MENEFY v POLICE [2020] NZHC 162

MENEFY v POLICE [2020] NZHC 162 [13 February 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000002[2020] NZHC 162BETWEEN SAMANTHA BEVERYLY MARIONMENEFYAppellantAND POLICERespondentHearing: 13 February 2020Appearances: C D Bean for the AppellantASC Alcock for the RespondentJudgment: 13 February 2020ORAL JUDGMENT OF MUIR JCounsel/Solicitors:Bean Law, HamiltonAlmao Douch, Crown Solicitors, HamiltonIntroduction[1] On 10 December 2019 Ms Menefy was sentenced by the District Court to aperiod of two years and two months' imprisonment. This appeal is brought on thegrounds that the sentence was manifestly excessive. Specifically it is submitted thatthe starting point and uplifts were too high, the discount for mitigating factorsinadequate, and that the sentence was in arithmetical error.[2] The sentence was in respect of 11 charges:(a) burglary;1 .(b) shoplifting over $1,000 (trailer and generator);2(c) unlawful possession of a firearm (.22 calibre lever action rifle);3(d) unlawful possession of a firearm (double barrel 12 gauge shotgun);4(e) driving while suspended, third or subsequent;5(f) failing to answer District Court bail;6(g) possession of utensil (two glass methamphetamine pipes);7(h) possession of utensil (one glass methamphetamine pipe);81 Crimes Act 1961, s 231. Maximum penalty 10 years imprisonment.2 Crimes Act 1961, s 223(b). Maximum penalty 7 years imprisonment.3 Arms Act 1983, s 45. Maximum penalty 4 years imprisonment, a fine not exceeding $5000, orboth.4 Arms Act 1983, s 45. Maximum penalty 4 years imprisonment, a fine not exceeding $5000, orboth.5 Land Transport Act 1998, ss 32(1)(c) & 32(4). Maximum penalty 2 years imprisonment or a finenot exceeding $6000, and an order disqualifying the driver from holding or obtaining a driverlicence for a minimum of 1 year.6 Bail Act 2000, s 38. Maximum penalty 1 year imprisonment or a fine not exceeding $2000.7 Misuse of Drugs Act 1975, s 13(1)(a). Maximum penalty of 1 year imprisonment, a fne notexceeding $500 or both.8 Misuse of Drugs Act 1975, s 13(1)(a). Maximum penalty of 1 year imprisonment, a fne notexceeding $500 or both.(i) shoplifting (under $500);9(j) shoplifting (under $500);10 and(k) shoplifting (under $500).11Background[3] The background to the charges is as follows.[4] On 16 March 2019 police stopped Ms Menefy in the vehicle she was drivingas part of a routine traffic stop. It was found she was driving while suspended.[5] On 26 April 2019 Ms Menefy entered a rural property by jemmying open thetoilet window. The property and occupants were not known to Ms Menefy. Theoccupants were not home at the time of the offence. Upon gaining access to the house,Ms Menefy conducted what is described as a "messy" search of the property. She tookwith her numerous items, including a jewellery box with valuable contents. The totalvalue of the stolen items was $16,720. This offending occurred while Ms Menefy wason bail.[6] On 22 May 2019 the police executed a search warrant for Ms Menefy's home.They located the jewellery box. Inside the defendant's handbag was a sunglasses case,containing black sunglasses, and two glass pipes commonly used formethamphetamine consumption. Located in the boot of Ms Menefy's car were twofirearms (a double barrelled 12 gauge shotgun and a .22 calibre lever action rifle). Thedefendant does not hold a firearms licence. No ammunition was located. Nor was anyarrest able to be made at that time.[7] On 20 June 2019 Ms Menefy and her husband entered Mitre 10 Kaitaia anduplifted items to the value of $391, which they did not pay for. The items have notbeen returned. On the same day Ms Menefy and her husband entered Repco9 Crimes Act 1961, s 223(d). Maximum penalty 3 months imprisonment.10 Crimes Act 1961, s 223(d). Maximum penalty 3 months imprisonment.11 Crimes Act 1961, s 223(d). Maximum penalty 3 months imprisonment.Automotive Kerikeri and uplifted items to the value of $642.98, again failing to payfor them. Likewise, those items have not been returned.[8] On 21 June 2019 Ms Menefy and her husband went to D-Bay Hire, Mangonuiand hired a car trailer and generator valued at $11,800. Both items were to be returnedon 22 June at 8am but that did not occur. On the same day, Ms Menefy stole a pair ofsunglasses from the Hammer Hardware store in Coopers Beach, valued at $20.Neither has that property been returned.[9] On 3 July 2019 Ms Menefy was stopped by police and provided false details.She was subsequently arrested. A search identified a glass methamphetamine pipe inher bag.District Court decision[10] The District Court Judge, Judge Cocurollo identified the lead charge to be thatof burglary. In order of seriousness he then nominated theft of the trailer and generator,followed by the firearms charges. He acknowledged that methamphetamine was aprominent factor to the offending, highlighting the charges for possession of utensilsand Ms Menefy's admissions of addiction.12[11] Although the Judge acknowledged the sentencing principle of rehabilitation,he focused primarily on denouncing the offending and holding the defendantaccountable for the harm done to the victim and community.