IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2024-404-83
[2024] NZHC 767	

BETWEEN	LUKIN IZACC RICHARD RICHARD DAVID HAMLIN
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	9 Apri 2024	
Appearances:	G D Macdonald for appellant
W N Fotherby and H C I Wagner-Hiliau for respondent	
Judgment:	11 April 2024	

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 11 April 2024 at 12pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

HAMLIN v POLICE [2024] NZHC 767 [11 April 2024]

[1]	On 9 February 2024, Lukin Hamlin was sentenced in the Waitākere District Court to a term of 14 months' imprisonment.1 He appeals against that sentence, submitting that he should instead have been sentenced to intensive supervision.

[2]	Mr Hamlin’s appeal is brought under subpt 4 of the Criminal Procedure Act 2011. I must allow it if there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss it.2 Before a first appeal Court may substitute its own views, the sentence at first instance must be manifestly excessive. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.3 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.4

Was Mr Hamlin’s sentence manifestly excessive?

Background

[3]	Now aged 46 years old, Mr Hamlin commenced to accumulate shoplifting convictions in 2009. By 23 September 2013, when he was sentenced to a year's supervision,  he  had  been  convicted  of  25   such  offences,  alongside  others.      In June 2014, and then again in January 2015, Mr Hamlin was imprisoned for periods of months for numerous theft or shoplifting, and other, offences.

[4]	In July 2016, Mr Hamlin was sentenced to a second term of one year's supervision, but in September and then again in December that year, he was sentenced to periods of home detention for drug-related offences. Then, in 2017, he was sentenced to two further periods of months in prison when he breached home detention conditions.

[5]	In September 2018, Mr Hamlin was sentenced to nine months' intensive supervision for shoplifting. In November 2019, he was sentenced to community

1	New Zealand Police v Hamlin [2024] NZDC 2643.
2	Criminal Procedure Act 2011, s 250.
3	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
4	Ripia v R [2011] NZCA 101 at [15].

detention and intensive supervision for burglary and breach of intensive supervision conditions, amongst other things.

[6]	In August 2021, Mr Hamlin was sentenced to five months' home detention for a further 20 theft or shoplifting offences, along with others. In all, by this time he had accumulated 105 convictions, the vast bulk of which were for theft or shoplifting.

Offending sentenced on 9 February 2024

[7]	Soon after his release from his 2021 sentence of home detention, Mr Hamlin commenced to undertake the offending for which he was sentenced in the Waitākere District Court on 9 February 2024.

[8]	On 27 January 2022, Mr Hamlin was stopped by police having driven his Honda car through a compulsory stop sign in Henderson. He was found to be a disqualified driver, and charged with driving whilst disqualified.

[9]	Also at around this time, Mr Hamlin commenced the following sequence of thefts:

(a)	of a coffee machine, vacuum cleaner and knife block together valued at
$1,349.97, from a Silverdale general goods shop on 11 January 2022;

(b)	of meat valued  at  $356.10,  from  a  Mairangi  Bay  supermarket on 6 February 2022, and meat valued at $227.14, from the same supermarket on 26 March 2022;

(c)	of groceries valued at $400, from a Te Atatū South supermarket on   23 April 2022, and groceries valued at $356, from the same supermarket on 28 April 2022;

(d)	of various goods valued at $1,281.93, from Bunnings Westgate on 28 June 2022;

(e)	of petrol valued at $70, from a Milford petrol station on 21 July 2022;

(f)	of petrol valued at  $174.58,  from  a  Dairy  Flat  petrol  station  on  12 August 2022; and

(g)	of groceries valued at $129.86, from a Point Chevalier supermarket on 16 August 2022.

[10]	On 12 September 2022, Mr Hamlin pleaded guilty to and was convicted of the driving whilst disqualified offence  described at  [8].  He was remanded  on bail to   7 December 2022 for sentencing.

[11]	Mr Hamlin continued to steal property; in particular, petrol valued at $99.99, from a Silverdale petrol station on 22 September 2022.

[12]	On 4 October 2022, Mr Hamlin pleaded guilty to, and was convicted of, the charges relating to the 11 January, 6 February, and 26 March 2022 thefts, and was remanded on bail for sentencing for these offences also on 7 December 2022.

