Courtenay v Police

[2020] NZHC 1722

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000193

[2020] NZHC 1722

BETWEEN

JENAYA RAE COURTENAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 July 2020
Appearances:	M Taylor-Cyphers for the Appellant A Masters for the Respondent
Judgment:	16 July 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 16 July 2020 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland Counsel:     M Taylor-Cyphers, Auckland

COURTENAY v NZ POLICE [2020] NZHC 1722 [16 July 2020]

[1]    On   30   March   2020,   Jenaya   Rae   Courtenay   was   sentenced   by Judge C H Bennett in the Waitakere District Court to 25 and a half months’ imprisonment on six charges of theft of goods valued at more than $1,000, for which the maximum sentence is seven years’ imprisonment.1 At the same time, she was sentenced to various lesser penalties in respect of 17 other theft, drug, driving and assault charges.2 The penalties imposed range from a conviction and discharge to concurrent terms of imprisonment of up to three months. She now appeals against the total sentence of 25 and a half months’ imprisonment on the basis that it is manifestly excessive.

Factual background

[2]    The six lead charges involved the shoplifting of a large number of high value items from retail stores. Ms Courtenay almost always used a child’s pram or large bags to conceal the items she stole, such as expensive clothing, an espresso coffee machine and numerous bottles of perfume, as an example. One of the assault charges arose when Ms Courtenay shoved a security guard while escaping from Life Pharmacy, in Auckland’s Albany. The security guard fell over and suffered injuries to her left hip and foot.

[3]    Other charges included possession of methamphetamine utensils, failing to stop, speeding to evade the police and assaulting police.

[4]    A year and a half earlier, in August 2018, Ms Courtenay was given a sentence indication by another Judge of 18 months’ imprisonment on nine charges. On the same day that she received the sentence indication, Ms Courtenay committed a further theft offence, followed by one the following day and two more, three days later. Between August 2018 and sentencing in March 2020, while on bail, Ms Courtenay amassed a further 13 charges.

[5]    After the sentence indication, Ms Courtenay was admitted into the Alcohol and Other Drug Treatment Court. Following her further offending, she was exited from

1      Crimes Act 1961, s 223(b).

2      Crimes Act 1961, ss 223(b), (c), 226(2); Summary Offences Act 1981, ss 9, 10; Land Transport Act 1998, s 35(1)(a) and Misuse of Drugs Act 1975, s 13.

that specialist Court twice. Ms Courtenay was also exited from two specialist residential drug rehabilitation programmes, the Bridge Programme and Odyssey House.

Ms Courtenay’s submissions

[6]The case for Ms Courtenay is that there has been an error in sentence, namely:

(a)The sentence imposed fails to take into account the 270 days spent in custody throughout her time in the Alcohol and Other Drug Treatment Court in 2019;

(b)The sentence of 25 and a half months’ imprisonment fails to address Ms Courtenay’s rehabilitative needs for her addiction and mental health as required under Zhang v R;3

(c)There was no canvassing of several factors which may have provided significant mitigation in terms of a potential reduction in sentence, namely restorative justice and a cultural report under s 27 of the Sentencing Act 2011;

(d)The sentencing appears to have proceeded in the absence of a pre- sentence report without waiver of the same by Ms Courtenay; and

(e)Section 16(2) of the Sentencing Act cannot be made out. The sentence of 25 and half months’ imprisonment is not the least restrictive outcome in the circumstances to meet the purposes and principles of sentencing.

[7]    A sentence of home detention is sought. Ms Courteny has been offered a bed at E Hine Te Waireka, which is a residential rehabilitation facility in the Hawkes Bay where she would be able to serve a sentence of home detention if the Court was minded to impose one on appeal.

3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Discussion

[8]    No issue is taken with the Judge’s starting point of 24 months’ imprisonment, taking into account the totality of the offending for which she was being sentenced. There is also no issue  taken  with  the  uplift  of  six  months’  imprisonment  for  Ms Courtenay’s previous offending. The Judge further uplifted the starting point by another four months’ imprisonment to reflect the fact that many of the offences for which she was being sentenced were committed on bail. Ms Courtenay says that is too much and should be reduced somewhat. Such an uplift is, however, consistent with the sentence indication where Judge Sharp indicated a three-month uplift for offending on bail. Four months is not excessive in the circumstances.

Time spent in custody

[9]    Ms Courtenay says she spent some 270 days in custody while in the Alcohol and other Drug Treatment Court. Of note were two four-week periods in residential rehabilitation centres, the Bridge Programme and Odyssey House. It is accepted that she was exited from these residential rehabilitation programmes, but she complains that there was no credit given or a reduction in sentence, to acknowledge the time in custody.

[10]   However, pursuant to s 82 of the Sentence Act 2002, in determining the length of any sentence of imprisonment to be imposed, the Court is prohibited from taking into account any part of the period during which the offender was on pre-sentence detention. Ms Courtenay’s time in custody meets the definition of pre-sentence detention in the Parole Act 2002, which reads:

91 Meaning of pre-sentence detention

(1)Pre-sentence detention is detention of a type described in subsection

(2)   that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a)any charge on which the person was eventually convicted; or

(b)any other charge on which the person was originally arrested; or

(c)any charge that the person faced at any time between his or her arrest and before conviction.

