DIANNA MARJI THEODORE v NEW ZEALAND POLICE [2018] NZHC 2364

DIANNA MARJI THEODORE v NEW ZEALAND POLICE [2018] NZHC 2364 [7 September 2018]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI 2018-416-12[2018] NZHC 2364BETWEEN DIANNA MARJI THEODOREAppellantAND NEW ZEALAND POLICERespondentHearing: 10 July 2018, further material provided 15 July,3 and 7 September 2018Counsel: V L Thorpe for AppellantS L Graham for RespondentJudgment: 7 September 2018JUDGMENT OF ELLIS J[1] Ms Theodore appeals against a sentence of 25 months' and two weeks'imprisonment imposed by Judge Cathcart in the Gisborne District Court on15 March 2018.1 The sentence was imposed following Ms Theodore's pleas of guiltyto one charge of burglary and one charge of common assault. Ms Theodore says thatthe sentence was manifestly excessive.[2] The notice of appeal was filed out of time but, in light of the explanation forthe delay, it is appropriate to grant an extension of time and I do so, accordingly.21 R v Theodore [2018] NZDC 5141.2 The reasons given for late filing were that her new counsel was assigned on 27 March 2018, ittook several weeks to retrieve the file from Ms Theodore's former lawyer and that her new lawyermade a decision to await the outcome of a sentence appeal by one of Ms Theodore's co-offenders,Ms McClutchie. That appeal was declined by Grice J: see McClutchie v R [2018] NZHC 829 at[40].[3] As it developed, the original hearing focussed on whether, in imposing asentence that was six weeks shy of the home detention threshold, the Judge failed tohave proper regard to Ms Theodore's domestic circumstances, namely the care of herdependent children. Because there was a lack of clarity about the precise nature ofthose circumstances (including the number and age of children previously in her care),an adjournment was granted to enable inquiries to be made and further adviceprovided.[4] It was subsequently confirmed that, prior to her incarceration, Ms Theodorehad had the care of three children (aged 6, 10 and 12) and that those children are nowin the care of her mother. But the Court was also advised that the home detentionaddress proposed at sentencing was no longer available. Two other possible addresseswere proffered and a direction was made by me on 16 July 2018 that the feasibility ofthese addresses should be assessed, with the adjournment of the appeal to continue inthe meantime.[5] It appears that assessment was completed on 8 August 2018. For reasons thatare not yet clear, however, this assessment was not forwarded to me. So, I was notaware that it had been completed until 3 September 2018, when a memorandum wasfiled by Ms Thorpe on Ms Theodore's behalf advising that she no longer sought tohave a sentence of home detention substituted because she was optimistic that shewould shortly be granted parole.[6] After receiving Ms Thorpe's memorandum I asked the Registry to obtain acopy of the home detention assessment as a matter of urgency, and advised that I wouldissue my judgment by the end of today. I received a copy this morning. Its contentswill be discussed in more detail later in this judgment. In short, however, it advisedthat neither of the alternative addresses put forward were deemed suitable. I alsoreceived today a further memorandum from Ms Thorpe advising that Ms Theodoredoes now wish the possibility of home detention to be considered. So, I proceed onthat basis.Facts[7] The following narrative is taken from the Summary of Facts, on the basis ofwhich Ms Theodore entered her guilty pleas.Burglary[8] Ms Theodore, her two co-offenders (Ms Emily Wright andMs Tarina McClutchie) and the victim (Ms W) were all known to each other. At thetime of the offending, Ms Wright was 25 years old, Ms McClutchie was 32 andMs Theodore was 30.[9] Prior to the offending, Ms McClutchie and Ms W had exchanged heatedFacebook messages in relation to a debt Ms McClutchie said that Ms W owed her.[10] Mid-morning on 6 April 2017, Ms W and her two-year-old son were at home.Ms W's half-sister, Ms L was also present. Ms Theodore and the two other womenarrived at her address and parked in the driveway. All three got out of the car andwalked to the back of the house. Ms W immediately locked the front sliding door.But as she went to lock the back door, she was confronted by the women.[11] Ms McClutchie then grabbed Ms W by the neck of her shirt and forced her intothe wash-house next to the back door. She pulled Ms W's hoodie over her face andheld her head down; a struggle ensued between them. This allowed Ms Wright andMs Theodore to enter the house through the back-door.[12] Once inside, Ms Wright and Ms Theodore removed Ms W's cell phone andcharger, a packet of tobacco, a wallet containing assorted credit cards and personaldocuments, collectively valued at $100. One of them also took the keys to the Ms L'sToyota Hilux which was parked in the driveway. The car was worth around $50,000.