COLLIER v NEW ZEALAND POLICE [2017] NZHC 2222

COLLIER v NEW ZEALAND POLICE [2017] NZHC 2222 [14 September 2017]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI-2017-454-006[2017] NZHC 2222BETWEEN PATRICIA STORMY COLLIERAppellantAND NEW ZEALAND POLICERespondentHearing: 4 July 2017Counsel: S J Parsons for AppellantT Tran and J J Harvey for RespondentJudgment: 14 September 2017JUDGMENT OF WILLIAMS JIntroduction[1] On 28 March 2017, Ms Collier was sentenced following a guilty plea, to twoyears and three months' imprisonment for a "spree" of shoplifting charges.1[2] The offending was as follows:(a) a lamp worth $299 from Furniture Tree (6 October 2016);(b) a basket worth $89 from Bed, Bath and Beyond (12 November);(c) two rugs valued at $1348 from King & Teppett (29 November);(d) a Dyson vacuum cleaner and a scooter together worth $698 and later another Dyson vacuum cleaner worth $1,149 from Farmers (24 December);1 Police v Collier [2017] NZDC 6764.(e) two duvet covers worth $300 from Farmers (10 January 2017);(f) a cushion and a lamp worth $349 from Furniture Fair (11 January);(g) a Dyson vacuum cleaner worth $1100 from Farmers (19 January);(h) meat from New World worth $149.27 (1 February); and(i) a Dyson cooling fan from Harvey Norman worth $700 (14 February).[3] She appeals against sentence.District Court decision[4] Judge Edwards noted that Ms Collier was remanded for sentence on the October offending on 20 December. The last seven offences were committed while on bail awaiting sentence for that offence.[5] The Judge noted that Ms Collier is a gambling addict and there was a compulsive element to the offending. However, she noted that Ms Collier steals high value items and effectively "steals to order for other people". On a number ofoccasions there was a vehicle waiting for her outside the stores when she left with the stolen goods, which again suggests the offending was organised.[6] Judge Edwards had previously sentenced Ms Collier for similar charges on 24 August 2015. At that time, the Judge reached an end point of 18 months'imprisonment, which she converted to home detention because of Ms Collier'spersonal circumstances. She recorded that she had said on that occasion that she was putting Ms Collier's children first, and that Ms Collier would not be putting herchildren first by continuing to steal and risking her liberty.[7] Judge Edwards adopted a starting point (for all offences) of two years and eight months. That was uplifted by four months for the previous convictions and also because she was subject to post-detention conditions, and, for seven of the charges, she was on bail. The Judge then discounted for guilty pleas, which brought the sentence to two years and three months.[8] She noted that home detention was not an option, but that she would not have been prepared to impose it in any event. This was because the 2015 sentence was lenient and Ms Collier was put on notice at that point that home detention would not be likely again if she continued to offend.[9] The Judge noted the over $7000 in outstanding reparations and fines that Ms Collier owed. She decided to not impose any reparations on the current charges, and to remit the $3,398 in fines and enforcement fees, so that Ms Collier would only have to pay the reparations.Appellant's submissions[10] Firstly, there are a number of personal mitigating factors which, Mr Parsons submitted, warranted a discount. Ms Collier was (unknowingly) three weeks pregnant at sentencing on 28 March. This it was submitted, is a factor that now needs to be taken into account. She has three young children aged seven years, 21 months and 12 months. Her partner was caring for them. She had sought medical treatment for depression, and was provisionally diagnosed by her GP, Dr Michelle Wilson, with post-natal depression. This diagnosis was not available at sentencing. She had obtained a s 310 Gambling Act 2004 exclusion order against herself, which was handed up to the Bench at sentencing, and has now followed through with counselling to address her gambling addiction.[11] Secondly, counsel submitted that the Court should have stepped back and considered totality at the end of the sentencing exercise. If the Judge had done so, the sentence could have been shorter. This, it was submitted, is consistent with other cases. Counsel pointed to Police v Collins where, bearing in mind totality, the sentence was two years;2 Perry v Police where the Court (in obiter) said 15 months would be excessive for 14 charges of theft;3 and Faben v R where a sentence of 18 months was substituted for two years, for 10 shoplifting charges, theft of a motor vehicle, trespass and breach of bail. 42 Police v Collins DC Wellington CRI-2008-085-1503, 6 May 2009.3 Perry v Police HC Wellington CRI-2010-485-65, 28 September 2010.4 Faben v R HC Hamilton CRI-2007-419-109, 26 September 2007.