Higgott v Police

[2025] NZHC 1388

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-19 [2025] NZHC 1388

BETWEEN  JESSICA AROHA HIGGOTT

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   29 May 2025 Appearances:        S J Burlace for Appellant

A N Kearney for Respondent

Judgment:                29 May 2025

JUDGMENT OF McHERRON J

[1]    On 27 March 2025, Judge Andrée Wiltens sentenced Jessica Higgott to ten months’ imprisonment1 after she pleaded guilty to burglary2 and permitting her premises to be used for drug offending.3 She appeals her sentence on two grounds:

(a)first, that the Judge erred in refusing to impose a sentence of home detention or community detention; and

(b)second, that if imprisonment was appropriate, the sentence was manifestly excessive due to errors in the judgment.

1      Police v Higgott [2025] NZDC 7594.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Misuse of Drugs Act 1975, s 12(1); maximum penalty three years’ imprisonment.

HIGGOTT v NEW ZEALAND POLICE [2025] NZHC 1388 [29 May 2025]

The facts

[2]    On 28 March 2024, Ms Higgott watched courier parcels being delivered to the victim’s address. Once the courier driver left, Ms Higgott opened a gate and entered the property. She took two parcels from the front doorstep of the property, walked towards a nearby tree, and opened them. The parcels contained two pairs of Ugg boots valued at $170. Ms Higgott took the boots for herself. She later put them on Facebook marketplace.4

[3]    On 31 December 2024, the police executed a search warrant on Ms Higgott’s address and found 13 well-tended one metre tall cannabis plants growing in the rear yard of the property. The plants belonged to Ms Higgott’s son, who is 16 years old.

District Court sentencing decision

[4]    The Judge noted Ms Higgott’s “terrible record”, in which she has received progressively more restrictive outcomes in accordance with the hierarchy of sentences. Ms Higgott’s last four sentences were to home detention. However, she offended again soon after completing each sentence.5

[5]    In relation to the current offending, the Judge accepted “this is not the most serious of burglaries”, but observed it was “blatantly dishonest” and that Ms Higgott had many previous convictions for dishonesty. In relation to those, the Judge said:6

You obviously have issues with drugs which is what causes you to behave in this fashion and you seem to not have done anything about that…

[6]    The Judge disagreed with the pre-sentence (PAC) report writer’s recommendation of a sentence of home detention, but without specifically articulating why he did not consider that sentence to be appropriate.7 However, it is clear from the previous paragraph of his sentencing notes that the Judge was concerned that non- custodial sentences have not been effective to deter Ms Higgott from continuing to

4      Ms Higgott denies she attempted to sell the boots on Facebook but merely wanted to check their value.

5      Police v Higgott, above n 1, at [4].

6 At [5].

7 At [6].

offend. It appears that denouncing her conduct and deterring future offending was the Judge’s primary purpose when sentencing Ms Higgott to imprisonment.8 He set a starting point for the burglary offending of six months and added four months for allowing her premises to be used for drug offending, resulting in a global starting point of 10 months’ imprisonment.9

[7]    The Judge then imposed a 25 per cent reduction for Ms Higgott’s guilty plea, but imposed an equal uplift for her previous convictions.10 Ms Higgott received an end sentence of 10 months’ imprisonment, in addition to six months’ post release conditions.11

Approach to sentence appeal

[8]    I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.12

[9]    Whether a sentence is manifestly excessive relates to the end result, rather than the process by which it was reached.13 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.14 A claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.15

[10]   If there is a material error in the sentencing process, the Court will then form its own view of the appropriate sentence.16

[11]   I should not “tinker” or intervene with the end sentence if the end sentence is within range.17 The focus must be on the end sentence, not the process adopted to

8      Sentencing Act, s 7(1)(e) and (f).

9      Police v Higgott, above n 1, at [6].

10 At [7].

11 At [8].

12     Criminal Procedure Act 2011, s 250.

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

14 At [30].

15 At [32].

16     Tutakangahau v R, above n 13, at [30] citing Te Aho v R [2013] NZCA 47 at [30].

17     R v Boyd (2004) 21 CRNZ 169 at [38].

reach that end sentence.18 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”19

[12]   R v Palmer confirmed that the above approach applies to an appeal against a decision not to commute a sentence of imprisonment to home detention.20

Arguments

For the appellant

[13]   Ms Burlace, for Ms Higgott, submits the uplift for Ms Higgott’s previous convictions of two and a half months (or 25 per cent) was excessive. Ms Higgott says the uplift should have been no more than 10 to 15 percent of the starting point, or one to one and a half months.

[14]   Ms Burlace also contends that the Judge should have given Ms Higgott a credit of at least one month for the 85 days she spent on EM bail, and a reduction of five per cent for her genuine remorse.