[13] Ms Wright and Ms Theodore left the house and returned to their car in thedriveway. One of them handed the keys to Ms L's car to a man who was waiting nearby.His identity remains unknown. The man got into the Hilux and started it.Ms McClutchie let go of Ms W, ran down the driveway and got into the car in whichthe women had arrived. Both cars then drove away.[14] Neither Ms W nor anyone at the house suffered any injuries, although hervictim impact statement spoke of ongoing fear and trauma. The Hilux was laterrecovered six days later in the Bay of Plenty, having been abandoned. It had sustainedconsiderable damage and personal property had been taken from it.Common assault[15] Five days after the burglary Ms Theodore and Ms W ran into each other in abar. Words were exchanged about what had happened. Ms Theodore then punchedMs W once in the forehead and a passer-by pulled the two apart. Ms W sustained asmall scratch to her right cheekbone and a small scratch under her left eye.Sentencing in the District Court[16] The Judge sentenced Ms Theodore's two co-offenders together,3 butMs Theodore separately, later.4 He expressed the view that the agreed facts revealedthat all three women had worked together "as a team" and that on the lead charge ofburglary, they were each equally culpable.5 He adopted a "global starting point" of34 months' imprisonment for all three women.6 Ultimately, Ms Wright was sentencedto 27 months' imprisonment and Ms McClutchie was sentenced to 30 months'imprisonment.7[17] In Ms Theodore's case, the starting point of 34 months' imprisonment wasuplifted by three months to account for the common assault charge. The starting pointtherefore became one of 37 months' imprisonment.3 R v Wright [2018] NZDC 605.4 R v Theodore, above n 1.5 R v Wright, above n 3, at [22].6 R v Theodore, above n 1, at [1] and R v Wright, above n 3, at [24].7 The component parts of that final sentence are discussed later, below.[18] The Judge recorded the Provision of Advice to Courts (PAC) report writer'sview that Ms Theodore showed little insight into her offending. She had written aletter of remorse, which he described as "well-written".8 Taking this together with thefact that Ms Theodore had not tried to shift responsibility for her offending to anyoneelse, the Judge accepted that she was genuinely remorseful.[19] The PAC report also noted that Ms Theodore had four children of whom shehad custody. The Judge expressed concern for the welfare of her children but recordedthat alternative care arrangements had been put in place.[20] The Judge gave a discount of three months' for remorse and personalcircumstances and a full (25 per cent) discount for Ms Theodore's guilty pleas. Theend sentence imposed therefore was 25 months' and two weeks imprisonment.Reparation in the sum of $3,180 was also ordered by way of addendum.Ms Theodore's grounds of appeal[21] As recorded in footnote 2 above, Ms McClutchie's subsequent appeal againsther sentence was unsuccessful. In that context Grice J held that there was no error inthe 34-month starting point adopted. Given the District Court Judge's assessment ofequal culpability Ms Theodore's appeal focussed on the uplifts and discounts thatrelated to her circumstances alone. She said that the sentencing Judge erred in:(a) adopting an uplift for the common assault charge that was too high; and(b) allowing insufficient credit for remorse and personal circumstances.[22] As noted earlier, the overarching focus of the appeal as it developed before mewas that even a short reduction of the sentence would render home detention availableand that that was the sentence that should be imposed. My preliminary view was thatthat argument potentially had some force, which gave rise to the events I set out at thebeginning of this judgment.8 R v Theodore, above n 1, at [6].[23] While that argument is relevant only to the second ground of appeal, forcompleteness I address both grounds, in turn.Uplift for common assault[24] Ms Thorpe submitted that the three-month uplift to the starting point for thecommon assault charge was excessive, in light of the totality principle. Although sheacknowledged that Ms Theodore's position at sentencing had been that a three-monthuplift on that charge was appropriate, she said that this was predicated on the adoptionof a lower starting point.