IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000435 [2015] NZHC 1288

MINISTRY OF SOCIAL DEVELOPMENT

v

AARON CHARLES ALBERT

Hearing:	2 June 2015	

Appearances:	
Rina See for the Appellant
Rachael Reed for the Respondent	

Judgment:	
9 June 2015	

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 9 June 2015 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

MINISTRY OF SOCIAL DEVELOPMENT v ALBERT [2015] NZHC 1288 [9 June 2015]

Introduction

[1]       Over a period of 16 months between 2012 and 2013 Mr Albert received sickness benefits using three different stolen identities in addition to his own.  As a result  the  Ministry  of  Social  Development  (“MSD”)  overpaid  him  more  than
$72,000.

[2]       After pleading guilty he was convicted and sentenced to community-based sentences and ordered to make reparation.

[3]       MSD appeals that sentence because, it says, the end sentence was manifestly inadequate.

Factual background

[4]       Mr Albert was a sickness beneficiary and later received a domestic purposes benefit for caring for his sick and infirm mother.

[5]       It  was  discovered  he  was  also  receiving  sickness  benefits  under  three different identities in addition to his own.  These identities were stolen from friends and family living in Australia.  The overpayment in relation to the stolen identities totalled more than $72,000.

[6]       Then, it was discovered that Mr Albert had stopped caring for his mother in late 2012 but had not declared this change of circumstance to MSD as he was required to.  As a result, MSD had overpaid his domestic purposes benefit by more than $7,000.

[7]       Thus the total amount overpaid by MSD to Mr Albert was $80,094.50.  As a result, he was charged with five charges of dishonestly using a document1  and four charges of obtaining by deception.2   Both crimes carry a maximum penalty of seven
years’ imprisonment.

1	Crimes Act 1961, s 228(b).
2	Crimes Act 1961, s 240.

District Court decision

[8]       Mr Albert pleaded guilty to all charges.   He was convicted by the District Court Judge who sentenced him to six months’ community detention, 12 months’ intensive  supervision,  250  hours  of  community  work  and  ordered  reparation  of
$75,000 payable at $200 per week (which Mr Albert had been making for four months by the time he was sentenced).

[9]       In sentencing Mr Albert, the Judge described the offending as premeditated, calculated and a breach of trust.   He adopted a starting point of 28 months’ imprisonment with an uplift of four months for Mr Albert’s previous convictions. From that starting point of 32 months’ imprisonment, his Honour gave a discount in recognition that some reparation had been paid and gave credit for a guilty plea. This  reduced  the  starting  point  to  22  months’ imprisonment  thus  leaving  home detention as an available sentencing option.

[10]     His  Honour  noted  that  he  had  intended  to  impose  home  detention  but Ms Reed, for Mr Albert, had persuaded him to impose a sentence of community detention which his Honour said he decided to adopt only because it meant that Mr Albert could make reparation at a larger amount.

[11]     The  Judge  imposed  the  maximum  sentence  available  for  community detention which is six months.  He ordered reparation of $75,000 payable at $200 a week.   He ordered intensive supervision for 12 months and, in particular, ordered Mr Albert  to  undertake  a  gambling  rehabilitation  programme  and  any  other assessment for treatment and counselling as directed.  In express recognition of the fact the offending was against the community the Judge also sentenced Mr Albert to
250 hours of community service.

Grounds of appeal

[12]     MSD argues the Judge erred in imposing an end sentence of a combination of community-based sentences and that either a sentence of imprisonment or home detention should have been imposed.

[13]     In particular, MSD submits that the end sentence was manifestly inadequate having regard to:

(a)       the   purposes   and   principles   of   accountability,   responsibility, deterrence and denunciation under ss 7 and 8 of the Sentencing Act
2002 (“the Act”);

(b)       the seriousness and gravity of the offending which was reflected in the level of premeditation involved in the use of multiple false identities and the quantum of the fraud being in excess of $80,000;

(c)       Mr Albert’s significant history of fraud and dishonesty offending for which he had previously been sentenced to one year and eight months’ imprisonment  in June 2010,  less  than two  years  before the index offending;

(d)     comparable sentencing authorities which indicate that appropriate sentencing  outcomes  are  restricted  to  home  detention  or imprisonment; and

(e)	the stated end sentence of 22 months’ imprisonment.

