HINAKI v NEW ZEALAND POLICE [2019] NZHC 1900

HINAKI v NEW ZEALAND POLICE [2019] NZHC 1900 [6 August 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2019-416-11[2019] NZHC 1900BETWEEN ERETI LARA HINAKIAppellantAND NEW ZEALAND POLICERespondentHearing (via AVL): 6 August 2019Counsel: E V Lynch for AppellantA V Bryant for CrownJudgment: 6 August 2019ORAL JUDGMENT OF CHURCHMAN JIntroduction[1] On 2 July 2019, the appellant, Ms Hinaki, was sentenced by Judge Cathcart inthe Gisborne District Court to six months' imprisonment for driving while suspended,breaching community work, failing to answer District Court bail and six shopliftingcharges.1[2] She appeals her sentence on the following grounds:(a) the Judge erred in not exercising his discretion to convert the sentenceof imprisonment to home detention; and(b) the Judge erred by imposing cumulative penalties which resulted in anexcessive sentence, without adjusting for totality.1 New Zealand Police v Hinaki [2019] NZDC 12871.[3] The respondent opposes the appeal.Factual background[4] On 14 November 2017, Ms Hinaki was sentenced to 60 hours' communitywork following conviction on two shoplifting charges. The following year, on13 September 2018, she was sentenced to a further 130 hours' community work onthree shoplifting charges and remittance of unpaid fines. On 44 occasions between23 November 2017 and 25 October 2018, she failed without reasonable excuse toreport for community work and complete her hours.[5] On 10 July 2018, Ms Hinaki was suspended from driving any motor vehicleuntil 9 October 2018. She was stopped at a Police checkpoint on 5 October 2018,explaining that she was making arrangements for her daughter's birthday. On24 October 2018, Ms Hinaki failed to appear in respect of the driving while suspendedcharge.[6] Between November 2018 and May 2019, Ms Hinaki shoplifted from variousoutlets in Gisborne on eight separate occasions. The items stolen ranged fromgroceries, curtains, perfume, children's clothing, and statues.District Court decision[7] As seven of the shoplifting charges were for items valued at less than $500, theJudge treated the one incident where the items were valued at $520 as the leadoffending, there being a maximum penalty of one year's imprisonment for thatcharge.2[8] Reference was made to the pre-sentence report, the Judge noting it suggestedMs Hinaki had struggled to complete community work in the past and that she stoleitems to provide for her children, although he commented that this was not true for all2 At [2].of her offending, as this did not explain her stealing the statues.3 Gambling and amethamphetamine addiction were also put forward as explanations.4[9] The Judge adopted a starting point of two months' imprisonment on the leadoffence, with a three-month uplift to reflect the other shoplifting offending, justifyingthis due to the quantity of offending and that he was required to impose near themaximum available penalty if offending was within the most serious of cases, whichhe determined it was overall.5[10] For the balance of Ms Hinaki's offending, adjusting for totality purposes, heconcluded that an uplift of two months was appropriate.6 He also added an uplift forprevious relevant convictions, thereby arriving at a starting point of eight months'imprisonment which, once the guilty plea discount was taken into account, resulted inan end figure of six months' imprisonment.7[11] The Judge then went on to consider what would be the least restrictiveoutcome, noting that the pre-sentence report recommended community detention andsupervision, with indications being that Ms Hinaki was willing to comply withcommunity-based sentences, although her compliance record was moderate. Therewas also a suggestion that she would need some assistance with rehabilitationprogrammes.8[12] Concern for her children was noted but, in electing to impose a custodialsentence, the Judge focussed his attention on accountability, denunciation anddeterrence. He said:[16] There are various principles and purposes of the Sentencing Act whichplay a large part, in my view, in your sentence. I need to hold you accountablefor your offending and the financial harm you caused those retailers. There isalso a need to denounce your conduct. But the factor that concerns me themost is there is a real need to deter you personally and to deter others like-minded. So, two deterrent factors are at play here. First to try and stop youfrom offending again. Second, to send a clear message to other prolific3 At [4].4 At [5]-[6].5 At [7] and [9]-[10].6 At [11].7 At [12]-[13].8 At [14].shoplifters like you that soft sentences are not appropriate. Shoplifting is atan epidemic proportion in Gisborne on the East Coast. And defendants comeand go without any real deterrence being offered by the Courts.