[25] Issue was also taken with what is said to be a different approach taken to theuplift to the one taken by the Judge when sentencing Ms McClutchie.9 InMs McClutchie's case, the Judge considered that the (different) additional chargesshould attract concurrent sentences of seven months' imprisonment,10 but imposed anuplift of only five months following a totality assessment. As I understood it, theargument advanced for Ms Theodore was that there should have been a similaradjustment downwards for totality in her case.[26] And lastly, it was submitted that the effect of the uplift was particularly harshbecause it took the end sentence over the 24 month home detention threshold. Thesentence of imprisonment was manifestly excessive because it was the result of anuplift for offending which, taken on its own, would have attracted a community basedsentence.[27] I am unable to agree with these submissions.[28] First, the Judge expressly considered totality. After rejecting the Crown'sproposed six-month uplift as "excessive on a stand-alone and on a totality basis", hesaid "the appropriate increase is one of three months' imprisonment adjusted fortotality purposes and I adopt that approach".119 Ms McClutchie was sentenced for unrelated charges of obtaining by deception and accessing acomputer for dishonest purposes as well as the burglary charge.10 One month for the obtaining by deception charge and six for the accessing a computer system fora dishonest purpose charge.11 R v Theodore, above n 1, at [4].[29] Secondly, the comparison with Ms McClutchie's case is misplaced. A totalityassessment does not require that an uplift for other offending be less than theconcurrent sentence imposed for that offending. Section 85 of the Sentencing Act2002 (the SA) states:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrentsentences, or a combination of concurrent and cumulative sentences,must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[30] The relevant inquiry is therefore simply whether, after the application of anorthodox sentencing approach (including uplifts and discounts), the penalty imposedfor the most serious offence (here, the burglary) is an appropriate reflection of thetotality of the offending. And as I have said, no quibble is or can be taken with theJudge's starting point. He then expressly considered totality. The end sentence cannotin my view be said to be out of the available range.[31] Ms Thorpe submitted that the combined three-month (approximately eight percent) discount applied by the Judge for remorse and personal circumstances wasinadequate. She said that, based on Hessell v R,12 and other decisions which have12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.applied the Hessell dicta to the facts of the particular case,13 a discrete discount forremorse of five per cent was warranted and that an additional and larger discountshould be allowed for the impact of incarceration on Ms Theodore's dependentchildren.Discount for remorse and personal circumstances[32] Ms Thorpe submitted that the combined three-month (approximately eight percent) discount applied by the Judge for remorse and personal circumstances wasinadequate. She said that, based on Hessell v R14 and other decisions which haveapplied the Hessell dicta to the facts of the particular case15 a discrete discount forremorse of five per cent was warranted and that an additional and larger discountshould be allowed for the impact of incarceration on Ms Theodore's dependentchildren.[33] By and of itself there is nothing in the point about remorse. Notwithstandingthe letter written by Ms Theodore the PAC report recorded that (a month earlier) shecontinued to take responsibility for the offending. Arguably affording her a discountat all on that count was generous. There is no discernible error on that front.[34] The issue of her dependent children is more complex. I begin with somegeneral points and then turn to consider Ms Theodore's case.[35] A useful stepping off point is that the United Nations Rules for the Treatmentof Women Prisoners and Non-Custodial Measures for Women Offenders with theirCommunity (the Bangkok Rules) were adopted in 2010.16 The Rules are predicatedon the proposition that women prisoners are a vulnerable group with specific needs.It further notes that many existing prison facilities were designed primarily for maleprisoners, but the "number of female prisoners has significantly increased over the13 Ms Thorpe referred me in particular to Haimona v New Zealand Police [2018] NZHC 472 andBenson v New Zealand Police [2018] NZHC 296.14 Hessell v R [2010] NZSC 135, [2011] NZLR 607.15 Ms Thorpe referred me in particular to Haimona v New Zealand Police [2018] NZHC 472 andBenson v New Zealand Police [2018] NZHC 296.16 United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures forWomen Offenders (the Bangkok Rules) GA Res 65/229 (2011).years".17 That accords with recent reports in this country that the number of womenprisoners has increased by 56 per cent in the last five years and by 19 per cent in thesingle year ending May 2018.18[36] Relevantly, r 64 of the Bangkok Rules provides:19Non-custodial sentences for pregnant women and women with dependentchildren shall be preferred where possible and appropriate, with custodialsentences being considered when the offence is serious or violent or thewoman represents a continuing danger, and after taking into account the bestinterests of the child or children, while ensuring that appropriate provision hasbeen made for the care of such children.