[12] It was submitted that a 12 per cent reduction for totality was appropriate and would bring the end sentence to just below two years. If a sentence of less than two years is reached, leave to apply for home detention was sought.Respondent's submissions[13] Firstly, counsel submitted that the Judge implicitly took into account totality when considering the starting point. But in any case, the end sentence was not manifestly excessive, particularly considering the previous offending and the fact of offending while on post-detention conditions and bail. The uplift could have been six months, not four.[14] Counsel submitted that the Judge must have rejected a discount for theappellant's gambling addiction. This is because she acknowledged there was anelement of compulsion, but also said that she stole high value items to order for other people, and was organised with the help of associates. In that context, any further deductions were not justified.[15] As to remorse (raised by the appellant in her notice of appeal but not in submissions), counsel submitted that a letter was given to the Court but it did not appear to express genuine remorse. Remorse must be exceptional to justify a discount beyond the guilty plea. Although the Judge did not explicitly refer to remorse, she plainly considered there was not any.[16] Finally, counsel noted that in Graham v Police the appellant pleaded guilty to 11 charges of dishonesty offending and one breach of bail, and was sentenced to 25 months' imprisonment, plus nine months cumulative for breaching a protectionorder.5 The Judge adopted a starting point of 12 months for the lead offence, and uplifted 12 months for the remaining charges and a further 12 months for previous convictions, before discounting for remorse and guilty pleas. On appeal, Edwards J considered that the total starting point of 24 months was lenient, and that while the 12 month further uplift was at the very upper level, seen in combination the sentence was not manifestly excessive.5 Graham v Police [2017] NZHC 442.Appeal standard[17] This is a first appeal covered by s 250 of the Criminal Procedure Act 2011. The focus is on error at first instance. I may intervene and substitute my own view of the appropriate sentence if, having taken into account all matters, I consider the sentence imposed to have been manifestly excessive by reference to relevant sentencing principles. As always, my focus is on the end sentence not on the variouscomponents that make up the sentence, or the Judge's reasoning except to the extentthat these might have produced a manifestly excessive sentence.Analysis[18] At the hearing Mr Parsons focused on the provisional diagnosis of Dr Michelle Wilson that the symptoms described by the appellant were consistent with post-natal depression. He submitted that this condition is likely to have fed theappellant's gambling compulsion. The submission was that if Judge Edwards had known that:(a) at the time of sentence, the appellant was pregnant with her third baby in quick succession; and(b) this was likely to have exaggerated her compulsive behaviour;she would have taken a different approach to her sentence.[19] I then directed that a report pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 be provided, and directed the assessor to address the following issues.(a) Was the appellant suffering from post-natal depression at the time of the offending?(b) If the answer is yes to (a) above, what effect, if any, would that havehad on the appellant's offending pattern?(c) If the answer is yes to (a) above, what impact would this have had onthe appellant's gambling addiction or other compulsive behaviours?(d) The health assessor is invited to address any other relevant matters in preparing the report.[20] The report became available while I was on sabbatical leave at the end of last month. Following my return and two weeks in the Court of Appeal, I considered its careful and comprehensive assessment of the appellant and her circumstances as well as submissions from her counsel.6[21] The assessor, a clinical psychologist, advised that the appellant was indeed suffering from post-natal depression for the 12 months following the birth of her third child in May 2016, and accordingly at the time of her index offending. She had had the second and third of her children in quick succession shortly prior to theoffending "spree". The symptoms described by the appellant were, in the assessor'sview, consistent with the diagnosis provisionally offered by Dr Wilson.