[13] The Judge determined that a term of imprisonment was the least restrictiveoutcome, not accepting the recommendation of community detention and supervision.He also did not consider home detention to be an appropriate response to the need forgeneral deterrence.9Approach to appeal[14] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must only be allowed ifthe Court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.10 The focus is on the finalsentence and whether that was in the available range, rather than the exact process bywhich it was reached.11[15] In cases involving the choice between home detention and imprisonment,which is a fettered discretion, the Court of Appeal has noted that the proper approachon appellate review is the identification of error, if any, in the Court below.12 The verybroad discretion granted to sentencing Judges in this respect is guided only by the needto properly consider the purposes and principles of sentencing in determining whetherhome detention should be granted.13Home detention[16] This Court, in Brittin v New Zealand Police, summarised the principles relatingto a sentencing Judge's choice between home detention and imprisonment asfollows:14(a) Imprisonment is a measure of last resort.9 At [17].10 Tutakangahau v R [2014] NZCA 279.11 Ripia v R [2011] NZCA 101 at [15].12 Manikpersadh v R [2011] NZCA 452 at [12].13 R v Vhavha [2009] NZCA 588 at [29].14 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (citations omitted).(b) A sentence of home detention is a severe sentence, second only to asentence of imprisonment in the hierarchy of offences in s 10A of theSentencing Act.(c) When considering the imposition of a sentence of imprisonment, theCourt must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safetyof the community.(d) When a Court is considering sentencing for the purposes ofdeterrence, accountability and denunciation, amongst other purposes,it must not impose a sentence of imprisonment unless it is satisfiedthat those purposes cannot be achieved by a sentence other thanimprisonment and no other sentence would be consistent with theapplication of the principles in s 8 of the Act.(e) A sentence of home detention carries with it in considerable measurethe principles of deterrence and denunciation.(f) It is an error of law if the purpose of deterrence has been givencomplete priority without regard to any of the countervailing purposesof sentencing.(g) One of the purposes of sentencing is to assist in the offender'srehabilitation.(h) The judge must make a considered and principled choice between thetwo forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them betterqualifies as the least restrictive sentence to impose taking into accountall the purposes of sentencing.[17] Counsel for Ms Hinaki, Mr Lynch, submits that the Judge over-emphasised theneed for deterrence and denunciation, failing to account for factors that supported asentence of home detention and, by not addressing these relevant matters, erred whenbalancing the overall ss 7 and 8 considerations of the Sentencing Act 2002 (the Act).[18] While it is acknowledged that the weight a Judge attaches to a particular factoris not a basis to challenge the exercise of a discretion,15 he argues that that differs whenthe Judge focuses solely on factors to the exclusion of others and fails to accuratelybalance all relevant matters. He references Fairbrother v R in which the Court ofAppeal held that an assessment that focuses only on one purpose such as deterrence,to the exclusion of others, amounts to an error of law.1615 McConnel v R [2013] NZCA 303 at [15].16 Fairbrother v R [2013] NZCA 340 at [29].[19] The s 7 sentencing purposes include assistance to an offender's rehabilitationand reintegration, important purposes which are absent from the sentencing decision.Factors favourable to home detention, such as the appellant's personal circumstancesin being the sole carer of her three young children, were not addressed by the Judgeand it is submitted, by Mr Lynch, that this led to an error in the discretionary exercise.