FIELD v POLICE [2019] NZHC 88

FIELD v POLICE [2019] NZHC 88 [5 February 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI 2018-416-26[2019] NZHC 88BETWEEN ANDREW JAMES FIELDAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019 (via AVL)Counsel: N Wright for AppellantC C Gullidge for RespondentJudgment: 5 February 2019JUDGMENT OF SIMON FRANCE J[1] Mr Field was convicted of two counts of burglary and sentenced to a term ofimprisonment of one year and nine months'.1 He appeals the decision of the DistrictCourt not to instead impose a sentence of home detention.[2] The two burglaries each had odd aspects. In the first Mr Field broke into a railyard. He damaged one CCTV camera but also looked directly into another one.Nothing was taken. On the second occasion Mr Field broke into a building yard. Heloaded $4,000 worth of roofing material on a trailer which he was pushing when policearrived.1 New Zealand Police v Field [2018] NZDC 25418.[3] Home detention was declined because of Mr Field's poor performance inrelation to earlier electronic monitoring situations. The Judge considered Mr Fieldwould not comply with the terms of a home detention sentence.2[4] This application was advanced on the basis that Mr Field had changed his life,addressed a methamphetamine habit, moved to a new area, and found work. Whilethe offending occurred in Dannevirke, by the time of sentencing Mr Field, aged 43,had moved to Wairoa. This was designed to achieve separation from people who werea negative influence on him. In Wairoa, he has made contact with people who supporthim and has a job offer. His family (not in Wairoa) remain a constant supportivepresence and he has entered a new relationship. He had a supportive pre-sentencereport, and there were two letters of support filed as well as letters from Mr Field andhis mother. His mother notes the positive change and advises that to her knowledgeMr Field now consistently takes his medication. It is submitted the Judge paid no orinsufficient attention to these matters.[5] I accept there is material that may have led some Judges to take a chance. Theissue on appeal, however, is whether it can be said the sentencing Judge legally erredin not doing so and in assessing the risks of non-compliance as being determinative.3[6] Mr Field has a significant criminal record. In terms of a general profileMr Field has had both sentences of home detention and imprisonment. He has a largenumber of previous convictions and since 2004 there have been 40 sentences ofimprisonment. In November 2016, he was sentenced to six months home detentionwhich he breached, leading to a further sentence of four months home detention. Onecan note this as a failed home detention sentence, or, as Ms Wright does, as an exampleof ultimately completing such a sentence.[7] On the present charge Mr Field was eventually admitted to EM bail. At somepoint in March the bail address was transferred to Wairoa where Mr Field embarkedon his new context. However, eventually bail was revoked and he was again remandedin custody. The reason was multiple examples of not remaining within the bail2 At [18].3 Pursuant to s 250(2) of the Criminal Procedure Act 2011.address. Seemingly, despite warnings, Mr Field would go to the nearby river to dowhite-baiting. It was this inability, despite warnings, to comply with EM bail thatmost concerned the Judge.[8] I do not consider the Judge erred in his decision. One hopes of course thechanges that are claimed eventually bed themselves in, but it was not wrong for theCourt to focus on the present reality. If compliance with EM bail could not be achievedeven for a short time, a successful home detention period seems unlikely. Ifnon-compliance seems inevitable, one must turn to a record of persistent offendingwhich involves some risk to the public. Since 2015, and in addition to the currentcharges, there are nine offences of burglary and receiving, two of assault, and one ofunlawful possession of a firearm. The public is entitled to protection. EM bailafforded a reasonable opportunity to show Mr Field was a changed person. It was nottaken.[9] I recognise of course that changes such as this take time, and there will belapses. One should not over-react, but in the end the bail on these very charges wasrevoked for non-compliance. The District Court was not wrong to decline to againrun those risks.[10] The appeal is dismissed.___________________________Simon France J