NIKAU v R [2017] NZHC 1366

NIKAU v R [2017] NZHC 1366 [20 June 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2017-419-000031CRI-2017-419-000032CRI-2017-419-000033CRI-2017-419-000034[2017] NZHC 1366BETWEEN WIKITAHI JOSEPHINE NIKAUAppellantAND THE QUEENNEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentsHearing: 20 June 2017Appearances: A Hope and R Dhillon for the AppellantT Needham for the RespondentsJudgment: 20 June 2017JUDGMENT OF WOOLFORD JSolicitors: Almao Douch (Crown Solicitor), HamiltonCounsel: J A Hope, Hamilton[1] Wikitahi Josephine Nikau appeals against sentence. She pleaded guilty and was convicted on the following charges:(a) One charge of receiving property, the value of which exceeds $1,000;1(b) One charge of burglary;2(c) One charge of theft of property, the value of which does not exceed $500;3(d) One charge of theft of property, the value of which exceeds $1000;4and(e) Breach of community work.5[2] Ms Nikau was sentenced by Judge Collin in the District Court on 12 April 2017 to 18 months imprisonment.6Factual background[3] On 30 March 2016 Ms Nikau, along with a Ms Gerard and a Ms Walker, uplifted approximately 53 pairs of tights from a table outside a Glassons clothing store. The tights were valued at $2,119.47. All subsequent offending has occurred while on bail for this matter.[4] On 22 May 2016 police visited Ms Nikau's house. They found at that address property taken from a private address four days previously, including two televisions, jewellery and other items, valued at $6,940. Ms Nikau, along with a Ms Pene, was charged with receiving.1 Crimes Act 1961, ss 246 and 247, which carries a maximum penalty of seven years imprisonment.2 Crimes Act s 1961, s 231, which carries a maximum penalty of ten years imprisonment.3 Crimes Act 1961, ss 219 and 223(d), which carries a maximum penalty of three months imprisonment.4 Crimes Act 1961, ss 219 and 223(b), which carries a maximum penalty of seven years imprisonment.5 Sentencing Act 202, s 71(1)(a), which carries a maximum penalty of three months imprisonment.6 R v Nikau [2017] NZDC 7798.[5] On 16 May 2016 Ms Nikau, along with Ms Gerard, took three sets of sheets from Bed, Bath & Beyond worth $359.70.[6] On 26 December 2016, Ms Nikau entered Farmers at The Base Shopping Centre with her baby. She had been served a trespass notice on behalf of The Base Shopping Centre on 6 May 2015. Ms Nikau removed several items of baby clothing from the display racks, worth $182.94, and concealed them in her bag. She was then approached by a security guard. As a result of the trespass notice, this offending was charged as a burglary.[7] Finally, on 4 March 2015 Ms Nikau was sentenced to community work. She failed to report as required in early 2017.District Court judgment[8] Judge Collin in the District Court imposed an end sentence of 18 months imprisonment.[9] The Judge noted Ms Nikau's significant history of offending. Further, she had been given multiple sentences he considered lenient or compassionate in the past. He sought to "impose a sentence that is the least restrictive but still takes into account [prior offending and consistency in sentencing co-defendants]".7[10] He placed considerable emphasis on the need for consistency with a sentenceimposed on Ms Pene, Ms Nikau's co-offender in the receiving offending, who had been sentenced to a term of 12 months imprisonment. The Judge stated:8It is appropriate in my view that you are treated in the same way as Ms Pene in relation to that charge and the starting point for that charge is a term of imprisonment of 12 months.[11] The Judge adopted 12 months imprisonment as the starting point for the receiving offence. He imposed a six month cumulative period of imprisonment for the Farmers offending, as that occurred while Ms Nikau was on bail for the receiving charges. He adopted concurrent sentences of six months and one month for the7 At [8]–[9].8 At [14].Glassons and Bed, Bath & Beyond thefts respectively, and of one month for breach of community work.[12] This amounted to a starting point of 18 months imprisonment. The Judge considered aggravating factors personal to Ms Nikau, being her previous history and offending on bail, warranted an uplift of 20 per cent. This was balanced by adiscount of 20 per cent for Ms Nikau's guilty pleas. This left an end sentence of 18 months imprisonment.[13] The Judge then turned to the issue of home detention. He noted that Ms Nikau had not complied with community work, and offended while on bail. He then concluded:9Your co-defendant received a term of imprisonment and notwithstanding that hers was served on remand and yours will not be I cannot see that a different sentence is justified for you than for her, notwithstanding your personalcircumstances. The end sentence therefore is a sentence of 18 months' imprisonmentAppellant's submissions[14] Mr Hope for Ms Nikau submits that a sentence of home detention rather than imprisonment should have been imposed, on the following grounds:(a) The sentence imposed was not the least restrictive outcome available to the Court as required by s 8(g) of the Sentencing Act 2002; and(b) The District Court Judge erred in his application of the principle of consistency in sentencing when imposing a term of imprisonment.