HILBRON v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 2495

HILBRON v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 2495 [24 September2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000300[2018] NZHC 2495BETWEEN DEBBIE ANNE HILBRONAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 24 September 2018Counsel: JIC Schlebusch on behalf of LJ Smith for AppellantSA Wilson for RespondentJudgment: 24 September 2018ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:Crown Solicitor, Auckland.JIC Schlebusch, Auckland.LJ Smith, Auckland.[1] Ms Debbie Hilbron must be released from prison in two days' time—unless Iallow her appeal. "Must" because on 14 September 2018, Judge KJ Glubb imposed asix-week term of imprisonment on Ms Hilbron for breaching community work.1Ms Hilbron has been in custody since 6 September on the same charge, and under s 86of the Parole Act 2002, the release date for a sentence of or under two yearsimprisonment arises when the offender has "served half of it". Three weeks from6 September is this Wednesday. Ms Hilbron contends the sentence is manifestlyexcessive.[2] The facts are simple. On 4 November 2016, Ms Hilbron was sentenced to 150hours' community work. The sentence related to a charge of driving while suspended(being a third or subsequent offence). Ms Hilbron failed to report for community workfrom 12 July 2017. On 10 August 2017, she was sent a "final warning letter".Ms Hilbron completed approximately 41 hours only of her sentence; 109 hours remainoutstanding.[3] Ms Smith, Ms Hilbron's counsel, urged the Judge to impose a sentence of homedetention or a very short sentence of imprisonment. The Judge considered a six-weekterm of imprisonment necessary. He concluded Ms Hilbron had made no real effortto comply with her sentence of community work, and was troubled Ms Hilbron maybreach conditions of sentence falling short of imprisonment.[4] Ms Hilbron contends the Judge erred because home detention was available.And, because this was the first occasion on which she had specifically breachedcommunity work. It is acknowledged Ms Hilbron has an extensive history ofbreaching Court orders. Issue is also taken with the length of the term ofimprisonment.[5] I am satisfied the appeal must be dismissed for three reasons.[6] First, it was open to the Judge to conclude a sentence less than imprisonmentwould be inappropriate. As observed, Ms Hilbron has an extensive history ofbreaching Court orders. She failed to appear for sentence on 3 September 2018. A1 Department of Corrections v Hilbron [2018] NZDC 19677, Police v Hilbron [2018] NZDC 19539.warrant for her arrest had to be issued. Ms Hilbron's compliance with communitywork was also relevant to this mix. I have already referred to circumstances in relationto it.[7] Second, Ms Hilbron has a not insignificant history of offending contrary to theMisuse of Drugs Act 1975. She may also have a problem with alcohol. Doubt attachesto whether either difficulty has been addressed, in turn affecting likelihood ofcompliance with any sentence other than imprisonment.[8] Third, case law does not support the proposition Ms Hilbron's sentence ismanifestly excessive.[9] In Smith v Police,2 Mr Smith successfully appealed a sentence of eight weeksimprisonment in relation to one charge of breaching community work and one chargeof breaching supervision. However, in that case fresh evidence was available.Mr Smith would lose his job, or might have lost his job, unless the sentence ofimprisonment was quashed.[10] More similar is Henare v Police.3 Mr Henare was sentenced to 120 hours ofcommunity work for drink driving and assault. He breached the sentence. He wassentenced to a further 40 hours of community work. Again, Mr Henare breached that.The Judge imposed a sentence of 28 days imprisonment. Chisholm J concluded a"short sharp shock" was open to the Judge at first instance.4 Similar observationsapply here.[11] The appeal is dismissed. Ms Hilbron will be released from prison onWednesday, not today...Downs J2 Smith v Police [2014] NZHC 2896.3 Henare v Police HC Christchurch CRI-2010-409-000193, 14 October 2010.4 At [12].