TUKI v POLICE [2020] NZHC 806

TUKI v POLICE [2020] NZHC 806 [24 April 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-000006[2020] NZHC 806IN THE MATTER OF an appeal against sentenceBETWEEN JAYMIE URSULLA TUKIAppellantAND NEW ZEALAND POLICERespondentHearing: 22 April 2020Counsel: A S Bloem and A J Gordon for the AppellantS T Patia for the RespondentJudgment: 24 April 2020JUDGMENT OF EDWARDS JThis judgment was delivered by me on 24 April 2020 at 12.30 pm.Registrar/Deputy RegistrarSolicitors: Bloem and Associates, AucklandMarsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei[1] Ms Tuki was sentenced to 16 months' imprisonment for a raft of dishonestyoffences, breaching her release conditions and failing to report.1 She appeals on thegrounds that the Judge did not give her credit for time spent on EM bail, the 15 per centdiscount for a guilty plea was too low, and the Judge failed to consider home detentionas the least restrictive sentence in the circumstances.Offending[2] Ms Tuki is 34 years of age. She is of Ngāti Raukawa descent. She has fourchildren, the eldest of whom is an adult now. None of her children reside with herpermanently, but she had periodic care of her youngest children prior to herincarceration.[3] Ms Tuki has an extensive criminal history, involving mostly dishonestyoffending. She has amassed 155 convictions, with 99 prison sentences. Between 2017and 2019, Ms Tuki accumulated 15 theft and shoplifting charges, with the only breaksbeing for the time she was in custody.[4] The offending the subject of the appealed sentence arose out of events in 2019.On 30 May 2018, Ms Tuki was released from a sentence of imprisonment for burglary,shoplifting and theft. She was to report weekly. Ms Tuki failed to report and wasremanded in custody from 1 December 2018 to 22 February 2019. She was released,instructed again to report, and failed to do so.[5] On 24 April 2019, Ms Tuki went to a fashion store in Takapuna. While there,she took two shirts with a total value of $318.[6] On 5 May 2019, a bag was stolen from the Glenfield Pool and Leisure Centre.The bag contained $600 cash, and credit and debit cards. Ms Tuki was charged withreceiving those cards, and then using them to purchase cigarettes from two differentpetrol stations.1 Police v Tuki [2020] NZDC 4483.[7] On 25 June 2019, Ms Tuki stole products valued at $100 fromBirkenhead Countdown.[8] On 19 July 2019, Ms Tuki entered a store and took $11 from an honesty box.[9] On 15 August 2019, Ms Tuki entered the Wellsford Pharmacy. She took twocosmetic items with a total value of $51.98.[10] Ms Tuki pleaded guilty to:(a) Three charges of shoplifting;2(b) One charge of theft;3(c) One charge of obtaining by deception;4(d) One charge of dishonestly using a document;5(e) One charge of breach of release conditions;6(f) One charge of failure to report.7Personal circumstances[11] The pre-sentence report writer records that Ms Tuki has suffered significanttraumas in her life, including the death of her father at the hands of her mother, and adisrupted childhood due to changing care arrangements. Most recently, she wasgranted EM bail due to the trauma suffered as a result of finding her long-term friendand cellmate dead following a suicide.2 Crimes Act 1961, s 223. Maximum penalty three months' imprisonment.3 Crimes Act 1961, s 223. Maximum penalty three months' imprisonment.4 Crimes Act 1961, s 240. Maximum penalty three months' imprisonment.5 Crimes Act 1961, s 228(1). Maximum penalty seven years' imprisonment.6 Sentencing Act 2002, s 96. Maximum penalty one year imprisonment or $2,000 fine.7 Bail Act 2000, s 38. Maximum penalty one year imprisonment or $2,000 fine.[12] Previously, Ms Tuki has attributed her offending to kleptomania, but morerecently she has acknowledged a longstanding addiction to methamphetamine. Shesays that she has not previously mentioned a methamphetamine addiction because shewas scared of losing custody of her children.[13] Ms Tuki was residing in Auckland at the time of the offending, but movedNorth to disassociate herself from people who had a negative influence on her life.She enrolled in a drug and alcohol programme in Moerewa as a means of addressingher drug addiction. The pre-sentence report writer records that Ms Tuki's attendancewas sporadic and she had failed to engage with the programme. However, affidavitevidence filed by and on behalf of Ms Tuki takes issue with that assessment, as isdiscussed further on in this judgment.