[20] I do not accept that the Judge erred in focussing on the purposes of deterrenceand denunciation. In doing so, he did not focus solely on just one of the s 7 sentencingpurposes, deterrence and denunciation being two separate purposes. He also, asMr Lynch notes, paid particular attention to the need to protect Gisborne shop ownersfrom Ms Hinaki as a ground for the imposition of a custodial sentence, although Iaccept Mr Lynch's submission that this factor could have been achieved through theimposition of home detention.[21] As to the rehabilitative purpose of the Act, Mr Lynch states that Ms Hinaki hasacknowledged she needs help and confirmed her willingness to participate inrehabilitative activities and it is argued that, where there are real prospects ofrehabilitation and a willingness to engage with counselling, this should be animportant consideration to keep her in the community.17 He submits that the Judgedid not take into account her rehabilitation prospects, promoting instead denunciationand deterrence.[22] However, as Ms Bryant for the respondent submits, Ms Hinaki's apparentwillingness to engage in rehabilitation was expressed against a background of ongoingfailures to appear in Court, to engage in her current sentence, and offending whilesubject to sentence and on bail. She further submits that, while home detention maybe appropriate where an offender is motivated to change, and the Judge did notexplicitly refer to the principle of rehabilitation, it was open to the Judge to attachminimal weight for this principle. I accept Ms Bryant's submissions on this point.[23] Mr Lynch further argues that the Judge failed to recognise that home detentionis a punitive sentence that is only one step below imprisonment in the hierarchy of17 R v Hill [2008] 2 NZLR 381 at [39].sentencing, carrying with it a large amount of denunciation and deterrence.18 Whilehe accepts that there are cases where the purposes of denunciation and deterrence canonly be met by a sentence of imprisonment, whether due to the serious nature of theoffending or matters particular to the offender, Mr Lynch submits that Ms Hinaki'scase is not one of these situations. He notes that the majority of Ms Hinaki's offendingcarried maximum penalties of only three months' imprisonment and, therefore, couldbe categorised as less serious, and her sentence of six months' imprisonment is wellbelow the two-year cut off period required to trigger home detention as beingavailable. He points out that the Court of Appeal has observed that the further theprison sentence is from the two-year cut off period, the more likely it is that homedetention will be appropriate.19 Finally, he reminds me that Ms Hinaki has neverpreviously received a sentence of imprisonment.[24] For the respondent, Ms Bryant, submits that the Judge was entitled to considerthat home detention was insufficient to denounce and deter Ms Hinaki. First, it isargued that, for offending of this kind, many of the incidents of theft were particularlybrazen and the offending was spread over a period of six months. Secondly, Ms Hinakihas five previous convictions for shoplifting since 2017, along with two others from2010 and 2011, as well as other previous convictions. Finally, this offending persistedundeterred, notwithstanding that she was subject to a sentence (for similar offending)and to bail.[25] Ms Bryant further submits that other relevant factors provide furtherjustification for the Judge to decline to impose a sentence of home detention. Herarguments concerning rehabilitation have already been addressed. Ms Bryant notesthat Ms Hinaki had demonstrated an unwillingness to complete community work dueto having sole care of her children, despite her being able to complete such hours whilethey were at school.[26] As to remorse, although Ms Hinaki displayed some to the pre-sentence writer,Ms Bryant submits this must be considered in the context of a spree of dishonestyoffending commencing on 21 November 2018, just two months after her last sentence18 R v Iosefa [2008] NZCA 453 at [41].19 Manikpersadh v R, above n 12, at [22].for dishonesty offending and while she was still subject to and in breach of thatsentence.[27] Finally, she was assessed by the pre-sentence report writer as having amoderate likelihood of reoffending. In all the circumstances, Ms Bryant submits theCourt could have little confidence that Ms Hinaki would comply with a sentence ofhome detention or that she would be deterred by such a sentence.