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 history of trauma. She has had long standing difficulties with methamphetamine addiction.

[6]                 Ms Firkin has three children. They are in the custody of others. Ms Firkin has supervised visits with them. She is in a relationship with a man who is in prison for violent offending against her.4 Ms Firkin has a criminal history of burglary and shoplifting. The author of the Provision of Advice to Courts (PAC) Report records Ms Firkin saying that she shoplifts to make herself feel better and will continue to do so until she gets help. She has previously been sentenced to home detention and intensive supervision. Most recently, on 12 March 2021 she was sentenced to 15 months intensive supervision for three charges of shoplifting. Ms Firkin shoplifted again during this time.5

4      Ms Firkin was originally due to be sentenced in April 2023 but this had to be adjourned as a result of her partner’s offending against her.

5      This appeal relates in part to Ms Firkin’s conviction for shoplifting from Countdown on 8 April 2022, while she was subject to intensive supervision.

[7]                 Ms Firkin has a previous conviction for breaching the conditions of intensive supervision, and a conviction for breaching home detention conditions. However,  Ms Hurley explains that Ms Firkin breached home detention only by going to the supermarket not long after the country went in  to  its first COVID 19  lockdown.  Ms Firkin’s criminal history is consistent with that, recording that she breached home detention conditions on 23 April 2020 and was convicted and discharged the next day.

Sentencing

[8]                 In sentencing Ms Firkin the Judge took the charge of shoplifting on 8 April 2022 as the lead charge because Ms Firkin committed that offence whilst on intensive supervision. The Judge adopted a starting point of one month and two weeks imprisonment for that charge.6 For the remaining six shoplifting charges the Judge uplifted the sentence by six months. The Judge applied a further uplift of two months in light of Ms Firkin’s previous convictions which amounted to nine months and two weeks’ imprisonment but which the Judge took to be nine months in the round.7

[9]                 To that the Judge applied a 25 per cent discount for Ms Firkin’s guilty plea, reducing the sentence to six months and three weeks. The Judge deducted a further month to acknowledge the reparations that Ms Firkin had paid in full. Before me Ms Hurley emphasises that Ms Firkin saved those reparations from her WINZ benefit. Ms Hurley says this demonstrates the extent of Ms Firkin’s remorse and her efforts to take responsibility for her offending.

[10]              The Judge did not consider that she could commute this end sentence of five months and three weeks imprisonment to one of home detention. The Judge noted that the PAC report recommended imprisonment, and that home detention at Ms Firkin’s home address was not appropriate because this was where the violent offending took place against her earlier in the year.8 In that regard the Judge also noted that gang members who use methamphetamine come and go from that address.9 The Judge noted:

6      Police v Firkin, above n 1, at [24].

7 At [26].

8 At [19].

9 At [19].

[29] When I sentence you I have to think about the principles under the Sentencing Act 2002, and purposes, including that I should sentence you on the basis of the least restrictive outcome. I have a range of sentencing options available to me under the Act but when I consider the purposes of holding you accountable for the harm that you have done, denouncing your conduct, deterring you and others from this kind of offending, and protecting the community, that is to say business owners and employees who work in those shops, I am required in this case to impose a custodial sentence. Home detention is not suitable for the reasons that are outlined in the PAC Report, community work and community detention they simply do not meet the principles and purposes of the Sentencing Act.

Legal principles

Approach to appeal

[11]              This Court must allow Ms Firkin’s appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.10 Otherwise, the Court must dismiss the appeal.11 A starting point that is too high is an example of an error justifying appellate intervention.12 Whether the end sentence is ‘manifestly excessive’ is a useful guide in determining whether there is an error.13

[12]              The appeal court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.14 The appellate decision focuses on the final sentence rather than the process by which it was reached. Assessing whether the sentence is manifestly excessive similarly reflects the Court’s focus on the end result.

Commutation of imprisonment to home detention

[13]              The same principles apply to appeals against a refusal to commute imprisonment to home detention.15 A court may not impose imprisonment if a less restrictive sentence would achieve the relevant s 7 sentencing purposes.16 However, there is no presumption for or against commutation. A case-by-case exercise of

10     Criminal Procedure Act 2011, s 250(2).

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 729, [2014] 3 NZLR 482 at [32].

13     Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAB5.01].

14     Tutakangahau v R, above n 124, at [36]. See also Te Aho v R [2013] NZCA 47 at [30].

15     Palmer v R [2016] NZCA 541 at [18].

16     Sentencing Act 2002, s 16(2).

judgment against the statutory principles and purpose of sentencing is required. This is necessarily an evaluative exercise, and as such a substantial margin of appreciation is given to sentencing judges.17

Grounds of appeal

Sentence of imprisonment is manifestly excessive

[14]              Ms Hurley’s overall submission for Ms Firkin was that it was manifestly excessive for her to have been sentenced to five months, three weeks’ imprisonment for theft of goods worth only $1,079, which she had fully repaid.

[15]              More particularly, Ms Hurley submits that the starting point of nine months imprisonment (in the round) was too high; that the sentencing discounts did not properly reflect Ms Firkin’s personal circumstances; and in any event the end sentence of imprisonment should have been commuted to home detention or some other community-based sentence.

Starting point

[16]              Ms Hurley accepts that a starting point of six weeks’ imprisonment on the lead charge was within range but submits that the additional six months’ imprisonment imposed for the remaining charges was manifestly excessive given the extent of the offending and the full reparation. Ms Hurley submits that an uplift of a further four months’ imprisonment would have been appropriate in the circumstances.

