IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0019
CRI-2014-044-4601 [2015] NZHC 150

DENISE LORI HOWARD

v

NEW ZEALAND POLICE

Hearing:	9 February 2015	

Appearances:	
D Matthews for the Appellant
K Eastwood for the Respondent	

Judgment:	
12 February 2015	

JUDGMENT OF THOMAS J

This judgment was delivered by me on 12 February 2015 at 3.20 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Manukau. Meredith Connell, Auckland.

HOWARD v NEW ZEALAND POLICE [2015] NZHC 150 [12 February 2015]

Introduction

[1]       On 23 November 2014, the appellant, Ms Howard, with others went on a shoplifting spree.  She was charged with six counts of theft.  Two of the six charges, where the value of the goods was between $500 and $1000, fall under s 223(c) of the Crimes Act 1961 and carry a maximum term of one year’s imprisonment.  The other charges, where the value does not exceed $500, fall under s 223(d) of the Crimes Act
1961 and carry a maximum of three months’ imprisonment.1

[2]       The  Judge  sentenced  the  appellant  to  six  months’ imprisonment  and  six months’ release conditions on six charges of theft.  Only one of the others allegedly involved was charged and her case has yet to be dealt with.

[3]       Ms Howard has appealed against that sentence.   At the hearing I gave a results judgment confirming that the appeal was allowed.   The sentence of imprisonment was set aside and a sentence of 250 hours of community work and 12 months’ supervision was imposed.  I now give my reasons for that.

Factual background

[4]       The appellant is 42 years old.  She is a single woman, has six children and is in receipt of a benefit.  Her children are currently looked after by her former partner.

[5]       Ms Howard went on a shoplifting spree with two others at the Albany Mega Centre in the North Shore.  She took a number of items from various stores in the mall.  In total, $2435 worth of property was taken.  The stolen goods were all located in the appellant’s vehicle and returned to the stores in saleable condition.

[6]       Ms Howard pleaded guilty at the first opportunity.

District Court Decision

[7]       On 20 January 2015 Ms Howard was sentenced in the District Court to six

months’ imprisonment on the two charges under s 223(d), with an uplift of one

1 Crimes Act 1961, s 223.

month to take into account the other offending and her previous history with a reduction of one month to take into account her guilty plea.

[8]       The  Judge  stressed  that  what  determined  the  matter  was  the  appellant’s previous history. The appellant has a number of thefts and other dishonesty offences, beginning in 1992.

[9]       The Judge called the offending a “pre-planned shoplifting spree.”2   The focus was on denouncing the conduct, instilling responsibility and imposing a sentence of deterrence.

Ground(s) of Appeal

[10]     Ms Howard appeals her sentence on the grounds that the Judge erred in imposing a sentence of imprisonment, because he:

(a)	erred in the emphasis he placed on the appellant’s criminal history;

(b)	placed undue weight on the need for denunciation and deterrence in this case; and

(c)	did  not  impose  the  least  restrictive  sentence  appropriate  in  the circumstances.

Appellant’s submissions

[11]     The appellant submits that this was a spree of offending which took place on one day.  The reasons for her offending were that she wished to buy a gravestone for her mother’s grave and that she was facing financial pressures as Christmas approached.

[12]      There was no issue of reparation because all of the goods were promptly recovered and in a saleable condition.

2 New Zealand Police v Howard [2015] NZDC 841 at [5].

The appellant’s criminal history is not as bad as it appears

[13]     Mr Matthews submits that Ms Howard’s criminal history is not as bad as it

may first appear, because:

(a)       Her offending has been decreasing in gravity over time.   The last criminal offence recorded was in April 2010; over four and a half years ago.  She has not received a term of imprisonment since 2007. This was her last serious dishonesty offending.   Between 1994 and
2002 Ms Howard did not offend at all.

(b)       In  2007,  Ms  Howard  was  appearing  for  sentence  in  respect  of offending which took place over the course of a year. In that case, a sentence of imprisonment was clearly mandated. However, the current offending was a very different situation since it occurred on a single day.

(c)       She has never previously received a rehabilitative sentence. She was dealt with by a sanction of imprisonment on the very first two occasions when she appeared in Court for sentencing in 1992.

The least restrictive sentence has not been imposed

[14]     Mr Matthews submits that there were a variety of options open in this case other than imprisonment and that the Judge did not consider the personal circumstances of the appellant at all.   He submitted that Ms Howard was a good candidate for rehabilitative sanctions because her ability to comply with these sentences has not been previously tested, her last offence was nearly five years ago despite never having had any rehabilitative intervention from the courts and her history of good compliance with punitive sanctions shows that she would be capable of compliance.

[15]     In Mr Matthews’ submission, this was not a case where no sentence short of imprisonment could meet the purposes and principles of sentencing.

[16]     The appellant relies on Tamaka v New Zealand Police.3     In that case, the offender had 29 previous convictions for shoplifting.   On appeal, the High Court took the view that home detention “would have been the proper means of incarceration  before  taking  the  fateful  step  of  imprisonment.”4      The  appellant submits that a less restrictive sentence than home detention is appropriate in this case since, unlike in Tamaka, the appellant had gone nearly five years without offending and had never previously been subject to either a sentence of community detention or supervision.