[13]	On 30 November 2022, Mr Hamlin pleaded guilty to, and was convicted of, charges relating to the 23  April,  28  April,  21  July,  12  August,  16  August  and 22 September 2022 thefts, and was remanded on bail for sentencing on these offences also on 7 December 2022.

[14]	Mr Hamlin was not sentenced on 7 December 2022. A Community Alcohol and Drug Services report was not available. He was instead further remanded on bail, on various occasions, to appear on 8 February 2023 for determination whether he should enter the Alcohol and Other Drug Treatment (AODT) Court.

[15]	In the meantime, Mr Hamlin continued to steal property; in particular, he stole meat valued at $258.14, from a Helensville supermarket on 18 January  2023.   On   7 February 2023 he was charged with that offence, pleaded guilty at his first appearance that day, and was convicted and remanded in custody to appear at the hearing set for 8 February 2023.

[16]	On 8 February 2023, Mr Hamlin pleaded guilty to and was convicted of the charge relating to the 28 June 2022 theft. Also on 8 February 2023, Mr Hamlin was

admitted to the AODT Court. He entered the Salvation Army's Bridge Programme. In March 2023, during AODT Court monitoring appearances, Mr Hamlin was the subject of encouraging reports of rehabilitative progress. But he absconded from the programme. When he failed to answer the conditions of his bail, by failing to appear in the AODT Court on 5 April 2023, a warrant was issued for his arrest.

[17]	Mr Hamlin remained at large for some time. In this period, he stole a label printer valued at $289, from a stationary shop on 29 April 2023, and another label printer valued at $349 from the same shop on 6 May 2023.

[18]	Mr Hamlin was arrested and next appeared in the Waitākere District Court on
22  June  2023.   He  was  remanded  in  custody  on  various  occasions,  until  on    6 September 2023 being granted electronically monitored (EM) bail pending his sentencing for all offences described in this part of my judgment, set for 2 November 2023. During this period in which Mr Hamlin was held in custody, on 31 July 2023, he pleaded to, and was convicted of, charges relating to the 29 April and 6 May 2023 printer thefts and his failure to answer bail on 5 April 2023.

[19]	On 2 November 2023, the Corrections Department had not prepared the Provision of Advice to Courts report that had been requested. Mr Hamlin was further remanded on EM bail for sentencing on 9 February 2024.

[20]	This was the offending for which Mr Hamlin was sentenced in the Waitākere District Court on 9 February 2024.

Sentencing on 9 February 2024

[21]	When sentencing Mr Hamlin on 9 February 2024, Judge L Tremewan described the charges, Mr Hamlin’s previous history of offending and sentencing, and his short-lived entry to the AODT Court, including the “glimmer of hope” that had emerged in March 2023 prior to his flight from the Bridge Programme. The Judge then said:

[6] When you came into the AODTC, it was as an alternative to imprisonment, and you were clearly told that. It is one of the main rules in there. People are only eligible for the court if they are otherwise going to prison, and you will

have heard me say earlier that people do not better their position by then absconding from the court and re-offending. So it is the Court’s view that today there is only one available sentence and that is a term of imprisonment. However, you will have already heard me say as well that I am going to give you credit for the matters deserving of credit, so that includes your guilty pleas and taking responsibility, the little bit of time that you did make an effort at the Bridge, the fact that I also am satisfied that there had been some real challenges in your early upbringing which would likely have had an impact on your later offending choices and coming before the Court. I am able to give some consideration there pursuant to s 27 of the Sentencing Act 2002. And finally, I acknowledge you were granted electronically monitored bail, and I am told you have had something like five months there, and it seems that has gone well. So although that is not an available sentence today, and nor in fact is there a suitable address currently available anyway, it is something I can also give you a little credit for and I am going to, Mr Hamlin, in fact do something else as well.