(2)The types of detention that are pre-sentence detention are detention under an order made under section 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and detention on remand pursuant to a court order—

(a)in a prison (or in a Police station in accordance with section 35 of the Corrections Act 2004):

(b)in a residence established under section 364 of the Oranga Tamariki Act 1989, or detention in Police custody under section 238(1)(e) of that Act:

(c)in a hospital or secure facility under any of sections 23, 35, 38(2), and 44(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:

(d)in a hospital or secure facility pursuant to an order under—

(i)section 171(2) or 184T(3) or (4) of the Summary Proceedings Act 1957; or

(ii)section 169 of the Criminal Procedure Act 2011:

(e)in a hospital following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992:

(ea)in a secure facility following an application under  section  29(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(f)in a hospital under section 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[11]   Accordingly, all the time Ms Courtenay spent in pre-sentence detention is a matter to be taken into account by the Parole Board when determining time served and must not be taken into account in determining the length of any sentence of imprisonment. As such, a discount for the 270 days spent in custody in 2019 was not available to Judge Bennett.

Ms Courtenay’s rehabilitative needs

[12]   Ms Courtenay evidently has addiction issues. She also says that she has mental issues, including Post-Traumatic Stress Disorder arising from continued and repeated exposure to high-level violence for many years. Under Zhang, this might have attracted quite a significant reduction in sentence over and above the 25 per cent reduction for a guilty plea.

[13]   It seems that the Judge was prepared to give Ms Courtenay a discount for rehabilitation. She stated:4

When I was preparing this sentence this morning, Ms Courtenay, I had been minded to allow you a further discount for rehabilitation, but you have been very clear with me today that you do not want to take up the opportunity of rehabilitation, you simply want to be sentenced today, and given that, my end sentence for you is 25 and a half months’ imprisonment.

[14]   Any such discount could potentially have brought Ms Courtenay’s sentence of imprisonment down under 24 months, in which case, residential rehabilitation programmes could have been canvassed. However, it does not seem that counsel for Ms Courtenay (not appellate counsel)  brought the potential availability of a bed at   E Hine Te Waireka to the Judge’s attention.

[15]   As noted above, Ms Courtenay had already been given a number of opportunities to engage in rehabilitation, but had failed to complete various rehabilitation programmes.

[16]   Nonetheless, the Judge was still willing to give Ms Courtenay a discount if she were to continue with her rehabilitative efforts, but it seems that Ms Courtenay rejected the opportunity.

Restorative Justice and Cultural Report

[17]   Section 24A of the Sentencing Act 2002 provides for an adjournment for a restorative justice process in certain cases. It provides:

24A     Adjournment for restorative justice process in certain cases

(1)This section applies if—

(a)an offender appears before the District Court at any time before sentencing; and

(b)the offender has pleaded guilty to the offence; and

(c)there are 1 or more victims of the offence; and

(d)no restorative justice process has previously occurred in relation to the offending; and

(e)the Registrar has informed the court that an appropriate restorative justice process can be accessed.

4      New Zealand Police v Courtenay [2020] NZDC 6059 at [10].

(2)The court must adjourn the proceedings to—

(a)enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and

(b)enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.

[18]   Section 10 of the Act requires the Court to take into account any offer, agreement, response or measure taken by the offender to make amends. In deciding whether and to what extent such an offer or action should be taken into account, the Court must consider whether or not it is genuine and capable of fulfilment and whether or not it has been accepted by the victim as expiating or mitigating the wrong.

[19]   In this case, it is not clear on the information available to Court whether or not Ms Courtenay had shown a willingness to participate in restorative justice at the time of sentencing. Furthermore, it is unclear if the Judge had been informed as to whether an appropriate restorative justice programme could be accessed.

[20]   Furthermore, on the information available to the Court, it does not appear that defence counsel at sentencing sought a cultural report pursuant to s 27 of the Act. If no such request was made, pursuant to s 27(5) of the Act, a Judge may still suggest to the offender that it may be of assistance to the Court to hear from a person on any s 27(1) matters. However, in this case, it does not appear that there was anything before the Judge which might have prompted her to consider exercising her discretion under s 27(5).

Pre-sentence report

[21]   Two pre-sentence reports were,  in  fact,  prepared  for  the  sentencing  of  Ms Courtenay. The first report was prepared on 25 July 2019 and the second report was prepared on 20 March 2020.

Least restrictive outcome

[22]   Given the number of charges faced by Ms Courtenay, their seriousness, her continued offending on bail and unenviable conviction history, the end sentence

imposed was clearly within range and the least restrictive outcome appropriate in the circumstances. Ms Courtenay has previously received sentences of supervision, community work and community detention, none of which has led to her ceasing offending. The earlier sentences have clearly not achieved their desired result in that Ms Courtenay was subsequently charged with breach of conditions of supervision and breach of community work.

Result

[23]The appeal against sentence is dismissed.

Woolford J