KOWALEWSKA v NEW ZEALAND POLICE [2020] NZHC 3412

KOWALEWSKA v NEW ZEALAND POLICE [2020] NZHC 3412 [18 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-81[2020] NZHC 3412BETWEEN CASSANDRA LOUISE KOWALEWSKAAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2020Counsel: P H Surridge for AppellantA F Oliver for RespondentJudgment: 18 December 2020JUDGMENT OF CHURCHMAN JIntroduction[1] Ms Kowalewska (the appellant) appeared for sentence on 17 September 2020in the Porirua District Court on one charge of burglary1 and one charge of threateningbehaviour.2 In relation to the charge of burglary, Judge Krebs imposed a sentence ofintensive supervision of 18 months, 150 hours of community work, and 18 months ofjudicial monitoring.3 No specific sentence was imposed in relation to the other charge.[2] The sentence is appealed on three grounds:(a) that the Judge wrongly attributed loss of certain property from theburglary to the appellant;1 Crimes Act 1961, s 231(1)(a). This carries a maximum sentence of 10 years' imprisonment.2 Summary Offences Act 1981, s 21(1)(a). This carries a maximum sentence of three months'imprisonment or a $2000 fine.3 Police v Kowalewska [2020] NZDC 19264.(b) that the sentence imposed was excessive, and set the appellant up forfailure; and(c) that the Judge erred by not properly explaining how the sentence wascalculated and not properly applying a satisfactory methodology forsentencing.[3] The police (the respondent) oppose all three grounds.BackgroundFactual background[4] Between 20 October 2019 and 10 November 2019, Mr Ives' bach at Ngawi,Cape Palliser was left unoccupied. During that time, the appellant and her three-year-old daughter were staying at a friend's house in Cape Palliser. The appellant's friendleft and did not return, leaving the appellant without food, running water or cell phonecoverage. The appellant explained to the police that she had no option but to supportand sustain herself and her daughter by breaking into the complainant's bach andstealing items from it. The appellant stated to the police that she only took food andwater, while the Summary of Facts (SOF) suggests that the burglary resulted in theloss of a number of items of furniture including chairs, a bed and bedding, pots andpans, and several technological appliances.[5] The appellant has consistently maintained that the only items she took duringthe burglary were low value food items that she needed for her survival. She alsoacknowledged gaining entry by "barging" the door to the dwelling.[6] The wording of the SOF in this matter has contributed significantly to theproblems that have led to this appeal. After referring to the address of the propertywhich was burgled and the relevant dates, it says:During this time someone has broken open the rear door and stolen food itemsfrom cupboards and meat from the freezer, as well as spirits and beer. Largeritems including bedding, a coffee machine, UE boom speaker, pots and pansand chairs have also been taken. These items are total valued at about $4000and damage to the doors in excess of $1000.[7] The SOF goes on later to specifically record the defendant's admission that shebroke into the property and took food and water and nothing else.[8] The SOF also sought $650 by way of reparation. This was said to be theinsurance excess.[9] The District Court file records that when the case was first called beforeJudge Johnston in the District Court on 9 June 2020, the SOF was "accepted not read".[10] It is perhaps unsurprising that the appellant accepted the SOF because it clearlyrecorded her position which was that she took nothing other than food and water, andthe SOF does not specifically assert that she was the person who stole the various otheritems of furniture and utensils said to have been taken.[11] Also on the Court file was a transcript of an exchange between Mr Surridge,who appeared as counsel at the 17 September 2020 sentencing, and the presidingJudge, Judge Krebs. Mr Surridge repeated the appellant's claims that all she had takenduring the burglary was food and water. The Judge's response to that is recorded asbeing:Well I'd be more impressed with those submissions, Mr Surridge, if this ladycame up this morning without any previous convictions. She has a list of priorconvictions.[12] The transcript records that Mr Surridge submitted to the Court that theappellant, who had no means of transport available to her, had walked to the burgledproperty and had no means of carrying the quantity of property which was alleged tohave been taken.[13] The transcript also records Mr Surridge referring to the fact that there wasevidence that the appellant, and her three-year-old daughter who was with herthroughout the time that she was at Ngawi, was picked up by a contractor's truck andtaken to Martinborough and she did not have with her any of the furniture, furnishingsor other items alleged to have been taken.[14] Mr Surridge attempted to explain that the SOF did not particularise the specificitems which it was alleged the appellant had taken. The Court's response was to say:The summary of facts describes what was taken from (inaudible 15:08:57)including the coffee machine, (inaudible 15:09:00) speaker, pots, pans, chairs(inaudible 15:09:04) and that's what she's pleaded guilty to.