BEATTY v POLICE [2020] NZHC 3026

BEATTY v POLICE [2020] NZHC 3026 [16 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-407[2020] NZHC 3026UNDER The Criminal Procedure Act 2011IN THE MATTER of an appeal against sentenceBETWEEN TONY BEATTYAppellantAND NEW ZEALAND POLICERespondentHearing: 16 November 2020Appearances: A Comeskey for the AppellantB Archibald for the RespondentJudgment: 16 November 2020ORAL JUDGMENT OF GAULT JSolicitors / Counsel:Mr A Comeskey, Barrister, AucklandMs B Archibald and Ms E Kerr, Meredith Connell, Office of the Crown Solicitor, Auckland[1] Mr Beatty was convicted of indecent assault following a Judge alone trial inthe District Court on 30 April 2019.1[2] He had approached the victim – who was unknown to him – in a charity shopand pulled her into a close hug. Mr Beatty then repeatedly asked her to "come closeto [him] with [her] front" and groped the victim's breast. After he let the victim go,he told her she had beautiful hair, jangled his car keys at her and offered her a lift.[3] At the time of the offending, Mr Beatty was 63 years old.[4] On 27 August 2020 Mr Beatty was sentenced to 12 months' imprisonment.2Judge L Tremewan in the District Court declined to grant Mr Beatty leave to apply forhis sentence to be commuted to a sentence of home detention pursuant to s 80I of theSentencing Act 2002.[5] On 2 November 2020, Paul Davison J heard Mr Beatty's appeal againstsentence.3 Davison J granted leave for new evidence to be adduced on appeal. Thatevidence discussed Mr Beatty's medical conditions, including some of his cognitivedifficulties following a stroke. In addition, Mr Beatty has mental health issues whichrequire ongoing treatment. Ultimately, Davison J considered the appellant's limitedcriminal history, supportive family, medical needs (which were not canvassed in anydetail before the District Court Judge) and his compliance with bail meant that asentence of home detention was the least restrictive sentence available in thecircumstances.[6] Davison J made the following orders:[38] The appeal is allowed, and pursuant to s 80I of the Sentencing Act2002 I make an order granting the appellant leave to apply for cancellation ofthe sentence of imprisonment and substitution of a sentence of homedetention.[39] I direct the Registrar to request the Department of Corrections toprepare a report regarding the suitability of the appellant's residence in1 Police v Beatty [2019] NZDC 14146.2 Police v Beatty [2019] NZDC 17323.3 Beatty v Police [2020] NZHC 2894.Henderson for the purposes of him serving a sentence of home detention atthat address.[40] I further direct the registrar to list this appeal for a disposition hearingat 3.45 pm on 16 November 2020, by which date the Department ofCorrections suitability report regarding the appellant's address is expected tobe available and, subject to the report confirming the suitability of thosepremises, an order can be made substituting a sentence of home detention forthe sentence of imprisonment imposed by the District Court.[7] The Department of Corrections' suitability report dated 13 November 2020is now available. Mr Beatty told the report-writer he was adamant he would be ableto adhere to a sentence of home detention. His wife and son have consented toMr Beatty residing at the address and are eager to support him. The property istechnically suitable for electronic monitoring.[8] In these circumstances, counsel agree and I also consider that Mr Beatty shouldhave his sentence of imprisonment substituted by one of home detention.[9] Although I understand the usual practice when leave is granted under s 80I isfor the application to be made in the District Court,4 here Davison J has directed theRegistrar to list the appeal for a disposition hearing for this Court, subject to the furtherreport from Corrections confirming the suitability of the premises, to substitute thesentence. The parties agree that in those circumstances, it would not be in the interestsof justice to defer substituting the sentence further by requiring Mr Beatty to make anapplication in the District Court given that he has already spent nearly three months inprison. Counsel agree that in substance I should characterise the case as having beenadjourned by Davison J pending the report as to suitability of the address. I agree withthat approach, which obviates the need for the matter to be dealt with in the DistrictCourt, in the unusual circumstances of this case.5 That is consistent with the directionat paragraph [40] of Davison J's decision.4 See, for example, Barbour v Police [2020] NZHC 2707 at [28]; Law v Police [2020] NZHC 717at [37]; and Papa v Police [2019] NZHC 1309 at [11].5 Toogood J in Larkin v Ministry of Social Development [2015] NZHC 680 at [29] observed thelack of guidance in s 80I concerning when a hearing should be adjourned to allow a suitabilityreport or whether leave to apply for substitution should be granted instead. Toogood J noted thatin Police v Tiatia HC Auckland CRI-2010-404-305, 8 April 2011 at [43], adjournment or thegranting of leave under s 80I were described as alternatives.[10] Taking into account the unserved portion of the sentence of imprisonment (ninemonths), a sentence of four-and-a-half months' home detention is appropriate.Result[11] The appeal is allowed, the sentence of imprisonment is cancelled and asentence of four-and-a-half months' home detention is imposed on the conditionsstated in Corrections' 13 November 2020 report.________________________________Gault J