HAMBLIN v NEW ZEALAND POLICE [2022] NZHC 3055

HAMBLIN v NEW ZEALAND POLICE [2022] NZHC 3055 [22 November 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-53[2022] NZHC 3055BETWEEN NATHAN ALLAN HAMBLINAppellantAND NEW ZEALAND POLICERespondentHearing: 17 November 2022Appearances: A R Laurenson for the AppellantH Bullock for the RespondentJudgment: 22 November 2022JUDGMENT OF PALMER JSolicitorsC & M Legal, New PlymouthWhat happened?[1] On 4 April 2020, Mr Nathan Hamblin, aged 35, was speeding and driving a cardangerously a car near Inglewood and Waitara. On 5 June 2020, he crashed his car inEgmont Village. In October and November 2020, Mr Hamblin suppliedmethamphetamine to others. On 18 February 2021, the Police executed a searchwarrant of Mr Hamblin's home address and found three grams of methamphetamine,a large number of clear ziplock bags, scales and $350 in cash.[2] Mr Hamblin faced four charges of supplying methamphetamine, one ofpossession of methamphetamine for supply and one of supplying cannabis. He alsofaced several driving charges: failing to stop for red and blue flashing lights; dangerousdriving; reckless driving; speeding and careless driving. The methamphetamineoffences are all punishable by up to life imprisonment and the cannabis offence by upto eight years' imprisonment. The driving offences carry lesser penalties, the mostserious of which are up to three months' imprisonment or a $10,000 fine.[3] Mr Hamblin had previously been sentenced to 10 and a half months' homedetention for supplying methamphetamine. He also has 49 previous convictions,including 11 for driving related offending, two for dishonesty offending, two for lesserdrug offending and many for breaching court sentences.Sentencing indication and reports[4] On 10 May 2021, in the District Court at New Plymouth, Judge A S Greig gaveMr Hamblin a sentencing indication of about three and a half years' imprisonmentbefore personal mitigating factors, which he said would probably bring it down tobetween two years' and three years' imprisonment but not less than that. Mr Hamblinaccepted the indication and pleaded guilty.[5] Sentencing was deferred on several occasions to allow Mr Hamblin tocomplete a Salvation Army drug rehabilitation programme for a third time and toobtain a report on his personal background. On 18 February 2022, Mr Hamblin againappeared before Judge Greig having been discharged from the Salvation Armyrehabilitation programme because it considered he needed tighter boundaries andrecommended a stricter programme such as Higher Ground.1 The personalbackground report was not ready by then and the Judge told Mr Hamblin to return on8 March 2022, which was subsequently administratively adjourned to 17 March 2022.2On 17 March 2022, Judge Greig again adjourned the proceedings to enableMr Hamblin to attempt a rehabilitation programme administered by Gracegate.3 Thatday the Judge said:[3] Once you have completed Gracegate, I do not think I am going to sentenceyou. You have told me that Gracegate prepares the way for Higher Ground,the programme at Higher Ground. So, I will wait to see the outcome of thatbecause it is only completing full and proper rehab that will stop you going tojail.[4] If you complete full and proper rehab, I will not send you to jail, and I amtaking this firm line because you have already had home detention for thistype of offending.[6] The Judge adjourned sentencing to 20 June 2022, and asked counsel forMr Hamblin to inform the court when Mr Hamblin had moved on to Higher Ground.On 20 June 2022, Judge Greig pushed sentencing back further as Mr Hamblin had justbegun at Higher Ground and was not due to graduate before 3 October 2022. TheJudge imposed a bail condition requiring that, if he left Higher Ground before thatdate, Mr Hamblin must return to his former electronically monitored (EM) bailaddress, reside at there on a 24-hour curfew, and advise the Police of his presence athis home within 24 hours of arriving there.[7] Corrections has provided several reports in these proceedings:(a) In August 2021, Corrections' advice identified that Mr Hamblinshowed little remorse around his drug offending, explained his actionsas "funding my own habit" and stated that his son made him want tostop. It assessed him as at high risk of reoffending and at medium riskto the community. His partner was also on home detention. Correctionsrecommended a sentence of imprisonment.1 Police v Hamblin DC New Plymouth CRI-2021-043-251, 18 February 2022.2 At [7].3 Police v Hamblin DC New Plymouth CRI-2021-043-251, 17 March 2022.