[37] There is, as well, a considerable amount of overseas' material relating to thisissue. By way of example only, the Bangkok Rules lie behind a recent discussionpaper produced by the Prison Reform Trust in the United Kingdom.20 The paperincludes recommendations that:211 The government should review the sentencing framework to ensureappropriate recognition of and provision for an offender's sole orprimary care responsibilities, in relation to both custodial andnon-custodial sentencing.3 Sentencing guidelines should be strengthened by the addition of an'Overarching Principle' setting out the court's duty to investigate soleor primary caring responsibility of defendants and to take theseresponsibilities into account in sentencing decisions.6 Judges, district judges and magistrates should be obliged to considernon-custodial sentences for offenders with primary careresponsibilities, and in cases when imprisonment is an option shouldconsider a community order, deferred or suspended sentence.17 At 2. The Rules note (at 7), however, that many of the issues addressed by them apply equally tomen with parental responsibilities.18 Laura Walters "Huge rise in female prison population 'a problem': Corrections boss" Stuff (onlineed, 1 March 2018). Department of Corrections "Prison Facts and Statistics – March 2018"<https://www.corrections.govt.nz/resources/research_and_statistics/quarterly_prison_statistics/prison_stats_march_2018.html>.19 The Bangkok Rules, above n 16, at 19.20 S Minson, R Nadin and J Earle Sentencing of Mothers: Improving the sentencing process andoutcomes for women with dependent children (Prison Reform Trust, 2015).21 At 4.[38] These recommendations essentially recognise and confirm dicta from theCourts in the United Kingdom, most notably the extensive discussion in R v Petherickwhere the Court of Appeal observed (inter alia): 22 a criminal court ought to be informed about the domestic circumstances ofthe defendant and where the family life of others, especially children, will beaffected it will take it into consideration. It will ask whether the sentencecontemplated is or is not a proportionate way of balancing such effect with thelegitimate aims that sentencing must serve.... it will be especially where the case stands on the cusp of custody that thebalance is likely to be a fine one. In that kind of case the interference with thefamily life of one or more entirely innocent children can sometimes tip thescales and means that a custodial sentence otherwise proportionate maybecome disproportionate. the likelihood, however, of the interference with family life which isinherent in a sentence of imprisonment being disproportionate is inevitablyprogressively reduced as the offence is the graver . in a case where custody cannot proportionately be avoided, the effect onchildren or other family members might (our emphasis) afford grounds formitigating the length of sentence, but it may not do so. If it does, it is quiteclear that there can be no standard or normative adjustment or conventionalreduction by way of percentage or otherwise. It is a factor which is infinitelyvariable in nature and must be trusted to the judgment of experienced judges.[39] As far as the position here is concerned, New Zealand has not ratified theBangkok Rules, but the Government position is that women offenders are managed ina manner that takes into consideration their specific needs and family circumstances.23And s 8(j) of the SA requires a sentencing Court to take the circumstances of anoffender into account if they would render an otherwise appropriate sentencedisproportionately severe. It is widely accepted that the impact of a sentence on anoffender's dependent children is one matter which may engage that requirement.Unsurprisingly, there have been a number of New Zealand cases which discuss andapply s 8(j) in that context. They include:22 R v Petherick [2012] EWCA Crim 2214 at [20] and [22] – [24] (footnotes omitted).23 New Zealand's Sixth Periodic Report on the United Nations Convention Against Torture and OtherCruel, Inhumane or Degrading Treatment of Punishment (2013).