IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000245 [2018] NZHC 2661

BETWEEN	KADE JONATHAN HADDEN
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	15 October 2018	

Counsel:	
AJ Beach for Appellant
LM Deane for Respondent	

Judgment:	
15 October 2018	

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. AJ Beach, Auckland.

HADDEN v POLICE [2018] NZHC 2661 [15 October 2018]

[1]       Mr Kade Hadden committed two burglaries and a related offence of obtaining by deception.  On 18 November 2017, and then on 27 November 2017, Mr Hadden acted as look-out while a co-defendant, Mr Archie Miller, stole over two tonnes of copper from commercial premises.  Mr Miller is a former employee of the business. Representing the copper was his, Mr Hadden sold it for a little over $5,500, hence the charge of obtaining by deception.

[2]       Mr Miller received a sentence of 10 months’ home detention.  Mr Hadden, a sentence of 18 months’ imprisonment. Mr Hadden contends his sentence is manifestly excessive—and home detention ought to have been imposed. Both were dealt with by different Judges; Mr Hadden by Judge A C Roberts.

[3]     His Honour Judge Roberts omitted to explain why the sentence was imprisonment rather than home detention.  The Judge appreciated as much, for, he dictated a brief addendum providing reasons in open court, but after Mr Hadden and his counsel had gone.  Mistakes like this sometimes happen, particularly in very busy list courts. Given this, I approach matters afresh. My reasons can be brief.

[4]       Offending  of  this  seriousness  generally  warrants  imprisonment.     Both burglaries were premeditated, and for financial advantage.   The same victim was targeted.  The stolen copper was worth approximately $19,000.  The offending has caused the victim additional cost.  It now employs security guards around the clock. Other factors, however, favour home detention.

[5]       First,  Mr  Miller  received  that  sentence.    Mr Hadden’s  role  was  lesser. Consistency in sentencing is important. Here, I acknowledge Ms Deane’s submission Mr Miller’s personal circumstances were more compelling.  But again, he was the primary offender.

[6]       Second, Mr Hadden has spent approximately two and a half months’ in prison.

[7]       Third, his pre-sentence report is guardedly optimistic.  Mr Hadden is said to have “displayed insight into the factors that led to his offending”, including recognition of drug dependency. Mr Hadden is also said to have “engaged well during the interview … and showed remorse for his actions”.

[8]       I pause to note the report does question Mr Hadden’s ability to comply with home detention, largely because he breached a bail curfew.  There is a difference of opinion as to the circumstances in relation to this breach.  The pre-sentence report implies Mr Hadden was not home, as reported by his mother.   Mr Hadden’s explanation is that he was asleep in a sleep-out at the back of the home.  Even if the more serious explanation is correct, I do not regard this single breach as an insuperable barrier to home detention.

[9]       Fourth, Mr Hadden has only a modest criminal history.   He has no other convictions for dishonesty; his five other convictions all involve offences contrary to the  Land  Transport Act  1998.    Equally  importantly,  Mr Hadden  has  completed community-based sentences without incident.

[10]     Fifth, Mr Hadden has family support, and a suitable address. He may live with his mother.

[11]     In summary, although Mr Hadden’s offending would ordinarily warrant a term of imprisonment, a sentence of home detention is consistent with that imposed on the primary offender Mr Miller, and commensurate with the interests of justice.

[12]     A final matter.   This conclusion is not dependent on the reception of fresh evidence, which I decline to receive.   The evidence was available at the time of sentencing. It does not add greatly to the picture. Consequently, it also lacks cogency.

[13]     The appeal is allowed. A term of nine months’ home detention is substituted.

[14]     Mr Hadden is to be released from prison to commence his new sentence.  It has the conditions identified at page 5 of the pre-sentence report.  Mr Hadden must also pay reparation of $500.  He hopes to obtain employment.

……………………………..

Downs J