[12] In calculating the sentence, his Honour adopted a starting point of 18 months'imprisonment for the burglary charge which he then uplifted by eight months for thecharge relating to theft of the trailer and generator, a further six months on the firearms'charges and two months for the balance of the charges. He then further uplifted thesentence by another two months to reflect the fact that the offending had occurredwhile on bail. His adjusted starting point was therefore 36 months' imprisonment. Nototality adjustment was given in that respect.12 The criminal record indicates that this is likely to be of longstanding – possibly 10 years or more.[13] From that he allowed a discount of four months for the remorse shown, coursesattended, and the other mitigating factors advanced in submission. He then applied a25 per cent discount for the guilty plea.[14] The final point arrived at by the Judge was 26 months' imprisonment which heidentified as outside the eligibility criteria for home detention. However, he noted thathe would not have been persuaded to give Ms Menefy home detention, even if it wasan option, because of her extensive criminal history which involved serial antisocialbehaviour and dishonesty offending. He considered that if home detention wasallowed, Ms Menefy was likely to offend further. Although he acknowledged herrehabilitation needs, he did not explore this issue further because of his assessmentthat home detention was unavailable. As I will discuss later, that premise was incorrectbecause of an arithmetical error in his Honour's calculations.Counsel's submissionsAppellant's submissions[15] For the appellant, Ms Awatere made two broad submissions in the writtenmaterials filed with the Court. Mr Bean adopts those submissions today.[16] Firstly, she points out that a 25 per cent discount on a 32 month sentence resultsin 24 and not 26 months' imprisonment.[17] Secondly, she submits the adjusted starting point of 36 months was too high.She contends that 18 months was appropriate for the burglary charge but says that theuplifts for the other charges (totalling 16 months) were excessive and that a total ofsix months would have been appropriate.[18] Ms Awatere further submits that the discount for mitigating factors wasinadequate. She contends that the discount for remorse should have been discrete fromthat for other mitigating factors.[19] Ms Awatere refers to Newton v Police as a comparable case involving burglaryof a domestic property. There the offending was opportunistic, occurred in day time,and the occupants were not in residence.13 Jewellery and a television set was stolen,with only the television and a small amount of jewellery recovered. The defendantwas a first-time burglar who had previous dishonesty convictions. On appeal a startingpoint of 15 months was identified with an uplift of three months for offending whileon bail and the defendant's previous dishonesty offending.14[20] Finally, Ms Awatere submits that the appropriateness of home detention as asentence should now be considered.Respondent's submissions[21] The written submissions for the Crown were filed by Ms Hamilton. They arein turn adopted today by Ms Alcock. Ms Hamilton submits that the Court's focusshould be on whether the end sentence is manifestly excessive in all the circumstances.She says, that it was not, even allowing for the arithmetical error.[22] She submits the Judge's uplift of eight months, for the theft of the trailer andgenerator, was within the available range, noting that in Henriksen v Police thedefendant stole two trailers and received 12 months imprisonment.15[23] Ms Hamilton also submits that the uplift of six months for the two firearms'charges was within range. She cites Gunning v Police and Faataape v Police. In thefirst case the defendant was sentenced on charges of unlawful possession of a firearmand ammunition and sentenced to seven months home detention.16 The presence ofthe ammunition was considered a prominent aggravating feature.17 In the second casethe defendant was sentenced for, among other things, unlawful possession of a firearmand explosives and the Judge considered a starting point between 12 and 15 monthswould be appropriate.18 Acknowledging the fact that in the current case noammunition was present, Ms Hamilton submits the uplift of six months wasappropriate.13 Newton v Police [2012] NZHC 2829 at [18].14 At [15].15 Henriksen v Police [2016] NZHC 2571 at [1] & [22].16 Gunning v Police [2019] NZHC 309 at [44].17 At [31].18 Faataape v Police HC Rotorua CRI-2009-463-73, 30 November 2009, at [1] & [17].[24] Finally, Ms Hamilton submits that the Judge was correct in concluding thathome detention was inappropriate, whatever the final calculation of the imprisonmentterm.