[15]   Ms Burlace further submits that Ms Higgott should have received a sentence of home detention. She says there is no evidence of Ms Higgott being addicted to drugs and that the PAC report writer said Ms Higgott seems to do well under a sentence of home detention. Ms Burlace says there has been a clear reduction in Ms Higgott’s offending since she began receiving sentences of home detention. Further, the Judge did not appear to have considered that Ms Higgott had two of her children residing with her at the time of sentencing, which further favours a sentence of home detention.

For the respondent

[16]   For the New Zealand Police, Ms Kearney submits the uplift for Ms Higgott’s previous offending was proportionate, having regard to the number of her previous

18     Ripia v R [2011] NZCA 101. See also Tutakangahau v R, above n 13, at [36].

19     R v D (CA 253/2008) [2008] NZCA 267 at [66].

20     R v Palmer [2016] NZCA 541.

convictions for dishonesty offending, especially her recent burglary conviction, and the need for deterrence.

[17]   Ms Kearney acknowledges a one month credit for Ms Higgott’s time on EM bail could have been awarded.21 However, Ms Kearney notes that credits for time spent on EM bail are discretionary and that Ms Higgott had breached bail on 1 January 2025. Ms Kearney submits Ms Higgott’s remorse is not genuine, as evidenced by her recidivist offending. Ms Kearney submits the Judge did not err in imposing a sentence of imprisonment, given Ms Higgott’s recidivism, poor rehabilitative prospects, and the need for deterrence and denunciation.

[18]   While acknowledging that the Court did not explicitly refer to Ms Higgott’s children, Ms Kearney says this information was before the Court. In her oral submissions, Ms Kearney accepted the Judge’s statement that Ms Higgott has “issues with drugs” was not well-founded in the facts. Ms Higgott has previous drug-related convictions, but the last of these was in 2014.

My assessment

Uplift for previous convictions

[19]   I consider that the uplift for Ms Higgott’s prior offending is stern, but not excessive. There is no fixed limit to the uplift for previous convictions,22 but the uplift should bear a reasonable relationship to the starting point that is appropriate for the circumstances of the offending.23

[20]   Here, two and a half months equates to almost a 42 per cent uplift on the six- month starting point for burglary. But a stern uplift is warranted. The courts have recognised that previous offending has a particular bearing on culpability in the context of burglary offending.24 Ms Higgott has an extensive history of dishonesty offending, having accrued 64 convictions, and her recent 2022 burglary offending is

21     Referring to Longman v Police [2017] NZHC 2928.

22     Matthew Downs Adams on Criminal Law – Sentencing (Thomson Reuters, online looseleaf ed.) at [SA9.15(6)].

23     Tiplady-Koroheke v R [2012] NZCA 477 at [24]; Brown v R [2014] NZCA 93; and Orchard v R

[2019] NZCA 529, [2020] 2 NZLR 37, (2019) 29 CRNZ 674 at [41].

24     R v Columbus [2008] NZCA 192 at [14]–[15].

also relevant. I consider the Judge did not err in imposing a two and a half month uplift for Ms Higgott’s previous offending.

Reduction for time spent on EM bail

[21]   Ms Higgott spent 85 days on EM bail, and has breached the conditions of bail on one occasion. The circumstances of that breach have not been provided to me. Absent evidence of an exemplary record on bail, I am reluctant to factor in credit for time spent on bail.

Reduction for remorse

[22]   Ms Burlace submits a reduction of five per cent is warranted for Ms Higgott’s remorse. Ms Burlace points to the PAC reports and an apology letter. The writers of the PAC reports both considered that Ms Higgott displayed remorse. Notwithstanding that, I consider it was open to the sentencing Judge to not issue a reduction for remorse. Even assuming Ms Higgott’s remorse was genuine, the Judge was entitled to place little weight on it given Ms Higgott’s extensive criminal history.25

[23]   Ultimately, Ms Higgott has not satisfied the onus upon her to show that she is genuinely remorseful and that this qualifies for a reduction. I have not seen any tangible evidence of her remorse, such as engagement in restorative justice processes, the voluntary payment of reparation, or other efforts to remedy her harm to the community.26 I do not disturb the Judge’s assessment on the question of remorse.

End sentence of imprisonment rather than home detention

[24]   I consider the Judge erred in imposing a sentence of imprisonment rather than a sentence of home detention, despite Ms Higgott’s extensive history of dishonesty offending warranting a deterrent sentence.

[25]   As Ms Kearney submits, where an offender is on the cusp of home detention, as here, an appellate court will often defer to the assessment of the sentencing judge

25     R v Ngamo [2009] NZCA 512 at [9].

26     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, (2020) 29 CRNZ 381 at [24].

and decline to interfere with a decision not to impose home detention. But before doing so, as Ms Kearney acknowledges, the appellate court must be satisfied that the discretion was exercised in accordance with the purposes and principles of the Sentencing Act.

