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R V PIPER HC AK CRI 2007-004-00798 [2008] NZHC 199 (22 February 2008)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                           CRI
2007-004-00798



                                           THE QUEEN
                                            Applicant




                                                  v



                                    MARTIN JOHN PIPER
                   
                    Respondent



Hearing:           22 February 2008

Appearances: S Moala for Applicant
             P J Kaye for
Respondent

Judgment:          22 February 2008


                                  JUDGMENT OF KEANE J


              This judgment
was delivered by Justice Keane on 22 February 2008 at 5.35 pm
                            pursuant to Rule540(4) of the High Court
Rules.

                                       Registrar/ Deputy Registrar

                                                 Date:




Solicitors:

Crown Solicitor, Auckland


R V PIPER HC AK CRI 2007-004-00798 22 February 2008

[1]    Martin Piper is presently
serving a sentence of nine months home detention
on standard and special conditions for attempting to supply, on 8 January 2007,
the
class A controlled drug methamphetamine. I imposed that sentence on him on 22
November 2007. It is to cease on 21 August 2008.
His supervising probation officer
applied on 14 February 2008 for the sentence to be cancelled and a sentence of
imprisonment substituted.


[2]    Mr Piper, his supervising officer contends, has failed to comply with his
sentence in three ways. On 11 January 2008, when
he was allowed to be absent from
his home to see his probation officer, an insurer and his doctor, he went to two other
addresses
that had not been approved in advance. His purpose in visiting one of
those addresses may well have been, his supervising officer
says, to have pedalled
stolen goods. On 4 February 2008 he visited his doctor without that having been
approved and drove while his
licence was suspended. On 8 February 2008
ammunition was discovered at his home that he had no licence to possess, nor any
legitimate
purpose.


[3]    On 9 February 2008 Mr Piper was charged with three related offences, the
most significant of which was receiving
stolen goods on 11 January 2008. On that
date, as he accepts in principle, he attempted to sell or exchange `mag wheels', said
to
be valued at $5,000, at the Mag Warehouse, Panmure that had been stolen shortly
before; a fact he says of which he was then unaware.
He was also charged with
driving while suspended on 4 February 2008 and on 8 February possessing
ammunition. On 9 February he was
remanded in custody, the practical effect of
which was to bring his sentence to a halt. He denies the offences and is next to
appear
in the District Court, Manukau, on 26 March at a pre-depositions hearing.


[4]    It is agreed that the questions whether he should
continue to serve his
sentence of home detention, or a sentence of imprisonment should be substituted,
and whether he should continue
in custody or be released on bail, are inextricably
linked. It is agreed also that because the former issue can only be determined
in this
Court, whether he should have bail must also, though the charges lie in the District
Court. That is my own view.

[5]  
 As I have said to counsel, the only reason why, I imagine, Mr Piper was
declined bail in the District Court is because he is alleged
to have offended while
subject to home detention. The charges themselves are not of the most serious order.
Nor, though Mr Piper
has committed numerous offences in the past, would that
require bail to be denied. He has never, for instance, offended whilst on
bail. He is
not a flight risk and the terms of his sentence could serve as terms of bail. The issue
is whether that sentence should
continue.


Jurisdiction, process and issues


[6]    Whenever an application is made to cancel or vary a sentence of home
detention
imposed in this Court only this Court has the jurisdiction to resolve that
issue: ss 8F(6), 72(1)(a)(ii), Sentencing Act 2002.


[7]    The ground on which this present application
is advanced is that under
s 80F(1)(a), that `the offender is unable to comply, or has failed to comply, with any
detention conditions'.
The standard condition in question is that in s 80C(2)(a): `the
offender must not leave the home detention residence at any time
except in the
circumstances set out in subs (3), (4) and (5)'. Of those exceptions two in subs (3)
have some part to play:

    
  An offender may leave the home detention residence only--

       (a)      to seek urgent medical or dental treatment; or

   
   ...

       (c)      with the approval of a probation officer--

                ...

                (vi)   for any other purpose
specifically approved by the probation
                       officer.

[8]          The Court is given the ability to cancel the
sentence and impose
imprisonment by s 80F(iv)(d):

       ... the court may, if it is satisfied that the grounds on which the application
       is based have been established,--

        ...

        (d)     cancel the sentence and substitute any other sentence (including
                another sentence of home detention) that could have been imposed
                on the offender at the time that
the offender was convicted of the
                offence for which the sentence was imposed.

[9]     Section 72, which governs
procedure as well as jurisdiction, does not extend
that far. Section 80ZM, which concerns judicially monitored sentences of home
detention, does confirm that if the sentence is to be varied or cancelled there must be
a hearing for submissions at least. Section
80ZM does not apply here. No such
condition was imposed. But s 80F(4)(d) itself, at least where there is any contest as
to the facts,
or as to what the outcome should be, makes a hearing inevitable,
qualified in this way.