[25] Neither counsel wished to add to these written submissions. Such indicationwas given following an informal discussion with them about my provisional views,which was acknowledged by both counsel as recognising the central issue involved inthis case.Approach on appeal[26] The Criminal Procedure Act 2011 provides that the Court must allow theappeal if satisfied that, for any reason, there is an error in the sentence imposed onconviction, and that a different sentence should be imposed.19 In deciding whether toimpose a different sentence, the Court does not simply substitute its own view for thatof the original sentencing Judge.20 Rather, it must be shown that the sentence ismanifestly excessive or wrong in principle.21 The Court will not, ordinarily, interferewith the sentence which is within the range that can be properly justified by acceptedsentencing principles.22 The focus is on the end result rather than the process by whichthe sentence was reached.23 In exceptional cases, it may nevertheless be necessary tocorrect a sentence that is within range (for example, where there has been anarithmetical error).24 This is such a case. In any other case, the Court must dismissthe appeal.25DiscussionStarting point, uplifts and discounts[27] In Arahanga v R, the Court of Appeal held that dwelling house burglarieswould be likely to attract a starting point of approximately 18 months to two years and19 Criminal Procedure Act 2011, s 250(2).20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].21 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, above n 20, at [30]–[35].22 Tutakangahau v R, above n 20, at [36].23 At [36].24 At [36].25 Criminal Procedure Act 2011, s 250(3).six months.26 This is considered a flexible range because of the large degree ofvariation that undoubtedly exists between the different circumstances in burglarycases.[28] In this case, the burglary appears to have been opportunistic, as it wascommitted in day time, by one burglar, and, as it transpired, while the house wasunoccupied. It is accepted that these circumstances meant that there was a reducedlikelihood of confrontation. However, domestic burglaries result in a substantialbreach of privacy and the implications of this particular offending continue toreverberate with the victims. The defendant stole numerous items including jewellerywith particular sentimental value. The total value of the items was $16,720. Thejewellery box was eventually located by police, but it appears the jewellery itself hadalready been disposed of.[29] Neither counsel have taken issue with the Judge's assessed starting point of18 months for the burglary charge. The question raised by the Appellant is whetherthe uplifts were excessive and discounts inadequate.[30] In relation to the uplifts, although I accept them as stern, I am not persuadedthat they were in excess of range, having regard to the authorities to whichMs Hamilton refers. Nor do I regard Newton v Police as assisting the appellant in thisregard as the defendant in that case faced only one charge in addition to the burglary– breach of bail. That can be contrasted with the 10 additional charges in this case.[31] I accept as a live issue, however, whether there should have been a totalityadjustment at the point the Judge arrived at his adjusted starting point of 36 months.The Judge did not consider this necessary. I am inclined to disagree but similarly theJudge did not uplift for previous dishonesty offending as he could easily have done,having regard to the defendant's earlier convictions for burglary and receiving. Thetwo are in my view likely to have balanced each other out. As Ms Hamilton submitsthe focus should be on whether the end point is manifestly excessive.26 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].[32] In relation to discounts (apart from the guilty plea), there was no requirementfor the sentencing judge to individually identify these, albeit that, in the interests oftransparency, this is best practice. The mitigating factors were remorse, offers ofrestorative justice (which were not taken up), history of addiction and domesticviolence, and efforts to secure a place within a suitable rehabilitative framework.[33] The Judge's total discounts were four months or 12.5 per cent. I am notpersuaded they were inadequate.[34] However, having regard to the admitted arithmetical error in the SentencingNotes, I must now turn to consider the more significant issue raised on the appeal –whether the end sentence (correctly 24 months' imprisonment) should be commutedto home detention.Home detention[35] Absent the particular proposals advanced by Ms Menefy for her entry into aresidential rehabilitative programme, I agree with the District Court Judge that shewas not an appropriate candidate for home detention. She has an extensive criminalhistory, dating from 2008 when she was 19 years of age. Multiple offences have beencommitted while on bail and there have been multiple breaches of bail conditions. Thelikelihood of further offending (which having regard to a previous history of receivingstolen property could have included offending at home), is clearly significant, at leastwithout progress with her underlying addiction issues.