(a) Ransom v R where the District Court sentenced the defendant to18 months' imprisonment after allowing a discount of 20 per cent forthe defendant's six-year-old child who had "considerable behaviouraldifficulties" that were "exacerbated by his mother's absence from thefamily home". On appeal, no issue was taken with the discount but theCourt of Appeal quashed the sentence of imprisonment and substitutedone of nine months home detention coupled with 75 hours ofcommunity work, on the grounds (inter alia) of the defendant's need tocare for her child.24(b) R v Porter-Riley where the defendant was sentenced to nine months'home detention, which included a discount of six months (18 per cent)for her personal circumstances which included (inter alia) the need forher to take care of her new born baby. Although her remaining ninechildren were not able to live at the home detention address they wouldbe able to live with their father (the defendant's partner) in the familyhome nearby (the family home was not suitable for home detention)and they would be able to visit their mother regularly.25(c) Zheng v R where the sentence of two years and nine months'imprisonment which had been imposed by the High Court included anine-month discount (21 per cent) for (inter alia) the fact that thedefendant was the sole caregiver of her two dependent children.26 Onappeal, the Court of Appeal quashed the sentence of imprisonment andsubstituted a sentence of eight months home detention with specialconditions. While not expressly saying that this reduction was becauseof her dependent children, the Court did say that reducing the sentenceto one where home detention became an available sentencing option(24 months) would take account of the "particular hardship of prisonfor her".2724 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.25 R v Porter-Riley HC Auckland CRI-2010-092-14703, 12 April 2011.26 Zheng v R [2015] NZCA 451.27 This included medical conditions, that she was the sole caregiver for her two dependent childrenand the fact that she spoke "virtually no English".(d) Proctor v Police where in sentencing the defendant to two years andfive months' imprisonment, the District Court took no account of theimpact a sentence of imprisonment would have on her family. Onappeal, the High Court had the benefit of a psychiatric report detailingthe impacts of incarceration on her two young children (aged three andfive). The Court quashed the sentence and substituted a sentence of12 months home detention with special conditions coupled with100 hours of community work. In doing so, the High Court gave a15 per cent discount for (inter alia) the young dependent children.28(e) R v Walker where the defendant was given a 10 per cent discount "outof compassion for [his] children and to provide [him] with someencouragement". The end sentence was one of three years and eightmonths' imprisonment.29(f) R v Ralph where the defendant was sentenced to 12 months' homedetention which included a discount of seven months (20 per cent) toaccount for her six-year-old child. She was the primary caregiver of thechild because the father worked full time and was the sole breadwinner.The District Court expressly considered psychologist reports that thechild's development would be affected by the mother's imprisonment.The sentence was upheld on appeal to the High Court.30(g) R v Lyon where a sentence of two years and four months' imprisonment,included a seven month (20 per cent) discount to account for the factthat the defendant was the primary caregiver of the children, his partnerwould lose her prospective re-employment and the family would losetheir main income for the duration of his incarceration.3128 Proctor v Police [2016] NZHC 2656.29 R v Walker [2017] NZHC 2303 at [18].30 R v Ralph [2018] NZHC 794. The child suffered from significant health issues, includingdevelopmental and attachment difficulties.31 R v Lyon [2018] NZHC 1434.This case[40] In turning now to Ms Theodore's case, it is important to reiterate at the outsetthat the impact of the sentencing on the welfare of Ms Theodore's children was clearlyof concern to the sentencing Judge. It also needs to be acknowledged that theinformation before him about Ms Theodore's domestic circumstances was limited, atbest. The PAC report simply referred to her having four children and that it wasproposed that one of them (the nine-year-old) would live with her in the event shereceived a sentence of home detention. No reasons were given for that. Nor was thereany reference in the report as to the alternative care arrangements that were proposedin the event of a sentence of imprisonment. It appears that the Judge was advised ofthese at the sentencing hearing itself.32[41] It is also potentially relevant to note that at the time the PAC report wasprepared Ms Theodore's proposed home detention address was in Christchurch.33 Shehad previously lived (presumably with her younger three children) in Gisborne. Soeven if home detention had both been available and considered appropriate by thesentencing Judge it would have involved uprooting them from their schools and theirfriends in Gisborne; disruption to their lives on that score would therefore haveoccurred regardless of the sentence imposed.