[15] Mr Hope draws attention to Ms Nikau's personal circumstances, namely thatshe has four children aged 10, 8, 7, and 10 months, the youngest of whom she was breastfeeding at the time of sentencing. She receives support from her mother, who is suffering from cervical cancer.9 At [22].[16] Further, he points to the pre-sentence report from the Department of Corrections, which recommended home detention with post-detention conditions.[17] Mr Hope submits that the Judge who sentenced Ms Pene for her part in the offending had no realistic alternative to a sentence of imprisonment, as Ms Pene had spent considerable time in custody on remand. Therefore she was released immediately following sentencing on the basis of time served. On that basis, he submitted, Ms Nikau faced different circumstances, warranting a different type of sentence.[18] By contrast, Mr Hope points to the sentences of Ms Nikau's co-offenders in the Glassons offending and the Bed, Bath and Beyond offending. They were sentenced to come up for sentence and one month imprisonment, respectively.Crown submissions[19] Ms Needham submits that the question of whether to impose home detention is a matter for the discretion of the sentencing Judge. It should not be overturned unless the Judge erred by applying an incorrect principle or giving insufficient or excessive weight to a particular factor, or if he was plainly wrong.10 In this instance, Ms Needham submits that Judge Collin did not err.[20] She further submits that Judge Collin was entitled to take parity into account having determined that Ms Nikau and Ms Pene had similar circumstances. Further,that the issue of parity was not the only focus of the Judge's assessment. The Judge had regard to all applicable purposes and principles.Approach to appeals against sentence[21] An appeal against sentence is an appeal against a discretion. The first appeal court must only allow the appeal if satisfied that:11(a) There is an error in the sentence imposed on conviction; and10 James v R [2010] NZCA 206 at [17].11 Criminal Procedure Act 2011, s 250(2).(b) A different sentence should be imposed.[22] Thus the appeal court "does not just start afresh nor simply substitute its own opinion for that of the original sentencer".12 Before imposing its own view of the appropriate sentence, the court must find an error of the requisite character. This will involve establishing that the sentence is manifestly excessive or wrong in principle, or that there are exceptional circumstances.13[23] The focus is on the end sentence rather than the process adopted to reach the end sentence. If the end sentence is within range, an appeal court will not tinker with it.14 Accordingly:15The High Court will not intervene where the sentence is within the range that 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 by the process by which the sentence is reached.AnalysisError[24] Having given careful consideration for the circumstances of this case, I am satisfied that Judge Collin erred in his approach to parity. He appears to have considered himself bound to impose imprisonment given Ms Pene received imprisonment for the same offending. He concluded "[d]espite your circumstances in the end I cannot escape the fact that a term of imprisonment must be imposedupon you It is appropriate in my view that you are treated in the same way as Ms Pene".16 He further noted:17It is difficult however to get past the fact that I must take into account the [desirability] of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offending and in this case, in relation to Ms Pene, the fact that you were jointly involved in that enterprise and she received a term of imprisonment for it.12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].13 Tutakangahau v R, above n 12, at [31].14 Ripia v R [2011] NZCA 101 at [15].15 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].16 At [13]–[14].17 At [9].[25] A sentencing court is not required to impose the same sentence on two co- offenders, nor the same type of sentence. Rather, the principle of parity requires that the court should not impose two sentences which would cause a reasonably minded independent observer, aware of all the relevant circumstances, to think that something had gone wrong with the administration of justice.18 Relevant to this test is whether any difference is justified. The Court of Appeal in R v Lawsonsummarised the approach on appeal thus:19 differences in the length, and sometimes the type of sentence imposed onco-offenders, unfair although they may sometimes appear to be in the view of the co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend tobring the administration of justice into disrepute [26] The principle of parity is largely relevant to the assessment of the appropriate starting point rather than a comparison of end sentences. Once a starting point has been imposed, the remaining steps to be taken may be influenced by personal factorsand the offender's particular situation. As here, co-offenders may also be charged separately for different offending. They may have served time on remand when their co-offenders have not. Almost always, they will have different personal circumstances.