HONEYBUN v NEW ZEALAND POLICE [2022] NZHC 3445

HONEYBUN v NEW ZEALAND POLICE [2022] NZHC 3445 [15 December 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-60[2022] NZHC 3445BETWEEN AMY MARGARET HONEYBUNAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2022Appearances: N L Laird for the AppellantR L Hicklin for the RespondentJudgment: 15 December 2022ORAL JUDGMENT OF PALMER JSolicitors/CounselLaird Legal Services Limited, New PlymouthCrown Solicitor, New PlymouthWhat happened?[1] Between 9 May 2022 and 3 July 2022, Ms Amy Honeybun, now aged 34,shoplifted from different shops in New Plymouth: a $50 jacket; a $109 steamer; a$119.99 coffee grinder; a duvet cover; a number of hair care devices valued at$1589.92; a $399.99 jacket; and a $69.99 sweatshirt. Some of the offending wasundertaken in the company of an associate and Ms Honeybun's young child. Shepleaded guilty to five charges of shoplifting items valued at less than $500,1 and onecharge of shoplifting items valued at more than $1,000.2 She wrote a letter expressingher remorse. She has 23 previous convictions for shoplifting and five for otherdishonesty offences.[2] In April 2021, Ms Honeybun was sentenced to home detention for otheroffences, which she breached twice. She was admitted to bail in July 2022. On8 September 2022, after she had pleaded guilty, Judge G F Hikaka, in theDistrict Court at New Plymouth, granted her bail. This came with a very strongwarning that if she was even tempted in the direction of breaching bail, failing to meether obligations or reoffending, she would need to start planning for someone else tolook after her son because she would not be in a position to do so.3 No incidents arose.[3] The Department of Corrections assessed the proposed home detention addressas technically feasible but Ms Honeybun as at high risk of re-offending and a mediumrisk of harm. Corrections reported that the consequences of home detention previouslyappear not to have deterred her from further offending. There were reports of twofamily harm incidents between Ms Honeybun and her former partner in August andOctober 2022. She was described as disruptive and disrespectful during herattendance at two of five sessions of a Departmental Short Motivation Programme andshowed no interest in staying over at the marae. This was the third pre-sentence reportto recommend imprisonment. The Department was not willing to recommend homedetention until further issues could be investigated. Subsequent inquiries suggestedthat Ms Honeybun's partner may have be residing at, or regularly frequenting, her1 Crimes Act 1961, s 223(d): maximum penalty three months' imprisonment.2 Section 223(a): maximum penalty seven years' imprisonment.3 New Zealand Police v Honeybun [2022] NZDC 17355 at [6]–[7].proposed home detention address. Ms Honeybun's victims were understandablyfrustrated by the impact of her offending.[4] On 30 November 2022, Judge Hikaka sentenced Ms Honeybun.4 She was thensome 19 weeks' pregnant, a solo mother to a three-year old boy and the sole tenant ofa Kāinga Ora home, the only home her son has ever known and where she has beenon bail. The Judge said the professional assessment was that she had been givenrehabilitation options in the past and they have not worked so he was moving to holdher accountable and deter her from future offending.5 He set a starting point of eightmonths for the shoplifting of $1,600 of goods, reduced that by two months, or25 per cent, for her early guilty plea, resulting in an end sentence of six months'imprisonment.Submissions[5] Ms Laird, for Ms Honeybun, submits that the Judge erred in declining toconvert the sentence of imprisonment to one of home detention. Home detentionplaces significant restrictions on liberty. Ms Honeybun has passed regular drug testsand is on top of her addiction since the beginning of 2022 and has been on bail sinceJuly 2022 without incident. That address is a suitable address for a non-custodialsentence.[6] Ms Hicklin, for the Police, submits that the Judge did not err becauseMs Honeybun's previous home detention did not deter further offending. Sheacknowledges it is difficult for someone who is pregnant to be in prison but her child'spresence at some of the offending indicates her pregnancy would not provide sufficientmotivation to stop her from offending in future.Should the sentence be converted from imprisonment to home detention?