FIRKIN v NEW ZEALAND POLICE [2023] NZHC 1605

FIRKIN v NEW ZEALAND POLICE [2023] NZHC 1605 [27 June 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-000016[2023] NZHC 1605UNDER THE Criminal Procedure Act 2011IN THE MATTER of an appeal against sentenceBETWEEN ALICIA DIANA FIRKINAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2023Appearances: S T Hurley for the AppellantR Hicklin for the RespondentJudgment: 27 June 2023JUDGMENT OF ROBINSON J[Sentence Appeal]This judgment was delivered by me on 27 June 2023 at 12:30 pm.Registrar/ Deputy RegistrarSolicitors/counsel:S T Hurley, New PlymouthCrown Solicitor, New PlymouthIntroduction[1] On 23 May 2023 Ms Alicia Firkin was sentenced at the New Plymouth DistrictCourt to five months', three weeks' imprisonment1 after pleading guilty to sevencharges of shoplifting (under $500).2 At the same time the Court remitted Ms Firkin'soutstanding fines of $4,429.[2] Ms Firkin appeals her sentence. On her behalf Ms Hurley submits the endsentence was manifestly excessive. She also says the Judge was wrong not to imposea community-based sentence such as community work and/or commute her sentenceof imprisonment to one of community detention or home detention.The offending[3] Ms Firkin's offending is described in the District Court judgment. All sevencharges are for shoplifting from various retail stores in New Plymouth:3(a) On 8 April 2022, Ms Firkin stole items valued at $400, includingrazors, flashlights and personal care items, from a Countdown.(b) On 14 September 2022 she stole a bottle of sunscreen valued at $45.99from Carefirst Pharmacy.(c) On 22 November 2022 she stole clothing worth $159.99 from Torpedo7.(d) On 27 November 2022 she stole items valued at $119 from SuperCheap Auto.(e) On 28 November 2022 she stole items valued at $147.61 fromBunnings.1 Police v Firkin [2023] NZDC 10206.2 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months' imprisonment. Note thata person accused of "shoplifting" is charged with theft under s 219.3 The offending is fully described at [2] – [9] of the District Court judgment.(f) On 7 December 2022 she stole craft and party supplies valued at $200from Spotlight.(g) On 12 December 2022 she stole 55 items valued at $406.25, again fromSpotlight. When approached by staff outside she threw the bagcontaining all the items at the staff and walked away.[4] In all, the items stolen were valued at just under $1,500 in total. The itemsstolen on 12 December 2022 were recovered. Ms Firkin paid full reparation of$1,073.59 in respect of the other charges to the New Plymouth District Courtimmediately prior to her sentencing on 23 May 2023.Personal circumstances[5] Ms Firkin's personal circumstances are complex. She is 41 years old. For 10years she has lived in the same Kāinga Ora rental property. She has a history of mentalhealth difficulties, including post-traumatic stress disorder, borderline personalitydisorder and depression. She has a history of trauma. She has had long standingdifficulties with methamphetamine addiction.[6] Ms Firkin has three children. They are in the custody of others. Ms Firkin hassupervised visits with them. She is in a relationship with a man who is in prison forviolent offending against her.4 Ms Firkin has a criminal history of burglary andshoplifting. The author of the Provision of Advice to Courts (PAC) Report records MsFirkin saying that she shoplifts to make herself feel better and will continue to do sountil she gets help. She has previously been sentenced to home detention and intensivesupervision. Most recently, on 12 March 2021 she was sentenced to 15 monthsintensive supervision for three charges of shoplifting. Ms Firkin shoplifted againduring this time.54 Ms Firkin was originally due to be sentenced in April 2023 but this had to be adjourned as a resultof her partner's offending against her.5 This appeal relates in part to Ms Firkin's conviction for shoplifting from Countdown on 8 April2022, while she was subject to intensive supervision.[7] Ms Firkin has a previous conviction for breaching the conditions of intensivesupervision, and a conviction for breaching home detention conditions. However,Ms Hurley explains that Ms Firkin breached home detention only by going to thesupermarket not long after the country went in to its first COVID 19 lockdown.Ms Firkin's criminal history is consistent with that, recording that she breached homedetention conditions on 23 April 2020 and was convicted and discharged the next day.Sentencing[8] In sentencing Ms Firkin the Judge took the charge of shoplifting on 8 April2022 as the lead charge because Ms Firkin committed that offence whilst on intensivesupervision. The Judge adopted a starting point of one month and two weeksimprisonment for that charge.6 For the remaining six shoplifting charges the Judgeuplifted the sentence by six months. The Judge applied a further uplift of two monthsin light of Ms Firkin's previous convictions which amounted to nine months and twoweeks' imprisonment but which the Judge took to be nine months in the round.7[9] To that the Judge applied a 25 per cent discount for Ms Firkin's guilty plea,reducing the sentence to six months and three weeks. The Judge deducted a furthermonth to acknowledge the reparations that Ms Firkin had paid in full. Before me MsHurley emphasises that Ms Firkin saved those reparations from her WINZ benefit. MsHurley says this demonstrates the extent of Ms Firkin's remorse and her efforts to takeresponsibility for her offending.