Coxon v Police HC Dunedin CRI-2011-412-000009

[2011] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-412-000009

HAYLEY JOYCE COXON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 April 2011

Counsel:         B Farnan for Appellant

L C Denton for Respondent

Judgment:      7 April 2011

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors/Counsel:

B Farnan, PO Box 1440, Dunedin.

Crown Solicitor, PO Box 803, Dunedin. Email: [email protected]

COXON V NZ POLICE HC DUN CRI-2011-412-000009 7 April 2011

[1]      Ms  Coxon  pleaded  guilty  in  the  District  Court  to  charges  of  arson, shoplifting, wilful trespass, breach of community work and breach of community detention.   Earlier she also faced a charge of intentional damage, but for some unknown reason this charge was administratively withdrawn before she was sentenced.

[2]      Ms Coxon was sentenced by Judge O’Driscoll to an effective term of two years imprisonment on all charges.[1]     She now appeals to this Court against that sentence on the basis that it is wrong in principle.

Facts

[1] R v Coxon DC Dunedin CRI-2010-012-3442, 22 February 2011.

[3]      Ms Coxon was charges with arson and intentional damage along with two co- offenders.  These charges arose from the fact that one of Ms Coxon’s co-offenders had originally been living at an address in Dunedin owned by Housing New Zealand. Ms Coxon went to the address, kicked holes in the walls, threw food around the property and carved words into a wall implicating a gang.   This gave rise to the charge of intentional damage.

[4]      The arson charge arose because Ms Coxon and another of her co-offenders went back to the property five days later and set fire to it.  The fire caused extensive damage to the property.

[5]      I am uncertain as to the origin of the theft charge, but it appears to relate to an incident of shoplifting.

[6]      The charge of wilful trespass arose as a result of the fact that Ms Coxon went to a shopping mall after having been issued with a trespass notice prohibiting her from going there.

[7]      The charge of breach of community detention was laid because Ms Coxon tampered with the electronic bracelet that she was required to wear for the duration

of her sentence.

[8]      The charge of breach of community work arose as a result of the fact that she failed to complete a sentence of 100 hours community work that was imposed upon her on 25 June 2010.

The sentence imposed in the District Court

[9]      Ms  Coxon  and  one  of  her  co-offenders  were  sentenced  together  on

22 February 2011.  The third co-offender had been sentenced in the District Court at Auckland the previous week by a different Judge.  Judge O’Driscoll had the benefit, however,  of  reading  the  sentencing  notes  relating  to  that  offender  before  he sentenced Ms Coxon and her other co-offender in Dunedin.

[10]     The  Judge  took  a  starting  point  of  three  years  imprisonment  for  both offenders. That was the same starting point that the Judge in Auckland had arrived at in relation to the third co-offender.   Neither counsel took issue with that starting point in the District Court, nor is it questioned on appeal.

[11]     The Judge noted that the Crown had submitted that the starting point should be increased so far as Ms Coxon was concerned to reflect the fact that the arson had occurred while she was already subject to a sentence of community detention. Ultimately, however, he did not apply an uplift to reflect that factor.

[12]     The Judge gave Ms Coxon a credit of one year, or one-third, to reflect her relatively early guilty pleas and expressions of remorse that she had made to the Judge in a letter provided to the Court prior to sentencing.  This left an end sentence of two years imprisonment.

[13]     The Judge then turned to the real issue before him, which was whether a sentence of imprisonment or home detention should be imposed.  He took the view that the offending was too serious to allow a sentence of home detention to be imposed in Ms Coxon’s case, having regard to the fact that she was already subject to a sentence of community detention at the time of the offending.   She had also breached the terms of that sentence by tampering with her electronic bracelet a short

time after being sentenced.   For those reasons the Judge declined to grant home detention and imposed an effective end sentence of two years imprisonment.

Grounds of appeal

[14]     The sole point on appeal is whether the Judge erred in declining to impose a sentence of home detention.

[15]     Counsel for Ms Coxon points out that of both Ms Coxon’s co-offenders received sentences of home detention.  Although Ms Coxon’s circumstances were different, counsel submitted that they were not so different that they warranted a different sentencing approach.  Counsel also pointed out that the Judge was bound to impose a sentence that was the least restrictive outcome in the circumstances.   A sentence of home detention, she submitted, was still a substantial deprivation of liberty, and would have satisfied the purposes and principles of sentencing.

Decision

[16]     In my view a number of factors combine to mean that this appeal cannot succeed.   First, the fact that Ms Coxon was already subject to a sentence of community  detention  at  the  time  that  she  committed  the  arson  is  a  serious aggravating factor.  It could have easily justified the Judge applying an uplift of three to six months imprisonment.  Had the Judge opted to take that course, a sentence of home detention would have been out of the question because the end sentence would have been greater than two years.

[17]     Second, although she is only 19 years of age Ms Coxon has already amassed a large number of convictions that can broadly be described as of an anti- authoritarian nature.   These include breach of supervision, breach of community work, breach of community detention and obstructing the Police.  She has also been convicted on drugs charges and of being in possession of an offensive weapon.  She has already received sentences of imprisonment imposed on convictions for breach of community work and stealing property in September and October 2009.

[18]     Coupled with this is the fact that Ms Coxon deliberately tampered with her electronic bracelet very shortly after being sentenced to community detention.  I am sure that that fact, coupled with the nature of Ms Coxon’s previous convictions, was what  prompted  Judge to  comment  that  he  believed  that  she would  find  it  very difficult to comply with a sentence of home detention.

[19]     A decision as to whether or not to impose a sentence of home detention is an exercise of judicial discretion requiring competing factors to be balanced and weighed.  I have concluded that sufficient factors pointed against home detention in the present case to render the Judge’s decision not to impose that sentence immune from review by this Court.

Result

[20]     The appeal against sentence is dismissed.

……………………………..

Lang J