[14]     MSD further submits  that  the end  sentence was  manifestly inappropriate having regard to Mr Albert’s significant history of non-compliance, including convictions for breach of community detention and community work.

Approach on appeal

[15]     Section 250 of the Criminal Procedure Act 2011 (“the CPA”), provides that the Court must allow the appeal if it is satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)	a different sentence should be imposed.

[16]     In any other case, the Court must dismiss the appeal.3 This section confirms the previous approach taken by the Courts under the Summary Proceedings Act 1957 and as set out in Yorston v Police where the Court said:4

(a)       there must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”;

(b)       to establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court;

(c)       it is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[18]     Where the appeal is brought by the prosecutor, the Court must also have regard to the principles set out in R v Donaldson namely that:5

(a)       considerations which justify an increase in sentence must be more compelling than those which might justify a reduction;

(b)       even   if   the   Court   determines   that   the   sentence   is   manifestly inadequate or based upon a wrong principle, it will still be reluctant to
interfere if this would cause injustice to the offender; and

3	Criminal Procedure Act 2011, s 250(3).
4	Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].
5	R v Donaldson (1997) 14 CRNZ 537 (CA) at 548-550.

(c)       in particular, the court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with.

[19]	In that context the Court discussed the principles engaged in a prosecution appeal in the following terms:6

“These principles reflect the Court's appreciation of the harsh effect of substituting a non-custodial sentence for a prison sentence. In many circumstances  there  can  be  an  element  of  inhumanity  in  doing  so. An offender  must  initially  look  at  his  or  her  pending  sentencing  with considerable  trepidation  and,  in  many  cases,  intense  hope  that  a  non- custodial sentence will be imposed, especially when that prospect is encouraged by their counsel. If in real jeopardy they will almost certainly be overwhelmed with relief if they in fact receive a non-custodial sentence. Although they will in all probability be advised of the right of appeal statutorily vested in the Solicitor-General and be apprehensive, they must necessarily  feel  elated  that  the  primary  sentencing  process  has  been completed and imprisonment has been avoided. Hope may convert itself into confidence that the Judge's sentence will be upheld. In the meantime they have been at liberty. They have rejoined their family or friends and returned to their work and daily routine. They may have undertaken treatment or therapy where that has been recommended or stipulated as a condition, and such treatment may well be proving successful. With an appreciation of these considerations any decision to reverse a non- custodial sentence and replace it with a term of imprisonment is not lightly undertaken. The Court, indeed, is most reluctant to do so.”

[20]	The Court then went on to remark:7

“… At times, certainly, any deficiency or discrepancy in the sentence under appeal may be met by the Court indicating what the appropriate term of imprisonment would have been but nevertheless declining to reverse a non- custodial sentence. We would consider such a course appropriate where the minimum custodial term which would otherwise be substituted would be 2 years' imprisonment or less…”

[21]	There is no indication that these principles have been displaced by the advent of the CPA.  I regard them as applying to the present appeal.

Appellant’s submissions

[22]     Ms See, for MSD, accepts that the Judge adopted the correct starting point and that the discounts in recognition of reparation and the guilty plea were appropriate.  She thus accepts the adjusted sentence of 22 months’ imprisonment was within the Judge’s sentencing discretion.

[23]     What Ms See says is that the Judge was wrong to then “drop” two bands in the hierarchy of sentences and impose a community-based sentence even if the purpose in doing so was to facilitate Mr Albert’s ability to make reparation.

[24]     Ms  See  submits  that  the  only  appropriate  end  sentence  was  one  of imprisonment.  In the alternative, she submits that a sentence of home detention, at the least, was required in all the circumstances.

[25]     She accepts that on the authority of Donaldson there is a presumption against imposing a sentence of imprisonment in place of a community-based sentence on a prosecutor’s appeal.   However, she submits that no other sentence is appropriate having regard to Mr Albert’s previous criminal  history.   Because Mr Albert has served only one month of his existing sentence any resulting injustice would be low.

Respondent’s submissions

[26]     Ms Reed, for Mr Albert, submits the sentence was appropriate in all the circumstances.  She submits that the starting point and the Judge’s approach to the aggravating and mitigating factors relevant to Mr Albert are consistent with other similar and comparable cases.