[10]    To cancel or vary the Court need
only be `satisfied' as to the grounds relied
on and, as the Court of Appeal said in R v White (David)  [1988] 1 NZLR 264, 286,
"The phrase `is satisfied' means simply `makes up its mind' and is indicative of a
state where the Court on the evidence comes
to a judicial decision." In affirming that
in R v Leitch  [1998] 1 NZLR 420, 428 the Court said also:

        The need to be `satisfied' calls for the exercise of judgment by the
        sentencing court.
It is inapt to import notions of the burden of proof and of a
        particular standard, e.g. beyond a reasonable doubt.

[11]
   In bringing this application, therefore, the applicant, though perhaps not
subject to any formal burden of proof, or any standard,
does carry a persuasive onus.
Relying on facts that are agreed, or susceptible of proof, the applicant must
demonstrate plausibly
that there has been a breach of the conditions of home
detention serious enough to warrant the sentence being brought to an end and
a
custodial sentence imposed.


[12]    If the evidence is such that the Court can be satisfied that the sentence of
home detention
should cease and imprisonment be imposed, s 80G(2) applies. It
says:

        When determining a substitute sentence under section
80F(4)(d), the court
        must take into account the portion of the original sentence that remains
        unserved at the time
of the order.

Evidence


[13]   In deciding this application I have relied on evidence from two sources. I
have, first, affidavits
from Mr Tahana, Mr Piper's supervising probation officer, and
from Mr Piper himself. Each gave evidence orally. I have, secondly,
without
objection, police material outlining the basis for the case against Mr Piper as to the
receiving offence principally: a list
of witnesses, a caption sheet, a synopsis of
Mr Piper's video interview, job sheets completed by three officers and two witness
statements.


11 January 2008


[14]   On 11 January Mr Piper was permitted to be absent from his home between
9 am and 4 pm for three purposes.
Mr Tahana had given him what is called an
absence approval notice, dated 9 January, identifying what those purposes were.


[15]
  Mr Piper was to travel directly first to Mr Tahana's Otara office to see him.
Then he was to travel, again directly, to the office
of an insurer in central Auckland
for an 11 am appointment. Once that was complete he was to go to his general
practitioner's surgery
in Howick for a 2.20 pm appointment. After that he was to go
directly home. On his way from central Auckland to Howick, Mr Piper
accepts, he
stopped at two places not specified in the notice. One was a motor cycle shop. The
other was the Mag Warehouse Company,
Panmure.


[16]   Neither of those visits, Mr Piper accepts, was authorised by the notice. Mr
Tahana had approved them in principle,
he says however, when they met that
morning. Mr Tahana's primary concern then was only that he keep to the schedule
set in the notice.
Mr Tahana denies saying that. He is adamant that he set out in the
notice the only places to which Mr Piper was authorised to go
on 11 January and Mr
Piper knew that unequivocally.


[17]   At the Mag Warehouse, as Mr Piper accepts, he attempted to sell or trade
seven tyres or mag wheels, said to be valued at $5,000, and that Nathan Joll, the
owner, rejected them the moment that he saw them,
recognising them to be stolen.

[18]   In Mr Piper's presence, and using a speaker phone, Mr Joll will say, he
telephoned Daniel
Foley, a former employee of his, from whose Pakuranga address
the tyres had been stolen between 31 December 2007 ­ 2 January 2008,
while Mr
Foley was absent in Australia. Mr Foley had telephoned him on 5 January asking
him to watch out for the tyres, which were
highly distinctive.


[19]   During this conversation, Mr Joll will say, he and Mr Foley referred to AM,
the man whom Mr Foley suspected
had stolen the tyres. He had inadvertently
disclosed to AM that he was going overseas. Mr Joll will say that, when AM's name
was
mentioned, Mr Piper confirmed that he knew AM but disclaimed having got the
tyres from him.


[20]   Once this telephone conversation
was complete Mr Piper, Mr Joll says, said
`I don't want them, I don't care if you keep them.' Mr Piper, as he himself agrees,
brought
the tyres into the warehouse and bought others that he asked to be delivered
to his home, because he was on home detention. These were delivered on 25
January.


[21]   While Mr Foley and Mr Joll were speaking, Mr Foley's partner telephoned
the police and Mr Piper recalls officers arriving.
He was not arrested. Mr Piper says
that, while the officers were there, he telephoned Mr Tahana. He told him that he
could not show
the officers his absence approval notice. He did not have it on him.
Mr Tahana told him to telephone back if there was any problem.
Mr Tahana cannot
recall any such conversation.


[22]   The case against Mr Piper, as it has now become, results from inquiries made
later by the police on 28 - 29 January that culminated in a search of Mr Piper's
home, on warrant, on 8 February and Mr Piper being
interviewed twice that day at
the Howick police station, first at 8.40 am, and then on video between 10 and
10.18 am.


[23]   In
the first interview there was this brief exchange:

       IS:    Martin, what can you tell me about the tyres

        HS:    Two
gang members gave them to me. They stood over AM. I took
               them to Mag Warehouse to try to get rid of them. I wanted
to trade
               them for some wheels for my ute. It wasn't for money.

