MINCHIN v NEW ZEALAND POLICE [2017] NZHC 2004

MINCHIN v NEW ZEALAND POLICE [2017] NZHC 2004 [22 August 2017]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI-2017-454-11[2017] NZHC 2004BETWEEN KYLIE JASMINE MINCHINAppellantAND NEW ZEALAND POLICERespondentHearing: 21 August 2017Counsel: J A Younger for AppellantJ J Harvey for RespondentJudgment: 22 August 2017JUDGMENT OF THOMAS JIntroduction[1] On 27 June 2017, the appellant, Kylie Minchin, was sentenced to six months'imprisonment on three charges of theft by shoplifting of items valued at less than $500.1 The maximum penalty in respect of each charge is three months'imprisonment.2 Given her personal circumstances, which included the terminal illness of her partner, Ms Minchin was admitted to bail pending her appeal against sentence.[2] Ms Minchin appeals against the sentence on the grounds it was manifestly excessive.Factual background[3] Ms Minchin is 37 years old. She lives with her partner and four year old great niece, for whom she cares permanently.1 Police v Minchin [2017] NZDC 13925.2 Crimes Act 1961, s 223(d).[4] Ms Minchin committed three separate acts of shoplifting. On 6 November 2017, she stole milk, chocolate and potato chips valued at $37.48 from a Z-Energy petrol station. She has since paid reparation. On 19 February 2017, while on bail for the earlier offending, Ms Minchin stole meat and razor blades with a value of $90 from a New World store. On 13 April 2017, Ms Minchin stole stamp collecting items valued at $100 from a New Zealand Post store.[5] Ms Minchin pleaded guilty to each charge at early opportunities: at the second appearance following disclosure for the first; at a case review hearing for the second; and at the first appearance for the third.[6] Ms Minchin has over 70 convictions amassed over 19 years. Over half of these relate to theft. She has variously been sentenced to community work, supervision, community and home detention, and imprisonment. Her latest sentence, imposed for theft under $500, was one month and two weeks' home detention, withstandard and special conditions.Pre-sentence report[7] The pre-sentence report recommended home detention with post-sentence conditions for at least six months. The conditions were to attend alcohol and drug assessments, to attend a psychological assessment, and to attend any treatment, counselling, or programmes as recommended by those assessments or by a probation officer.[8] The writer considered Ms Minchin to have a low risk of harm to others, but high risk of reoffending. The writer noted there had been no escalation in her offending. She had recently completed a home detention sentence with post-detention conditions successfully. This, combined with her remorse to her victims, led the writer to assess her willingness and ability to comply with such a sentence as high. That sentence would limit her ability to shoplift, hold her accountable, and provide rehabilitative measures suited to her current problems, which were assessed as alcohol and drug use, and offending-supportive attitudes. The writer did, however, acknowledge that a sentence of imprisonment was a viable option due to the frequency of her reoffending.[9] The writer noted Ms Minchin's primary motivation for offending was tosupport her drug habit. Ms Minchin receives a disability benefit, but spent her money on drugs. She hid this from her partner, who did not know of her drug use. The writer considered Ms Minchin had a moderately harmful pattern of amphetamine use. She qualified for a departmental drug use programme, and was reportedly willing to attend rehabilitation services to gain a better understanding of her dependency. The writer also noted that Ms Minchin has supportive family members. The writer suggested the very poor health of Ms Minchin's partner mightpresent a barrier to her otherwise likely compliance, due to the constant monitoring and assistance Ms Minchin provides for him.[10] Updated information from Arohanui Hospice reports Ms Minchin is herpartner's fulltime caregiver with oversight from the Hospice. He is hoping to remain at home for as long as possible. He has end stage liver disease.The District Court decision[11] The Judge considered Ms Minchin's criminal history to be "prolific". Heacknowledged the reparation had been paid in respect of the petrol station theft, and a guilty plea entered that day in respect of the Post store theft. He then indicatedimprisonment was inevitable and sentenced Ms Minchin to two months'imprisonment for each charge, cumulative on each other. No other type of sentence was contemplated.[12] The decision was very brief. Only four paragraphs addressed sentencing.Submissions[13] Ms Younger, counsel for Ms Minchin, submits that the Judge erred by:(a) failing to take into account relevant sentencing factors;(b) imposing a manifestly excessive sentence because:(i) the starting point was too high;(ii) too much weight was placed on previous convictions; and(iii) insufficient discount was given for early guilty pleas and other mitigating factors; and(c) not exercising discretion to impose a sentence of home detention.[14] Ms Younger also submits developments in Ms Minchin's partner's healthsince sentencing are such that the original decision ought not to stand.