[27]     In particular, Ms Reed relies on Marr v Ministry of Social Development8 where Ms Marr successfully appealed her sentence of seven months’ home detention and 100 hours’ community work imposed in relation to two charges of deception and seven charges of dishonestly using a document.  Ms Marr appealed the sentence on the grounds the Judge did not consider her personal circumstances including the
possibility she would lose her job and be unable to support her infant children if

8	Marr v Ministry of Social Development [2013] NZHC 1846.

sentenced to home detention.  Collins J allowed the appeal and substituted a sentence of home detention with a combination of community-based sentences including six months’ home detention, 400 hours’ community work and reparation at the rate of
$100 per month.  Collins J concluded this sentence combination would adequately fulfil the objects of the Act.

[28]     Ms   Reed   places   emphasis   on   the   sentencing   Judge’s   reference   to accountability and the recognition he gave to the fact that the offending was against the community and as such that the punishment and accountability should reflect the duty owed to the community.  In this context, Ms Reed relies on the prominence the Judge placed on the principle of reparation and the imperative to impose a sentence which would permit reparation.  Ms Reed submits that in doing so, the Judge made no error and that the purposes and principles of the Act are properly reflected in the final sentence reached.

[29]     On the question of the imposition of a community-based sentence, Ms Reed submits that the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.9   She submits that s 19 of the Act permits combinations of sentences and in the current case his Honour chose to impose the combination he did in order to permit Mr Albert to make reparation of a larger amount.

[30]     This combination of sentences, Ms Reed submits, reflects the seriousness and culpability of the offending.  She describes it as a lengthy and demanding sentence which ensures that Mr Albert is held accountable to the community.

[31]     Ms Reed emphasises that the community detention aspect of the sentence restricts Mr Albert’s liberty whilst permitting him to work during the day in order to make reparation payments at the rate ordered.   Further, the intensive supervision aspect focuses on rehabilitation and addresses the causes of Mr Albert’s offending. She  notes  that  a  sentence  of  intensive  supervision  cannot  be  combined  with  a
sentence of home detention or imprisonment.10   She submits that if Mr Albert faced a

sentence of imprisonment or home detention he would be denied the opportunity to address the causes of his offending through departmental programmes and counselling.

[32]     Finally, Ms Reed submits that Mr Albert has substantially complied with his sentence.  She emphasises that an appellate Court should hesitate before interfering in circumstances where a lenient sentence has been complied with.  She relies on the following passage in Donaldson where the Court said:

“The Court would be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue.”

[33]     Ms  Reed  also  refers  to  R  v  Nathan11   where  the  Crown  unsuccessfully appealed a sentence of 250 hours’ community work and nine months’ supervision for breach of protection orders.   Mr Nathan had five previous breaches of the same order. The Court noted there was a lack of substantive mitigating features.12

[34]     The Court of Appeal accepted that the sentence was a lenient one which would normally have attracted a short term of imprisonment.  However, despite this, the Court dismissed the Crown’s appeal because:

“This  Court  is  disinclined  to  interfere  with  community-based  sentences where the conditions that have been ordered have been complied with.  It is clear from the letter from Probation that this man has complied with the earlier sentence of community work, and is complying with all other conditions.  Imposing a custodial sentence in such circumstances is not to be taken lightly.”

[35]     Ms Reed accepts that the combination of sentences imposed on Mr Albert is lenient but notes he has complied with them.  He has completed seven counselling sessions and according to the counsellor appears to have started to acknowledge the harm caused by his past gambling behaviour.   Additionally, he has effectively completed all 250 hours of community work.  However, the overwhelming majority of these hours were completed after the Probation Service advised Mr Albert that the community work sentence was suspended when the notice of appeal was lodged.  He

was advised that any work undertaken after that would be treated as voluntary.13

Mr Albert’s reparation payments have continued.  Furthermore, Mr Albert complied with his community detention sentence until his electric monitoring bracelet was disconnected late last year when MSD’s appeal was lodged.

[36]     In conclusion Ms Reed thus submits as follows:

(a)       the sentence imposed on Mr Albert is justified by accepted sentencing principles;

(b)       the Judge relied on s 19 of the Act and properly exercised his judicial discretion in imposing a combination of community-based sentences;

(c)       Mr  Albert  has  complied  with  his  sentence  and  substituting  the sentences  imposed  with  a  sentence  of  imprisonment  or   home detention  would  be  unjust  and  at  odds  in  accordance  with  the principles set out in Donaldson and Nathan; and

(d)	a  sentence  of  home  detention  or  imprisonment  would  not  allow

Mr Albert to work and make reparation payments.