[26]   Here, in my view, the Judge did not adequately factor in all of the relevant purposes and principles and over-emphasised others, in three main areas.

[27]   First the Judge emphasised Ms Higgott’s “issues with drugs”, saying this “is what causes you to behave in this fashion and you seem to not have done anything about that”.27 As Ms Burlace submits, there is no evidence of Ms Higgott’s having a drug addiction. Nor is there any evidence that the particular offending for which the Judge was sentencing her was caused by her “issues with drugs”. It is accepted that the cannabis plants were not hers, but her son’s. The most that could be said is that Ms Higgott has some previous drug-related convictions, but these are more than 10 years old. It is likely this factual error materially affected the Judge’s decision to emphasise the need for deterrence and to impose a sentence of imprisonment.

[28]   Second, Ms Higgott is the primary caregiver to two of her four sons, who were residing with her at the time of sentencing. They are aged seven and 15 years. This  is a particularly important consideration, given that Ms Higgott is on the cusp between imprisonment and home detention.28 Even if the Judge thought that imprisonment was appropriate because previous sentences of home detention had not stopped her offending afterwards, he was still required to take into account any personal circumstances that mean that imprisonment would in this particular instance, be disproportionately severe.29 In combination with the gravity of the offending “in the particular case” which is very much at the lower end,30 a less restrictive outcome than imprisonment was appropriate.

27     Police v Higgott, above n 1, at [4].

28     Leota v Police [2023] NZHC 916 at [37]; R v Maru [2023] NZHC 790 at [82]–[84]; Theodore v Police [2018] NZHC 2364 at [35].

29     Sentencing Act, s 8(h).

30     Section 8(a).

[29]   The PAC report records that she has had difficulty with her sons, who have been involved with the justice system, but that she is working with agencies to try to help them. She has been helping one of her sons with homeschooling. The report writer says Ms Higgott’s incarceration would be detrimental to her children, which is why a sentence of home detention was recommended. Yet the Judge did not mention Ms Higgott’s children in his judgment. Ms Kearney’s submission that this information was before him does not help, because it is not clear from the Judge’s reasons whether he took this information about Ms Higgott’s dependent children into account.

[30]   Third, there has been a decrease in the frequency at which Ms Higgott has been before the Court. She committed 11 offences in 2020, six in 2021, three in 2022, one in 2023, and the present matters are her sole offending in 2024. In addition, the PAC report writer said that Ms Higgott seems to do well under the structure of a home detention sentence including by continuing her own education. Despite her extensive previous convictions, I consider the Judge’s concern that Ms Higgott has “just done nothing but to re-offend” is overstated. No further offending by her is acceptable. However, I do not think the Judge adequately took account of Ms Higgott’s declining rate of offending. It is too soon to claim any success in that regard, but there are some welcome signs that Ms Higgott is motivated to break her cycle of offending and improve her conduct.

[31]   For these reasons I consider home detention was the least restrictive outcome that is appropriate in the circumstances. In refusing home detention and imposing imprisonment, the Judge erred in respect of the end result he reached, namely the type of sentence he imposed.

Conclusion

[32]   The Judge’s end-point calculation of ten months’ imprisonment stands, but I convert it to a sentence of four and a half months’ home detention at the address in the PAC Report dated 14 February 2025. On the basis of this report I am satisfied of the matters in s 80A(2) of the Sentencing Act 2002.

[33]   After the hearing, Ms Burlace confirmed her instructions are that the approved address remains viable. Ms Kearney accepted that I could resentence Ms Higgott on the basis of the existing PAC report.

[34]   Included in the conditions specified in that PAC report are that Ms Higgott must:

(a)attend Problem Gambling Counselling or programmes as directed, including employment support;

(b)attend any programme or counselling aimed at reducing her risk of re- offending as directed by the Probation Officer.

[35]   The second of these conditions is also included in Ms Higgott’s post-detention conditions.

Result

[36]The appeal is allowed.

[37]The sentence of 10 months’ imprisonment is set aside.

[38]   A sentence of five months’ home detention is imposed,31 on the conditions in the 25 February 2025 PAC report (but substituting “Arohata Prison” for “Whanganui District Court” in the first condition relating to travel to the approved address), together with six months’ post detention conditions as provided in the PAC report.

McHerron J

Solicitors:

C&M Legal, Whanganui for Respondent

31 It is common to halve home detention sentences from the commensurate sentence  of  imprisonment, to reflect the fact that, under s 86(1) of the Parole Act 2002, the release date of a short-term sentence (including a short-term notional single sentence) is the date on which the offender who is subject to the sentence has served half of it. However, see R v Bisschop [2008] NZCA 229 at [18]–[19] citing R v Tamou [2008] NZCA 88 for authority that “halving” is not a matter of law.