MIRA KIRIKINO v NEW ZEALAND POLICE [2023] NZHC 1821

KIRIKINO V POLICE [2023] NZHC 1821 [12 July 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-103CRI-2023-409-104[2023] NZHC 1821BETWEEN MIRA KIRIKINOAppellantAND NEW ZEALAND POLICERespondentHearing: 12 July 2023Appearances: J Tupaea and J E M Freeman for AppellantG E R Alloway for RespondentJudgment: 12 July 2023JUDGMENT OF MANDER JThis judgment was delivered by me on 12 July 2023 at 3.30 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Mira Kirikino was sentenced in the District Court at Christchurch on 23 May20231 to three months' home detention on three charges of wilful damage,2 possessionof an offensive weapon,3 and common assault.4[2] She appeals her sentence on the basis the Judge failed to take into account thetime she had spent in custody when calculating the length of her home detention.Background[3] On 20 December 2022, Ms Kirikino was drinking at an associate's address.The property was set back off the street on a shared driveway. An argument developedand Ms Kirikino grew angry. She picked up a hammer and broke a window.Ms Kirikino then walked down the driveway, towards the street. She broke a windowof a second victim's property, who was sitting in the room at the time.[4] Ms Kirikino then threw the hammer before continuing to walk away into themiddle of the nearby street while being followed by the two victims. In an adjacentstreet, Ms Kirikino turned around and punched the associate in the nose.[5] Following her arrest on 20 December, Ms Kirikino was originally denied bail.She was remanded in custody from 21 December 2022 until she was granted EM bailon 1 February 2023. She remained on EM bail until her sentencing on 23 May 2023,although, in April she was remanded in custody for three days following a breach thatinvolved her leaving the address.[6] Additionally, on 20 May 2023, while on EM bail, Ms Kirikino went to herneighbour's address, a conjoined flat, and confronted the occupant about cigarettes.When he told her he had none, she became upset and retrieved a block of timber fromher flat. She hit two of the victim's windows, causing them to break. Ms Kirikinowas arrested but granted bail on 22 May until her sentencing the following day.1 New Zealand Police v Kirikino [2023] NZDC 10290.2 Summary Offences Act 1981, s 11(1)(a) — maximum penalty 3 months' imprisonment or a finenot exceeding $2,000.3 Crimes Act 1961, s 202A — maximum penalty 3 years' imprisonment.4 Summary Offences Act, s 9 — maximum penalty 6 months' imprisonment or a fine not exceeding$4,000.Principles on appeal[7] An appeal against sentence may only be allowed if this Court is satisfied therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 The focus is not on the process by which the sentence was reached, buton the correctness of the end result.6 In making this assessment, appellate courts donot interfere with the legitimate exercise of judicial discretion or indulge in meretinkering with the sentence.District Court decision[8] Prior to the second incident, Ms Kirikino accepted a sentence indication fromJudge Callaghan that home detention would constitute an appropriate sentence.[9] At sentencing, Judge O'Driscoll considered that, despite the additional charge,a sentence of home detention remained appropriate. He acknowledged Ms Kirikino'ssubstantial criminal history and high risk of re-offending and warned her thatcontinued similar behaviour may leave the Court with limited options, other than acustodial sentence.[10] The Judge took into account Ms Kirikino's guilty pleas and time spent on EMbail before reaching an end-sentence of three months' home detention on each of thecharges, which the Judge considered appropriate on a "totality basis". Six months'post-detention conditions were imposed. Orders totalling $1,050 were made forreparation.The appeal[11] The appeal is brought on the single ground that the Judge failed, whencalculating the period of home detention, to take into account the amount of timeMs Kirikino had spent in custody on remand.5 Criminal Procedure Act, ss 250(2) and 250(3).6 Ripia v R [2011] NZCA 101 at [15].[12] Counsel appearing for Ms Kirikino noted s 82 of the Sentencing Act 2002prohibits pre-sentence detention being taken into account when calculating a custodialsentence. However, it was rightly submitted this restriction does not apply to asentence of home detention, and the Judge was not barred from considering whethertime spent in custody should impact on the sentence.7 Ms Freeman suggested theJudge likely overlooked the time Ms Kirikino had spent in custody and that, if nowincluded in the sentence calculation, a sentence of one week's home detention shouldresult.[13] The Crown acknowledged time spent in custody should ordinarily be takeninto account in setting a sentence of home detention, and that there was nothing toindicate less than full equivalence should be provided in this case.[14] Mr Alloway, who appeared on behalf of the Crown, submitted the six weeksMs Kirikino had spent in custody would ordinarily be reflected in a three-monthreduction in the calculation of the nominal sentence of imprisonment which was to becommuted to home detention. However, in the circumstances of the present case, hesuggested time spent in custody was likely to have already been accounted for insentencing Ms Kirikino. Assuming this to be the case, on his submission, the Judgemust have reached an end-sentence of nine months' imprisonment, which would haveresulted in a sentence of three months' home detention after taking into account threemonths for time spent in custody.[15] Mr Alloway argued this nine-month sentence would not have been manifestlyexcessive given Ms Kirikino's significant criminal history.Analysis[16] Both parties agree it would be appropriate for Ms Kirikino's sentence to haveincluded an allowance for the time she had spent in custody on remand. AsMr Alloway observed, neither the sentence indication, nor the sentencing remarksoffer much information as to whether time spent in custody was actually considered.7 Citing Mason v New Zealand Police [2022] NZHC 1845; and Vakapora v Police [2022] NZHC493.It appears the Judge took a holistic approach to the sentencing and was primarilyfocussed on whether the indicated nature of the sentence, being one of home detention,would still be appropriate given the further offending. It may be he did not turn hismind to the question of credit for time spent in custody, given mention was made todeductions for guilty pleas and time spent on EM bail, but it remains unclear.