MILNE v NZ POLICE [2017] NZHC 1338

MILNE v NZ POLICE [2017] NZHC 1338 [16 June 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2017-488-000013[2017] NZHC 1338BETWEEN WHETURERE MILNEAppellantAND NZ POLICERespondentHearing: 13 June 2017Appearances: N Town for AppellantJ Wall for RespondentJudgment: 16 June 2017JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 16 June 2017 at 4.00pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:WRMK Lawyers, WhangareiMWIS Lawyers, WhangareiIntroduction[1] On 17 March 2007, the appellant, Mr Milne, was sentenced to 13 months'imprisonment, having pleaded guilty to two charges of aggravated careless driving causing injury, contrary to s 39 of the Land Transport Act 1998.1[2] At the time, Mr Milne did not have an address for home detention. He was endeavouring to obtain an address and sentencing was adjourned on four occasions to give him time to do so. He was unsuccessful. At sentencing, Judge Davis granted Mr Milne leave, under s 80I of the Sentencing Act 2002, to apply for cancellation of the sentence of imprisonment and to substitute home detention, although he did express reservations as to whether a community-based sentence was appropriate.[3] Subsequently, Mr Milne came up with a proposed address for home detention purposes. Pursuant to the leave reserved, he made an application under s 80K of the Act to cancel his sentence of imprisonment and substitute a sentence of home detention.[4] The Probations Department prepared an updated pre-sentence report, in accordance with s 80L of the Act. It stated that the proposed address was technically suitable and that the occupant was suitable, but that the police nevertheless had concerns because the address was known as a place where alcohol was frequentlyconsumed. The report also noted that Mr Milne's continued aggressive behaviour whilst in prison suggested that he was unsuitable for a community-based sentence.[5] The application for re-sentencing was heard by Judge McDonald on 10 April 2017. It was declined.2 The Judge concluded that Mr Milne should not be granted home detention to the proposed address, because the address was unsuitable and because Mr Milne was unsuitable to serve a community-based sentence. The Judge went on under s 80K(7) to consider whether he should grant further leave to Mr Milne to apply for cancellation of his sentence of imprisonment at some future time. He noted that counsel for Mr Milne had indicated that another address was going to be put forward as a suitable address for home detention. The Judge noted that Mr1 Police v Milne [2017] NZDC 4689.2 Police v Milne [2017] NZDC 7717.Milne had had four chances before he was sentenced to find a home detention address. He again expressed the view that Mr Milne was not a suitable person for a community-based sentence. The Judge considered that it was not appropriate to grant Mr Milne further leave to apply for home detention, and directed that he should serve the custodial sentence imposed.The Appeal[6] Section 80J(2) of the Sentencing Act provides that, for the purposes of Part 6 of the Criminal Procedure Act 2011, an order under s 80K(7) is a sentence.[7] It follows that this appeal falls to be determined by reference to s 250(2) of the Criminal Procedure Act 2011. The Court must allow the appeal only if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. In every other case the Court must dismiss the appeal.3Submissions[8] Notwithstanding the breadth of the notice of appeal, Ms Town, appearing for Mr Milne, accepted that Judge McDonald did not err in finding that the proposed address was not suitable for home detention purposes. She accepted that the Judge was required, pursuant to ss 80K(4) and 80A(2) of the Sentencing Act, to consider the suitability of the proposed address. What remained at issue was whether or not Judge McDonald was entitled to go on and refuse leave to Mr Milne to bring a further application. Ms Town argued that Judge McDonald erred in refusing Mr Milne leave to bring another application. She submitted that Mr Milne had already been assessed as suitable for home detention by Judge Davis and granted leave under s 80I, and that in the circumstances, Judge McDonald should have given leave for afurther application, given Mr Milne's rehabilitative needs.[9] Mr Wall, for the Crown, submitted that Judge McDonald was required by s 80K(7) to reconsider the grant of further leave, and that he was entitled to re- evaluate the matters set out in s 80I. He submitted that Judge McDonald was in the3 Sentencing Act 2002, s 250(3).same position as Judge Davis when Mr Milne was first sentenced and that all relevant matters were open for reconsiderationApplication to adduce further evidence[10] In the course of her submissions, Ms Town sought leave to adduce further evidence – namely three medical reports going to the injuries which Mr Milne suffered in the accident the subject of the charges he faced. I note as follows:(a) There was no proper application made to adduce the further evidence.(b) Some of the evidence was not fresh. One of the reports was from a specialist physician. It is dated 2 March 2017. Another is undated but it appears to post date the first report. The third appears to have been compiled over a period of some months but it seems it was finally signed off on 10 April 2017. There was no explanation offered as to why the first report was not made available to Judge Davis, and as to why the first and third reports were not made available to Judge McDonald.(c) Further, I am not persuaded that the further evidence is sufficiently cogent to the appeal, to require that it should be admitted. While the further evidence appears to be credible, I am not persuaded that it could have an impact on the conclusion reached by Judge McDonald, and I cannot see that there is a risk of a miscarriage of justice if it is excluded.4Accordingly, I decline to admit the further evidence.Analysis[11] The statutory provision in issue is s 80K(7) of the Sentencing Act. It provides as follows:4 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at [18]-[27].Application for cancellation of sentence of imprisonment and substitution of sentence of home detention7. If the court does not substitute a sentence of home detention, the court—(a) must reconsider the issue of leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention; and(b) may make a further order granting the offender leave to apply to the court at any time for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.[12] Ms Town submitted that Judge McDonald was not entitled to consider the issue afresh, and that in effect, he was bound by the conclusion reached by Judge Davis at the initial sentencing when he granted leave to apply to substitute the custodial sentence for a community-based sentence.[13] I do not accept these submissions. In my view, the subsection is clear. Judge McDonald declined the application to substitute a sentence of home detention for a sentence of imprisonment. Pursuant to s 80K(7), he was then required to reconsider the issue of leave. He had a discretion as to whether or not to make a further order granting Mr Milne leave to reapply.[14] In essence, Judge McDonald was required to re-exercise the discretion to grant leave conferred under s 80I of the Act. The decision he was required to make was a discretionary decision, and it can only be upset on appeal if the Judge failed to apply the correct legal principles, failed to take into account relevant matters, took into account irrelevant matters or came to a conclusion which was plainly wrong.[15] Judge McDonald proceeded on the correct legal principles. He took into account the views expressed by Judge Davis when the initial sentence was imposed and the further information which had become available in the updated pre- sentencing report prepared under s 80L of the Act. They were clearly relevant. Ms Town does not contend that the Judge failed to take into account any other relevant consideration, or that he took into account an irrelevant consideration. JudgeMcDonald's decision was not plainly wrong. Judge McDonald considered that MrMilne was not a suitable candidate for a community-based sentence. That was a conclusion which was open to him.[16] Mr Milne has shown no basis on which Judge McDonald's exercise of thes 80K(7) discretion can be impugned.[17] The appeal is declined.______________________________Wylie J