HANSEN v POLICE [2017] NZHC 425

HANSEN v POLICE [2017] NZHC 425 [13 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000046[2017] NZHC 425IN THE MATTER OF an appeal against sentenceBETWEEN BIANCA GEORGINA HANSENAppellantAND NEW ZEALAND POLICERespondentHearing: 13 March 2017Counsel: M J Kidd for the AppellantT R Bellingham for the RespondentJudgment: 13 March 2017(ORAL) JUDGMENT OF EDWARDS JSolicitors: Kidd Legal, AucklandMeredith Connell, AucklandIntroduction[1] Ms Hansen pleaded guilty to charges of burglary,1 possession of utensils formethamphetamine,2 possessing methamphetamine,3 receiving,4 and two charges ofbreach of a sentence of supervision. She was sentenced to 10 months' imprisonmentfor the burglary charge. She received two months' imprisonment for the charge ofreceiving which was concurrent with the burglary sentence. She was convicted anddischarged on the other offences.[2] Ms Hansen appeals the burglary sentence on the ground that it is manifestlyexcessive, and the District Court Judge should have given greater consideration toalternatives to a sentence of imprisonment.The offending[3] The burglary charge arose out of events on 24 November 2016. Ms Hansenand an associate entered a residential property owned by the victim. The victim waspresent at the property. Ms Hansen went to the front door and took a pair of shoesowned by the victim valued at approximately $100.[4] Ms Hansen and her associate were located and arrested by police a short whilelater. A search of Ms Hansen's handbag revealed a cut down straw and a number ofsmall plastic ziplock bags. This forms the basis of the possession of utensils charge.[5] The receiving and possession of methamphetamine charges arise out ofoffending in April 2016. A locked shed at the rear of the Ranui Baptist Church wasbroken into and 20 to 30 boxes of clothing items were stolen. The stolen boxes ofclothing were subsequently located in a car in which Ms Hansen was the passenger.1 Crimes Act 1961, s 231, maximum penalty 10 years' imprisonment.2 Misuse of Drugs Act 1975, s 31(1)(a), maximum penalty one year's imprisonment or $500 fine.3 Misuse of Drugs Act 1975, s 7(1)(a) and (2), six months' imprisonment, $1,000 fine.4 Crimes Act 1961, ss 246 and 247, maximum penalty seven years' imprisonment.On searching Ms Hansen, a small ziplock bag containing under 0.1 grams of liquidmethamphetamine was found in her handbag.Personal circumstances[6] Ms Hansen is 35 years old. She is the mother of three children who arecurrently being cared for by their grandmother.[7] Ms Hansen has a number of previous convictions from 2014 and 2015. Theseinclude a conviction for theft of property (under $500), and unlawfully taking a motorvehicle. She was sentenced to reparation of $117.16, and 60 hours' community workfor this offending.[8] In addition, Ms Hansen has a number of convictions for failing to answerDistrict Court bail, and breach of community work. She does not have any drug relatedconvictions.[9] The pre-sentence report records Ms Hansen as having a moderate risk ofreoffending, and a low risk of harm to others. The report notes that there was anescalation in the frequency and seriousness of Ms Hansen's offending as evidenced byher record of convictions.[10] The factors contributing to Ms Hansen's offending were identified in the pre-sentence report as drug use, lifestyle, attitude, lack of pro-social relationships, lack ofdirection and structure in her life and poor compliance with previous community-based sentences. The lack of engagement with her supervision sentence andcommunity-based sentences led the report writer to conclude that a community-basedsentence could not be recommended with any confidence. (I note however that in anearlier report, Ms Hansen was reported as engaging with her supervision sentence).[11] A suitable address for an electronically monitored sentence could not beidentified. Ms Hansen's parents refused to consent to Ms Hansen serving herelectronically monitored sentence at their house, stating that it was time for "toughlove". As a result, the report writer recommended imprisonment as the only suitablesentence.District Court decision[12] In determining an appropriate sentence, the District Court Judge referred to thepre-sentence report, noted that the pre-sentence report was not very positive, andrecommended a sentence of imprisonment.[13] In terms of rehabilitative options, the Judge made the following observations:[8] I have also heard from a representative of the Salvation Army and hetells me that he had a conversation with you, you were upfront and honestabout your issues, and he was impressed by that.[9] I am told by your lawyer that long term you may be looking at someresidential treatment for your drug offending. I note that the probation officerin Court helpfully suggested that we could impose a sentence of imprisonmentwith leave to apply for home detention with a view of you going to a placelike Odyssey House, but you are not keen on that. That does concern me,because on the one hand you are saying that you want to deal with yourproblems, and on the other you are not prepared to do everything that you canto sort out your drug addiction.[14] The Judge adopted a starting point of 12 months for the burglary charge. Sheapplied a two month uplift for the remainder of the charges and gave a discount of fourmonths for the guilty plea, and the fact that some insight into her offending had beenshown by Ms Hansen in admitting she had a drug addiction problem.[15] The 10 month sentence was imposed with standard release conditions of sixmonths.Grounds of appeal[16] Counsel for Ms Hansen submits that imprisonment was manifestly excessive,given the low value of the pair of shoes stolen ($100), the fact that the item wasreturned, and that the actions only caused the victim minor inconvenience.