Decision

Did the Judge err in ordering a community-based sentence? (a)	Hierarchy of sentences (s 10A of the Act)
[37]     It is common ground that the starting point of 22 months’ imprisonment adopted by the Judge was within his available sentencing discretion.  The question is whether a sentence of imprisonment or home detention should have been imposed
instead of the non-custodial sentence options.

13         It appears that of the 250 hours of community work ordered only two were completed by compulsion before the sentence was suspended when the appeal was lodged.  The balance has been completed on a voluntary basis.

[38]     The hierarchy of sentences is set out in s 10A(2) of the Act.  It is plain from that catalogue the most restrictive sentence is imprisonment,14  followed by home detention,15  followed by community-based sentences of intensive supervision and community detention16 and thereafter sentences of community work and supervision.17

[39]     Section  8(g)  of  the Act  requires  a  sentencing  Judge  to  impose  the  least restrictive sentence appropriate in the circumstances.

[40]     A “drop down” of two levels in the sentencing hierarchy is unusual and would require compelling reasons to justify it.   I am conscious of Ms Reed’s submission that because home detention is a viable alternative to imprisonment the imposition of community detention does not represent a double drop.  However, for reasons more fully set out below, a sentence of imprisonment was appropriate and, it follows,  the  imposition  of  community  detention  (with  other  sentences)  does represent a two level drop in the sentencing hierarchy.

[41]     The Court of Appeal, albeit in the context of an application for bail pending appeal against sentence, has observed that where the only options reasonably available to a sentencing Judge are either a short term of imprisonment or a term of home detention a further drop down in the sentencing hierarchy would be unusual.18

[42]     Further  support  for  this  proposition  is  to  be  found  in  Inland  Revenue Department v Song.19   This was a prosecutor’s sentence appeal against a sentence of three months’ community detention and two hours community work on charges of bribery and failing to maintain secrecy under the Tax Administration Act.  The lead charge was bribery which carries a maximum penalty of seven years’ imprisonment.
Mr Song had no previous convictions and an impressive list of character references.

14	Section 10A(2)(f).
15	Section 10A(2)(e).
16	Section 10A(2)(d).
17	Section 10A(2)(c).
18	R v Harris [2013] NZCA 611, (2013) 36 CRNZ 847 at [21].
19	Inland Revenue Department v Song HC Wellington CRI-2008-485-158, 10 February 2009.

[43]     Mallon J considered that an appropriate starting point was in the region of 18 months to two years’ imprisonment.  The appellant accepted, based on R v Iosefa20 (a case involving the theft of more than $83,000 from a solicitor’s trust account), that home detention may have been an appropriate alternative.  However, in rejecting the submission supporting a further drop to community detention and community work, Mallon J said:

“[32]    While, on the basis of R v Iosefa, home detention may have been open, that did not mean community detention and community work were also  open.  Section  10A of  the  Sentencing Act  sets  out  a  hierarchy  of sentences. The Court must impose the least restrictive sentence that is appropriate in the circumstances in accordance with that hierarchy. In view of the nature of this offending, denunciation and deterrence required a sentence in the hierarchy more restrictive than a community-based sentence. Counsel for Mr Song concedes that offending of this kind would normally require a sentence of home detention or imprisonment. She was not able to point to anything in the nature of the offending which made a less restrictive sentence appropriate. She submits that it must have been the personal circumstances of Mr Song that led the Judge to impose a merciful sentence. Mr Song has in a sense wasted his New Zealand education and the opportunities  for  him  in  New  Zealand.  But  that  is  similar  to  others  in positions of authority who have committed thefts or been involved in corruption. In my view Mr Song's personal circumstances were such as to warrant a significant discount to the term of imprisonment or home detention that would otherwise have been imposed but they did not warrant a community-based   sentence.   In   my   view   the   sentence   imposed   was manifestly inadequate.”

[44]     As  in  Song,  there  is  nothing  in  Mr Albert’s  case  which  justified  a  less restrictive sentence than that of home detention.  Mr Albert’s personal circumstances were not such as to warrant such a significant reduction in the sentence hierarchy.

[45]     Furthermore, a sentence of 22 months’ imprisonment places this case close to the statutory limit for a sentence of home detention.21   Applying the common rule of thumb that a sentence of home detention is half of the equivalent sentence of imprisonment, a sentence of eleven months would have been imposed.  This is just one month short of the statutory maximum.22   Reducing this to a lesser sentence, and imposing that sentence for only six months, represents a significant indulgence to the
defendant.

