Hansen v Police

[2017] NZHC 425

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000046

[2017] NZHC 425

IN THE MATTER OF

an appeal against sentence

BETWEEN

BIANCA GEORGINA HANSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 March 2017

Counsel:

M J Kidd for the Appellant

T R Bellingham for the Respondent

Judgment:

13 March 2017

(ORAL) JUDGMENT OF EDWARDS J

HANSEN v POLICE [2017] NZHC 425 [13 March 2017]

Solicitors:    Kidd Legal, Auckland

Meredith Connell, Auckland

Introduction

[1]    Ms Hansen pleaded guilty to charges of burglary,1 possession of utensils for methamphetamine,2 possessing methamphetamine,3 receiving,4 and two charges of breach of a sentence of supervision. She was sentenced to 10 months’ imprisonment for the burglary charge. She received two months’ imprisonment for the charge of receiving which was concurrent with the burglary sentence. She was convicted and discharged on the other offences.

[2]    Ms Hansen appeals the burglary sentence on the ground that it is manifestly excessive, and the District Court Judge should have given greater consideration to alternatives to a sentence of imprisonment.

The offending

[3]    The burglary charge arose out of events on 24 November 2016. Ms Hansen and an associate entered a residential property owned by the victim. The victim was present at the property. Ms Hansen went to the front door and took a pair of shoes owned by the victim valued at approximately $100.

[4]    Ms Hansen and her associate were located and arrested by police a short while later. A search of Ms Hansen’s handbag revealed a cut down straw and a number of small plastic ziplock bags. This forms the basis of the possession of utensils charge.

[5]    The receiving and possession of methamphetamine charges arise out of offending in April 2016. A locked shed at the rear of the Ranui Baptist Church was broken into and 20 to 30 boxes of clothing items were stolen. The stolen boxes of clothing were subsequently located in a car in which Ms Hansen was the passenger.

1      Crimes Act 1961, s 231, maximum penalty 10 years’ imprisonment.

2      Misuse of Drugs Act 1975, s 31(1)(a), maximum penalty one year’s imprisonment or $500 fine.

3      Misuse of Drugs Act 1975, s 7(1)(a) and (2), six months’ imprisonment, $1,000 fine.

4      Crimes Act 1961, ss 246 and 247, maximum penalty seven years’ imprisonment.

On searching Ms Hansen, a small ziplock bag containing under 0.1 grams of liquid methamphetamine was found in her handbag.

Personal circumstances

[6]    Ms Hansen is 35 years old. She is the mother of three children who are currently being cared for by their grandmother.

[7]    Ms Hansen has a number of previous convictions from 2014 and 2015. These include a conviction for theft of property (under $500), and unlawfully taking a motor vehicle. She was sentenced to reparation of $117.16, and 60 hours’ community work for this offending.

[8]    In addition, Ms Hansen has a number of convictions for failing to answer District Court bail, and breach of community work. She does not have any drug related convictions.

[9]    The pre-sentence report records Ms Hansen as having a moderate risk of reoffending, and a low risk of harm to others. The report notes that there was an escalation in the frequency and seriousness of Ms Hansen’s offending as evidenced by her record of convictions.

[10]   The factors contributing to Ms Hansen’s offending were identified in the pre- sentence report as drug use, lifestyle, attitude, lack of pro-social relationships, lack of direction and structure in her life and poor compliance with previous community- based sentences. The lack of engagement with her supervision sentence and community-based sentences led the report writer to conclude that a community-based sentence could not be recommended with any confidence. (I note however that in an earlier report, Ms Hansen was reported as engaging with her supervision sentence).

[11]   A suitable address for an electronically monitored sentence could not be identified. Ms Hansen’s parents refused to consent to Ms Hansen serving her electronically monitored sentence at their house, stating that it was time for “tough

love”. As a result, the report writer recommended imprisonment as the only suitable sentence.

District Court decision

[12]   In determining an appropriate sentence, the District Court Judge referred to the pre-sentence report, noted that the pre-sentence report was not very positive, and recommended a sentence of imprisonment.

[13]In terms of rehabilitative options, the Judge made the following observations:

[8]        I have also heard from a representative of the Salvation Army and he tells me that he had a conversation with you, you were upfront and honest about your issues, and he was impressed by that.

[9]        I am told by your lawyer that long term you may be looking at some residential treatment for your drug offending. I note that the probation officer in Court helpfully suggested that we could impose a sentence of imprisonment with leave to apply for home detention with a view of you going to a place like Odyssey House, but you are not keen on that. That does concern me, because on the one hand you are saying that you want to deal with your problems, and on the other you are not prepared to do everything that you can to sort out your drug addiction.

[14]   The Judge adopted a starting point of 12 months for the burglary charge. She applied a two month uplift for the remainder of the charges and gave a discount of four months for the guilty plea, and the fact that some insight into her offending had been shown by Ms Hansen in admitting she had a drug addiction problem.

[15]   The 10 month sentence was imposed with standard release conditions of six months.