[17] The ultimate question for the appeal Court must be whether the final sentencewas manifestly excessive. Sentences for offending such as this vary considerablydepending on the circumstances of the individual case. Combinations of reparationorders, fines, community work, community detention, and relatively short periods ofhome detention all feature in somewhat analogous offending. Despite Ms Kirikino'scriminal history and offending while on bail, a nine-month sentence of imprisonment,as Mr Alloway suggested the Judge may have had in mind prior to commutation tohome detention, would appear to represent a relatively stern approach.[18] In Cash v Police,8 the appellant faced charges for a minor assault, behavingthreateningly, and wilful damage that involved breaking a window. On appeal, theCourt held the starting point of 12 months and an end-sentence of 10 months'imprisonment (commuted to four months' home detention and 80 hours communitywork) was manifestly excessive. A starting point of no more than three months'imprisonment was considered appropriate. In that case, the Judge noted the appellanthad served 41 days of the home detention sentence at the time of the judgment, andthis was considered to be sufficient punishment.[19] Different approaches have been taken to the issue of how to recognise timespent on remand in custody when imposing sentences of home detention. In somedecisions, the sentencing Court has deducted half the remand period from the homedetention sentence on the basis that, as home detention is typically half of theequivalent prison sentence, it is consistent to allow half of the time served on remandin custody to be factored into the final sentence (the "two equals one" approach).9However, most cases appear to have adopted the approach of adjusting the period of8 Cash v Police [2016] NZHC 2748.9 Wharrie v R [2019] NZHC 633 at [30] – [33].home detention to equivalently reflect the time spent in custody on a "one for one"basis.10[20] Fitzgerald J in Mason v Police commented as follows:11I can see merit in both approaches. A two for one approach recognises that asentence of imprisonment and a sentence of home detention are not the sameand are not intended to be the same. In those circumstances, and as Ms Bourkeobserved in her oral submissions, any perceived "unfairness" in the two forone approach simply reflects that home detention is not the equivalent ofimprisonment and in the hierarchy of sentences, is a less restrictive sentence.On the other hand, the rationale for the one for one approach is that an offendersentenced to a sentence of home detention, which is itself based on a term ofimprisonment, should ultimately be in no worse position (in terms of thelength of their home detention sentence) than if the sentence of imprisonmenthad not been commuted to home detention.(footnote omitted)[21] Whatever the preferable approach to such calculations, I think it clear that, asheld by this Court in Mason v Police, any such discount is more appropriately appliedafter converting the sentence from imprisonment to home detention, rather thanbeforehand.12 As noted by Ms Freeman, this accords with s 82 of the Sentencing Actwhich directs the Court not to take account of time served when determining the lengthof a term of imprisonment. Moreover, whatever process is applied, the exerciseremains an evaluative one.13Decision[22] In the present case there is very limited information on the process adopted inreaching the final sentence. The sentence indication simply references home detentionas the appropriate outcome, and the sentence itself immediately arrives at such an endsentence accompanied by a suggestion that the starting point was imprisonment ofsome length. This, no doubt, is a reflection of the busy nature of the District Court'swork and the need to take a summary approach to much of its decision-making whendealing with this level of offending. Home detention or prison is likely to have been10 Kirk v R [2019] NZHC 3361; R v Tai [2021] NZHC 2769; Paul v Police [2021] NZHC 1924; Pouv Police [2021] NZHC 1068; and Harris v Police [2022] NZHC 345.11 At [35].12 At [31].13 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [16].the decisive consideration that informed Ms Kirikino's guilty plea, hence the nature ofthe sentence indication.[23] Ms Kirikino spent 43 days in custody prior to being granted bail. She appearsto have spent three days in custody in early April and two days in custody just prior toher sentencing. At the time of hearing her appeal, she had spent 50 days on homedetention, being a little over half the term imposed. She has approximately 40 days toserve of her original sentence.[24] I consider there is a certain artificiality in trying to reconstruct how thesentence was calculated. The prime consideration, both when providing the sentenceindication and imposing sentence, was the appropriateness of a non-custodial sentencein the form of home detention. Ms Freeman argued that, in putting the sentenceindication into effect, the Judge appears to have overlooked the fact that Ms Kirikinospent some of her time on remand in custody because he did not mention this factorwhen setting the length of the period of home detention but did note theseconsiderations. However, it might equally be arguable that, while the Judge mentionedMs Kirikino's extensive record, this was only in reference to whether home detentionremained a viable sentence. There is no mention of the sentence having been upliftedfor her long record of similar offending. Does that mean, for the purposes of theappeal, that this countervailing factor was also not taken into account?[25] While I have some reservations in doing so, I think I can only realisticallyproceed on the basis the Judge considered that three-months' home detentionaccurately reflected Ms Kirikino's culpability and represented a commensuratesentence. It would have been appropriate at that point to have then made an adjustmentfor time spent on custodial remand when setting what would have otherwise been theappropriate sentence. Approaching the matter in that way, and mindful that anydeduction of this type requires an evaluative approach, I would allow a month for timespent in custody in order to take account of that part of the sentence already effectivelyserved.Result[26] The appeal is allowed. The three-month sentence of home detention is quashedand substituted with a sentence of two months' home detention.Solicitors:Crown Solicitor, Christchurch