20	R v Iosefa [2008] NZCA 453.
21	Sentencing Act 2002, s 15A(1)(b)
22	Section 80A(3).

(b)       Benefit fraud sentencing levels

[46]     In the context of sentencing for benefit fraud there is no recognised tariff case.   It is necessary for sentencing Judges to determine, on a case-by-case basis, whether a sentence of home detention is an appropriate response to the particular offending or whether a sentence of imprisonment is required.23

[47]     In Walker v Ministry of Social Development24  Simon France J summarised the various comparable authorities where sentences of home detention and imprisonment have been ordered in benefit fraud cases.   In that context the Judge stated at [9]:

“The starting point is that the Sentencing Act 2002 requires a Court to impose the least restrictive sentence available.  In the particular area under discussion, the primary question is whether a sentence of home detention constitutes sufficient denunciation, deterrence and accountability given the offending involved and any aggravating personal factors such as previous convictions. …”

[48]     I am also mindful of other authorities25 including Green v Ministry of Social Development26  where home detention was considered inappropriate for offending involving approximately $36,500 committed over a six year period, where the offender used a false identity and had previous convictions. There the Court said:27

“I am in no doubt that home detention is inappropriate in this case.  I accept the submission made by Mrs Orchard that for a repeat offender, who has received sentences of imprisonment in the past, but nevertheless shortly after release  from  such  sentence  has  embarked  on  further  social  welfare offending, it will be wrong in principle to now impose a sentence of home detention. The sentencing hierarchy would be turned upside down.”

[49]     As previously noted, Ms Reed relies on Marr as authority for the proposition that in the context of sentencing for benefit fraud a combination of community-based sentences can adequately reflect the relevant purposes and principles of the Act.
Ms Marr  had  been  sentenced  to  seven  months’ home  detention  and  100  hours’

23	Ransom v R [2010] NZCA 390 at [39].
24	Walker v Ministry of Social Development [2014] NZHC 1386.
25         Werahiko v Ministry of Social Development HC Rotorua CRI-2008-463-55, 5 September 2008; Huirua v MSD [2013] NZHC 2785; Whitelaw v R [2012] NZCA 438; Hai v Ministry of Social Development [2014] NZHC 2043.
26	Green v Ministry of Social Development HC Christchurch CRI-2010-409-48, 6 May 2010.
27	At [17].

community work.   The total overpayment was nearly $35,000.   The appeal was allowed and the combination of community-based sentences, including six months’ community detention, 400 hours’ community work and reparation were substituted. The Court held this combination of sentences would adequately fulfil the objectives of the Act.

[50]     However, the circumstances in Marr are materially different from the present. Ms Marr was a first time offender, the amount defrauded was less than half the present and Collins J was satisfied that Ms Marr would lose her employment and would be unable to support her infant children  if sentenced to home detention. Collins J expressly stated that absent this additional evidence he would not have hesitated to have upheld the sentence of home detention.

(c)       Application to the present case

[51]     Mr Albert’s  offending,  viewed  against  a  backdrop  of  comparable  cases, leaves me in no doubt that the provisional sentence reached by the Judge of 22 months’ imprisonment was appropriate.   Such a sentence properly recognises the following factors involved in this case:

(a)	the extent of the loss: the overpayment was in excess of $80,000;

(b)       premeditation: the offending involved a highly premeditated and a planned course of sustained offending.  The use of false identities and falsified  documents  has  previously  attracted  sentences  of imprisonment involving lesser amounts;

(c)      previous convictions: Courts have generally declined to substitute sentences of home detention where the offenders had previous convictions for benefit fraud.28  Mr Albert’s previous convictions for fraud   and   dishonesty   offending   are   extensive.      Significantly,
Mr Albert’s present offending started in March 2012 just 18 months

28	Green v MSD, above n 11, and Huirua v MSD, above n 10.

after he was sentenced to imprisonment on five charges of obtaining by deception;29

(d)       the PAC report:  this assesses Mr Albert as presenting a high risk of re-offending.  It recommends home detention if the Court wishes “to give credence” to Mr Albert’s assertion he has changed his lifestyle for the better.

[52]     This combination of factors leads me to conclude that a community-based sentence should not have been imposed and that the sentence should have been one of imprisonment.   In any event, home detention was the only viable alternative to
22 months’ imprisonment in this case.