Grounds of appeal

[16]   Counsel for Ms Hansen submits that imprisonment was manifestly excessive, given the low value of the pair of shoes stolen ($100), the fact that the item was returned, and that the actions only caused the victim minor inconvenience.

[17]   Counsel also submits that the District Court Judge should have given more consideration to Ms Hansen’s rehabilitation needs, and alternatives to a sentence of imprisonment.

Approach on appeal

[18]   Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[19]   In any other case, the Court must dismiss the appeal.5 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.6

Is the sentence manifestly excessive?

[20]   There is no tariff case for burglaries. In Arahanga v R, the Court of Appeal observed that burglaries of dwelling houses at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years, six months’ imprisonment.7

[21]   In this case, the presence of the victim at the dwelling was an aggravating feature of the offending. But the low value of the items taken ($100), and the fact that they were returned puts Ms Hansen’s offending at the lowest end of the scale.

[22]The Crown has referred me to a number of comparable cases.

(a)In Herewini v Police, a starting point of 15 months’ imprisonment was adopted.8 Mr Herewini had entered a residential property during the day by forcing open a garage door. He did not take any property.

5      Criminal Procedure Act 2011, s 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

8      Herewini v Police [2015] NZHC 2807.

(b)In Moeroa v Police, the starting point for the burglary charge was reduced to 15 months’ imprisonment on appeal.9 The offending in that case was during the day. Mr Moeroa was seen by the occupant, and left without taking anything.

(c)In Monsall v Police, a starting point of “about one year” was imposed on appeal.10 In that case, Mr Monsall had entered the office of a residential treatment facility causing $50 worth of damage. He had used the computer inside to access pornography, ate some food, and took a “Sharpie” pen worth $3.

[23]   At one level, Ms Hansen’s offending was less serious than any of these cases. There was no physical entry into the dwelling house; the offending was opportunistic in that the shoes were at the front door; no damage was caused to any property; and the stolen goods were subsequently returned.

[24]   However, at another level, the fact that the victim was present at her property, and saw both Ms Hansen and her associate, makes Ms Hansen’s offending more serious than these cases. I note Mr Kidd’s submission that Ms Hansen did not confront the victim, and ran away. Nevertheless the presence of the victim is an aggravating feature of this case.

[25]   Mr Kidd submits that the two month imprisonment sentence imposed for the receiving charge was inconsistent with the 10 months imposed for the burglary charge and that vitiates the end sentence. However, by comparison with the starting points adopted in the above cases, I consider the 12 month starting point was stern, but nevertheless within range. I also note that the two months’ imprisonment sentence for the receiving charge was concurrent with the 10 months’ imprisonment imposed for the burglary charge.

[26]   There is no challenge to the uplift of two months applied for the other offences. I accept that a two month uplift was appropriate.

9      Moeroa v Police [2015] NZHC 2226.

10     Monsall v Police HC Tauranga CRI-2009-087-1134, 21 August 2009.

[27]   The Judge did not apply an uplift for previous convictions. Ms Hansen had two relevant convictions, being a previous conviction for theft from 2012, and unlawful taking also from 2014. A small uplift for these charges could have been applied. To the extent that the starting point is considered to be out of range, any excess would be offset by an uplift for these previous convictions in my view.

[28]   There is no challenge to the discount for the guilty plea and Ms Hansen’s “insight into offending”. A four month discount was appropriate in all the circumstances.

[29]   Overall, I consider the sentence imposed was at the higher end of the available range but did not fall outside of it.

Alternatives to imprisonment

[30]   Counsel for Ms Hansen submits that the Judge erred by not considering alternatives to a sentence of imprisonment and by failing to address her rehabilitative needs.

[31]   It is clear from the Judge’s notes that Judge Moala did take into account both these factors. The Judge referred to Ms Hansen’s previous convictions for breaching sentences of supervision, and failing to appear. Ms Hansen also has a number of convictions for breach of community work. The offences for which she was sentenced were committed whilst subject to a sentence of supervision. That criminal record weighs against a community-based sentence.

[32]   The Judge also turned her mind to the availability of an electronically monitored sentence. However, a suitable address was not available. Ms Hansen’s parents did not consent to her undertaking her sentence at their place. Ms Hansen’s former partner also lived at the address and was on parole. Home detention was not an available option.

[33]   Finally, the Judge also took into account the fact that a drug addiction may have been a driving factor in Ms Hansen’s offending. The possibility of a sentence of

imprisonment with leave to apply for home detention to a place like Odyssey House was raised as a possibility. The Judge’s sentencing notes record that Ms Hansen was not keen on that option. I accept Mr Kidd’s submission that such a response might have been caused by Ms Hansen’s addiction. Mr Kidd further submits that a Judge should be able to refer those with low motivation to drug court without the consent or agreement of the defendant. That may be so. But in the absence of a commitment by Ms Hansen to address her drug addiction or other rehabilitative needs, the Judge had little option in structuring an appropriate sentence.

[34]   In those circumstances, I am not satisfied that there was a material error in the sentence imposed which would justify disturbing it on appeal.

Result

[35]The appeal is dismissed.

Edwards J