[17]     Mr  Matthews  submits  the  least  restrictive  sentence  is  community  work coupled with supervision.

Respondent’s submissions

[18]     The respondent submits that the end sentence imposed was not manifestly excessive because:

(a)       the Judge was entitled to place weight on the appellant’s significant criminal history, which demonstrates recidivist dishonest offending; and

(b)	it  was  within  the  Judge’s  discretion  to  impose  a  sentence  of

imprisonment based on the need to denounce and deter such conduct.

The appellant’s criminal history is important when looking at the totality of offending

[19]     While  it  is  acknowledged  that  a  period  of  time  has  elapsed  since  the appellant’s most recent dishonest offending, Ms Eastwood submits that the timing of any previous convictions is simply one factor to be considered pursuant to s 9(1)(j) of the Sentencing Act (the Act).   In Ms Eastwood’s submission, the appellant’s criminal history is important when the totality of the relevant offending is considered as it demonstrates the recidivist nature of the appellant’s dishonesty offending.   It
was therefore entirely appropriate for the Judge to impose a sentence so as to deter

3 Tamaka v New Zealand Police [2012] NZHC 2340.
4 At [8].

Ms Howard from further offending.  It was also incumbent on the Judge to ensure the community is protected from Ms Howard.

[20]     Ms Eastwood submits that Ms Howard has not been deterred by her previous sentences of imprisonment and appears to have fallen back into her earlier pattern of behaviour.  She says that Ms Howard’s continued offending indicates that individual deterrence is an important sentencing purpose in this instance, as is denunciation of her conduct.

[21]     Ms Eastwood says that the case of Tamaka is not of assistance because in that case, a sentence of home detention was substituted for two months’ imprisonment where the defendant had not previously received a sentence of imprisonment, and where home detention was not considered by the Court due to a mistaken belief that this had been refused by the defendant.  She refers to other cases where the Court has seen it necessary to impose a sentence of imprisonment on repeat theft offenders.

[22]     In  Ms  Eastwood’s  submission,  the  Judge’s  decision  was  not  wrong  in principle.  The Judge concluded that the offending and the personal circumstances of the appellant required that a sentence of imprisonment be imposed to uphold the need for accountability and deterrence.   That was open to him and should not be disturbed on appeal.

Appeal against sentence

Approach to appeal (CPA)

[23]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

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

(b)	a different sentence should be imposed.

[25]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6     Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the courts’ approach to sentence appeals.7

[26]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:8

(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.

[27]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.9

Analysis

[28]     In this case, the ultimate question is whether imprisonment is the appropriate sanction.  There are two issues: rehabilitation prospects and the possibility of home
detention.

5	Criminal Procedure Act 2011, s 250(3).
6	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
7	At [33] and [35].
8	R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
9	Ripia v R [2011] NZCA 101 at [15].

[4] What concerns me and what effectively determines the matter as far as I
am concerned is your previous history which is somewhat concerning…

[6] I do take into account the fact that the end sentence will be less than two years so that the presumption against imprisonment applies and I am obliged to impose, among other things, the least restrictive outcome on you.

[7] But, having regard to your previous history and the fact that this was clearly a planned spree, I think it can only be marked by prison and a sentence less than prison is inappropriate.

[30]     The   potential   for   rehabilitation   may   give   way   to   other   sentencing considerations such as the protection and safety of the public,10  and the need for a deterrent sentence.11    Both of these considerations were considered by the Judge to be particularly relevant.

[31]     There is no hierarchy of purposes set out under s 7.  Subject to the general principles in s 8 which must be taken into account, Judges are left with the discretion to determine which purpose or purposes should be given precedence according to the overall circumstances of the individual case.

Pre-sentence report

[32]     The pre-sentence report, or Provision of Advice to Courts as the Department of Corrections now calls it, is dated 13 January 2015.  It notes that Ms Howard failed to attend two interviews or to contact the probation officer. The report states:

As Ms Howard failed to attend scheduled interviews, reparation and alternative sentencing options such as electronically monitored sentences were unable to be canvassed.

Should the Court wish to show leniency and to deter Ms Howard from further offending, a punitive sentence of Community Work is available.  A substantial number of hours being imposed on her is suggested as this will impress on her that her offending will not be tolerated by the Courts.  This could be in conjunction with a rehabilitative sentence of Supervision or Intensive Supervision.  However, given that she has previous convictions for similar offending and considering the tariff of her current offending, a short term of imprisonment is recommended.

10 R v Hotene (1988) 3 CRNZ 414 (CA).
11 R v Walker [1973] 1 NZLR 99 (CA); R v Smith (1993) 11 CRNZ 49 (CA).

[33]     The appellant’s sentencing had been scheduled to occur at 8.30 am.   The appellant had not arrived by that time and a warrant to arrest her was issued.  The appellant arrived at 9.00 am (not having had appreciated that her sentencing was to occur at 8.30 am).  Defence counsel had obtained a new sentencing date from the Court Registry.  However, as an arrest warrant had been issued, the matter was called in the List Court.  The appellant was stood down in custody and an order was made for a pre-sentence report to be given orally that afternoon.