[22] The assessor found that the appellant's offending over the five years from2010 to 2015 was unrelated to her depression, and, for the most part, also pre-dated her gambling which began in 2014. However, she had as many shoplifting convictions for the period 2015-2017 as she had for 2010-2015, demonstrating an intensification in her offending that coincided with the onset of her depression. The writer said that although the later period of offending may (like the earlier period) have been motivated by the goal of providing materially for her family, her statementto him that she was careless because she didn't care if she got caught likely reflectedher depressive state. He concluded:I am not able to conclude definitively that Ms Collier's index offending was exclusively driven by the respite she says she was seeking from her depression at that time[.][23] As to question (c), the assessor concluded that the appellant was not addicted to gambling in the classic sense of that concept; rather she: was more clearly motivated by seeking respite and avoidance of family-related stressors and demands, than either the "rush" often associated withaddictions or as a strategy to increase income.[24] That said, the assessor noted further that the appellant's time in prison has had positive impacts. It removed her from the physical, psychological and financial pressures of three young children and a demanding partner and so enabled her (assisted by counselling and support) to regain a level of equilibrium. There was6 The police did not file submissions on the report.nonetheless, the assessor noted, a genuine cost in terms of her absence from heryoung children particularly since her partner has (since the appellant's incarceration)himself now been sentenced to prison for separate offending. The children are in the care of another whānau member. The assessor suggested completion of the sentencethrough home detention might be reconsidered if the appeal is allowed.[25] With these additional factual issues now resolved, I return to the judgment appealed from.[26] I am satisfied on the basis of the decision in Graham that the starting point adopted was in range. Nor do I consider that totality is an issue in this case. The Judge adopted an approach that was informed by her prior dealings with the appellant and she understandably undertook her task with a degree of exasperationgiven the appellant's failure to take advantage of earlier opportunities offered. I accept that the theft charges involved 14 separate items, some of which were being stolen to order. And the cumulative value of the offending exceeded $5,000, meaning imprisonment was an available sentencing response. That said, the sentence handed down was unquestionably a stern one for the level of offending.[27] What has now become clear is that the appellant was burdened by significant life stressors at the time of the offending. These included post-natal depression following the recent birth of her third child. In my view, the limited information available to Judge Edwards at the time of sentencing perhaps led her to undervalue this mitigating factor. That information gap has now been remedied and I turn to address the issues arising.[28] Although the assessor found that the appellant's depression was not the onlycause of the offending, that is not the test. For a mental illness to reduce the culpability of the offending, it must be causative in the sense that the illness"materially contributed" to it so that the appellant has less moral fault.7 There is then a question of degree which is relevant to the extent of any discount. Here, in a thoughtful and objective assessment, the psychologist concluded that post-natal depression was likely to be contributing factor in the offending albeit probably not the most important one. The causation test is therefore plainly met. The level of7 R v M [2008] NZCA 148 at [33].contribution is such that a relatively modest discount, in the vicinity of 10 per cent, is all that is appropriate. As the psychologist concluded, the offending was still, to a large extent, a continuation of offending that had begun prior to the appellant'sdepression.[29] I am satisfied therefore that a three month discount on account of the contribution of mental illness to the offending is appropriate.[30] The appeal is allowed and the sentence is quashed. A sentence of two years'imprisonment is substituted with leave for the appellant to apply to serve the remainder of her sentence by way of home detention if a suitable and safe address can be found. My view that home detention is likely to be appropriate is partly aresult of the appellant's advice that her partner is now in prison and the children are with her aunt. This will need to be verified. I understand the aunt is a social worker so it can be assumed that the children are well cared for, but the separation between the mother and her children in these circumstances is a significant matter nonetheless.[31] Although it will be for the District Court rather than me, I do note that this is the sort of case where special conditions under s 80D may well be appropriate toensure that the appellant's treatment continues upon her release to any home detention address if a home detention application is granted.Williams JSolicitors:Messrs Opie & Dron, Solicitors, Palmerston North for AppellantB D Vanderkolk, Palmerston North for Respondent