[17] Counsel also submits that the District Court Judge should have given moreconsideration to Ms Hansen's rehabilitation needs, and alternatives to a sentence ofimprisonment.Approach on appeal[18] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[19] In any other case, the Court must dismiss the appeal.5 An appeal court will notintervene unless there is a material error, and if so, the appeal court will then go on toform its own view of an appropriate sentence.6Is the sentence manifestly excessive?[20] There is no tariff case for burglaries. In Arahanga v R, the Court of Appealobserved that burglaries of dwelling houses at the relatively minor end of the scaletend to attract a starting point of approximately 18 months to two years, six months'imprisonment.7[21] In this case, the presence of the victim at the dwelling was an aggravatingfeature of the offending. But the low value of the items taken ($100), and the fact thatthey were returned puts Ms Hansen's offending at the lowest end of the scale.[22] The Crown has referred me to a number of comparable cases.(a) In Herewini v Police, a starting point of 15 months' imprisonment wasadopted.8 Mr Herewini had entered a residential property during theday by forcing open a garage door. He did not take any property.5 Criminal Procedure Act 2011, s 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].7 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].8 Herewini v Police [2015] NZHC 2807.(b) In Moeroa v Police, the starting point for the burglary charge wasreduced to 15 months' imprisonment on appeal.9 The offending in thatcase was during the day. Mr Moeroa was seen by the occupant, and leftwithout taking anything.(c) In Monsall v Police, a starting point of "about one year" was imposedon appeal.10 In that case, Mr Monsall had entered the office of aresidential treatment facility causing $50 worth of damage. He hadused the computer inside to access pornography, ate some food, andtook a "Sharpie" pen worth $3.[23] At one level, Ms Hansen's offending was less serious than any of these cases.There was no physical entry into the dwelling house; the offending was opportunisticin that the shoes were at the front door; no damage was caused to any property; andthe stolen goods were subsequently returned.[24] However, at another level, the fact that the victim was present at her property,and saw both Ms Hansen and her associate, makes Ms Hansen's offending moreserious than these cases. I note Mr Kidd's submission that Ms Hansen did not confrontthe victim, and ran away. Nevertheless the presence of the victim is an aggravatingfeature of this case.[25] Mr Kidd submits that the two month imprisonment sentence imposed for thereceiving charge was inconsistent with the 10 months imposed for the burglary chargeand that vitiates the end sentence. However, by comparison with the starting pointsadopted in the above cases, I consider the 12 month starting point was stern, butnevertheless within range. I also note that the two months' imprisonment sentence forthe receiving charge was concurrent with the 10 months' imprisonment imposed forthe burglary charge.[26] There is no challenge to the uplift of two months applied for the other offences.I accept that a two month uplift was appropriate.9 Moeroa v Police [2015] NZHC 2226.10 Monsall v Police HC Tauranga CRI-2009-087-1134, 21 August 2009.[27] The Judge did not apply an uplift for previous convictions. Ms Hansen hadtwo relevant convictions, being a previous conviction for theft from 2012, andunlawful taking also from 2014. A small uplift for these charges could have beenapplied. To the extent that the starting point is considered to be out of range, anyexcess would be offset by an uplift for these previous convictions in my view.[28] There is no challenge to the discount for the guilty plea and Ms Hansen's"insight into offending". A four month discount was appropriate in all thecircumstances.[29] Overall, I consider the sentence imposed was at the higher end of the availablerange but did not fall outside of it.Alternatives to imprisonment[30] Counsel for Ms Hansen submits that the Judge erred by not consideringalternatives to a sentence of imprisonment and by failing to address her rehabilitativeneeds.[31] It is clear from the Judge's notes that Judge Moala did take into account boththese factors. The Judge referred to Ms Hansen's previous convictions for breachingsentences of supervision, and failing to appear. Ms Hansen also has a number ofconvictions for breach of community work. The offences for which she was sentencedwere committed whilst subject to a sentence of supervision. That criminal recordweighs against a community-based sentence.[32] The Judge also turned her mind to the availability of an electronicallymonitored sentence. However, a suitable address was not available. Ms Hansen'sparents did not consent to her undertaking her sentence at their place. Ms Hansen'sformer partner also lived at the address and was on parole. Home detention was notan available option.[33] Finally, the Judge also took into account the fact that a drug addiction mayhave been a driving factor in Ms Hansen's offending. The possibility of a sentence ofimprisonment with leave to apply for home detention to a place like Odyssey Housewas raised as a possibility. The Judge's sentencing notes record that Ms Hansen wasnot keen on that option. I accept Mr Kidd's submission that such a response mighthave been caused by Ms Hansen's addiction. Mr Kidd further submits that a Judgeshould be able to refer those with low motivation to drug court without the consent oragreement of the defendant. That may be so. But in the absence of a commitment byMs Hansen to address her drug addiction or other rehabilitative needs, the Judge hadlittle option in structuring an appropriate sentence.[34] In those circumstances, I am not satisfied that there was a material error in thesentence imposed which would justify disturbing it on appeal.Result[35] The appeal is dismissed.Edwards J