INNES v DEPARTMENT OF CORRECTIONS [2016] NZHC 2421

INNES v DEPARTMENT OF CORRECTIONS [2016] NZHC 2421 [11 October 2016]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCRI-2016-442-16[2016] NZHC 2421BETWEEN DELROSE ANN INNESAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 11 October 2016 via AVLAppearances: W Jones for the AppellantJ Webber for the RespondentJudgment: 11 October 2016JUDGMENT OF MALLON J[1] Ms Innes pleaded guilty to a charge of breach of community work. She was sentenced in the District Court (Judge Macaskill) to eight weeks imprisonment.1 An application for review of her community work sentence was declined. She appeals against her sentence on the ground that it was manifestly excessive and that her sentence of community work should have been cancelled.[2] Ms Innes has served her imprisonment sentence. She is presently subject to standard and special release conditions which apply for six months from the sentence expiry date.[3] The breach of community work related to a community work sentence of 190 hours imposed on 24 November 2015. That in turn had been imposed for an earlier breach of a sentence of 200 hours community work for non-payment of fines. It appears that the 190 hours incorporated the hours which were outstanding from the earlier 200 hours sentence.1 Department of Corrections v Innes [2016] NZDC 17228.[4] Ms Innes failed to report 20 times before the breach of community work charge was brought. She continued to fail to report after the charge was brought. She had also received several warnings. She had completed just 12.5 hours of her sentence. After pleading guilty to the charge she failed to appear in court three times. This was her fifth conviction for breaching community work.[5] The pre-sentence report writer noted Ms Innes had offered little explanation as to why she had not carried out her community work. Ms Innes described her lifestyle as having little structure. Alcohol and drugs were a problem for her. Ms Innes did not appear to be motivated to address these issues. The pre-sentence report writer recommended community detention if a suitable address could be found or alternatively supervision.[6] Counsel for Ms Innes submits the Judge should have imposed a sentence of community detention as the least restrictive available sentence. He submits the Judge wrongly focussed on the general problem of offenders avoiding community work and then being sentenced to community detention where they do nothing to contribute to society.[7] The Judge's comments about the general problem of offenders avoiding community work were, however, relevant to the sentencing purposes of general and specific deterrence. The Judge explained that he considered a sentence less than imprisonment was not an option given Ms Innes' persistent non-compliance with her sentence, her offending record, her non-compliance with and non-responsiveness to previous sentences, the likelihood she would not comply with such sentences and the need to denounce her offending and to deter her and others from non-compliance with community work sentences. He considered home detention would be a waste of time because it would be too short to have any rehabilitative effect. Those were conclusions available to him.[8] The Judge adopted a starting point of 10 weeks imprisonment. He deducted two weeks for her guilty plea. Counsel for Ms Innes submits this was manifestly excessive in comparison with the decision in Baker v Police.2 In that case the High2 Baker v Police [2014] NZHC 2194.Court (Williams J) considered a sentence of two months imprisonment wasmanifestly excessive for a defendant's fifth conviction for breach of communitywork where he had completed 71.5 hours of a 300 hours sentence. Ms Innes, however, had carried out very little of her community work and her personal circumstances were different from Mr Baker's. Counsel for the respondent hasprovided some other cases by way of comparisons where five and six week sentences of imprisonment have been upheld by the High Court for similar or less serious breaches than in this case.3 In light of these comparisons I accept therespondent's submission that the eight weeks imposed in this case was stern butwithin the available range.[9] The Judge declined an application for review of Ms Innes' community work sentence. In doing so he said that on release from prison Ms Innes would be required to comply with the community work sentence. Counsel for Ms Innes submits that the Judge should have cancelled her community work when sentencingher to prison. He submits the Judge's decision not to do this has resulted in a manifestly excessive sentence and is setting her up to fail. The reality is that, until she addresses her lifestyle issues, she will be back in court for further breaches of this community work.[10] Counsel for the respondent acknowledges there is some sense in allowing Ms Innes the opportunity to make a fresh start having been released from prison. He submits the Judge appears to have declined to review the sentence on the basis that he did not have jurisdiction to do so. That is because, in declining to review thesentence, he said "[i]n the absence of any evidence that you have been [un]able topay the fines, there is no jurisdiction to substitute a sentence of imprisonment."4 The Judge did, however, have jurisdiction under s 68(3) of the Sentencing Act 2002. The community work sentence had been imposed for a breach of an earlier sentence of community work which in turn had replaced her fines. In these circumstances it is open to me to consider whether her community work sentence should be cancelled.3 See Springhall v Department of Corrections [2012] NZHC 716; Adams v Department of Corrections [2012] NZHC 1989; and Ranui v Department of Corrections HC Invercargill CRI- 2011-425-40, 27 September 2011.4 Department of Corrections v Innes, above n 1, at [18].[11] I consider it is appropriate to cancel her community work sentence. I agree there is some sense in allowing Ms Innes to make a fresh start having been released from prison. It would have been open to the Judge to have imposed a sentence of supervision in the place of the community work sentence. There may have been more prospect of Ms Innes' compliance with that sentence than community work and more prospect of opportunities for Ms Innes to make some progress with her alcohol and drug issues. However a sentence of supervision would mirror the standard and special release conditions which are already in place. In these circumstances I consider it is appropriate to cancel the community work sentence and not to replace it with any further sentence.[12] Accordingly the appeal against the sentence of eight weeks imprisonment and standard and special release conditions is dismissed. The appeal against the Judge'sdismissal of the review application is granted. The balance of the community work sentence is cancelled.Mallon J