BROWN v NEW ZEALAND POLICE [2017] NZHC 1846

BROWN v NEW ZEALAND POLICE [2017] NZHC 1846 [4 August 2017]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYCRI-2017-416-9[2017] NZHC 1846BETWEEN RAIHA MAKERE BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 1 August 2017Counsel: N H Wright for AppellantM M Mitchell for RespondentJudgment: 4 August 2017JUDGMENT OF THOMAS JIntroduction[1] Rahia Brown is 23 years old. She has three children aged 2, 3 and 6. She had sole care of them until being remanded in custody on 20 January 2017, when she was charged with some violent offending, whilst on bail for other offending. She then lost her tenancy of the house where she and her three children lived.[2] Ms Brown was sentenced to 19 months' imprisonment for a variety ofcharges at the District Court at Gisborne on 19 May 2017:1 burglary;2 obtaining by deception;3 dishonestly using a document (two representative charges);4impersonating an officer;5 assault with a weapon;6 assault with intent to injure;71 Police v Brown [2017] NZDC 11643.2 Crimes Act 1961, s 231(1)(a), maximum penalty 10 years' imprisonment.3 Crimes Act 1961, s 240(1)(a) and (d), maximum penalty three months' imprisonment.4 Crimes Act 1961, s 228(a), maximum penalty seven years' imprisonment.5 Policing Act 2008, ss 48(10(a) and 48(4), maximum penalty four months' imprisonment, $15,000 fine.6 Crimes Act 1961, s 202C, maximum penalty five years' imprisonment.7 Crimes Act 1961, s 193, maximum penalty three years' imprisonment.common assault;8 and intimidation.9 She did not have a suitable address for home detention but was given leave to apply for a substituted sentence if one became available.[3] Given Ms Brown's circumstances, there is no prospect of her finding whatwould be considered a suitable address. She is serving her sentence in the AucklandRegion Women's Corrections Facility, seven and a half hours' travel time away fromher children.[4] Ms Brown now appeals her sentence.Facts[5] On 9 August 2016 at about 9.15 pm, Ms Brown and a Mr Haenga approached the home of a 93 year old man who runs a business from his home,where he lives alone. Ms Brown entered the man's house through a dog box andopened a ranch slider to the business portion of the building to let in Mr Haenga. The alarm went off and they fled, empty-handed, in Mr Haenga's car. This incidentgave rise to the burglary charge.[6] They drove to another address which Mr Haenga had previously burgled. The occupant was another elderly man, with a mental impairment. At about 10.00 pm, Ms Brown knocked on the door, impersonated a police officer, and convinced the victim his previously burgled property would be returned to him on payment of $300. With Mr Haenga concealed in the back of the car, the victim accompanied Ms Brown to an ATM and withdrew $200, Ms Brown taking note of his PIN. They returned to his address and Ms Brown accompanied him inside. However, after seeing Mr Haenga in the back of the car, the victim became suspicious and called his nephew. Ms Brown ran back to the car to tell Mr Haengathis. Mr Haenga then went inside the victim's house and committed a robbery. Ms Brown was not charged with robbery, but was charged with attempting to obtain by deception stemming from this incident.8 Crimes Act 1961, s 196, maximum penalty one year's imprisonment.9 Summary Offences Act 1981, s 21(1)(a), maximum penalty three months' imprisonment, $2,000fine.[7] The police stopped Ms Brown and Mr Haenga in Mr Haenga's car later thatnight after they attempted on about four occasions to use the victim's bank card towithdraw more money. The representative charges of dishonestly using a document stem from these attempts. The police arrested Ms Brown at the time. Mr Haenga was arrested shortly after a search of his home revealed stolen property unrelated to this offending.[8] While on bail, on 1 October 2016 Ms Brown was drinking at a birthday celebration and punched a woman sitting in a chair, several times with a closed fist to the face. The victim, who suffered a black eye and cut cheek requiring medical attention, called police after running to a neighbouring address. This gave rise to the assault with intent to injure charge.[9] On 19 January 2017, also while on bail, Ms Brown went to the address of her ex-partner and demanded money and a speaker. When she could not access her ex-partner's car to obtain the speaker, she became angry, picked up a fence post, andthrew it at her ex-partner. The ex-partner's aunt intervened, and Ms Brown punchedher twice to the face with a closed fist, resulting in a cut eye and lip. The familycalled the police, and Ms Brown, while walking back to her car, said "I'll be back to burn your house down, I don't care if you got kids". This incident gave rise to theassault with a weapon, common assault and intimidation charges.The District Court decision[10] The Judge outlined the facts and noted Ms Brown's previous convictionswere not numerous, but did include a charge of assault. He accepted her willingness to engage in a restorative justice process, despite the process not eventuating for unexplained reasons outside of her control. He noted the pre-sentence report was not overly favourable, indicating a lack of accountability and remorse. The report also suggested, while Ms Brown was a suitable candidate for an electronically monitored sentence, imprisonment was recommended because no suitable address had beenfound. The Judge then canvassed Ms Brown's letter to the Court, which heconsidered was consistent with the pre-sentence report in showing Ms Brown continued to deflect blame and accountability.