Firkin v Police - [2023] NZHC 1605

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-000016

[2023] NZHC 1605

UNDER THE Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

ALICIA DIANA FIRKIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 June 2023

Appearances:

S T Hurley for the Appellant R Hicklin for the Respondent

Judgment:

27 June 2023

JUDGMENT OF ROBINSON J

[Sentence Appeal]

This judgment was delivered by me on 27 June 2023 at 12:30 pm.

Registrar/ Deputy Registrar

Solicitors/counsel:
S T Hurley, New Plymouth Crown Solicitor, New Plymouth

FIRKIN v NEW ZEALAND POLICE [2023] NZHC 1605 [27 June 2023]

Introduction

[1] On 23 May 2023 Ms Alicia Firkin was sentenced at the New Plymouth District Court to five months’, three weeks’ imprisonment1 after pleading guilty to seven charges of shoplifting (under $500).2 At the same time the Court remitted Ms Firkin’s outstanding fines of $4,429.

[2] Ms Firkin appeals her sentence. On her behalf Ms Hurley submits the end sentence was manifestly excessive. She also says the Judge was wrong not to impose a community-based sentence such as community work and/or commute her sentence of imprisonment to one of community detention or home detention.

The offending

[3] Ms Firkin’s offending is described in the District Court judgment. All seven charges are for shoplifting from various retail stores in New Plymouth:3

(a)On 8 April 2022, Ms Firkin stole items valued at $400, including razors, flashlights and personal care items, from a Countdown.

(b)On 14 September 2022 she stole a bottle of sunscreen valued at $45.99 from Carefirst Pharmacy.

(c)On 22 November 2022 she stole clothing worth $159.99 from Torpedo 7.

(d)On 27 November 2022 she stole items valued at $119 from Super Cheap Auto.

(e)On 28 November 2022 she stole items valued at $147.61 from Bunnings.

1      Police v Firkin [2023] NZDC 10206.
2      Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment. Note that a person accused of “shoplifting” is charged with theft under s 219.
3      The offending is fully described at [2] – [9] of the District Court judgment.

(f)On 7 December 2022 she stole craft and party supplies valued at $200 from Spotlight.

(g)On 12 December 2022 she stole 55 items valued at $406.25, again from Spotlight. When approached by staff outside she threw the bag containing all the items at the staff and walked away.

[4] In all, the items stolen were valued at just under $1,500 in total. The items stolen on 12 December 2022 were recovered. Ms Firkin paid full reparation of
$1,073.59 in respect of the other charges to the New Plymouth District Court immediately prior to her sentencing on 23 May 2023.

Personal circumstances

[5] Ms Firkin’s personal circumstances are complex. She is 41 years old. For 10 years she has lived in the same Kāinga Ora rental property. She has a history of mental health difficulties, including post-traumatic stress disorder, borderline personality disorder and depression. She has a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1605
Decision Date: 27 June 2023

CaseChat Overview and Summary

Alicia Diana Firkin appeals against her sentence for multiple shoplifting offences, which resulted in a five months and three weeks imprisonment term at the New Plymouth District Court. The appeal, argued by S T Hurley, contends that the sentence was manifestly excessive, and that the court should have imposed a community-based sentence instead of imprisonment. Firkin's personal circumstances, including mental health issues, a history of trauma, and methamphetamine addiction, were presented as grounds for a more lenient sentence. Additionally, it was argued that Firkin's criminal history, while significant, did not justify such a lengthy imprisonment term.

The court considered the arguments and found that although another judge might have calculated the sentence differently, the end result was within the acceptable range. The court acknowledged Firkin's efforts to pay full reparation and her remorse, which were reflected in the one-month discount the sentencing judge applied. However, the court noted that Firkin's previous community-based sentences had not deterred her from reoffending, and thus, a custodial sentence was necessary to achieve the purposes and principles of sentencing.

The appeal was dismissed, and the original sentence was upheld. The court emphasized that Firkin would require further assistance upon her release, including support for her mental health and methamphetamine addiction, and encouraged her to engage with relevant programs.

Orders