[28] While, as I noted, I do not accept that the Judge erred in focussing on deterrenceand denunciation, it is my view that he erred in taking the view that home detentionwas a soft sentence and he failed to take into account that it serves a significantdenunciation and deterrence function. Although Ms Hinaki's history of compliancewith Court imposed conditions is not particularly reassuring, she has not yet beensubject to a sentence of home detention and it is to be hoped that she would make themost of any opportunity to demonstrate that she can comply with its more onerousrequirements.[29] In the circumstances, home detention would be the least restrictive form ofsentence that would serve the purpose of deterrence and denunciation while takinginto account Ms Hinaki's family situation.Excessive sentence[30] Mr Lynch submits that the starting point was not adequately adjusted fortotality, resulting in the imposition of a sentence that was not warranted consideringthe gravity of the offences. Ms Hinaki has no previous convictions for driving whilesuspended or disqualified and it is submitted that a first-time offender would routinelybe sentenced to a fine or community-based sentence. She also had no previousconvictions for breaching community work and the net effect of a two-monthcumulative sentence resulted in a total period of imprisonment out of proportion to thegravity of her offending.[31] While it is acknowledged that Ms Hinaki's previous conviction history is anaggravating factor, Mr Lynch submits that it is not at a level to justify a one-monthimprisonment uplift. Her last sentence imposed for shoplifting resulted in a sentenceof community work and it is argued that an uplift significantly greater than theprevious sentence must give cause for thought. It is noted that, in McMurtie v Police,where an appellant with eight previous convictions for shoplifting who had notpreviously received a sentence of imprisonment was sentenced, no uplift wasprovided.20[32] Ms Bryant submits that the uplifts were entirely appropriate and well withinrange. She says the Judge explicitly adjusted for totality when uplifting for theremaining charges.[33] While I accept that the Judge's decision to impose a three-month uplift toreflect the other shoplifting offending was within the range available to him, as wasthe one-month uplift for her previous offending, I do not agree that it was necessaryto conclude that an uplift of two months was appropriate for the balance of heroffending. Adjusted for totality purposes, it is my view that the starting point arrivedat was excessive. In the circumstances, it is my view that six months was sufficient.Once the guilty plea discount is taken into account, an end sentence of four and a halfmonths' imprisonment is reached, which will be converted into a sentence of homedetention.[34] Ms Hinaki needs to understand that this is done in the hope of herrehabilitation. She needs also to understand that her future is in her hands and failureto comply with this sentence must inevitably result in imprisonment.Result[35] Therefore, the result of this appeal is that for the reasons I have given, theappeal is granted.[36] Ms Hinaki's sentence of six months' imprisonment is to be substituted for oneof nine weeks' home detention, to be served at her home address of [redacted],Gisborne. Mr Lynch has confirmed that that address is still available to her. It was anaddress which was ascertained as being suitable in the PAC report.20 McMurtie v Police [2015] NZHC 1031 at [29].[37] I note that the nine-week period of home detention is fixed having regard tothe time Ms Hinaki has served in prison pending this appeal.[38] As a result of logistical issues in arranging bus travel from Auckland toGisborne, the sentence of home detention will commence on 7 August 2019.[39] The special conditions imposed will be:(a) Travel directly to [redacted], and wait there until your home detentionconnection is completed.(b) To reside at [redacted], and not move to any new residential addresswithout the prior written approval of a Probation Officer.(c) To remain at [redacted], at all times unless an absence has beenauthorised by a Probation Officer.(d) Not to possess, consume or use any alcohol or drugs not prescribed toyou.(e) To attend an assessment for drug counselling as directed by a ProbationOfficer. To attend and complete any counselling, treatment orprogramme as recommended by the assessment as directed by and tothe satisfaction of a Probation Officer.(f) Undertake and complete the Howard League Driver Licencingprogramme and abide by the rules of the programme to the satisfactionof a Probation Officer.(g) To attend any counselling/programmes as directed by a ProbationOfficer.Churchman JSolicitors:Crown Solicitor's Office, Gisborne for CrownCounsel:E Lynch, Barrister, Gisborne for Appellant