[15] Mr Surridge's response is recorded as being:Well (sic) I didn't certainly takes (sic) chairs, pots and pans, bedding becauseshe hadn't, but the summary of facts refers to the total goods taken which isthe subject of an insurance claim obviously and they seek to sheet home the$650 excess to her and that's a matter for the Court to determine whether it'sfair or not.[16] Ultimately, the discrepancy between what the appellant admitted taking andwhat the SOF referred to as having been taken by "someone" was never resolved. Inthe sentencing notes, the Judge said:4The summary of facts suggests that the burglary resulted in the loss of anumber of items of furniture, a bed, bedding and so forth. I cannot resolvethat issue today. You accepted the summary of facts when you pleaded guiltyon 9 June before Judge Johnston and he has noted that on the document itself.It refers to the bedding items, a coffee machine, speakers, pots, pans andchairs. You suggest through your counsel that in fact others have beenresponsible for aspects of that burglary. As I say, I cannot resolve that. WhatI can determine is that you broke into the property and did steal a number ofitems. I intend to impose the reparation order sought in respect of theinsurance excess only so I do not need to resolve the exact extent of what youtook.[17] Later in the sentencing notes,5 the Judge says:You are sentenced to pay reparation in the sum of $650 which is the excess ofthe insurance. The actual amount that was lost was $1000 worth of damageand probably $4000 worth of property but the insurance company has coveredmost of that.[18] Contrary to the Judge's earlier statement that he did not need to resolve theissue of exactly what property the appellant took, this statement would tend to indicatethat he approached the sentencing exercise on the basis that the appellant wasresponsible for all of the property that went missing. In the situation where there was4 Police v Kowalewska (Sentencing Notes) [2020] NZDC 19264 at [3].5 At [10].a fundamental dispute on the point, it was not open to the Judge to ignore the disputeand proceed on that basis.[19] A further compounding factor is that although it is not referred to in the SOFor in the Judge's sentencing notes, the victim impact statement before the DistrictCourt contains an entry which says: "Police have recovered the two hand-drawnpictures which we are very thankful for." This is a reference to two items stolen in theburglary which the victim had indicated had great sentimental value. There is nothingin the file before the Court to connect the appellant with the recovery of these itemsand, given the nature of the clear and consistent assertion by the appellant that sheonly took food and water, one would have thought that if there were any evidencelinking her to the recovery of other property, that would have been mentioned in theSOF.[20] Where there is a plea of guilty but a dispute as to the contents of a SOF, if thatdispute is likely to have a material influence on the sentence imposed, then theappropriate procedure is to adjourn the matter for a disputed facts hearing. That iswhat should have occurred in this case.[21] The burglary charge was only one of the charges that the appellant was up forsentence on. The second charge (threatening behaviour) concerned an unrelated eventon 30 September 2019. The appellant arrived at the complainant's house and used herbare hand to smash a window. The appellant then walked around to the other side ofthe house and gained entry through a side door. She swore at the complainant, whowas at the address at the time, and demanded that she pay some money to her daughter,threatening to come back if she did not.District Court decision[22] After setting out the relevant facts, the Judge acknowledged the appellant'shistory of previous convictions (mainly related to drugs, alcohol and driving, as wellas breaching Court orders), as well as the appellant's pre-sentence report, whichdetailed her difficulties with finding a permanent place to live while raising a childand dealing with substance abuse, as well as having previously been in an abusiverelationship and continuing to deal with the trauma from that. The reportrecommended a fine, community work and supervision.[23] While acknowledging that the starting point for domestic burglaries wasordinarily one of imprisonment, the Judge noted that in the unusual circumstances ofthis case (both in terms of the appellant's personal background and the situation thatshe found herself in), it was not required. However, the Court held that this was alsonot an appropriate case for a discharge without conviction, nor was a fine appropriateas the appellant would be unlikely to pay it, given she had no home to live in and ayoung daughter to look after.