breaching the release conditions six months imprisonment. On the charge of reckless driving two months imprisonment. On the charge of threatening language one month imprisonment. On the charge of failing to stop for the police and driving while forbidden you will be convicted and discharged. On the charge of reckless driving you will be disqualified from holding or obtaining a driver’s licence for a period of nine months from today. On the charge of failing to stop for the police you will be disqualified from holding or obtaining a driver’s licence for a period of three months. That will be cumulative and in addition to the nine months, meaning an effective disqualification of 12 months from today.

[12] In respect of the theft of the mountain bike, I make an order for reparation in the sum of $150. On the charge of unlawfully taking a motor vehicle, reparation in the sum of

$300. On the charge of theft of the quad bike reparation in the sum of $80.

[13] I think that you are in need of help and assistance after your release from prison which I would imagine will come reasonably shortly as a result of the sentence of imprisonment that I have imposed taking into account the period of time that you have been in custody. I intend to impose standard and special conditions of release until six months after the sentence expiry date. There will be four special conditions, they will be the three special conditions that were imposed on you on your last sentence of imprisonment. They are these:

(a) You are to attend an assessment for a departmental rehabilitative programme.

(b) To attend a psychological assessment and complete any treatment or counselling as recommended by the psychological assessment.

(c) To undertake any appropriate treatment or counselling to the satisfaction of your probation officer.

(d) To attend and complete an appropriate family violence programme and/or treatment to the satisfaction of a probation officer.

[14] All details of those programmes and assessments will be provided by your probation officer and, if required to complete those, they are required to be completed to the satisfaction of any programme or treatment provider and probation officer.

S J O’Driscoll

District Court Judge