WILLIAMS v NEW ZEALAND POLICE [2021] NZHC 3194

WILLIAMS v NEW ZEALAND POLICE [2021] NZHC 3194 [26 November 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2021-463-134[2021] NZHC 3194BETWEEN NARISSA ANNIE-MAY WILLIAMSAppellantAND NEW ZEALAND POLICERespondentHearing: 25 November 2021Appearances: N Pukepuke for AppellantP F Lee for RespondentJudgment: 26 November 2021JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 26 November 2021 at 2 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Tauranga[1] Ms Williams pleaded guilty to numerous charges in the District Court. Theycomprised dishonesty offences, driving offences and failing to answer District Courtbail.[2] On 30 September 2021 Judge T R Ingram sentenced Ms Williams to 21 monthsimprisonment.1 At that time Ms Williams did not have an address at which she couldserve a sentence of home detention. She appeals against sentence on the basis that theJudge ought to have granted her leave to apply to convert the sentence of imprisonmentinto a sentence of home detention if she could obtain a suitable address.The offending[3] The dishonesty offending comprised seven theft charges laid after Ms Williamsdrove away from service stations without paying for petrol she had pumped into hervehicle. In addition, she pleaded guilty to two charges of stealing items from retailstores.[4] Ms Williams also pleaded guilty to charges of driving at a dangerous speed on25 August and driving in a dangerous manner on 17 September 2020. On the latteroccasion she was driving whilst her licence was suspended and she also failed to stopfor police who were pursuing her. On 18 August 2021 she again drove whilstsuspended.The sentence[5] The Judge took a global starting point of 16 months imprisonment on thedishonesty charges and applied a discount of four months to reflect guilty pleas. Thisresulted in an end sentence of 12 months imprisonment.[6] On the driving charges the Judge took a global starting point of 12 monthsimprisonment and reduced this by three months to reflect guilty pleas. This producedan end sentence of nine months imprisonment. The Judge then imposed a sentence of12 months imprisonment on the dishonesty offences together with a cumulativesentence of nine months imprisonment on the driving charges. He imposed a1 New Zealand Police v Williams [2021] NZDC 19479.concurrent sentence of two months imprisonment on the charge of breaching bailconditions.[7] The Judge declined to grant leave to convert the end sentence to one of homedetention for the following reasons:2[9] I accept from the terms of the Probation report and your counsel'ssubmissions that you are a young woman who has had her difficulties in life.That has caused considerable stress, and I understand that. And were you hereon one, or two, or maybe even four or five charges I might be prepared to givethat aspect of matters rather more prominence than I am presently prepared togive it. And the reason for that is because nothing that has been done inrelation to you over the last 12 months, where the courts have bent overbackwards to give you bail, to try and help you deal with the cases that I havegot to deal with, none of that has made any difference. You have justcontinued to please yourself and offend, left, right and centre.[10] As far as your driving is concerned putting other people at risk, left,right and centre, without a thought for the consequences of what is going tocome.[11] I appreciate that home detention might have some attractions, but thereality is, at the moment anyway, there appears to be nowhere that is suitablefor you. But in any event, I do not consider, having regard to what you havedone, the time over which you have done it, and the fact that you havecontinued to offend almost right up to today, that home detention is suitablefor somebody who does not comply with their bail, who does not comply withthe disqualifications, and both of those are court orders or directions. And youhave demonstrated unequivocally that you are not capable of complying withthem.[12] In the end, I have come to the clear and straightforward view that yousimply are not suitable for a sentence of home detention, having regard to theway you behave, the kind of offences that you commit, and your demonstrateinability time and time again to comply with the terms of your bail, and to notoffend whilst you are on bail.[13] In my view, if I gave you a sentence of home detention of the kind andlength which would be required here, I would simply be setting you up to fail,because I do not accept that you are someone who has got what it takes to dothat particular sentence.2 New Zealand Police v Williams, above n 1.The appeal[8] Mr Pukepuke points out that Ms Williams does not have an extensive criminalhistory other than the present offences. She sustained two convictions for drivingwhilst suspended in 2015 and 2017, and six convictions for theft between 2019 and2020. Each of these related to the theft of property having a value of less than $500.She has never received a sentence of community detention, home detention orimprisonment.[9] Mr Pukepuke submits that a sentence of home detention on the present chargeswould adequately meet the sentencing purposes of accountability, denunciation anddeterrence. It would also assist Ms Williams' rehabilitation and reintegration into thecommunity. He therefore contends the Judge erred in failing to grant Ms Williamsleave to apply for home detention should she be able to find a suitable address.Decision[10] I accept that Ms Williams does not have an extensive criminal history.Relevantly, however, she was sentenced to supervision for nine months on 20 June2019 on three charges of theft. She then sustained another conviction for theft justbefore this sentence was due to expire. This led to her being sentenced to a furtherterm of nine months supervision on 12 June 2020. She began offending again virtuallyimmediately and continued to do so despite being on bail and subject to the sentenceof supervision.[11] The limited nature of Ms Williams's criminal history would ordinarily suggestshe was a likely candidate for a sentence of community detention or home detention.However, her unsatisfactory response to the two sentences of supervision obviouslyaffected the Judge's assessment regarding the likelihood she would comply with anelectronically monitored sentence. He clearly did not consider she had the ability tocomply with such a sentence. I consider the Judge was entitled to reach thatconclusion.[12] During the hearing Mr Pukepuke advised me that Ms Williams is endeavouringto find a rehabilitative facility that will assist her to reintegrate into the community byproviding her with treatment for her mental health issues and her low level addictionto methamphetamine. He submits this represents the best means by which to mitigatethe obvious risk of further offending in the future.[13] The pre-sentence report makes it clear that Ms Williams' mental health issuesare likely to have played a significant role in the present offending. The impact of herinvolvement with drugs is less clear. However, if Ms Williams can find a facility thatcan provide her with rehabilitative assistance I consider it will be in the interests ofsociety that she avail herself of it. Any such facility will obviously need to be ableprovide a satisfactory level of oversight and supervision to mitigate against the riskMs Williams may abscond and commit further offences. I therefore consider sheshould be permitted to apply to convert the balance of her sentence of imprisonmentto a sentence of home detention to be served at a rehabilitative facility if she can findone that meets her needs.Result[14] The appeal is allowed to the extent that Ms Williams is granted leave to applyto convert the balance of her sentence of imprisonment to a sentence of home detentionat an appropriate residential rehabilitative facility.Lang J