[24] Instead, the Judge imposed a sentence in relation to the burglary charge of140 hours' community work, as well as period of intensive supervision for 18 months,which included that the following conditions:(a) that the appellant undertakes counselling for life skills as directed andparenting skills as directed to the satisfaction of the probation officer;and(b) that the appellant undertakes any programmes such as budgeting andotherwise that are thought appropriate by the probation officer.[25] The Judge also sentenced the appellant to pay reparation to the sum of $650,which was the excess of the insurance, as well as imposing an 18-month period ofjudicial monitoring, to allow the Judge to monitor the appellant's sentence.[26] The Judge does not deal at all with the second charge of threatening behaviour.Even if he thought that no increase beyond the penalty for the burglary charge wasrequired, the Judge was obliged to say what the sentence on the second charge was.Position of the partiesThe appellant[27] Counsel for the appellant submitted under the first ground of appeal that theJudge made a "pivotal error" by concluding that the appellant had stolen all of theitems, rather than just food and water, from the house. Counsel stressed that the SOFdid not obviously and clearly set out and identify the appellant as being responsiblefor the loss suffered, but rather simply stated that "someone" stole the items.According to counsel, this conclusion led the Judge to impose an excessive sentenceon the appellant, on the assumption that she had, in fact, stolen all of the items.[28] On the second ground of appeal, counsel submitted that given the appellant'spersonal circumstances as set out in the pre-sentence report, the Judge imposed asentence that was "suspect and excessive", because her lack of a consistent and stableliving environment would make it difficult for her to satisfy the conditions in hersentence, effectively setting her up to fail. Counsel referred to two probation reportsas evidence of the difficulties that the appellant had in complying with community-based sentences.[29] Under the third ground of appeal, counsel submitted that the Judge did notapply any settled methodology or calculation in applying the sentence that wasimposed, and did not provide a nuanced, correct or even demonstrable assessment ofthe defendant and her part in the offending.The respondent[30] In response to the first ground, counsel for the respondent submitted that theJudge did not assume or conclude that the appellant stole all of the items in theproperty.[31] Therefore, counsel submitted that it could not be assumed that the Judgeproceeded on the basis that the appellant was responsible for the theft of all items takenfrom the property. This was said to be supported by the Judge's decision to orderreparation exclusively in respect of the insurance excess, which reflected the generalloss to the property, rather than the specific items stolen. According to counsel, evenif the Judge did proceed on the basis that the appellant was responsible for all of thestolen items, the end sentence was not manifestly excessive given that, as noted by theJudge, the starting point for domestic burglaries was usually one of imprisonment.[32] Turning to the second ground of appeal, it was submitted that counsel for theappellant had failed to come up with an alternative sentence, and that it was unclearwhat other sentence could have been imposed other than imprisonment. Therefore,the sentence imposed was entirely appropriate in the circumstances.[33] Finally, on the third ground of appeal, counsel submitted that the Judge did infact apply an appropriate sentence with the correct calculation and methodology. TheJudge:(a) noted the factual dispute in relation to the number of items taken andindicated the basis upon which the sentence was imposed;(b) noted the appellant's personal aggravating factors and the finding of thepre-sentence report; and(c) indicated which purposes and principles of sentencing he considered tobe most relevant to the sentencing.Approach on appeal[34] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.6 The focus ison the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.76 Tutakangahau v R [2014] NZCA 279.7 Ripia v R [2011] NZCA 101 at [15].Relevant law and analysis[35] There are two errors in the Judge's sentencing. Firstly, he was, in thecircumstances, obliged to resolve the significant dispute of facts. For the reasonsdiscussed above,8 it was not open to the Judge to state that the appellant had acceptedthe SOF. The SOF was ambiguous on this critical issue. The appellant had beenconsistent throughout that she had only taken food and water in the burglary.Secondly, the Judge has failed to impose any sentence at all on the second charge andhas not explained why he has not done so.Analysis[36] I cannot be confident that had the disputed facts been resolved that the Courtwould have imposed the sentence it did. Neither is it clear what sentence the Courtintended imposing on the second charge. The Court needs to specify that.Outcome[37] Accordingly, the appeal is allowed and the matter remitted to the District Courtfor re-consideration in accordance with this decision.Churchman JSolicitors:Mana Law, Paremata for AppellantLuke Cunningham & Clere, Wellington for Crown8 At [5]-[19].