[42] The advice now received by this Court is only somewhat more detailed. Butthe gist of that advice is that:(a) Ms Theodore has had six children. One has died, one is an adult and theremaining four are aged 15, 12, 10 and 6;(b) the 15-year-old is cared for on permanent basis by whanau;(c) the 6, 10 and 12-year-old children are, subsequent to Ms Theodore'ssentence, cared for by her mother, in Auckland; and32 In fairness, it should also be recorded that the PAC Report writer had recommended anon-custodial sentence.33 Although Ms Thorpe recently advised that the address originally proposed was in Gisborne(Lyndhurst Street) it seems clear that it was in fact in Christchurch (Lyndhurst Crescent).(d) all the three of younger children would live with Ms Theodore in theevent home detention was substituted on appeal.34[43] And lastly, there is further relevant information contained in the most recenthome detention assessment. One of the two addresses that were the subject of thatreport was Ms Theodore's mother's address in Auckland where Ms Theodore'schildren now live. But that address was deemed unsuitable as a home detentionaddress because Ms Theodore's 28-year-old brother is presently living there onEM Bail. In the circumstances (by which I principally mean the fact that her childrenare living at the address) it seems to me that this should not be determinative and maybe an issue requiring future exploration.[44] In cases where there is a risk that an offender such as Ms Theodore may besentenced to imprisonment it seems to me to be imperative that the sentencing Courtreceive as much information about her or his domestic circumstances and, inparticular, the impact of such a sentence on any dependent children. I respectfullyadopt and endorse the dicta from Petherick in that regard. In Ms Theodore's case thatinformation does not seem to have been available and, even now, more detail wouldbe helpful. As a matter of practicality, the responsibility for ensuring that this is somust probably lie primarily with PAC report writers and with defence counsel.35[45] As well, there is a conundrum presented by the fact that Ms Theodore'schildren have now been parted from her for some months and have already beenrequired to relocate from Gisborne to Auckland. And as noted earlier, it seems thateven a sentence of home detention would not necessarily have permitted the family tostay together.[46] All that said, however, the end sentence received by Ms Theodore was, verymuch, on the "cusp" in terms of the home detention threshold. Ms Theodore had neverserved a custodial sentence before. The Judge did not indicate that he would not haveentertained such a sentence, had it been available. In my view, this is a case whereMs Theodore's personal circumstances do warrant a more merciful discount which, as34 It remains unclear why the original proposal was that only one of them would.35 I record that Ms Thorpe was not acting for Ms Theodore at sentencing.things presently stand, might facilitate her pursuit of an option that does not see herparted from her children for so long. A more generous discount of six months (16 percent) seems to me to be in line with the cases to which I have referred above, and ismore consistent with the wider principles which underlie the Bangkok Rules. Aftertaking into account a full guilty plea discount, the end sentence would be one of23 months' imprisonment. Home detention therefore becomes a possibility.Result[47] Ms Theodore's appeal against sentence is allowed. The sentence of 25 monthsand two weeks' imprisonment is quashed and a sentence of 23 months' imprisonmentis substituted. There will be a concurrent sentence of three months' imprisonment onthe assault charge.[48] In light of the most recent advice from Corrections as to the suitability ofMs Theodore's proposed addresses I am not in a position to substitute a sentence ofhome detention today. But as indicated earlier I am not myself convinced that thepresence of her brother at her mother's address should, without more, be disqualifying.That is a matter which may need to be explored further. It seems to me that theappropriate course is to grant her leave to apply under s 80I of the SA and so I do so.Whether leave is granted if an application is made will be a matter for the DistrictCourt.____________________________Rebecca Ellis J