(b) In October 2021, Corrections reported that Mr Hamblin had been stooddown from the Salvation Army Bridge programme due toconfrontational behaviour. He was still assessed as at high risk ofreoffending. No issues were recorded with his compliance with EMbail conditions. It suggested home detention may not be a deterrent forfuture offending and continued to recommend imprisonment.(c) Corrections' advice in September 2022 was that it was not clear why hewas discharged from Higher Ground but Mr Hamblin told them he wasfocussed on his rehabilitation, his drug use was no longer an issue andhe had an offer of part-time work. Corrections considered that theClean n Soberside address at which he was staying was not suitable forelectronic monitoring due to other occupants being on EM sentencesalready. Accordingly, Corrections considered he had no address thatwas suitable for electronic monitoring. It recommended a sentence ofsupervision and community work.[8] In a letter dated 13 September 2022, the Community counsellor at HigherGround noted that, on 24 August 2022, Mr Hamblin had been discharged from theprogramme into supported living accommodation in the community after undergoing14 weeks of an 18-week programme of intensive residential treatment with them.Other letters from the program manager around that time suggested that Mr Hamblinhad been doing well in his rehabilitation.[9] Mr Chester Borrows also prepared a detailed and informative report aboutMr Hamblin's personal background and circumstances under s 27 of the Act.Mr Hamblin was brought up as a Jehovah's Witness, with restrictions on celebrations,and some classes, school trips and camps. Mr Borrows describes Mr Hamblin runningaway from home as a teenager after an argument with his parents following him beingcaught with cigarettes. He was expelled from school for smoking and drinking andsacked from work as a 15-year-old for stealing money. He drifted into amethamphetamine habit which he funded by stealing. He could not hold down a joband started dealing drugs with a friend. Mr Borrows says Mr Hamblin "is an obviousaddict, and this is the prime reason he offends". He suggests further community-basedrehabilitation is the only hope of an end to his addition and a stop to further offending.District Court sentence[10] On 5 October 2022, Judge Greig sentenced Mr Hamblin.4 He consideredMr Hamblin's various rehabilitative attempts, including previously completing theSalvation Army course, for which he was given a 15 per cent discount in a drugsentencing in 2018. He noted that Clean N Soberside, where Mr Hamblin wasresiding, would provide him with accommodation on home detention though withoutbeing able to particularly fully in their weekly schedule. But the Judge said:5The trouble is the pre-sentence report of 23 September that I have just quotedfrom says that your present address which is at Clean N Soberside is notsuitable for an EM sentence because of the existing occupants who are also onit. But I have got to say, Mr Hamblin, I think that you are just wriggling andsquirming and trying every reason to pretend you are genuine about rehab.You are trying to shortcut it, you are trying to take an easy way out, and youare just trying to pull the wool over my eyes.[11] It is not clear whether the Judge considered Mr Borrows' s 27 report. TheJudge adopted a starting point of two and a half years' imprisonment, gave him creditfor his guilty plea and time spent on EM bail, resulting in a sentence of 18 months'imprisonment.6 Mr Hamblin was also disqualified from driving for 12 months andordered to pay reparation of $500. The Judge understood there was no availableaddress for a sentence of home detention. And the Judge did not give Mr Hamblinleave to apply for home detention if an address became available, saying:7I am not going to give you leave to apply for home detention because you hadit before for exactly this and, as I say, I do not think in the end you have beengenuine about real rehab. You have got a lot of breaches of sentence. You havenot complied with the bail conditions that I imposed. I have no confidence thatyou comply with home detention even if you had an address which, at themoment, you do not.[12] Mr Hamblin appeals the decision not to convert the end sentence to homedetention.4 Police v Hamblin [2022] NZDC 19687.5 At [23].6 At [24].7 At [25].Submissions[13] Mr Laurenson, for Mr Hamblin, submits the Judge erred in declining to convertthe sentence to home detention. The Judge failed to take into account the principlesin s 80A of the Sentencing Act 2002 and did not give enough weight to therecommendation of home detention in the pre-sentence report. He submits the Judgenoted that the address Mr Hamblin was at was not suitable for an EM sentence, but asubsequent letter confirms it was.