[17]              Similarly, Ms Hurley accepts that an uplift to reflect Ms Firkin’s previous convictions for dishonesty offending was appropriate, but says that two months was too high. Ms Hurley submits that one month would have been appropriate. She submits that all Ms Firkin’s previous dishonesty offending has been at a low level.

[18]              As such, Ms Hurley submits that the starting point should have been a term of imprisonment of 6 months (in the round) rather than nine months. Reducing this by 25 per cent for the guilty plea and an additional one month for the full reparation leads

17     Palmer v R, above n 15, at [19]. See also Aupouri v R [2019] NZCA 216 at [18].

to an overall end sentence of three and a half (3.5) months’ imprisonment (rather than five months and three weeks).

Personal features

[19]              Ms Hurley says that although the Judge acknowledged Ms Firkin’s history of mental health difficulties including post-traumatic stress disorder, borderline personality disorder, depression and trauma, the Judge gave no credit to Ms Firkin for these personal factors when setting the end sentence. Moreover, Ms Hurley says that Ms Firkin’s handwritten letter to the sentencing Judge demonstrates her remorse, as does her payment of full reparation. Ms Hurley submits further that the letter demonstrates Ms Firkin is asking for community and other support, rather than rejecting it as the author of the PAC report had indicated. Ms Hurley also points out that Ms Firkin did not offend in the five-month period between December 2022 and her sentencing in May 2023.

Commutation of sentence to home detention

[20]              Ms Hurley submits that in any event the Judge’s refusal to commute the sentence to an electronically monitored sentence such as community detention and/or home detention amounts to an error and results in a sentence that is manifestly excessive. Ms Hurley emphasises s 16 of the Sentencing Act 2002 which provides that a Court must not impose a sentence of imprisonment unless it is satisfied that no other sentence can achieve certain purposes of the Act;18 and no other sentence would be consistent with s 8 principles.19 Ms Hurley submits that in Ms Firkin’s case the relevant purposes and principles of sentencing could be achieved through a sentence of home detention, and as such that is what the Court should have imposed.

[21]              Moreover, Ms Hurley submits that the address where Ms Firkin has lived for the last 10 years is her home and suitable for such a sentence. Counsel submits that by declining Ms Firkin home detention to that address on the basis that this is where she was the victim of family violence is effectively to punish her for having been

18     Sentencing Act 2002, s 16(2)(a). The certain purposes are those found in s 7(1)(a)-(c), (e), (f), or (g).

19     Section 16(2)(c).

assaulted in her own home. Ms Hurley emphasises that this is where Ms Firkin was able to serve an electronically monitored sentence in 2019 and again in 2020 (albeit with the breach described at [7] above).

Discussion

[22]              I have carefully considered Ms Hurley’s thorough and helpful oral and written submissions in support of Ms Firkin’s appeal. However, I do not consider that the Judge erred, or that the end sentence of five months and three weeks imprisonment is manifestly excessive.

[23]              Although another Judge might well have calculated the end sentence differently, standing back and applying the totality principles I am satisfied that the end sentence the Judge reached was within range. Like the sentencing Judge I acknowledge Ms Firkin’s efforts to pay full reparation, saved out of her WINZ benefit. I accept this demonstrates a degree of remorse, notwithstanding the author of the PAC report advising that she had none. In my view Ms Firkin’s remorse and efforts at reparation were properly reflected in the one month discount the Judge applied for that purpose.

[24]              As for commutation, it is apparent that Ms Firkin’s previous community-based sentences have neither rehabilitated nor deterred her. Although I accept Ms Hurley’s submission that the breach of home detention in April 2020 appears to have occurred in extenuating circumstances, she has become something of a recidivist offender. The author of the PAC report advises that Ms Firkin commented she would continue to offend until she gets the support she needs.   In her letter to the sentencing Judge   Ms Firkin says that offending provides some relief from the anger and hurt she feels at having had her children removed from her, and the “laundry list” of other grievances she has. She says she needs a psychologist, not prison.

[25]              Clearly Ms Firkin does require assistance and support. But given her repeated offending I do not consider the Judge erred in determining that the purposes and principles of sentencing require a custodial sentence.

[26]              There is merit in Ms Hurley’s submission that Ms Firkin should not be denied home detention simply because she was the victim of offending at home, but the Judge also noted that there are gang members and methamphetamine users who visit her home and that Ms Firkin continues to use methamphetamine herself.

[27]              I also agree with the Judge that this Court’s recent decision in Honeybun v New Zealand Police20 can be distinguished. Ms Honeybun was a solo mother and pregnant with her second child. She had also passed a drug test and appeared to be on top of her addiction issues. In those circumstances the Court was prepared to commute her short term of imprisonment for shoplifting to one of home detention. But unfortunately Ms Firkin’s circumstances are different.

Final comments

[28]              Ms Firkin will require further assistance when she is shortly released from prison, including with her mental health and her methamphetamine addiction. In her letter to the sentencing Judge Ms Firkin speaks of being aggrieved at various government agencies, but it is encouraging that she seems to acknowledge that she requires their assistance. The post-detention conditions imposed by the Judge are intended to help with that. Hopefully Ms Firkin will engage with the relevant programmes.

[29]              I also expect that Ms Firkin’s Kāinga Ora home will continue to be available to her when she is released. As noted, counsel advises this has been her home for the past 10 years.

Result

[30]The appeal is dismissed.

Robinson J

20     Honeybun v New Zealand Police [2022] NZHC 3445.