Hilbron v Chief Executive of the Department of Corrections

[2018] NZHC 2495

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000300 [2018] NZHC 2495

BETWEEN

DEBBIE ANNE HILBRON

Appellant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	24 September 2018
Counsel:	JIC Schlebusch on behalf of LJ Smith for Appellant SA Wilson for Respondent
Judgment:	24 September 2018

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Auckland. JIC Schlebusch, Auckland.

LJ Smith, Auckland.

HILBRON v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 2495 [24 September

2018]

[1]      Ms Debbie Hilbron must be released from prison in two days’ time—unless I allow her appeal. “Must” because on 14 September 2018, Judge KJ Glubb imposed a six-week term of imprisonment on Ms Hilbron for breaching community work.1

Ms Hilbron has been in custody since 6 September on the same charge, and under s 86 of  the  Parole Act  2002,  the  release  date  for  a  sentence  of  or  under  two  years imprisonment arises when the offender has “served half of it”.  Three weeks from

6 September is this Wednesday.   Ms Hilbron contends the sentence is manifestly excessive.

[2]      The facts are simple. On 4 November 2016, Ms Hilbron was sentenced to 150 hours’ community work. The sentence related to a charge of driving while suspended (being a third or subsequent offence). Ms Hilbron failed to report for community work from 12 July 2017.   On 10 August 2017, she was sent a “final warning letter”.

Ms Hilbron completed approximately 41 hours only of her sentence; 109 hours remain outstanding.

[3]      Ms Smith, Ms Hilbron’s counsel, urged the Judge to impose a sentence of home detention or a very short sentence of imprisonment. The Judge considered a six-week term of imprisonment necessary.  He concluded Ms Hilbron had made no real effort to comply with her sentence of community work, and was troubled Ms Hilbron may breach conditions of sentence falling short of imprisonment.

[4]      Ms Hilbron contends the Judge erred because home detention was available. And, because this was the first occasion on which she had specifically breached community work.   It is acknowledged Ms Hilbron has an extensive history of breaching Court orders.   Issue is also taken with the length of the term of imprisonment.

[5]      I am satisfied the appeal must be dismissed for three reasons.

[6]      First, it was open to the Judge to conclude a sentence less than imprisonment would be inappropriate.  As observed, Ms Hilbron has an extensive history of breaching Court orders.  She failed to appear for sentence on 3 September 2018.  A

1      Department of Corrections v Hilbron [2018] NZDC 19677, Police v Hilbron [2018] NZDC 19539.

warrant for her arrest had to be issued.  Ms Hilbron’s compliance with community work was also relevant to this mix. I have already referred to circumstances in relation to it.

[7]      Second, Ms Hilbron has a not insignificant history of offending contrary to the Misuse of Drugs Act 1975. She may also have a problem with alcohol. Doubt attaches to whether either difficulty has been addressed, in turn affecting likelihood of compliance with any sentence other than imprisonment.

[8]      Third, case law does not support the proposition Ms Hilbron’s sentence is manifestly excessive.

[9]      In Smith v Police,2 Mr Smith successfully appealed a sentence of eight weeks imprisonment in relation to one charge of breaching community work and one charge of  breaching  supervision.    However,  in  that  case  fresh  evidence  was  available.

Mr Smith would lose his job, or might have lost his job, unless the sentence of imprisonment was quashed.

[10]     More similar is Henare v Police.3   Mr Henare was sentenced to 120 hours of community work for drink driving and assault.  He breached the sentence.  He was sentenced to a further 40 hours of community work. Again, Mr Henare breached that. The Judge imposed a sentence of 28 days imprisonment.  Chisholm J concluded a “short sharp shock” was open to the Judge at first instance.4    Similar observations apply here.

[11]     The  appeal  is  dismissed.    Ms  Hilbron  will  be  released  from  prison  on

Wednesday, not today.

……………………………..

Downs J

2      Smith v Police [2014] NZHC 2896.

3      Henare v Police HC Christchurch CRI-2010-409-000193, 14 October 2010.

4 At [12].