[27] The Court of Appeal in R v Mako noted that the relevant point to take parity considerations into account is in relation to starting point, saying "fixing the starting point is the mechanism for seeking consistency in sentencing".20 In R v Bishop, in relation to an appeal against a sentence of two and a half years imprisonment where a co-offender of equal involvement in the offending received an end sentence of ninemonths' home detention and community work, the Court of Appeal held:2118 R v Lawson [1982] 2 NZLR 219 (CA) at 223, affirmed in Smith v R [2012] NZCA 224 at [18].19 R v Lawson, above n 18, at 223.20 R v Mako [2002] 2 NZLR 170 at [53].21 R v Bishop [2009] NZCA 265 at [14].There is no impermissible disparity between the sentences of the co- offenders in this case. The starting points were the same, and it was only in the discount for mitigating factors that there was a difference. A difference between the end sentences was therefore appropriate.[28] There are many examples of co-offenders receiving sentences of different types. This is not necessarily an affront to the principle of parity. For example, as Mr Hope noted, in R v Autagavaia the Court of Appeal held that in general it is notthe case that "a prison sentence and one of periodic detention will necessarily be sodisparate as to require this Court's intervention".22 Similarly, in Rosenburg v R the Court of Appeal upheld sentences for fraud-related co-offenders where one offender received a sentence of reparation and imprisonment, and the other received a longer term of imprisonment.23 While a sentence of reparation is below imprisonment on the hierarchy of sentences, this did not breach the principle of parity.[29] Accordingly the Judge was not bound to impose imprisonment. It was appropriate to take parity concerns into account in assessing relative culpability in the offending itself, which the Judge did in identifying 12 months imprisonment as the correct starting point, as Ms Pene received. From that point, the Judge was able to take into account individual circumstances. The suitability of home detention is a relevant individual factor. He should not have precluded the option of home detention because it was not suitable in the circumstances for her co-offender.[30] I am therefore satisfied that there was an error in the Judge's approach. I proceed to consider the correct sentence.Starting point[31] I do not differ from Judge Collin in respect of the starting point. The Judge identified a starting point of 12 months imprisonment for the lead charge of receiving. This is in line with the Court of Appeal decision in Burkhart v R for a similar instance of receiving.24 Here, Ms Nikau was found in possession of the stolen property a mere four days after the offending, whereas in Burkhart the property was found four months after the initial burglaries. The Court of Appeal22 R v Autagavaia [1985] 1 NZLR 398 at 401.23 Rosenburg v R [2015] NZCA 97; Rosenburg v R [2015] NZSC 106.24 Burkhart v R [2013] NZCA 314.previously indicated in Ellis v R that the proximity between the burglary and the receiving is a factor relative to sentencing.25 However, in Burkhart the Court remarked that a starting point of 12 months was at the upper end of the available range for that offending. I am therefore satisfied it is appropriate here. The starting point of 12 months imprisonment is the same as that imposed on Ms Pene for the same charge.[32] I also concur with the Judge that it was appropriate to impose an uplift for the remaining theft and burglary charges. These took place once Ms Nikau was already on bail. Accordingly they were not part of the same chain of offending. The Judge imposed a six month uplift for the Base offending. In my view, an uplift to reflect that all three charges took place on bail would be more appropriate. I would impose a six month uplift to reflect the offending on bail in totality. Nonetheless, this still results in a starting point of 18 months imprisonment.Adjusting the starting point[33] Ms Nikau has 33 previous convictions, the majority of which are for theft- related charges. I concur that an uplift of around 20 per cent, or three months, isappropriate for Ms Nikau's extensive history of similar offending.26 The uplift would raise the sentence to 21 months imprisonment.[34] Judge Collin concluded that this was offset by the discount of 20 per cent to which Ms Nikau was entitled for her guilty pleas (some of which were delayed). A 20 per cent discount is appropriate. Had the discount been applied to the 21 months reached, this would have led to a sentence of approximately 17 months imprisonment. Judge Collin merely decided the two offset one another, resulting in a sentence of 18 months imprisonment.Home detention[35] Section 15A of the Sentencing Act makes home detention available where the court would otherwise sentence the offender to a short-term sentence of25 Ellis v R [2012] NZCA 513 at [9].26 Burkhart v R, above n 24.imprisonment (two years or less). The question for the court is whether it is an appropriate case to commute the sentence to one of home detention.