HADLEY v DEPARTMENT OF CORRECTIONS [2018] NZHC 2646

HADLEY v DEPARTMENT OF CORRECTIONS [2018] NZHC 2646 [11 October 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000024[2018] NZHC 2646BETWEEN SLANE JET HADLEYAppellantAND DEPARTMENT OF CORRECTIONSRespondentCRI-2018-412-000025BETWEEN SLANE JET HADLEYAppellantAND NEW ZEALAND POLICERespondentCRI-2018-412-000026BETWEEN SLANE JET HADLEYAppellantAND DEPARTMENT OF CORRECTIONSDefendantHearing: 11 October 2018Appearances: J A Westgate for AppellantR D Smith for RespondentJudgment: 11 October 2018ORAL JUDGMENT OF GENDALL JIntroduction[1] On 17 August 2018 Judge Connell in the District Court sentenced the appellantto a total of seven months' imprisonment for breaching his release conditions,breaching his community work and theft. The appellant argues that this sentence wasmanifestly excessive.Facts[2] Turning to the facts in this matter, on 27 June 2017 the appellant was sentencedto one year's imprisonment for various offending, including two counts of burglary,three counts of dangerous driving and one count of drink driving. Later, the appellantwas released from prison on certain release conditions. He also remained subject to adisqualification from driving. Nevertheless, he drove and after being apprehendedwas sentenced to 50 hours' community work. He then breached his release conditionsand his community work requirement.[3] In April 2018, Judge Phillips in the District Court sentenced the appellant tothree months' imprisonment for those two offences. This sentence was based on a sixmonths starting point, adjusted for guilty pleas and totality. The Judge refused tocancel the sentence of community work. This further imprisonment sentence began.Then, after being released from prison and still subject to his original releaseconditions, the appellant again breached release conditions and his sentence ofcommunity work. This gave rise to his current charges.[4] The appellant was also charged with one count of theft. This related to an eventwhich occurred on Thursday, 24 May 2018, when the appellant took alcohol valued at$30.99 without paying. He took the alcohol home and consumed it. The appellantpleaded guilty in the District Court to all three charges.District Court decision[5] Turning now to the District Court decision under appeal, in the District CourtJudge Connell considered that as this was the second occasion on which the appellanthad breached the same release conditions, his sentence must be an increase on the first.He took a starting point of eight months and subtracted two months for the early guiltyplea. The Judge sentenced the appellant to a concurrent sentence of three months forbreaching his community work. He also granted Probation's application to cancel thatsentence. The appellant had not done any of that sentence. The Judge then took astarting point of six weeks for the theft charge. After a reduction for his guilty plea onthis theft charge, the Judge imposed a one month sentence of imprisonment. This wasto be served cumulatively on the sentences for the other offending. As I understand it,he may also have ordered reparation.Principles on appeal[6] Turning now to the principles on appeal, appeals against sentence are allowedas of right by s 244 of the Criminal Procedure Act and must be determined inaccordance with s 250 of that Act. An appeal against sentence may only be allowedby this Court if it is satisfied there has been an error in the imposition of the sentenceand that a different sentence should be imposed.1 It is only appropriate for this Courtto intervene and substitute its owns views if the sentence being appealed is manifestlyexcessive and not justified by the relevant sentencing principles.2SubmissionsAppellant's submissions[7] Turning now to the appellant's submissions on this appeal, Mr Westgate for theappellant contends that the overall sentence here of seven months' imprisonment wasmanifestly excessive. He argues that it should have been no more than five months.He submits that the eight months starting point for breaching the appellant's releaseconditions was too high and argues that a starting point of six months was sufficientand would have been double what the appellant had received previously.Respondent's submissions[8] Turning now to the respondent's submissions, Mr Smith for the respondentcontends that the starting point adopted of eight months' imprisonment, although stern,1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].was available to Judge Connell in the context of the appellant's sustained and ongoingbreaches of his release conditions and community work. In setting the starting point,the Judge also took into account the appellant's history of non-compliance.[9] Mr Smith notes, too, that the appellant has been found to be at a high risk offurther offending. In a decision of this Court, Johnson v Department of Corrections3the appellant challenged a sentence a sentence of six months' imprisonment withrespect to two charges of breaking release conditions. In that case Allan J stated thatparole conditions breached by high risk offenders would generally require a firmresponse from the Court.[10] Before me, Mr Smith argued, too, that the appellant has also had the benefithere of a sentence of community work imposed on a charge of driving whiledisqualified being cancelled without a cumulative sentence of imprisonment beingsubstituted.[11] Mr Smith also referred me to the decision of the Court of Appeal in Morgan vR4 where it was made clear that there is no mathematical formula as to how a sentenceof community work might be converted to imprisonment. But in that case the Courtsubstituted three months' imprisonment in place of a sentence of 150 hours'community work. Mr Smith contends, therefore, based upon this decision in Morganthat a cumulative sentence of one month was available in the present case.[12] In conclusion, Mr Smith maintains that, while at the stern end, the starting pointof eight months imprisonment was available here because it effectively took intoaccount a breach of two different types of sentence, the appellant's earlier history ofbreaches and the cancellation of the sentence of community work. Accordingly, hemaintains the sentence was not manifestly excessive.[13] Turning to my analysis in this matter, in a 2010 decision in this Court, McLeanv Police5 the sentencing judge had taken a starting point of 12 months' imprisonmentfor two breaches of release conditions, being Mr McLean's fourth and fifth offences3 Johnson v Department of Corrections HC Hamilton, 13 April 2010, at [23].4 Morgan v R [2008] NZCA 232.5 McLean v Police HC Invercargill, 1 October 2007.of that type. In those circumstances, John Hansen J found that, while very stern andat the top of the range available for the particular circumstances of this offence,12 months' imprisonment was not so stern as to be manifestly excessive.[14] I consider when looking at all the circumstances of the present case and whenconsidering the totality of the appellant's offending here, excluding the theft, a startingpoint of eight months, although stern, is within the available range. A sentence of onemonth could have been imposed in place of the community work and a seven monthsentence, in my view, is not excessive to reflect repeated breaches of both releaseconditions and community work.[15] The one month cumulative sentence for theft was available. As I understandit, this is not disputed by the appellant.[16] For all these reasons, I reach the conclusion that the overall sentence imposedwas not manifestly excessive when looking at the totality of the appellant's offendinghere. This appeal is dismissed....................................................Gendall JSolicitors:John Westgate, Barrister, DunedinR P Bates, Crown Solicitor, Dunedin