[14] Ms Bullock, for the Crown, submits the Judge's decision was correct, in lightof Mr Hamblin previously being sentenced to home detention for similar offending,his concerns about whether Mr Hamblin's engagement with rehabilitation was genuineand his multiple previous breaches of sentences. She submits the Judge wasbest-placed to assess whether home detention or imprisonment was appropriate,irrespective of whether there was an available address. Further, the letter confirmingthe address was suitable came from the programme manager. The Corrections' pre-sentence report writer who found it was unsuitable was better placed to make thatassessment.Should a different sentence be imposed?[15] Under s 250 of the Criminal Procedure Act 2011, the Court must allow theappeal if satisfied there is a material error in the sentence and a different sentenceshould be imposed. The focus is on whether the end sentence is within the availablerange.8 The Court will only intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive".9[16] Section 7(1)(a)–(h) of the Act identify the purposes for which a Court maysentence an offender:(a) to hold them accountable for harm done to the victim and community;8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].(b) to promote a sense of responsibility for and acknowledgement of thatharm;(c) to provide for the interests of the victim;(d) to provide reparation for the harm done;(e) to denounce the conduct;(f) to deter the offenders or others from committing similar offences;(g) to protect the community from the offender; and(h) to assist in the offender's rehabilitation and reintegration.[17] Section 8 sets out the principles of sentencing which include, at paragraph (g),imposing "the least restrictive outcome that is appropriate in the circumstances".Section 16 of the Act provides:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment forany particular offence, the court must have regard to the desirabilityof keeping offenders in the community as far as that is practicable andconsonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it issatisfied that,—(a) a sentence is being imposed for all or any of the purposesin section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application ofthe principles in section 8 to the particular case[18] Section 80I of the Act applies if a court sentences an offender to a short termof imprisonment of 24 months or less and would have sentenced the offender to homedetention if a suitable resident had been available. If it applies, the Court is requiredto grant leave to the offender to apply to the court of first instance to substitute thesentence of imprisonment for a sentence of home detention if the offender finds asuitable residence at a later date. If leave is granted, the first instance court is requiredto consider, but not necessarily to grant, home detention.10[19] I consider it was open to the Judge to consider that no address was availablethat was suitable for home detention. That was Corrections' advice. But there wasevidence suggesting that Mr Hamblin's efforts to engage with rehabilitation werepersistent, genuine and showed promise. Unlike his previous attempts atrehabilitation, Mr Hamblin's experience at Higher Ground appears to have been morepositive. The path of recovery from addiction can be long and involve many setbacks.But, as Mr Borrows suggests, rehabilitation is the only real way to preventMr Hamblin's future offending. It is not clear whether the Judge read the s 27 reportthat endorsed a community sentence and rehabilitation as the solution to Mr Hamblin'soffending. I do not consider the Judge gave sufficient weight to the evidence beforehim that indicated Mr Hamblin had made progress with, and recommended, hisrehabilitation. I cannot tell what prompted the Judge's indication that he consideredMr Hamblin was not genuine in his efforts since no reason was given for that view.Accordingly, I consider the Judge erred in declining to grant Mr Hamblin leave toapply for a sentence of home detention if a suitable address became available.Result[20] Under s 80J of the Act, I allow the appeal in respect of the Judge's decision todecline Mr Hamblin leave to apply to convert the sentence to home detention. I grantMr Hamblin leave to apply to substitute his sentence of imprisonment for one of homedetention under s 80K(1) of the Act, if a suitable address becomes available. If thatoccurs, under s 80K(4), the District Court will need to consider afresh whether it issatisfied that home detention is appropriate under s 80A. Otherwise, I decline thesubstantive appeal to convert the sentence to home detention.Palmer J10 Papa v New Zealand Police [2019] NZHC 1309.