[36] Although the Judge recognised rehabilitation as important, he did not discussin detail the options available to Ms Menefy for the stated reason she was not, on hiscalculations, eligible for home detention at all.[37] The rehabilitative proposal advanced in the District Court (and confirmed asstill available in this Court), is a residential course with the Grace Foundation, basedin South Auckland.[38] This organisation describes itself as:27The missional arm of the body of Jesus Christ. Providing housing for thehomeless, help for the hurt, hope for the heart, healing for the home.[39] In correspondence dated 11 February 2020 the Foundation advises that a placeis available for Ms Menefy at its women's home located at 7 Clarice Place, Takanini.Its operations manager, Mr David Letele advises that the Foundation will "ascertainthe wrap around support that is required for Ms Menefy" and that part of the re-integration and support provided is the mandatory "Soulutionz@Grace Rehab, Hopeand Healing program (sic) and the WRAP and PET programs (sic)".[40] I have sighted other relevant materials from the Foundation including a flowchart illustrating that Ms Menefy would be engaged in a three-phase programme withan expected duration of 18 weeks. The first stage is called "Soulutionz" wheresessions are held from 10.00 am to 12.00 pm Monday to Saturday. These are aimedat instilling "hope and healing to adults based in one form or another throughpredominantly adverse child experiences". The second stage is called "Get Off theFence" and is aimed at reintegration of the candidate into tertiary study oremployment. The third stage is called "Go! New Start!", which aims to help residentsfind suitable accommodation once their residence with the Foundation has concluded.[41] Although the programme is not specifically directed to drug rehabilitation inthe manner, for example, of Odyssey House and Higher Ground, this Court has, atleast in the bail context, recognised "the positive benefits of the dedicated support theFoundation offers".28[42] I do take into account that the Foundation does not appear to include among itspersonnel registered psychologists, psychiatrists, or other medical personnel. It isunlikely therefore to reach, what might be called the "gold standard" of the other drug27 Grace Foundation New Zealand "About" Grace Foundation New Zealand Facebook pagewww.facebook.com/GraceFoundationCharitableTrust/about.28 See Le Noel v Police [2019] NZHC 581 at [44] and [46]; as well as MacMillan v Police [2018]NZHC 3219; Brown v R [2019] NZHC 687 for additional reference to the Court's use of the GraceFoundation.rehabilitation programmes. However, I assess it as likely to provide for significantlygreater rehabilitative prospects than if Ms Menefy remains in prison.[43] I conclude, having regard to Ms Menefy's criminal history, that her drugaddiction problems are of longstanding and inform most, if not all, of her offending.The only realistic prospect of a cessation to her offending is her successfulrehabilitation from addiction. Section 7(1)(h) of the Sentencing Act recognises suchassistance as a relevant purpose of sentencing. Section 8(g) in turn obliges the Courtto impose the least restrictive outcome that is appropriate in the circumstances inaccordance with the hierarchy of sentences and orders set out in s 10(a).[44] I am satisfied that, in principle, the sentence imposed on Ms Menefy should becommuted to one of 12 months' home detention with the first approximately 18 weeksof such sentence to be served at the Grace Foundation's facility in Takanini.[45] There are, however, some practical difficulties in substituting such a sentenceat this point. These are conceded by Mr Bean. Firstly, although the Department ofCorrections Provision of Advice to Courts supports home detention at a GraceFoundation facility the only technical (and other) checks thus far conducted have beenin respect of a facility at 169 Chichester Drive, Papakura. This is not the intendedaddress. Moreover, the Court would need to be satisfied that, at the conclusion of theFoundation's residential programme, there was a satisfactory address at which thebalance of any home detention sentence could be served. There is no informationcurrently available in this respect.[46] In the result, I consider the appropriate course is to allow the appeal, substitutea sentence of 24 months' imprisonment and grant leave to Ms Menefy to apply to theDistrict Court under s 80(I) of the Sentencing Act 2002 for cancellation of the sentenceof imprisonment and substitution of a sentence of home detention. Any such sentenceof home detention would, in terms of duration, need to take into account the period ofimprisonment which Ms Menefy has thus far served.Result[47] I allow the appeal.[48] I substitute a term of imprisonment of 24 months for that imposed by theDistrict Court.[49] I grant leave to the appellant to apply to the District Court for cancellation ofthe sentence of imprisonment and substitution of a sentence of home detention.__________________________Muir J