[15] Counsel for the respondent, Mr Harvey, submits the arguments regarding theJudge's errors are speculative. Despite not following a typical sentencing process,the Judge was cognisant of the purposes of sentencing, imposed a stern but within range sentence, and did not err in declining to impose home detention. Mr Harvey concedes Ms Minchin's partner's prognosis may alter the sentencing landscape, andthat the Court may reconsider the discretion and exercise mercy to impose home detention. He does not oppose this approach.Approach on appeal[16] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[17] An appellate court must first find an intrinsic error or one resulting from additional information before assessing whether a different sentence should be imposed.3 The error must be material, and must point to grounds for imposing a different sentence.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].[18] Despite s 250 making no express reference to "manifestly excessive", theprinciple still applies to sentence appeals.4 An appellate court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5Analysis[19] The respondent contends the alleged errors in the sentencing are speculative at best. However, given the brevity of the sentencing notes, a degree of speculation is necessary. They key questions on appeal are whether there was an error, and whether the end sentence is out of range. If it is out of range, identifying the reason it is so will be speculative where there is no express analysis of relevant sentencing matters. Such speculation can nevertheless be helpful in identifying the correct sentence if there was indeed an error which resulted in a sentence that ought to be substituted.Purposes of sentencing[20] By his references to Ms Minchin's considerable history of offending, theJudge can be assumed to have been focused on the sentencing purposes of deterrence and denunciation. There is no hierarchy of purposes set out under s 7 of the Sentencing Act 2002. Subject to the general principles in s 8, which must be taken into account, Judges are left with the discretion to determine which purpose or purposes should be given precedence according to the overall circumstances of the individual case.[21] However, and despite the considerable discretion offered to Judges under s 7, in the context of low level offending by a defendant whose pre-sentence report clearly identified drug dependency issues as the root cause of offending, her willingness to address those issues, and considerable life-changing circumstances in4 At [33] and [35].5 Ripia v R [2011] NZCA 101 at [15].the background, the failure to address sentencing options, including rehabilitative measures, can be said to be in error.Manifestly excessive sentence[22] The maximum total sentence available was nine months' imprisonment, reduced to between six and seven months once allowance for early guilty pleas wasmade. The sentence of six months' imprisonment can therefore be consideredoutside the range for three shoplifting offences of minor severity and where there were early guilty pleas. Whether this was because the starting point was too high or there was an incorrect weighting of aggravating and mitigating factors is difficult to ascertain from the sentencing notes.[23] One of these offences on its own would likely attract a penalty of a fine. Three in combination would likely attract either a more substantial fine or a short period of community work. The traditional approach to structuring a sentence is not amenable to this level of charge and these circumstances. The starting point willinevitably include consideration of an offender's criminal history where, as here, theoffender can be considered a recidivist shoplifter.[24] Ms Minchin has 52 prior convictions for shoplifting. I accept, however, that more than a cursory glance at her criminal history is required. This is because an analysis of it shows a significant slowing down of her offending. From 1998 to 2006 Ms Minchin was convicted of theft on 44 occasions, 10 in 1998 reducing to four in 2006. In the last 10 years, from 2007 to 2016, she has been convicted eight times for theft, although I note the convictions which are the subject of the current appeal are not included. I accept Ms Younger's submission, therefore, that there has been asignificant reduction in her offending.[25] In a case such as this, it is somewhat artificial to take a starting point in respect of one charge which might include the prior offending and then impose uplifts for the subsequent charges. Most sensibly, a global starting point which includes prior convictions can be taken. In my assessment, the appropriate globalstarting point would have been five months' imprisonment. This recognises not onlypremeditation but also the proximity of Ms Minchin's earlier sentence of one monthand 14 days' home detention imposed on 28 June 2016, again for shoplifting. Therecan be no uplift for prior convictions as those have already been taken into account. A small uplift of two weeks could be added as the latter two charges were committed while on bail for the first.[26] In Ms Younger's submission, mitigating factors could entitle Ms Minchin to adiscount of up to 50 per cent, although this includes making an allowance for totality which I have already taken into account. Ms Younger points to the circumstances ofMs Minchin's offending, that is, her life was in considerable turmoil given herpartner of 18 years was and remains terminally ill. Money set aside in her budget for the types of items she shoplifted was instead being used to buy alcohol and drugs toassist her in coping with her partner's illness. She was trying to give him theappearance she was strong and coping, whereas the information presented from her family suggests she was understandably undergoing a very difficult time. Ms Younger also points to the rehabilitative needs of Ms Minchin and her willingness to undergo such a sentence.