[36] The court must take into account all relevant ss 7 and 8 purposes and principles. It cannot focus only on one purpose to the exclusion of others.27 The court must also impose the least restrictive outcome appropriate in the circumstances pursuant to s 8(g) of the Sentencing Act. This is reiterated by s 16 which states that the court must not impose imprisonment unless it is satisfied that the purposes and principles under ss 7 and 8 could not be achieved by a sentence other than imprisonment. The section further states that the court must have regard to the desirability of keeping offenders in the community so far as possible.[37] I am of the view that the purposes of sentencing can be satisfied in Ms Nikau's case by a sentence of home detention. A particularly relevant factor is the issue of rehabilitation. Ms Nikau's offending history demonstrates an ongoingpattern of similar offending, which has not been deterred by previous punishment and must be taken seriously. As her counsel points out, Ms Nikau has at times been under considerable financial and family stress. I do not consider that this excuses the offending. It does, however, suggest that positive changes in her lifestyle could limit future offending. The pre-sentence report demonstrates that there have recently beensome positive improvements in Ms Nikau's lifestyle. Notably Ms Nikau moved into a Housing New Zealand home, where she lives with three of her children and the support of her mother. She is active in her local marae. This will provide some stability. Further, since moving Ms Nikau has become more involved with the community by becoming involved with sports teams and undertaking a parenting course.[38] I consider that rehabilitation is most likely to be effective in the community.Ms Nikau's extended family appears to be supportive. I also put weight on the opinion of the author of the pre-sentence report, who recommended a sentence of home detention with rehabilitation conditions. I note that this was not mentioned inJudge Collin's decision. The pre-sentence report also refers to suitable rehabilitation27 Fairbrother v R [2013] NZCA 340 at [30].programmes available in the community, to be included as a condition on imposition of home detention.[39] Weighing against this consideration is the fact that Ms Nikau has failed to comply with community sentences in the past. This would, however, be the first time she has received home detention. Further, as Judge Collin pointed out, some of the failure to complete community work may be attributed to the fact that for at least a period of the time she was heavily pregnant, or struggled to obtain childcare.[40] I accept that deterrence is an important consideration given Ms Nikau'shistory. However, a sentence of home detention is a significant sentence in its own right. It also serves the principles of denunciation and deterrence.28 I consider that the ss 7 and 8 factors overall clearly favour a sentence of home detention.[41] In respect of parity, I note that I do not consider this to be significantly inconsistent with the sentence imposed on Ms Pene. Moreover, a different sentence is justified by the personal circumstances of Ms Nikau and Ms Pene. Unlike Ms Nikau, Ms Pene served time on remand pending sentencing. As a result, she was in fact released immediately after sentencing as a result of time served. This was afactor unique to Ms Pene that likely factored into the sentencing Judge's decision toimpose a sentence of imprisonment on Ms Pene. I am satisfied that even if it were appropriate to compare the end sentences, this fact justifies imposition of a different type of sentence.Conclusion[42] The appeal against sentence is accordingly allowed and the sentence of 18 months imprisonment quashed.[43] Ms Nikau has already served over two months in prison.[44] Therefore, in place of the sentence of 18 months in prison, Ms Nikau is sentenced to seven months home detention. The following conditions are imposed:28 Osman v R [2010] NZCA 199.(a) Ms Nikau is to attend and complete an appropriate programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.(b) Ms Nikau is not to communicate in any way or associate with Shannon Richelle Pene, Te Puna Gerrard and/or Manawa Walker without the written approval of a probation officer.(c) Ms Nikau is to undertake any budgeting advice as directed by and to the satisfaction of a probation officer.(d) Ms Nikau is to have absences as required for parental duties as approved by a probation officer.[45] I also impose concurrent sentences of three months home detention for the theft over $1000, one month for the theft under $500, three months for the burglary, and one month for the breach of community work. All sentences are to be concurrent.[46] The sentence of home detention is to be served at the address specified in the pre-sentence report. Upon release from custody, Ms Nikau is to travel directly to the specified address and there await instructions from a probation officer._________________________Woolford J