[34]  The Probation Officer informed defence counsel that he would be recommending sentencing be adjourned for the question of home detention to be considered.  I have seen the exchange between the Judge and the Probation Officer. He advised the Judge that he had spoken to the other occupant at the property but when he suggested the possibility of a further remand, the Judge made it clear that would not happen.   The Probation officer then gave an oral report which was relatively positive.   It noted that the appellant’s family was considered “pro-social and working”.   Ms Howard, however, had never been employed but works as the carer  for  her  mentally  impaired  older  brother.    She  acknowledged  a  less  than desirable circle of friends saying that she was trying to disassociate herself from them.   She explained the reasons for the offending as due to the pressures of Christmas and wanting an elaborate gravestone for her mother.   She expressed remorse.  Importantly, the Probation Officer reported :

With regards to her previous compliance history it’s fairly good.  Whenever she’s had community work she’s completed it quickly.  Rather surprisingly she’s  never  been  subject  to  any  rehabilitative  sentences  or  programmes. When she was on release conditions in 2007 again her compliance was very good although she had no programmes to attend to.

[35]     Defence counsel conceded that in many ways Ms Howard had only herself to blame.  She had failed to attend two interviews with the Probation Officer, she was late attending Court for sentencing and it was no doubt an extremely busy day in the Manukau District Court.  Understandably the Judge would have been concerned to deal with all the matters set down that day, hence his decision to stand the appellant down in custody and request a stand down report.

[36]     The difficulty in this case comes from a combination of a requirement for the Court to impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders set out in s 10A12  and the presumption in s 16(1) which relevantly provides:

Sentence of imprisonment

(1) When considering the imposition of a sentence of imprisonment for any particular offence, 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.

(2) The  court  must  not  impose  a  sentence  of  imprisonment  unless  it  is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b) those  purposes  cannot  be  achieved  by  a  sentence  other  than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[37]     As is established by the hierarchy of sentences in s 10A, home detention is the sentence that falls just below the threshold of imprisonment.  A court is bound to consider whether home detention should be imposed if it is technically available within the terms of s 15A, even if the defendant makes no submission that it should be imposed.

[38]     For a sentence of home detention to be imposed, the sentencing judge must follow a two-step test.13     The first step requires that the sentence is two years’ imprisonment or less.  There is no issue here since the appellant has been sentenced to six months’ imprisonment.

[39]     The second step calls for an exercise of discretion as to whether it is an appropriate case to commute the sentence to one of home detention.   There is no
presumption that either imprisonment or home detention is to be preferred.14    It is

12	Section 8(g).
13	R v Vhavha [2009] NZCA 588 at [31].
14	Manikpersadh v R [2011] NZCA 452.

simply an evaluative exercise, taking into account all relevant ss 7 and 8 purposes and principles.

[40]     Importantly, an assessment that focuses only on one purpose to the exclusion of others amounts to an error of law.15    In my assessment, the Judge focused too heavily on the need to denounce and deter, without giving sufficient attention to the (relative lack of) seriousness of the offending and the rehabilitative prospects for the appellant, particularly given the positive remarks in the oral pre-sentence report. Other than the brief statements referred to above, there is no indication that the Judge
considered other potential sentences and the potential for rehabilitation which was a relevant consideration to the question of the least restrictive outcome.  The principles of concern to the Judge can be met in a less restrictive way that is more proportional to the offence and which should have been considered.

[41]     The Court of Appeal has observed that the further the prison sentence is from the two year cut-off period, the more likely home detention will be appropriate. 16 A six months’ imprisonment sentence clearly favours home detention.

[42]   The least restrictive outcome in the circumstances would have been a combination of home detention and supervision.

Guilty plea discount

[43]     Although it was not addressed in submissions, both counsel agreed that the appellant had not been given the correct discount for a guilty plea.   She pleaded guilty at the first possible opportunity and the Crown accepted that the discount should have been closer to two months rather than the one month allowed.  Given this factor combined with the appellant having served three weeks of a prison sentence, the Crown agreed that, if the appeal were to be allowed, a combination of
community work and supervision was the appropriate outcome.

15	Fairbrother v R [2013] NZCA 340 at [30]; Manikpersadh v R at [18]–[19].
16	R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; Garnett v R [2010] NZCA 173 confirmed in
Manikpersadh v R at [22].

[44]	For the reasons given, the appeal is allowed.  The sentence of imprisonment is set aside.  Instead the appellant is sentenced to 250 hours of community work and
12 months’ supervision.  The conditions of supervision are to be of those in the pre- sentence report dated 13 January 2015, that is, that Ms Howard is to:

(a)       attend and complete an appropriate departmental programme to the satisfaction of a probation officer, the specific details to be determined by a probation officer; and

(b)     undertake and complete appropriate assessment, treatment and counselling as directed by and to the satisfaction of a probation officer
to address the causes contributing to the offending.

Thomas J