Payne v Police

[2013] NZHC 1157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0071 [2013] NZHC 1157

BETWEEN	KARINA MARIE PAYNE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 May 2013
Appearances:	E J Burton and R J Stevens for Appellant M K Regan for Respondent
Judgment:	21 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 May 2013 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Meredith Connell, Crown Solicitor, Auckland:  [e-mail]

Copy for:

Public Defence Service, Auckland Office:  [e-mail] / [e-mail]

PAYNE v POLICE [2013] NZHC 1157 [21 May 2013]

Introduction

[1]      The Appellant appeals against a sentence imposed by Judge G A Fraser in the

District Court at Auckland on 21 February 2013.1   The Judge imposed a sentence of

11 months’ imprisonment and declined leave to apply for home detention.

[2]      The charges on which the Appellant was for sentence and the sentences that the Judge imposed are as follows:2

(a)       possession   of   methamphetamine  (two    grams)   –   four   months’

imprisonment;

(b)      possession of cannabis (25 grams) – one month’s imprisonment;

(c)       possession  of  a  restricted  weapon,  namely  pepper  spray  –  four

months’ imprisonment;

(d)      possession of an offensive weapon – three months’ imprisonment;

(e)       failure to  report of  probation officer when  subject to  sentence of community work – two months’ imprisonment;

(f)       breach of bail – two months’ imprisonment;

(g)      breach   of   conditions   of   intensive   supervision   –   two   months’

imprisonment; and

(h)      theft less than $500 – one month’s imprisonment.

[3]      The sentences referred to  in  [2](a),  [2](c),  [2](e)  and  [2](h)  above were cumulative, and all others concurrent.

[4]      The end sentence of 11 months represented:

1 Police v Payne DC Auckland CRI-2012-004-13829, 21 February 2013.

2 Ibid, at [23] to [30].

(a)      a starting point of eight months’ imprisonment which comprised two months in respect of the charges referred to in [2](a) and [2](b) above; three months in respect of the charges referred to in [2](c) and [2](d); two months in respect of the charges referred to [2](e), [2](f) and [2](g); and one month in respect of the charge referred to in [2](h) above; and

(b)an uplift of 50 per cent (four months’ imprisonment) on account of the Appellant’s prior   convictions,   and   a   reduction   of   one   month’s imprisonment (being a little less than 10 per cent) on account of the Appellant’s guilty pleas.

[5]      On appeal, the Appellant contends:

(a)       that the sentence imposed was manifestly excessive; and

(b)      that the Judge erred in declining leave to apply for home detention.

Discussion

[6]      I am not persuaded that the starting point of eight months’ imprisonment was manifestly excessive.  The offences were committed on six different dates and were different in kind.   That said, I accept the Appellant’s submission that an uplift of

50 per cent on  account of her prior convictions and the discount given for the Appellant’s guilty pleas resulted in an end sentence that was manifestly excessive.  I consider that an uplift of no more than two months’ imprisonment was required and that a discount of up to 20 per cent discount was appropriate as the pleas were entered at a relatively early stage.   That would mean an end sentence of eight months’ imprisonment.

[7]      I am not persuaded that the Judge erred in refusing the Appellant leave to apply  for  home  detention.    To  date,  the  Court  has  imposed  on  the  Appellant sentences  of  community  work,  intensive  supervision  and  imprisonment.    It  is apparent from the Appellant’s criminal history that on many occasions she has failed to  comply with  conditions to  which  she  has  been  subject during non-custodial

sentences and that she has failed to comply with conditions imposed on her release. The list of matters on which the Appellant was for sentence includes such breaches. In those circumstances, I am not persuaded that the Judge erred in refusing the Appellant leave to apply for home detention.

[8]      There was, however, a significant change in the Appellant’s circumstances shortly after  sentencing, as  on  3  March  2013  her  16  year  old  daughter was  a passenger in a vehicle involved in serious car accident.  The Appellant was granted bail on compassionate grounds shortly thereafter and has remained on bail since. The daughter’s recovery is ongoing.

[9]      A memorandum from Community Probation Services dated 16 May 2013 advises that:

(a)      CYFS supports the Appellant in any application she makes to remain in the community as the Appellant is the person best placed to care for the daughter and another child; and

(b)a suitable address at which the Appellant might serve a sentence of home detention will be available as of 31 May 2013, such address being in Te Atatu, Auckland (“home detention address”).

[10]     In these circumstances, the Crown does not oppose the substitution of a sentence of home detention.

Result

[11]     Taking into account all of the matters referred to above, I would have set aside the sentence imposed by the Judge and in its place I would have imposed a sentence  of  five  months’ home  detention.    However,  counsel  for  the Appellant advises that the Appellant was remanded in custody for two weeks at some time prior to sentence and that she served a further two weeks after sentencing, before being released on bail.  Taking that time already served into account, I set aside the sentence that the Judge imposed and substitute a sentence of four months’ home detention.  Bail is to continue until 31 May 2013 or whenever the home detention

address  becomes  available,  whichever  is  the  earlier  in  time.     The  sentence  of four months’ home detention is to commence on that date.

[12]     The sentence of home detention is to be served at the home detention address. [13]   The following additional special conditions are imposed:

(a)       travel directly to the home detention address on 31 May 2013 for the connection of the electronic monitoring equipment;

(b)      reside at the home detention address for the duration of the sentence;

(c)       comply with the requirements of an electronically monitored sentence as directed by a probation officer;

(d)attend  and  complete  any  assessment,  programme,  treatment  or counselling as directed by a probation officer; and

(e)       abstain from the possession and consumption of alcohol and illicit drugs for the duration of the sentence.

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M Peters J