MELISSA MAXWELL v NEW ZEALAND POLICE [2020] NZHC 219

MELISSA MAXWELL v NEW ZEALAND POLICE [2020] NZHC 219 [20 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-515[2020] NZHC 219BETWEEN MELISSA MAXWELLAppellantAND NEW ZEALAND POLICERespondentHearing: 18 February 2020Counsel: A Maxwell-Scott for AppellantJ Kang for RespondentJudgment: 20 February 2020[REDACTED] JUDGMENT OF WHATA JThis judgment was delivered by me on 20 February 2020 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Ms Maxwell pleaded guilty to two charges of burglary. She was sentenced intotal to two years and three months' imprisonment. She appeals against the sentenceon the basis that it was manifestly excessive. Several appeal issues arise but it iscommon ground that, with the benefit of a detailed affidavit as to her background,Ms Maxwell deserves a personal circumstances discount, yet she did not receive one.I am also satisfied that Ms Maxwell's sentence should be commuted to home detentionand indicated as much to counsel. My reasons are as follows.Background[2] The background facts can be stated briefly. The first burglary occurred on18 January 2015. Between 11.30 am and 2.30 pm on that day, Ms Maxwell enteredthe victim's address. Ms Maxwell took a TV, jewellery and a handbag withmiscellaneous items, valued at approximately $5,500. The second burglary occurredon Sunday, 5 May 2019 at approximately 12.00 pm. The victim was not present at thetime of the burglary. Ms Maxwell entered the address through an unlocked door andbegan searching the property. She located and took a large amount of jewelleryconsisting of earrings, necklaces and rings. While Ms Maxwell was searching abedroom, the victim returned. Ms Maxwell then ran to her vehicle, removed theregistration plates and fled the area. She left with multiple jewellery items valued atapproximately $17,000 and three passports belonging to the victim.District Court sentencing notes[3] The sentencing notes are brief. Relevantly, they record the following(including handwritten notes in parentheses):[5] Turning to your sentence, both the police and prosecution and yourlawyer are of the same mind about the outcome and your lawyer has said thatthere should be an initial starting point in respect of two years' imprisonmentfor the lead charge of burglary, that is the one on 5 May 2019, and that thereshould be a further uplift for the second charge and that a global starting pointfor sentencing being in the region of two years and six months and two yearsand eight months reflecting the totality of the charges. Then taking intoaccount the aggravating features that I have mentioned, in respect of theburglary being a private dwelling house and the taking of a large amount ofjewellery and property belonging to the offenders, a further uplift be takenmaking a totality of (thirty-six months).[6] Doing these calculations is somewhat calculated to try and reach anequitable overall totality of sentencing and I am allowing a 25 percent discountfor the plea of guilty. Ultimately, I have reached a final figure of two yearsand three months' imprisonment in respect of those two charges. (That hasbeen calculated back on a total amount of 42 months.)[7] In respect of these two charges, taking everything into accountincluding the aggravating features, your private record, your previoussentences, your previous record, your attempts of rehabilitation, you aresentenced to two years and three months' imprisonment.Evidence[4] Ms Maxwell has filed a detailed affidavit as to her background. It is notopposed. I admit it. While not fresh, it is cogent. Indeed, it is an exemplar of the typeof evidence about an offender that is helpful to the sentencing assessment.[5] Ms Maxwell is 40 years old. She is Māori. While her upbringing was notmarked by poverty, she often saw her father drinking and physically abusing hermother during her childhood. [redacted] She did not graduate from high school andran away from home when she was 16. She met her first partner about this time. Hewas a patched gang member and his whole family was involved in the gang memberlifestyle. Their relationship involved alcohol, drugs and violence. He was physicallyabusive. She thought the abuse was normal because of what she had seen growing up.She became involved in criminal activity, much of it with her partner.[6] She had her first child at the age of 21. Around this time her partner went tojail. She left him and moved back into the family home to look after her father whohad been diagnosed with cancer. She started using methamphetamine as an escape.Her father lost his battle with cancer. About this time her partner was released, andshe moved back in with him. They had a second child together. The physical abusecontinued. Her partner then went to prison for an assault on her. She left him forgood.[7] Her second partner was also a patched member of a gang. Drugs, alcohol andviolence continued as prominent features in this second relationship. She does notunderstand how she ended up in the situation again, but she thinks that the physicalabuse she suffered caused her to lose self-confidence and respect for herself. She hadtwo children by her second partner but her relationship with him ended in 2015 as shecould not cope with the physical abuse.[8] Between 2015 and 2016 she was in and out of prison in relation to a numberof dishonesty offences. During her incarceration in 2016, she began ACC counselling[ redacted ]. She found it therapeutic. [ redacted ]. She was released fromprison before she could complete her counselling. She really liked her counsellor andtried to contact her after she was released but did not succeed. [ redacted ].[9] In 2017 she was living in Hamilton and things were going well. She foundemployment with the support of Reclaim Another Woman, an organisation supportingdisadvantaged women. Unfortunately, her brother died from an epileptic seizure. Shewas very close to him. She returned to her old ways and started usingmethamphetamine again.[10] Ms Maxwell outlines her battle with addiction. She has been trying to addressit since 2009. She has been in and out of various rehabilitation programmes as part ofher sentences but there has always been something that has triggered her addiction,most recently, her brother's death.