[11] The Judge took the burglary as the lead charge. He was concerned that, despite being a commercial premises, it was nonetheless the home of a vulnerable person and was aggravated by being a joint enterprise. The principles of denunciation and deterrence, the gravity of the offending, the effect of the offending on the victims, and the least restrictive outcome were all noted.[12] The Judge set a starting point of 12 months' imprisonment for the burglary, to which he added six months for the offending which occurred later that night. The two separate incidents of assaults garnered a further eight month uplift. Two months were added to account for the later offending being committed while on bail,resulting in a sentence of 28 months' imprisonment.[13] Two months' credit for willingness to engage in restorative justice was given,as was full credit for an early guilty plea (rounded up to seven months). The endsentence was 19 months' imprisonment with six months' standard release conditions.[14] The Judge gave leave to apply for home detention should a suitable address become available, noting that the relevant principles of sentencing could be met by such a sentence.The appeal[15] Counsel for Ms Brown, Ms Wright, submits the Judge erred by:(a) setting a starting point which does not reflect Ms Brown's criminalityand culpability;(b) failing to consider the particular hardship Ms Brown faces by a sentence of imprisonment in the absence of a suitable home detention address; and(c) failing to consider Ms Brown's potential rehabilitation via a sentenceof supervision.[16] The Crown submits the sentence could instead be described as generous and there was no error on which the appeal is able to succeed.AnalysisSeriousness and culpability[17] Referring to other cases where 12 month starting points were adopted on burglary charges,10 Ms Wright suggests a starting point of imprisonment is manifestly excessive. Unlike those cases where the defendants had dozens of prior dishonesty and/or property convictions and the offending featured variousaggravating features, this was Ms Brown's first offence of burglary. It wasparticularly unsophisticated, nothing was taken, nothing was damaged, and no one was harmed.[18] Ms Wright submits that, while the Judge accepted Ms Brown was a "foot soldier" to Mr Haenga who was a much more experienced offender, his Honour erredin not adjusting the starting point to reflect Ms Brown's reduced culpability. Shepoints to various factors as indicating that Mr Haenga was intending to implicate Ms Brown, such as directing her to gain access to the property, instructing her on impersonating a police officer, and wearing her clothing when being filmed by CCTV.[19] For the Crown, Ms Mitchell suggests the offending is more serious than that in R v Columbus, where an opportunistic defendant broke into a garden shed/garage. She suggests it is more analogous to that described obiter by the Court of Appeal inArahanga v R:11[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years and six months' imprisonment.10 Senior v Police (2000) 18 CRNZ 340; R v Columbus [2008] NZCA 192; and Reihana v Police[2015] NZHC 360.11 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (citations omitted).[20] In light of that authority, Ms Mitchell submits the 12 month starting point is within range, even if reduced culpability is taken into account. She suggests any discrete deduction for relative culpability should be modest, given there was no evidence of coercion and Ms Brown was the one who entered the building. Further,Ms Brown's involvement in offending immediately following the burglary suggests a willingness to participate fully in Mr Haenga's offending.[21] I accept a starting point of 12 months' imprisonment on the burglary chargecould be considered out of range and indeed, in the circumstances, a starting point of around four to six months might be more appropriate. No doubt the Judge took this approach because the burglary charge was the most serious offence on the basis of maximum penalties. However, on appeal, the 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.12[22] It is what happened to the second elderly victim which was the most serious offending. The aggravating features included a vulnerable victim, exploiting the trust the victim would have placed in a police officer, premeditation and high levels of deception. That offending would see starting points on the charges of obtaining by deception and impersonating a police officer at or close to the maximum of threeand four months' imprisonment respectively. There would then need to be an increase to reflect the two representative charges of dishonestly using a document.[23] Turning to the violent offending, Ms Mitchell referred to other cases involving single assaults which in her submission are broadly similar to the second incident in which Ms Brown was involved and which attracted starting points of 12 months' imprisonment.13 I accept the submission of Ms Wright that the cases relied on by the Crown were more serious, involving assaulting a victim when on the ground, kicks, and/or more than one offender. In her submission, the uplift of eightmonths' imprisonment in respect of the two assaults together was manifestlyexcessive, given Ms Brown does not have a history of violent offending. Of course,12 Ripia v R [2011] NZCA 101 at [15].13 Tamihana v R [2015] NZCA 169; Kojeunikov v Police [2013] NZHC 551; and Taingahue v Police HC Wellington CRI-2009-484-75, 17 August 2009.any uplift for an offender's criminal history takes place after setting the starting point, which is focused on the offending to be sentenced. Acknowledging the cases relied on by the respondent were more serious, in my assessment, starting points ofaround six months and eight months' imprisonment respectively for the two incidents of assault and other offending would be appropriate, indeed could be considered at the severe end of the scale.