DEPARTMENT OF CORRECTIONS v TAI [2021] NZHC 3546

DEPARTMENT OF CORRECTIONS v TAI [2021] NZHC 3546 [17 December 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-035-001103[2021] NZHC 3546DEPARTMENT OF CORRECTIONSvSHANE TAIHearing: 17 December 2021Appearances: M L Paish for the Applicant I R Hard for the DefendantJudgment: 17 December 2021JUDGMENT OF COOKE J[1] By application dated 9 December 2021 the applicant applies to cancel the sentence of home detention imposed on the defendant by my judgment of 15 October 2021 and substitute it for a sentence of imprisonment for a period of effectively two months, leading to his release on 14 January 2022. 1 The application is supported by an affidavit of the applicant, who is the respondent's probation officer.[2] In my decision of 15 October Mr Tai was sentenced to three months' home detention. The offending involved conduct warranting a more serious sentence, but given the time that Mr Tai had spent on remand and on EM bail only a three month sentence of home detention was imposed. The circumstances generally are set out in my earlier decision, and this decision should be seen as a continuation of that decision.1 R v Tai [2021] NZHC 2769.[3] Section 80F(1)(a) of the Sentencing Act 2002 states that an order may be made under sub-section (4) if the offender is unable, or has failed to comply with any detention conditions. The section then gives the Court the following power:80F Application for variation or cancellation of sentence of home detention(4) On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been established,—(a) remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions; or(b) vary the home detention residence; or(c) cancel the sentence; or(d) cancel the sentence and substitute any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.[4] The Court should take into account the proportion of the original sentence that remains unserved when it is making an order under this section. 2 Whilst there must be some proportionality between the sentence originally imposed and the substituted sentence, the substituted sentence is not arrived at by a mathematical calculation. 3[5] It is apparent from the evidence that has been filed that Mr Tai has not been able to comply with his sentence of home detention. The specified address was one he occupied with his partner but there have been a series of family harm incidences at that address, and his partner has withdrawn consent to him being there as a consequence. He has also been absent from the address in breach of the EM bail conditions. He attempted to move to the address of his parents as an alternative with the knowledge of his Probation Officer, but there was an altercation at that address leading to a withdraw of consent there as well. As I understand it he is presently back at the address with his partner. Nevertheless it is apparent that he is failing to comply2 Morgan v R [2008] NZCA 232.3 R v Takamore [2020] NZHC 1328.with his conditions of home detention, and it is no longer appropriate to serve a sentence at that address. I accordingly accept that s 80F(1)(a) is satisfied.[6] In considering the powers under subs (4) the applicant seeks that a substitute sentence of imprisonment be imposed. At the hearing I had an open discussion with counsel for the applicant, counsel for Mr Tai and the applicant (Mr Tai's probation officer) herself. As a consequence I have decided the appropriate course is to cancel the sentence of home detention and replace it with a sentence of intensive supervision for a nine month period under s 54B of the Act. This is for the following reasons.[7] First there is only one month to go on the sentence of home detention. To now impose what would be a sentence of two months' imprisonment so that he could serve one month in prison would involve a very short period of imprisonment which is unlikely to be constructive. It may also be thought to be an unjust period as it would occur over the Christmas break.[8] Secondly, once released from that very short period of imprisonment the problem that currently exists would again be apparent. In other words as a substituted sentence it would still leave the underlying problem unresolved. I accept that one of the problems at present is that Mr Tai will not be in employment over the Christmas period, and his employment is one of the things that is providing him with pro-social influence. There is accordingly a concern about his behaviour during the holiday period. But by itself that does not seem to me to warrant imprisonment for this period.[9] In the same way simply cancelling the sentence will not achieve anything positive and may not be appropriate in any event.[10] After discussing the position with counsel and the Probation Officer, a consensus emerged that the Court should substitute a sentence of intensive supervision. That sentence would seem to be the most constructive, and provide the greatest opportunity to minimise Mr Tai's risk of further offending. The applicant sought a period of 12 months, and I accept that the intensive supervision needs a reasonable period of time to operate to be effective. But I also bear in mind the need for proportionality in the sentencing exercise. It seems to me that a nine month periodis appropriate. In setting that period I bear in mind that, whilst it is not formally before me, the allegation of breach of his conditions of home detention may be able to be addressed by a conviction and discharge given the substituted sentence of intensive supervision that I am imposing.[11] I also discussed with the applicant the special conditions that would be appropriate to specify under ss 54G–54I. Having done so, and had them confirmed by counsel for the applicant following the hearing, I order that the existing sentence of home detention be cancelled, and that it be replaced by a sentence of intensive supervision for a nine month period on the standard conditions under s 54F and the following special conditions:(a) Not to possess, consume, or use any alcohol or drugs not prescribed to you.(b) To attend and complete an appropriate family violence programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.(c) To attend an assessment for alcohol and drugs as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.Cooke JSolicitors:Luke Cunningham Clere, Wellington for the Applicant