[14] Based on the frequency of her offending and the limited insight that she showedinto the impact of her offending on her victims, the report writer assessed Ms Tuki ashaving a high risk of re-offending and a medium risk of harm within the community.Approach to appeal[15] The appeal is brought pursuant to s 250 of the Criminal Procedure Act 2011.An appeal court must allow an appeal against sentence if it is satisfied that, for anyreason, there is an error in the sentence imposed on conviction and that a differentsentence should have been imposed. Whether a sentence is manifestly excessive is tobe examined in terms of the end sentence given, rather than the process by which thesentence was reached.8Was there a failure to apply a discount for EM bail?[16] Section 9(2)(h) of the Sentencing Act 2002 requires a Judge to take intoconsideration time spent on EM bail. The Judge does not appear to have been askedto consider such a discount at sentencing, and so, unsurprisingly, did not explicitlyaddress it in his notes.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[17] Ms Tuki was initially remanded in custody on 29 August 2019. She was thengranted EM bail on 4 November 2019 following the suicide of her cellmate. Ms Tukispent a little over four months on EM bail. Her counsel informs me that the onlyapproved absences from home during this time were to allow Ms Tuki to attendrehabilitation services. Ms Tuki was fully compliant and there were no breaches. Iconsider some discount to allow for the restrictions on Ms Tuki's liberty is appropriateand I apply a discount of two months' imprisonment.Was the guilty plea discount too low?[18] The Judge applied a 15 per cent discount for the guilty plea. Counsel forMs Tuki says this discount was too low and the guilty pleas were entered at the firstreasonable opportunity.[19] Ms Tuki's first appearance was on 29 May 2019 for breach of releaseconditions. Other charges were added, and there were several Court appearances inrelation to bail. The charge relating to the theft of $11 from the honesty box hadoriginally been charged as burglary. Following discussions between counsel, thischarge was downgraded to theft. Subsequently, Ms Tuki pleaded guilty to all chargesat the case review hearing on 27 November 2019.[20] Although the guilty plea discount was not at the earliest opportunity, I acceptthat pleading guilty to all charges once laid, and after the downgrading of one of thosecharges, was a pragmatic decision. It also appears that some of the delay in pleadingguilty may be attributed to issues with late disclosure. On the other hand, Ms Tuki didmake admissions about some of the offending in her DVD interview and so the caseagainst her was relatively strong.[21] In my view, a discount in the region of 20 per cent for the guilty plea couldhave been justified in Ms Tuki's case. The quantum of any discount is a matter ofdiscretion for the Judge, and if this was the only discount in issue, I would not havebeen inclined to differ from the sentencing Judge. However, taken together with thediscount for EM bail, a discount of 20 per cent for the guilty plea, results in a three-month discount to the total end sentence. That is more than just trifling. Accordingly,I apply a discount of 20 per cent for the guilty plea.Should the sentence have been home detention?[22] Ms Tuki's end sentence was within the range for consideration of homedetention. The Judge did not expressly refer to the possibility of home detention, buthe did say that the need to hold Ms Tuki accountable and to protect the communityrequired a full-time custodial sentence.[23] On a short-term basis, that must be correct. A short-term sentence ofimprisonment would appear to be the most effective way of protecting the public fromthe harm caused by Ms Tuki's offending. That is borne out by the fact that the onlybreak in Ms Tuki's offending between 2017 and 2019 was due to her beingincarcerated.[24] But whether imprisonment promotes protection from harm, deterrence andaccountability long-term must also be considered. Ms Tuki's pattern of offendingindicates that short-term sentences of imprisonment have been ineffective in deterringher from offending in the same way again. There is no reason to suggest that thispattern will not continue, that is, Ms Tuki will simply serve her sentence ofimprisonment and re-offend once again when released. A sentence of imprisonmentdoes not therefore deter Ms Tuki, nor protect the public from harm long-term.