(emphasis added)

[22]	The Judge proceeded to:

(a)	adopt a starting point for the two thefts of goods valued at more than
$1,000 of 12 months’ imprisonment;5

(b)	apply uplifts of eight months for all Mr Hamlin’s other offending for sentence, two months for his offending on bail, and four months for his previous  convictions,  arriving  at  a  “revised   starting  point”  of   26 months’ imprisonment;

(c)	mention a 25 per cent credit for Mr Hamlin’s guilty pleas, and a further 10 per cent credit for the other mitigating matters described in the above-quoted passage; and

(d)	further adjust those discounts so as to arrive at an end sentence of    14 months’ imprisonment.

[23]	The Judge imposed that sentence in respect of the two lead charges described at [22(a)], and imposed lesser concurrent sentences for Mr Hamlin’s other offending, except that he was additionally disqualified from driving for a further six month period in respect of the driving offence. The Judge declined to order reparation.

5	Crimes Act 1961, ss 219 and 223(b). Maximum penalty seven years’ imprisonment.

Submissions for Mr Hamlin

[24]	For Mr Hamlin, Mr Macdonald submitted that:

(a)	Judge Tremewan gave no consideration to the rehabilitative aspect of sentencing, contrary to the Court of Appeal’s judgment in Zhang v R, where that Court “encourage[d] sentencing judges to explore rehabilitative options in sentencing addicted offenders”.6

(b)	Accordingly, the Judge fell into error when making the above-quoted remarks. While imprisonment might have been appropriate as the least restrictive outcome upon Mr Hamlin’s entry into the AODT Court, his progress while at the Bridge Programme confirmed that his rehabilitative prospects might justify a community-based sentence. Therefore, it was not correct that at sentencing on 9 February 2024 there was “only one available sentence… a term of imprisonment”.

(c)	Similarly, the period of five months that Mr Hamlin spent on EM bail should have been seen to go further than merely qualify him for a non-arithmetic discount. Instead, it should have confirmed that the punitive function of sentencing had sufficiently been met, so that a lengthy period of intensive supervision was all that was necessary.

Analysis

[25]	I disagree with Mr Macdonald’s submission that Judge Tremewan gave no consideration to the rehabilitative aspect of sentencing. Instead, the Judge’s remarks reflect that Mr Hamlin’s conduct, in undertaking his extended course of offending requiring sentence, and in spurning the opportunity he had been given to undertake extended rehabilitative treatment, left no room for further prioritisation of that sentencing purpose over other purposes, such as those of holding Mr Hamlin accountable for harm, promoting in him a sense of responsibility for and an acknowledgement of that harm, and protecting the community from him.7

6	Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [150].
7	Sentencing Act 2002, s 7(1).

[26]	While the Court of Appeal in Zhang encouraged exploration of rehabilitative sentencing options for addicts, it did not suggest that the rehabilitative purpose of sentencing should receive disproportionate consideration. Indeed, the Court developed its reference to exploration of options by specifically encouraging greater use of s 25 of the  Sentencing  Act  “in  appropriate  cases  where  possible”.8  Section 25(1)(d) and (e) “empowers a judge to adjourn a sentencing to enable an offender to undertake a rehabilitation programme and for the offender’s response to the programme to be taken into account when sentencing subsequently takes place”.9

[27]	In this case, this is exactly what Judge Tremewan had done, having been involved in Mr Hamlin’s admission into the AODT Court, and his initial monitoring, prior to him absconding from the Bridge Programme. By observing, once Mr Hamlin was arrested and came for sentence having committed further offences, that his response was required to be taken into account and it left no option but a prison sentence, the Judge was applying the approach in Zhang, not ignoring it.

[28]	In my view, Judge Tremewan displayed considerable leniency when arriving at a sentencing end point of 14 months’ imprisonment, despite the relentless nature of Mr Hamlin’s offending over the period from January 2022 to May 2023, which came following numerous bouts of similar offending and the regrettably unsuccessful rehabilitative sentencing approaches of prior courts. That Mr Hamlin did not offend while on EM bail for the five month period from September 2023 to February 2024 was in this way amply recognised alongside other mitigatory features such as his guilty pleas. If anything, it might be said that the purposes of accountability, promotion of responsibility and acknowledgement, and community protection, required a firmer response.

[29]	It follows that the sentence was not manifestly excessive.

Result

[30]	Mr Hamlin’s appeal is dismissed.

8	Zhang v R, above n 6, at [179].
9	At [175].

Johnstone J