[10] The Judge did not consider that she could commute this end sentence of fivemonths and three weeks imprisonment to one of home detention. The Judge notedthat the PAC report recommended imprisonment, and that home detention at MsFirkin's home address was not appropriate because this was where the violentoffending took place against her earlier in the year.8 In that regard the Judge also notedthat gang members who use methamphetamine come and go from that address.9 TheJudge noted:6 Police v Firkin, above n 1, at [24].7 At [26].8 At [19].9 At [19].[29] When I sentence you I have to think about the principles under theSentencing Act 2002, and purposes, including that I should sentence you onthe basis of the least restrictive outcome. I have a range of sentencing optionsavailable to me under the Act but when I consider the purposes of holding youaccountable for the harm that you have done, denouncing your conduct,deterring you and others from this kind of offending, and protecting thecommunity, that is to say business owners and employees who work in thoseshops, I am required in this case to impose a custodial sentence. Homedetention is not suitable for the reasons that are outlined in the PAC Report,community work and community detention they simply do not meet theprinciples and purposes of the Sentencing Act.Legal principlesApproach to appeal[11] This Court must allow Ms Firkin's appeal if it is satisfied that there is an errorin the sentence imposed and a different sentence should be imposed.10 Otherwise, theCourt must dismiss the appeal.11 A starting point that is too high is an example of anerror justifying appellate intervention.12 Whether the end sentence is 'manifestlyexcessive' is a useful guide in determining whether there is an error.13[12] The appeal court will generally not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles.14 The appellatedecision focuses on the final sentence rather than the process by which it was reached.Assessing whether the sentence is manifestly excessive similarly reflects the Court'sfocus on the end result.Commutation of imprisonment to home detention[13] The same principles apply to appeals against a refusal to commuteimprisonment to home detention.15 A court may not impose imprisonment if a lessrestrictive sentence would achieve the relevant s 7 sentencing purposes.16 However,there is no presumption for or against commutation. A case-by-case exercise of10 Criminal Procedure Act 2011, s 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 729, [2014] 3 NZLR 482 at [32].13 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at[SAB5.01].14 Tutakangahau v R, above n 124, at [36]. See also Te Aho v R [2013] NZCA 47 at [30].15 Palmer v R [2016] NZCA 541 at [18].16 Sentencing Act 2002, s 16(2).judgment against the statutory principles and purpose of sentencing is required. Thisis necessarily an evaluative exercise, and as such a substantial margin of appreciationis given to sentencing judges.17Grounds of appealSentence of imprisonment is manifestly excessive[14] Ms Hurley's overall submission for Ms Firkin was that it was manifestlyexcessive for her to have been sentenced to five months, three weeks' imprisonmentfor theft of goods worth only $1,079, which she had fully repaid.[15] More particularly, Ms Hurley submits that the starting point of nine monthsimprisonment (in the round) was too high; that the sentencing discounts did notproperly reflect Ms Firkin's personal circumstances; and in any event the end sentenceof imprisonment should have been commuted to home detention or some othercommunity-based sentence.Starting point[16] Ms Hurley accepts that a starting point of six weeks' imprisonment on the leadcharge was within range but submits that the additional six months' imprisonmentimposed for the remaining charges was manifestly excessive given the extent of theoffending and the full reparation. Ms Hurley submits that an uplift of a further fourmonths' imprisonment would have been appropriate in the circumstances.[17] Similarly, Ms Hurley accepts that an uplift to reflect Ms Firkin's previousconvictions for dishonesty offending was appropriate, but says that two months wastoo high. Ms Hurley submits that one month would have been appropriate. Shesubmits that all Ms Firkin's previous dishonesty offending has been at a low level.