[53]     In  my  view  the  sentence  which  Mr  Albert  received  was  manifestly inadequate.  Not only should the sentence have been one of imprisonment but the reduction from 22 months’ imprisonment to six months’ community detention represents such a significant reduction in sentence that it cannot be justified  on orthodox sentencing principles.

(d)       Should a different sentence been ordered?

[54]     It follows that I am satisfied the Judge erred in principle.  However, in terms of s 250 of the CPA I must also be satisfied a different sentence should have been imposed before allowing the appeal.

[55]     Now that a community-based sentence has been imposed, the question is how Mr Albert should be dealt with.  He has completed a relatively modest part of his community detention sentence before it was suspended.  He has continued to make reparation.  Despite the suspension of his sentence following the filing of the notice of appeal, Mr Albert continued to complete 250 hours of community work, albeit in
the knowledge that the Probation Service would treat his efforts as voluntary.  He has

29         Mr Albert has a total of 16 previous convictions for fraud, obtaining by deception and using a document for pecuniary advantage.  These appear to have been involved three separate tranches of offending in 2004, 2005, 2009. Ms Reed advised the 2004/2005 convictions related to cheque frauds committed in 2003 when Mr Albert was aged 22.  The 2010 convictions relate to selling unlawfully obtained vehicles between February and November 2009.

also engaged in counselling for gambling, which he recognises as a root cause of his offending.

[56]     The principles in Donaldson require the reasons justifying an increase in sentence  to  be  more  compelling  than  those  which  might  justify  a  reduction, especially if a custodial sentence is to be imposed in the place of a non-custodial sentence or sentences. This is particularly true where some or all of the conditions of the sentence have been complied with.

[57]     Applying these principles I am easily satisfied that the community-based sentence was not only manifestly inadequate but, in all the circumstances, substantially so.   I am satisfied that a sentence of imprisonment should have been imposed despite the merits and pragmatism of the Judge’s decision to give priority to Mr Albert’s ability to make reparation.   However, I am equally satisfied that to impose that sentence at this time would be a severe injustice to Mr Albert.

[58]     In all the circumstances I am of the view that a sentence of home detention would now meet the requirements of justice in this case.   Had the Judge imposed home detention it would have attracted a starting point of 11 months.  From that I must deduct the time which Mr Albert has already served and also make a further reduction on account of Mr Albert’s completion of the community work, albeit on a voluntary basis.  I must take into account his positive response to the counselling he
has already completed as part of the intensive supervision.30   In my view a reduction

of four months properly recognises these credits.

Result

[59]     The sentences of community detention, intensive supervision and community work are quashed.

30	Intensive supervision cannot be ordered to be served with a sentence of home detention (refer s [	]of the Act).

[60]     A sentence of seven months’ home detention is substituted with the following

special conditions:

(a)       to reside at 1/4 Howard Hunter Avenue, St Johns, Auckland and not to move  to  any  new  residential  address  without  the  prior,  written approval of a Probation Officer;

(b)       to attend an assessment for a departmental programme as directed by a Probation Officer;

(c)       to attend and/or complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer;

(d)       to continue to attend and complete any counselling, programme or treatment for gambling as directed by and to the satisfaction of a Probation Officer;

(e)       to   undertake   and   complete   appropriate   assessment,   treatment/ counselling  as  directed  by  and  to  the  satisfaction  of  a  Probation Officer.

[61]     The reparation orders remain in force.

[62]     The  issue  of  whether  Mr Albert  may  work  during  the  period  of  home detention is a matter for the Department of Corrections and not for this Court.  But I do note the PAC report seeks a deferral of the start of the sentence of two weeks if a sentence of home detention is to be imposed.  This is to allow Mr Albert’s Probation Officer the opportunity to make enquiries regarding his ability to continue with his employment.  In the circumstances of this case, I hope favourable consideration can be given to Mr Albert working while on home detention in order that the present level of reparation can be maintained.

[63]	I direct that this sentence is not to commence until the expiration of 10 working days after the date of the delivery of this judgment.31

[64]	I also grant leave to either party to apply for such further or other directions as may be necessary to give effect to this decision.

Moore J

Solicitors:
Crown Solicitor, Auckland
Ms Reed, Auckland

31	Pursuant to s 80W(1)(b) of the Sentencing Act 2002.