[24]    In the video interview there were two further
brief exchanges:

        Q.     Your associates that you obtained the tyres from, you've told us
               they've stood over
someone else to get the tyres?

        A.     I know they weren't happy with the person they got the tyres off.

Then:

       
Q.     You mentioned you received the tyres and at that stage you didn't
               know they were stolen?

        A.     No,
no.

        Q.     The only thing you knew about the tyres was that your associates
               picked them up of (sic) someone?

        A.     Yeah which I only found out when I got there that he had actually
               stolen them.

[25]    Mr Piper's
position remains that he at no stage knew the tyres were stolen
and that, immediately Mr Joll said that they were, he gave them over.
He says that he
did not need to. That he did so is evidence of his honesty.


Driving while suspended


[26]    At 4 pm on 4 February
2008 a police officer, a patient of Mr Piper's general
practitioner, saw Mr Piper drive away from the surgery just as he arrived.
Mr Piper
had been suspended since 13 January 2008.


[27]    Mr Piper accepts that he did drive to the surgery that day and that
he knew
that he was suspended. He had, he says, undergone tests at Middlemore Hospital
shortly before, to establish whether he suffered
prostatic cancer. He was anxious to
know the result. Neither of the persons whom Mr Tahana had approved to drive Mr
Piper while his
licence was suspended were available. He drove himself.

[28]   Mr Tahana says that he was on leave on 4 February 2008. However,
he says,
if Mr Piper had telephoned his office the purpose of the visit could have been
approved at least.


Possession of ammunition


[29]   On 8 February 2008, when the police executed the search warrant at Mr
Piper's home, they discovered another tyre stolen
from Pakuranga. Founding the
third offence, they also found 24 shotgun shells and two hundred .22 bullets. Mr
Piper does not have
a firearm licence.


[30]   Mr Piper then accepted that he did not own a firearm or have a licence. He
held the ammunition, he said,
to give to others the impression that he did in order to
protect himself. First he said he had that purpose when he owned a motor
cycle shop.
Then he said he had that purpose at his home. Then he said that he had forgotten all
about the ammunition.


Conclusions


[31]   The intent of a sentence of home detention is to rehabilitate and to
reintegrate. The purposes that the sentence of imprisonment
that would be imposed
otherwise serves, to denounce and to deter, take second place. It is a sentence that
must then be strictly
complied with. Otherwise it will not begin to serve its purpose.
Any breach must be viewed seriously.


[32]   I imposed home detention on Mr Piper hesitantly. His offence, an attempted
sale, was frankly commercial. There were signs it was not isolated. Fortuitously for
him, it was interrupted. He was charged with
an attempt. There had also been
pressures in his life in the 12 months before that I considered deserved to be
recognised. I imposed
special conditions that he attend a drug and alcohol program
and related counselling.

[33]   In sentencing Mr Piper I told him
that I found the issue whether to sentence
him to imprisonment, I had in mind a sentence of 18 months imprisonment, or home
detention,
was difficult, that I sentenced him to home detention with hesitation, and
that this was an opportunity he should not squander.


[34]   On 11 January 2008, I am satisfied, Mr Piper did not abide by the terms of
his sentence. He knew, I am satisfied, despite
what he says, that he was entitled to go
to three places and not more, yet knowing that he went to two more. That in itself is
of
concern.


[35]   Of equal concern is that one of the two places to which he went was for the
purpose of selling tyres recently stolen.
He denies that he knew that. But he admits to
knowing that the tyres had not come to him legitimately. They had come from gang
members
whom he understood to have stood over AM, whom Mr Foley suspected
had stolen them. Whether that suffices to found the receiving offence,
it is not for me
to say. Mr Piper attempted to sell the tyres knowing he had no right to do so.


[36]   There is also wider cause
for concern. He unquestionably possessed the
ammunition at his home without any legitimate cause, as he himself must have
known.
On 4 February 2008, as well as driving to the doctor's surgery, knowing that
his licence was suspended, he did so without approval.
The appointment was at 4
pm. He could easily have obtained approval before he left. It was not an emergency.


[37]   I conclude
that, principally on 11 January, but also in these other ways, Mr
Piper has not complied with the conditions of his sentence. I am
also satisfied that
the purposes why I imposed that sentence are unlikely ever to be achieved. Mr Piper
does not appear to appreciate
the opportunity the sentence offers him, or the need to
abide scrupulously with its terms. Also troubling is that, to justify what
he has done,
he has attributed to his supervising officer a part the officer completely denies. That
too suggests the sentence has
become unworkable.


[38]   I see no alternative but to cancel Mr Piper's sentence of home detention and
to impose on him a term
of imprisonment. Taking into account s 80G(2), Mr Piper
has six months of his sentence of home detention to serve. The term of imprisonment

to be imposed to ensure that Mr Piper spends at least that time in custody, both
counsel submit, is properly 12 months. With that
I agree. He must now be brought
before the Court to be resentenced.



                                                        _____________
                                                        P.J. Keane J