[25] Further, whether a home detention sentence would meet the principles andpurposes of sentencing, including accountability and the protection of the communitymust also be considered. The primary benefit of a home detention sentence would bethe opportunities it would offer to Ms Tuki to address the underlying causes of heroffending. These may include kleptomania and methamphetamine addiction. (I say"may" because these causes are self-reported and there is nothing, as yet, tocorroborate that self-report). Addressing the underlying causes of her offending maybe the best opportunity to break the cycle of offending and incarceration, thusprotecting the community from harm.[26] Home detention would also promote Ms Tuki's rehabilitation and reintegrationinto society. Those principles are just as important as the other principles and purposesof sentencing.9 There are limited rehabilitative programmes available for thosesentenced to short-term sentences of imprisonment. However, a sentence of homedetention would allow Ms Tuki to continue to address the underlying causes of heroffending through available programmes.[27] I accept that the number of convictions for failing to appear and breach ofrelease conditions gives reason to be concerned about Ms Tuki's ability to complywith a sentence of home detention. On the other hand, Ms Tuki spent four months onEM bail without incident and she reports being drug-free since August 2019. That,combined with the fact that Ms Tuki took the proactive step of moving away fromassociates in Auckland suggests that Ms Tuki may now be motivated to make asignificant change in her life.[28] That brings me to the question of the rehabilitative programme that Ms Tukihas been attending, and would like to continue attending, if a sentence of homedetention was substituted on appeal. Ms Tuki has filed three affidavits in support ofher appeal. These affidavits were not before the Judge at the time of sentencing. Thepolice raise some concerns about the credibility of the affidavits, but do not opposetheir admission. The affidavits set out relevant information regarding theWhakamana Tangata programme, and Ms Tuki's engagement with it prior to herincarceration. They contain information relevant to the question of home detentionand are admitted on that basis.[29] In terms of Ms Tuki's engagement, it is clear from the affidavits that Ms Tukiattended the programme when approved to do so by the EM bail team. Her onlyabsences were due to her youngest children being with her for a period of time. Itappears that Ms Tuki has involved herself with the programme and it has had a positiveinfluence on her rehabilitation.[30] Overall, I consider something needs to change if there is to be a differentoutcome for Ms Tuki. A short-term sentence of imprisonment has some short-termbenefits, but Ms Tuki's history suggests it will not ultimately protect the public fromharm or deter her from offending again. It will not promote Ms Tuki's rehabilitation9 Doolan v R [2011] NZCA 542 at [38].which may be the most effective way to prevent further harm to the community in thefuture. Balancing all these factors in the mix, I consider a sentence of home detentionis the least restrictive sentence in the circumstances.[31] However, additional information is required before a sentence of homedetention may be substituted for the existing sentence of imprisonment. Although theproposed home detention address has been assessed as technically compliant, theconsent of the owner/occupiers has not been obtained. Further, since the address wasfirst assessed, the country has been placed into lockdown as a result of the Covid-19virus. Whether the address remains suitable in light of the risks posed by the Covid-19 virus will also need to be considered, and I intend to order an updated report on theproposed address.Result[32] The appeal is allowed. The end sentence of 16 months' imprisonment isquashed and substituted with an end sentence of 13 months' imprisonment. Theconstruction of the sentence is set out at [14] of the District Court Judge's decision.The term of each sentence, and the cumulative or concurrent nature of that sentenceremains the same, except that the eight months' imprisonment imposed for one chargeof obtaining/receiving the debit card is to be quashed and substituted for five months'imprisonment.[33] Leave to apply for home detention is reserved. An updated report on theproposed address is ordered. The consent of the owner/occupiers is required, and thereport should specifically address any particular risks posed by the Covid-19 virus.___________________Edwards J