COURTENAY v NZ POLICE [2020] NZHC 1722

COURTENAY v NZ POLICE [2020] NZHC 1722 [16 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000193[2020] NZHC 1722BETWEEN JENAYA RAE COURTENAYAppellantAND NEW ZEALAND POLICERespondentHearing: 14 July 2020Appearances: M Taylor-Cyphers for the AppellantA Masters for the RespondentJudgment: 16 July 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 16 July 2020 at 12:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: M Taylor-Cyphers, Auckland[1] On 30 March 2020, Jenaya Rae Courtenay was sentenced byJudge C H Bennett in the Waitakere District Court to 25 and a half months'imprisonment on six charges of theft of goods valued at more than $1,000, for whichthe maximum sentence is seven years' imprisonment.1 At the same time, she wassentenced to various lesser penalties in respect of 17 other theft, drug, driving andassault charges.2 The penalties imposed range from a conviction and discharge toconcurrent terms of imprisonment of up to three months. She now appeals against thetotal sentence of 25 and a half months' imprisonment on the basis that it is manifestlyexcessive.Factual background[2] The six lead charges involved the shoplifting of a large number of high valueitems from retail stores. Ms Courtenay almost always used a child's pram or largebags to conceal the items she stole, such as expensive clothing, an espresso coffeemachine and numerous bottles of perfume, as an example. One of the assault chargesarose when Ms Courtenay shoved a security guard while escaping from LifePharmacy, in Auckland's Albany. The security guard fell over and suffered injuries toher left hip and foot.[3] Other charges included possession of methamphetamine utensils, failing tostop, speeding to evade the police and assaulting police.[4] A year and a half earlier, in August 2018, Ms Courtenay was given a sentenceindication by another Judge of 18 months' imprisonment on nine charges. On the sameday that she received the sentence indication, Ms Courtenay committed a further theftoffence, followed by one the following day and two more, three days later. BetweenAugust 2018 and sentencing in March 2020, while on bail, Ms Courtenay amassed afurther 13 charges.[5] After the sentence indication, Ms Courtenay was admitted into the Alcohol andOther Drug Treatment Court. Following her further offending, she was exited from1 Crimes Act 1961, s 223(b).2 Crimes Act 1961, ss 223(b), (c), 226(2); Summary Offences Act 1981, ss 9, 10; Land TransportAct 1998, s 35(1)(a) and Misuse of Drugs Act 1975, s 13.that specialist Court twice. Ms Courtenay was also exited from two specialistresidential drug rehabilitation programmes, the Bridge Programme and OdysseyHouse.Ms Courtenay's submissions[6] The case for Ms Courtenay is that there has been an error in sentence, namely:(a) The sentence imposed fails to take into account the 270 days spent incustody throughout her time in the Alcohol and Other Drug TreatmentCourt in 2019;(b) The sentence of 25 and a half months' imprisonment fails to addressMs Courtenay's rehabilitative needs for her addiction and mental healthas required under Zhang v R;3(c) There was no canvassing of several factors which may have providedsignificant mitigation in terms of a potential reduction in sentence,namely restorative justice and a cultural report under s 27 of theSentencing Act 2011;(d) The sentencing appears to have proceeded in the absence of a pre-sentence report without waiver of the same by Ms Courtenay; and(e) Section 16(2) of the Sentencing Act cannot be made out. The sentenceof 25 and half months' imprisonment is not the least restrictive outcomein the circumstances to meet the purposes and principles of sentencing.[7] A sentence of home detention is sought. Ms Courteny has been offered a bedat E Hine Te Waireka, which is a residential rehabilitation facility in the Hawkes Baywhere she would be able to serve a sentence of home detention if the Court was mindedto impose one on appeal.3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.Discussion[8] No issue is taken with the Judge's starting point of 24 months' imprisonment,taking into account the totality of the offending for which she was being sentenced.There is also no issue taken with the uplift of six months' imprisonment forMs Courtenay's previous offending. The Judge further uplifted the starting point byanother four months' imprisonment to reflect the fact that many of the offences forwhich she was being sentenced were committed on bail. Ms Courtenay says that istoo much and should be reduced somewhat. Such an uplift is, however, consistentwith the sentence indication where Judge Sharp indicated a three-month uplift foroffending on bail. Four months is not excessive in the circumstances.Time spent in custody[9] Ms Courtenay says she spent some 270 days in custody while in the Alcoholand other Drug Treatment Court. Of note were two four-week periods in residentialrehabilitation centres, the Bridge Programme and Odyssey House. It is accepted thatshe was exited from these residential rehabilitation programmes, but she complainsthat there was no credit given or a reduction in sentence, to acknowledge the time incustody.[10] However, pursuant to s 82 of the Sentence Act 2002, in determining the lengthof any sentence of imprisonment to be imposed, the Court is prohibited from takinginto account any part of the period during which the offender was on pre-sentencedetention. Ms Courtenay's time in custody meets the definition of pre-sentencedetention in the Parole Act 2002, which reads:91 Meaning of pre-sentence detention(1) Pre-sentence detention is detention of a type described in subsection(2) that occurs at any stage during the proceedings leading to theconviction or pending sentence of the person, whether that period (orany part of it) relates to—(a) any charge on which the person was eventually convicted; or(b) any other charge on which the person was originally arrested;or(c) any charge that the person faced at any time between his orher arrest and before conviction.