[18] As such, Ms Hurley submits that the starting point should have been a term ofimprisonment of 6 months (in the round) rather than nine months. Reducing this by25 per cent for the guilty plea and an additional one month for the full reparation leads17 Palmer v R, above n 15, at [19]. See also Aupouri v R [2019] NZCA 216 at [18].to an overall end sentence of three and a half (3.5) months' imprisonment (rather thanfive months and three weeks).Personal features[19] Ms Hurley says that although the Judge acknowledged Ms Firkin's history ofmental health difficulties including post-traumatic stress disorder, borderlinepersonality disorder, depression and trauma, the Judge gave no credit to Ms Firkin forthese personal factors when setting the end sentence. Moreover, Ms Hurley says thatMs Firkin's handwritten letter to the sentencing Judge demonstrates her remorse, asdoes her payment of full reparation. Ms Hurley submits further that the letterdemonstrates Ms Firkin is asking for community and other support, rather thanrejecting it as the author of the PAC report had indicated. Ms Hurley also points outthat Ms Firkin did not offend in the five-month period between December 2022 andher sentencing in May 2023.Commutation of sentence to home detention[20] Ms Hurley submits that in any event the Judge's refusal to commute thesentence to an electronically monitored sentence such as community detention and/orhome detention amounts to an error and results in a sentence that is manifestlyexcessive. Ms Hurley emphasises s 16 of the Sentencing Act 2002 which providesthat a Court must not impose a sentence of imprisonment unless it is satisfied that noother sentence can achieve certain purposes of the Act;18 and no other sentence wouldbe consistent with s 8 principles.19 Ms Hurley submits that in Ms Firkin's case therelevant purposes and principles of sentencing could be achieved through a sentenceof home detention, and as such that is what the Court should have imposed.[21] Moreover, Ms Hurley submits that the address where Ms Firkin has lived forthe last 10 years is her home and suitable for such a sentence. Counsel submits thatby declining Ms Firkin home detention to that address on the basis that this is whereshe was the victim of family violence is effectively to punish her for having been18 Sentencing Act 2002, s 16(2)(a). The certain purposes are those found in s 7(1)(a)-(c), (e), (f), or(g).19 Section 16(2)(c).assaulted in her own home. Ms Hurley emphasises that this is where Ms Firkin wasable to serve an electronically monitored sentence in 2019 and again in 2020 (albeitwith the breach described at [7] above).Discussion[22] I have carefully considered Ms Hurley's thorough and helpful oral and writtensubmissions in support of Ms Firkin's appeal. However, I do not consider that theJudge erred, or that the end sentence of five months and three weeks imprisonment ismanifestly excessive.[23] Although another Judge might well have calculated the end sentencedifferently, standing back and applying the totality principles I am satisfied that theend sentence the Judge reached was within range. Like the sentencing Judge Iacknowledge Ms Firkin's efforts to pay full reparation, saved out of her WINZ benefit.I accept this demonstrates a degree of remorse, notwithstanding the author of the PACreport advising that she had none. In my view Ms Firkin's remorse and efforts atreparation were properly reflected in the one month discount the Judge applied for thatpurpose.[24] As for commutation, it is apparent that Ms Firkin's previous community-basedsentences have neither rehabilitated nor deterred her. Although I accept Ms Hurley'ssubmission that the breach of home detention in April 2020 appears to have occurredin extenuating circumstances, she has become something of a recidivist offender. Theauthor of the PAC report advises that Ms Firkin commented she would continue tooffend until she gets the support she needs. In her letter to the sentencing JudgeMs Firkin says that offending provides some relief from the anger and hurt she feelsat having had her children removed from her, and the "laundry list" of other grievancesshe has. She says she needs a psychologist, not prison.[25] Clearly Ms Firkin does require assistance and support. But given her repeatedoffending I do not consider the Judge erred in determining that the purposes andprinciples of sentencing require a custodial sentence.[26] There is merit in Ms Hurley's submission that Ms Firkin should not be deniedhome detention simply because she was the victim of offending at home, but the Judgealso noted that there are gang members and methamphetamine users who visit herhome and that Ms Firkin continues to use methamphetamine herself.[27] I also agree with the Judge that this Court's recent decision in Honeybun v NewZealand Police20 can be distinguished. Ms Honeybun was a solo mother and pregnantwith her second child. She had also passed a drug test and appeared to be on top ofher addiction issues. In those circumstances the Court was prepared to commute hershort term of imprisonment for shoplifting to one of home detention. Butunfortunately Ms Firkin's circumstances are different.Final comments[28] Ms Firkin will require further assistance when she is shortly released fromprison, including with her mental health and her methamphetamine addiction. In herletter to the sentencing Judge Ms Firkin speaks of being aggrieved at variousgovernment agencies, but it is encouraging that she seems to acknowledge that sherequires their assistance. The post-detention conditions imposed by the Judge areintended to help with that. Hopefully Ms Firkin will engage with the relevantprogrammes.[29] I also expect that Ms Firkin's Kāinga Ora home will continue to be availableto her when she is released. As noted, counsel advises this has been her home for thepast 10 years.Result[30] The appeal is dismissed.____________________Robinson J20 Honeybun v New Zealand Police [2022] NZHC 3445.