[7] Under s 250 of the Criminal Procedure Act 2011, the Court must allow theappeal if satisfied there is a material error in the sentence and a different sentenceshould be imposed. The focus is on whether the end sentence is within the available4 New Zealand Police v Honeybun [2022] NZDC 23635.5 At [16]–[17].range.6 The Court will only intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive".7[8] I consider there are three problems with the District Court's sentence. First,s 16(1) of the Sentencing Act 2002 requires the court to have regard to the desirabilityof keeping offenders in the community as far as that is practicable and consonant withthe safety of the community. Section 16(2) prevents a court from imposing a sentenceof imprisonment unless it is satisfied that the sentence is being imposed for specificpurposes in s 7 which cannot be achieved by a sentence other than imprisonment, andno other sentence would be consistent with the application of the principles in s 8.Those principles include the requirement to impose the least restrictive outcome thatis appropriate in the circumstances. There is no indication in the judgment that theJudge considered this. Yet the Court of Appeal has stated that a Judge must make "aconsidered and principled choice between the two forms of sentence".8[9] Second, an important factor underlying Ms Honeybun's offending appears tobe her addiction to methamphetamine. This year, she appears to have made progressin addressing her addiction. She has tested negative for drugs with her ProbationOfficer since February 2022. Rehabilitation from her addiction is crucial to preventingher reoffending. This does not appear to have been factored into the Judge's reasoning.[10] Third, the effect of Ms Honeybun's imprisonment on the availability of herKāinga Ora accommodation and the impact of that on her son do not appear to havebeen explicitly considered by the Judge. If she loses that accommodation, her sonloses the only home he has ever known. It would also engender significant disruptionto her life just before she gives birth to another child. There is research in New Zealandshowing a connection between parental imprisonment and youth offending, researchin New South Wales showing that imprisoning parents is not in the best interests oftheir children and research showing that imprisonment creates practical barriers to theparent-child relationship.9 These effects are relevant to the rights of the children under6 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].8 Fairbrother v R [2013] NZCA 340 at [30].9 Francessca Maslin What about the children? Sentencing defendants who are parents of dependentchildren [2022] NZLJ 367 at 369 – 370, citing: Oranga Tamariki Evidence Centre Youth JusticePathways: an examination of wellbeing indicators and outcomes for young people involved witharts 2, 8, 12, 14, and 20, and particularly art 3, of the United Nations Convention onthe Rights of the Child of 1989, which New Zealand has ratified.10 These aremandatory relevant considerations in sentencing Ms Honeybun.[11] I consider that the effects of imprisonment on Ms Honeybun's children, whencombined with her rehabilitative steps, make a sentence of imprisonmentdisproportionately severe compared with her level of offending, in terms of ss 8(h)and (i) and 9(4)(a) of the Sentencing Act 2002.11 Should Ms Honeybun not recognisethe significance of potential imprisonment, and reoffend again, this outcome isunlikely to be available in the future.[12] I am concerned by the suggestion that Ms Honeybun is not disclosing otherpeople who may be residing in her home. Ms Honeybun has informed Correctionsthat she is the only resident of her home and those are her instructions to her counsel.I am happy to proceed, but only on that basis, and subject to a condition.Result[13] I allow the appeal. I quash Ms Honeybun's sentence of imprisonment andsubstitute it with a sentence of three months' home detention at her home of [redacted],from the date of her sentencing in the District Court. I also impose the conditions thatshe must:(a) ensure that she remains the only adult resident of her home during hersentence and no males be present at the address other than familymembers;(b) not possess, consume or use any alcohol or drugs not prescribed to her;youth justice (2021) at 16; Parliament of New South Wales, Committee on Children and YoungPeople, Support for children of imprisoned parents in New South Wales June 2022, at 6; andSuperu Improving outcomes for children with a parent in prison (June 2015) at 1.10 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20November 1989, entered into force 2 September 1990).11 Hogan v Ministry of Social Development HC Napier CRI 2005-441-24 8 July 2005 at [46];Theodore v Police [2018] NZHC 2364 at [35]–[39] at [46]; R v A HC Wellington CRI- 2007-032-477, 3 October 2008 at [20]–[22]; Sulusi v New Zealand Police [2020] NZHC 3314 at [28]; R vKeyte [2022] NZHC 1063 at [46].(c) attend assessment for a Women's Medium Intensity RehabilitationProgramme as directed by a Probation Officer; and(d) attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by and to the satisfactionof a Probation Officer.Palmer J