(2) The types of detention that are pre-sentence detention are detentionunder an order made under section 24(2) of the Criminal Procedure(Mentally Impaired Persons) Act 2003 and detention on remandpursuant to a court order—(a) in a prison (or in a Police station in accordance with section35 of the Corrections Act 2004):(b) in a residence established under section 364 of the OrangaTamariki Act 1989, or detention in Police custody undersection 238(1)(e) of that Act:(c) in a hospital or secure facility under any of sections 23, 35,38(2), and 44(1) of the Criminal Procedure (MentallyImpaired Persons) Act 2003:(d) in a hospital or secure facility pursuant to an order under—(i) section 171(2) or 184T(3) or (4) of the SummaryProceedings Act 1957; or(ii) section 169 of the Criminal Procedure Act 2011:(e) in a hospital following an application under section 45(2) ofthe Mental Health (Compulsory Assessment and Treatment)Act 1992:(ea) in a secure facility following an application under section29(1) of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003:(f) in a hospital under section 46 of the Mental Health(Compulsory Assessment and Treatment) Act 1992.[11] Accordingly, all the time Ms Courtenay spent in pre-sentence detention is amatter to be taken into account by the Parole Board when determining time served andmust not be taken into account in determining the length of any sentence ofimprisonment. As such, a discount for the 270 days spent in custody in 2019 was notavailable to Judge Bennett.Ms Courtenay's rehabilitative needs[12] Ms Courtenay evidently has addiction issues. She also says that she has mentalissues, including Post-Traumatic Stress Disorder arising from continued and repeatedexposure to high-level violence for many years. Under Zhang, this might haveattracted quite a significant reduction in sentence over and above the 25 per centreduction for a guilty plea.[13] It seems that the Judge was prepared to give Ms Courtenay a discount forrehabilitation. She stated:4When I was preparing this sentence this morning, Ms Courtenay, I had beenminded to allow you a further discount for rehabilitation, but you have beenvery clear with me today that you do not want to take up the opportunity ofrehabilitation, you simply want to be sentenced today, and given that, my endsentence for you is 25 and a half months' imprisonment.[14] Any such discount could potentially have brought Ms Courtenay's sentence ofimprisonment down under 24 months, in which case, residential rehabilitationprogrammes could have been canvassed. However, it does not seem that counsel forMs Courtenay (not appellate counsel) brought the potential availability of a bed atE Hine Te Waireka to the Judge's attention.[15] As noted above, Ms Courtenay had already been given a number ofopportunities to engage in rehabilitation, but had failed to complete variousrehabilitation programmes.[16] Nonetheless, the Judge was still willing to give Ms Courtenay a discount if shewere to continue with her rehabilitative efforts, but it seems that Ms Courtenayrejected the opportunity.Restorative Justice and Cultural Report[17] Section 24A of the Sentencing Act 2002 provides for an adjournment for arestorative justice process in certain cases. It provides:24A Adjournment for restorative justice process in certain cases(1) This section applies if—(a) an offender appears before the District Court at any timebefore sentencing; and(b) the offender has pleaded guilty to the offence; and(c) there are 1 or more victims of the offence; and(d) no restorative justice process has previously occurred inrelation to the offending; and(e) the Registrar has informed the court that an appropriaterestorative justice process can be accessed.4 New Zealand Police v Courtenay [2020] NZDC 6059 at [10].(2) The court must adjourn the proceedings to—(a) enable inquiries to be made by a suitable person to determinewhether a restorative justice process is appropriate in thecircumstances of the case, taking into account the wishes ofthe victims; and(b) enable a restorative justice process to occur if the inquiriesmade under paragraph (a) reveal that a restorative justiceprocess is appropriate in the circumstances of the case.[18] Section 10 of the Act requires the Court to take into account any offer,agreement, response or measure taken by the offender to make amends. In decidingwhether and to what extent such an offer or action should be taken into account, theCourt must consider whether or not it is genuine and capable of fulfilment and whetheror not it has been accepted by the victim as expiating or mitigating the wrong.[19] In this case, it is not clear on the information available to Court whether or notMs Courtenay had shown a willingness to participate in restorative justice at the timeof sentencing. Furthermore, it is unclear if the Judge had been informed as to whetheran appropriate restorative justice programme could be accessed.[20] Furthermore, on the information available to the Court, it does not appear thatdefence counsel at sentencing sought a cultural report pursuant to s 27 of the Act. Ifno such request was made, pursuant to s 27(5) of the Act, a Judge may still suggest tothe offender that it may be of assistance to the Court to hear from a person on any s27(1) matters. However, in this case, it does not appear that there was anything beforethe Judge which might have prompted her to consider exercising her discretion unders 27(5).Pre-sentence report[21] Two pre-sentence reports were, in fact, prepared for the sentencing ofMs Courtenay. The first report was prepared on 25 July 2019 and the second reportwas prepared on 20 March 2020.Least restrictive outcome[22] Given the number of charges faced by Ms Courtenay, their seriousness, hercontinued offending on bail and unenviable conviction history, the end sentenceimposed was clearly within range and the least restrictive outcome appropriate in thecircumstances. Ms Courtenay has previously received sentences of supervision,community work and community detention, none of which has led to her ceasingoffending. The earlier sentences have clearly not achieved their desired result in thatMs Courtenay was subsequently charged with breach of conditions of supervision andbreach of community work.Result[23] The appeal against sentence is dismissed.________________________________Woolford J