HADDEN v POLICE [2018] NZHC 2661

HADDEN v POLICE [2018] NZHC 2661 [15 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000245[2018] NZHC 2661BETWEEN KADE JONATHAN HADDENAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2018Counsel: AJ Beach for AppellantLM Deane for RespondentJudgment: 15 October 2018ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:Crown Solicitor, Auckland.AJ Beach, Auckland.[1] Mr Kade Hadden committed two burglaries and a related offence of obtainingby deception. On 18 November 2017, and then on 27 November 2017, Mr Haddenacted as look-out while a co-defendant, Mr Archie Miller, stole over two tonnes ofcopper from commercial premises. Mr Miller is a former employee of the business.Representing the copper was his, Mr Hadden sold it for a little over $5,500, hence thecharge of obtaining by deception.[2] Mr Miller received a sentence of 10 months' home detention. Mr Hadden, asentence of 18 months' imprisonment. Mr Hadden contends his sentence is manifestlyexcessive—and home detention ought to have been imposed. Both were dealt with bydifferent Judges; Mr Hadden by Judge A C Roberts.[3] His Honour Judge Roberts omitted to explain why the sentence wasimprisonment rather than home detention. The Judge appreciated as much, for, hedictated a brief addendum providing reasons in open court, but after Mr Hadden andhis counsel had gone. Mistakes like this sometimes happen, particularly in very busylist courts. Given this, I approach matters afresh. My reasons can be brief.[4] Offending of this seriousness generally warrants imprisonment. Bothburglaries were premeditated, and for financial advantage. The same victim wastargeted. The stolen copper was worth approximately $19,000. The offending hascaused the victim additional cost. It now employs security guards around the clock.Other factors, however, favour home detention.[5] First, Mr Miller received that sentence. Mr Hadden's role was lesser.Consistency in sentencing is important. Here, I acknowledge Ms Deane's submissionMr Miller's personal circumstances were more compelling. But again, he was theprimary offender.[6] Second, Mr Hadden has spent approximately two and a half months' in prison.[7] Third, his pre-sentence report is guardedly optimistic. Mr Hadden is said tohave "displayed insight into the factors that led to his offending", includingrecognition of drug dependency. Mr Hadden is also said to have "engaged well duringthe interview and showed remorse for his actions".[8] I pause to note the report does question Mr Hadden's ability to comply withhome detention, largely because he breached a bail curfew. There is a difference ofopinion as to the circumstances in relation to this breach. The pre-sentence reportimplies Mr Hadden was not home, as reported by his mother. Mr Hadden'sexplanation is that he was asleep in a sleep-out at the back of the home. Even if themore serious explanation is correct, I do not regard this single breach as an insuperablebarrier to home detention.[9] Fourth, Mr Hadden has only a modest criminal history. He has no otherconvictions for dishonesty; his five other convictions all involve offences contrary tothe Land Transport Act 1998. Equally importantly, Mr Hadden has completedcommunity-based sentences without incident.[10] Fifth, Mr Hadden has family support, and a suitable address. He may live withhis mother.[11] In summary, although Mr Hadden's offending would ordinarily warrant a termof imprisonment, a sentence of home detention is consistent with that imposed on theprimary offender Mr Miller, and commensurate with the interests of justice.[12] A final matter. This conclusion is not dependent on the reception of freshevidence, which I decline to receive. The evidence was available at the time ofsentencing. It does not add greatly to the picture. Consequently, it also lacks cogency.[13] The appeal is allowed. A term of nine months' home detention is substituted.[14] Mr Hadden is to be released from prison to commence his new sentence. Ithas the conditions identified at page 5 of the pre-sentence report. Mr Hadden mustalso pay reparation of $500. He hopes to obtain employment...Downs J