[27] The sentencing Judge was silent as to an allowance for the guilty plea. In myassessment, a full discount for Ms Minchin's guilty plea is warranted, plus anallowance to reflect her extremely difficult circumstances at the time.[28] This would reduce the sentence to around three and a half months'imprisonment. The sentence of almost twice that, six months' imprisonment, ismanifestly excessive.[29] Furthermore, the Judge should then have considered whether a sentence of imprisonment was required.Home detention?[30] Section 8(g) of the Sentencing Act requires courts to impose the least restrictive outcome appropriate to the circumstances in accordance with the hierarchy of sentences and orders set out in s 10A. Courts must also consider s 16, which relevantly provides:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—(a) a sentence is being imposed for all or any of the purposes insection 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other than imprisonment; and(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.[31] As is established by the hierarchy of sentences in s 10A, home detention is the sentence which falls just below imprisonment. In a case such as this, given s 16(2), a court is bound to consider whether home detention should be imposed if it is technically available within the terms of s 15A.[32] For a sentence of home detention to be imposed, the sentencing judge must follow a two-step test.6 The first step requires the sentence is two years'imprisonment or less. There is no issue here since Ms Minchin was sentenced to sixmonths' imprisonment.[33] The second step calls for an exercise of discretion as to whether it is an appropriate case to commute the sentence to one of home detention. There is no presumption that either imprisonment or home detention is to be preferred.7 It is simply an evaluative exercise, taking into account all relevant ss 7 and 8 purposes and principles.[34] Importantly, an assessment which focuses only on one purpose to the exclusion of other relevant purposes amounts to an error of law.8 There were noreasons given for the sentence other than to say Ms Minchin "is a prolific thief".However, there is a need to articulate the reasons for a sentence. Castigation alone is6 R v Vhavha [2009] NZCA 588 at [20] and [31].7 Manikpersadh v R [2011] NZCA 452.8 Fairbrother v R [2013] NZCA 340 at [30]; and Manikpersadh v R, above n 7, at [18]–[19].not sufficient. The presumed focus on denunciation and possibly deterrence paid no attention to the (relative lack of) seriousness of the offending. Nor did it payattention to Ms Minchin's rehabilitative prospects which should have been addressed, particularly given the positive remarks in the pre-sentence report. There is no indication the Judge considered other potential sentences and the potential for rehabilitation which was a relevant consideration to the question of the least restrictive outcome. The principles of concern to the Judge can be met in a less restrictive way with a sentence which is more proportionate to the offending and which should have been considered.[35] The Court of Appeal has observed that the further the prison sentence is from the two year cut-off period, the more likely home detention will be appropriate. 9 Asix months' imprisonment sentence clearly favours home detention.[36] The least restrictive outcome in the circumstances would have been home detention with special conditions to address rehabilitation.Result[37] For the above reasons, the appeal is allowed and the sentence of six months' imprisonment is quashed. I substitute the sentence with one of eight weeks' homedetention with special conditions to expire 12 months from the end of the home detention date. The special conditions are for Ms Minchin to:(a) attend an alcohol and other drug assessment and attend and complete any treatment/counselling as recommended by the assessment and to the satisfaction of the probation officer;(b) attend a psychological assessment with a departmental psychologist as directed by a probation officer and to complete any treatment/counselling/programmes as recommended by the assessment and to the satisfaction of the probation officer and treatment provider; and9 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [102]; and Manikpersadh v R, above n 7, at [22].(c) attend and complete any other counselling/treatment/programmes if deemed appropriate and as directed by the probation officer.[38] Following the hearing of the appeal, Ms Minchin was remanded on bail to 10.00 am Wednesday 23 August 2017. Her home detention will commence on that date.[39] I have no doubt the Community Probation Service will be suitablysympathetic and accommodating to Ms Minchin's circumstances, particularly if herpartner needs to go into the hospice in the final stages of his end of life care. Furthermore, her treatment and/or counselling should commence at an appropriate time when her caring duties have finished and she is able to focus on her rehabilitation.Thomas JSolicitors:Crown Solicitor's Office, Palmerston North