[24] In those circumstances, a total starting point similar to, or even exceeding, 26 months' imprisonment for all of the offending could not be considered out of range.[25] The two month uplift for offending while on bail was also a stern response. However, a two month reduction for the willingness to participate in restorative justice was generous in the circumstances.14[26] For these reasons, I am not persuaded there was any error in the sentence imposed by the sentencing Judge. As indicated, it is at the higher end of, but still within, the sentencing range.Rehabilitation[27] Ms Wright submits the potential for rehabilitation and hardship were not factored into the sentence as they should have been. The violent offending was in the wake of the breakup of Ms Brown's long-term relationship and related to her struggles with alcohol and violence. She has previously completed a supervision sentence without breach in relation to driving with excess breath alcohol and common assault. Her rehabilitation path was hindered by her relationship breakup, but her history demonstrates she has real prospects of rehabilitation.[28] In response, Ms Mitchell submits Ms Brown's history suggests previousrehabilitative efforts have been unsuccessful. Further, her pre-sentence report indicates an attitude of entitlement and minimisation, a lack of accountability, and a14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.lack of genuine remorse. In those circumstances, the Judge was entitled not to treat rehabilitation as a dominant factor in sentencing.[29] The report writer did assess Ms Brown as motivated to address her rehabilitative needs and a suitable candidate for electronic monitoring. In addition,part of the probation officer's assessment of Ms Brown's lack of remorse relied uponher comments concerning the involvement of the co-offender on the dishonesty and burglary offences. I am given to understand the co-offender was well-known to thepolice and there is, therefore, some context to Ms Brown's comments to theprobation officer about being under his influence.[30] Ms Brown has a very limited criminal history, but one which does demonstrate problems with use of alcohol. She was sentenced in July 2015 on threecharges. The sentence was a small amount of community work and six months'supervision. There is no indication she breached that sentence. It is also fair to observe that a six month supervision sentence is a relatively short one within which to enable any meaningful rehabilitation to take place.[31] I accept Ms Wright's submissions, which highlighted the need for Ms Brownto receive counselling for alcohol use and anger management, given the background to the offending which was the breakup of Ms Brown's sole long-term relationship with the father of her children. She had been in a relationship with him since she was 15 years old. I agree this is important context.[32] Ms Brown wrote a letter to the sentencing Judge which emphasised the fact she was seeking alcohol counselling while in custody, referred to her traumaticseparation and the "heartache and pain" for her and her three young children givenher separation from them while she is in custody.Hardship[33] This, it seems to me, is the real issue in this appeal. Because Ms Brown was unable to provide a suitable address for home detention, she was sentenced toimprisonment. Because of the lack of a women's prison in the Gisborne vicinity, sheis serving her sentence at the Auckland Region Women's Corrections Facility. Thevarious addresses explored for the purpose of home detention were unsuitable for a variety of reasons. Her mother, with whom the children now live, lives one and a quarter hours outside of Gisborne at an address further away than the response time required by the Community Probation Service. There is no cellphone coverage at the address. Her father is in a Housing New Zealand address and Housing New Zealand objected to Ms Brown residing there because of the presence of another tenant,considering this would result in overcrowding. Her sister's address was, it seems,also considered unsuitable because of overcrowding.[34] Personal hardship is an inevitable consequence of imprisonment, but Ms Wright submits Ms Brown's hardship renders her sentence disproportionately severe. She is now some seven and a half hours' travel from her children, and thefamily does not have the financial means to visit Auckland or to call her regularly. Where home detention is unavailable due to matters outside a defendant's control,Ms Wright submits that factor ought to be taken into account when sentencing. In the present case, she suggests either a further reduction to acknowledge the hardship faced by imprisonment, or substituting a sentence of supervision (or intensive supervision) would be appropriate.[35] In response, Ms Mitchell submits there is nothing in Ms Brown'scircumstances which would make her particular sentence disproportionately severe.There is no women's correctional facility in the area, which creates hardship for women sentenced to imprisonment. However, this applies to all women in the same situation. Ms Brown has been granted leave to apply for home detention should a suitable address become available. Ms Mitchell suggests the Judge cannot be criticised for not reducing her sentence further simply because Ms Brown has been unable to find such an address.