[11] In relation to the present charges she pleaded guilty and requested matters tobe transferred to the Auckland District Court so that she could engage withrehabilitation programmes. She was granted electronically monitored bail to EpsomLodge on 20 September 2019. She began engaging with stage one of the SalvationArmy Bridge programme (an eight-week residential rehabilitation programme) andwas one unit away from graduating into stage two. She was exited on 4 November forfailing a drug test. Another resident at the Lodge had some methamphetamine and shegave in to her addiction. She was subject to a six-week stand down. She said sheapplied to adjourn the hearing so she could reapply to Epsom Lodge after the stand-down period, but that application was declined.[12] Her current time in prison, together with her most recent attempt atrehabilitation, has provided her with greater insight. She is now 40 and does not wantto keep living a life of crime. Her eldest daughter will be attending [ redacted ]soon. She would like more counselling. She completed the Te Ira Wahine programmeand completed the one-on-one short motivation programme. She is currently in full-time employment in prison.[13] Ms Maxwell also expresses remorse for what she had done and indicates apreparedness to engage in a restorative justice process.Jurisdiction[14] This is an appeal pursuant to s 250 of the Criminal Procedure Act 2011. It iscommon ground that the appellant must satisfy the Court that:(a) there is an error in the sentence that was imposed; and(b) a different sentence should be imposed.[15] "Error" includes a sentence that is manifestly excessive.1Assessment[16] The starting point of 36 months adopted by the Judge for the offending waswell within range. It is not clear that the Judge incorporated within this starting pointan uplift for previous convictions,2 but I agree with Mr Kang for the Police that ahigher starting point was available to the Judge to account for Ms Maxwell's poorcriminal history, say, in the order of 40 months.3 But the total absence of considerationof personal mitigating factors meant that the sentence did not correctly engage thesentencing framework, or the purposes and principles of sentencing. No regard wasgiven to the causative factors underpinning Ms Maxwell's offending and no informedassessment of her capacity to rehabilitate was made. The sentence is thereforeerroneous.1 Tutakangahau v R [2014] NZCA 279 at [31]-[35].2 She has eight convictions for burglary, three for receiving, five for theft, 36 for dishonest use of adocument, one for obtaining by deception and one for unlawfully taking a motor vehicle.3 The Judge refers to a discount of 25 per cent from "42" months in her judgment but that does nottally with the end result.[17] In fairness, the Judge did not have any of the background information which isnow available to me. The PAC report was woefully inadequate. There is nobackground information in that report that might have assisted the Judge in forming aview about Ms Maxwell's personal circumstances and how they might bear onculpability and/or rehabilitation. That report refers to three earlier reports. These werenot made available to me, but I am advised that these reports contained no furtherbackground information, other than a record of Ms Maxwell's extensive criminalhistory. Therefore, like the Court of Appeal in Betteridge,4 I consider that the PACreport was so deficient as to be prejudicial to Ms Maxwell.[18] With the benefit of Ms Maxwell's affidavit, I am satisfied a reasonablysubstantial personal circumstances discount should have been afforded toMs Maxwell. In this regard, I note that the following relevant key factors identifiedin s 27 are engaged:Relationship of background to offending(a) Ms Maxwell's upbringing was marred by [redacted] abuse which lefther emotionally scarred and vulnerable;(b) Ms Maxwell left home at 16, without having completed her schooling,which would have left her ill-equipped to cope with life's demands;(c) Ms Maxwell moved into a social context where drugs, violence andcriminality were normalised – and she was physically abused;(d) Ms Maxwell became addicted to methamphetamine; and(e) her offending coincides with her life immersed in drugs, violence, andepisodes of trauma.4 Betteridge v R [2019] NZCA 513.Processes tried to resolve issues relating to the offending(f) Ms Maxwell has endeavoured to rehabilitate and address hermethamphetamine addiction on several occasions and, while she hasfailed to do so, those failures must be seen in a context of ongoingtrauma, including physical abuse and loss of loved ones; and(g) most recently, Ms Maxwell has endeavoured to complete rehabilitationprogrammes and was about to gain entry into a residential programmebefore succumbing to her addiction again.How support from family, whānau or community may be available to help preventoffending(h) Epsom Lodge has confirmed that it can offer accommodation toMs Maxwell; and(i) Ms Maxwell will be subject to the rules of the Lodge, including drugtesting.[19] Mr Kang, responsibly in my view, suggested a discount of 15 per cent(inclusive of remorse) is available to Ms Maxwell. But I think this inadequatelyreflects Ms Maxwell's reduced actual and relative culpability – there is a clear nexusbetween her cycle of offending and her vulnerability brought on by an upbringingimmersed in violence [redacted], an ongoing pattern of abuse at the hands of violentpartners, and her drug addiction. It also inadequately responds to her capacity torehabilitate, at the age of 40, if enabled to do so within the right setting – as here –Epsom Lodge.[20] What then is the appropriate discount? For my part, a discount between 20-30per cent is available,5 which is sufficient to trigger consideration of home detention.To elaborate, on a starting point of 40 months, a discount between 20-30 per centwould bring the starting point between 28-32 months. After a further discount for5 See S-G v Heta [2018] NZHC 2453 at [59]-[60], [64]-[65]; in Zhang v R [2019] NZCA 507 at[157]-[162], [149], [201], [224], [258]-[259].guilty plea of 25 per cent, that would result in an end sentence of imprisonment ofanywhere between 21-24 months.[21] So, I allow the appeal. The sentence of imprisonment is quashed. AsMs Maxwell has served 3.5 months of her sentence and was remanded in custody forabout four months, I commute her sentence to eight months' home detention (from astarting point of 12 months) commencing from 12.00 pm, 21 February 2020. I note inthis regard that Ms Maxwell in fact hoped for a reasonably lengthy period of homedetention at Epsom House, to ensure that she has access to its rehabilitativeprogrammes.[22] I direct that parts of this judgment be suppressed to maintain Ms Maxwell'sprivacy. Those parts have been blanked out accordingly.