[36] I agree with the respondent's submission that the next level down ofsentencing, supervision and community detention, would have been inadequate in the context of this type of offending. In saying that, a sentence combining the maximum period of community detention, coupled with community work and supervision might well have served the purposes and principles of sentencing.However, the same problem of there being no suitable address for electronic monitoring would apply.[37] I have no doubt the sentencing Judge considered he addressed this issue by granting Ms Brown leave to apply for home detention if a suitable address could befound. However, I accept Ms Wright's submission that, given the reality of thepotential addresses referred to above, this is simply not going to be possible. In this regard I would observe there is no requirement a sentence of home detention includes electronic monitoring.15 In Ms Brown's circumstances, particularly givenher three young children, it seems to me the possibility of her serving homedetention at her mother's address should have been given careful consideration. In saying that, however, I note any proposed home detention residence must be in an area in which a home detention scheme is operated by the Chief Executive of the Department of Corrections.16 It may well be, because of the remoteness of this location, home detention is simply not available there.[38] In sentencing an offender, the Court must take into account any particular circumstances of the offender which means a sentence which would otherwise be appropriate would, in the particular instance, be disproportionately severe.17 I appreciate there cannot be a prison in every location in the country. However, thereis a compelling argument there is unfairness to an offender in Ms Brown's situationin contrast to women resident in other areas. This arises in two ways. First, because of the relative isolation of communities in the wider Gisborne area, Ms Brown's mother's address is not considered suitable for home detention due to its distancefrom a police station and lack of cellphone coverage. Secondly, Ms Brown is sent to what is to her and her children a remote location to serve her sentence. A woman resident in Wellington, for example, would likely not face the first issue and certainly not the second. However, that is the reality of the situation and these two factors together do not of themselves mean a sentence of imprisonment would be disproportionately severe.15 See for example R v Seyb HC Timaru CRI-2007-003-416, 11 September 2008.16 Sentencing Act 2002, s 80A(2)(b).17 Section 8(h).[39] It is Ms Brown's particular circumstances which lead me to conclude thesentence will be disproportionately severe on her. As noted above, Ms Brown has a limited criminal history. Her previous sentences were limited to fines, disqualification from driving, 80 hours of community work and 6 months'supervision. A non-custodial sentence is clearly appropriate as acknowledged by the sentencing Judge and writer of the pre-sentence report. Through no fault of hers, neither home detention nor community detention is possible. She is only 23 years old. She has three children aged 2, 3 and 6 who were in her sole care up until her remand in prison. I consider it of real concern that a young woman with sole custody of three very young children is serving a sentence of imprisonment sevenand a half hours' travel time from her children. It is unlikely she will see them at allduring her time in prison. Even telephone contact will be extremely limited. Thereis nothing to suggest there were any problems with Ms Brown's care of her threechildren and her letter to the sentencing Judge spoke of her heartbreak and hurt at being apart from them. The impact on the three children must be significant.[40] For these reasons I am satisfied the sentence of 19 months' imprisonment willbe disproportionately severe on Ms Brown and a further allowance should be made to reflect that. Without upsetting the sentencing calculation of the sentencing Judge, in my view a discount of 15 per cent is appropriate to reflect this. That adjustment is to be made prior to the discount for the guilty plea, which results in an endsentence of 16 months' imprisonment.[41] The Judge imposed standard conditions only on Ms Brown's release. However, given Ms Brown's rehabilitative needs as discussed above, her risk offuture offending will be reduced and her rehabilitation and reintegration will be assisted if she attends specified programmes. For that reason I will impose special conditions to require her participation in alcohol and drug treatment and anger management counselling. The standard and special conditions are to expire six months after sentence expiry date. Given this imposes additional conditions and indeed stringent obligations on Ms Brown and will extend the period during which she is subject to conditions and oversight, I will reduce the term of imprisonment by a further two months.Result[42] For the reasons given, the appeal is allowed and the sentence of 19 months' imprisonment is quashed and replaced by a sentence of 14 months' imprisonment.Standard and special release conditions are imposed, to expire six months after sentence expiry date. The special release conditions are for Ms Brown to attend alcohol and drug treatment and anger management counselling.Thomas JSolicitors:Crown Solicitor's Office, Gisborne