Hika v Police
[2014] NZHC 595
•27 March 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000015 [2014] NZHC 595
BETWEEN MARAMA LEEANN HIKA Appellant
ANDNEW ZEALAND POLICE Respondent
CRI-2014-409-000016
BETWEEN MARAMA LEEANN HIKA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 March 2014
Appearances: L M Drummond for Appellant
D J Orchard for Respondent
Judgment: 27 March 2014
Reasons: 28 March 2014
REASONS FOR DECISION OF GENDALL J
Background
[1] This is an appeal against sentence. On 5 February 2014 the appellant was convicted on charges of unlawfully getting into a motor vehicle, theft, and assault. A sentence of 20 months imprisonment was imposed in the District Court by Judge Garland but he reserved leave to apply for substitution of home detention. As I understand it no application for home detention has been made as the appellant is
unable to provide a suitable address.
HIKA v NEW ZEALAND POLICE [2014] NZHC 595 [28 March 2014]
[2] The appellant now appeals against that sentence, she having served approximately six weeks of the sentence.
Decision on the appeal
[3] When this appeal came before me on 27 March 2014 I gave a decision upholding the appeal and made the following orders:
(a) The sentence of imprisonment imposed in the District Court was quashed.
(b) This sentence was replaced with a sentence of:
(i) 110 hours’ community work on the theft charge;
(ii) 40 hours’ community work on the unlawfully getting into a
motor vehicle charge and the assault charge;
(c) In addition, a period of nine months supervision was imposed;
(d)An order for reparation of $2045 made earlier was reconfirmed with an order that this amount be paid at the rate of $50 per week.
(e) An order was made that upon the appellant’s release from prison she was to report to Stanmore Road Work Centre within 72 hours of release.
[4] In making that decision I indicated that my detailed reasons would follow. I
now give those reasons.
District Court decision
[5] As to the background to this matter, on 15 August 2013, the appellant and her partner Mr Sonny Clarke (who, I am told is a member of the local Crypts Gang, has a significant criminal record, and is some five years older than the appellant) went to visit an associate who had recently had a baby at Christchurch Women’s Hospital in
the neonatal intensive care unit where they stole various electronic items with a value in excess of $4090. Then, on 31 August 2013, the appellant was a passenger in a stolen Nissan Terrano motor vehicle in Kaikoura. It seems then that her partner Mr Clarke was assaulting various people at the Beach Road, Kaikoura address when the appellant joined in the fray, in an attempt to help Mr Clarke. The appellant and her partner eventually left the address, but the police arrived shortly after the incident.
[6] For the appellant, Ms Drummond suggested the sentence imposed in the District Court was manifestly excessive and she supported an alternative recommendation of community work, reparation and supervision. This was on the basis that the appellant had no previous convictions, she had entered an early guilty plea and had recently found employment. She had also offered to pay reparation.
[7] In the District Court Judge Garland noted the details of the co-offender Mr Clarke’s sentencing. He then adopted a global starting point of two and a half years imprisonment for the lead offence, being the appellant’s theft offending. He allowed a reduction of one third for the early guilty plea and the appellant’s previously unblemished record. That gave an indicative sentence of 20 months’ imprisonment. On the other two charges, a starting point of two months imprisonment was adopted and allowing for the guilty pleas and the totality principle, an indicative sentence of one month was proposed.
[8] The Judge noted that there was no suitable address for an electronically monitored sentence. He said that given the appellant’s young age and her unblemished history, he would have considered home detention an appropriate sentence if a suitable address had been available.
[9] He sentenced the appellant to 20 months on the charge of theft and one month on the charges of unlawfully getting into a motor vehicle and assault. Those terms were imposed concurrently.
[10] Leave was granted to apply for home detention if a suitable address could be located. The Judge would have also imposed community work in that case to
underline the need for deterrence and to hold her accountable. No release conditions were recommended and none were imposed.
[11] The appellant was also ordered to pay reparation in the sum of $2045.27 with payment suspended while she was in prison.
[12] With regard to the appellant’s co-offender Mr Clarke, he was sentenced in November 2013 in the District Court by Judge Somerville. The Judge there adopted a starting point of two years imprisonment. Given that this was an offence committed while Mr Clarke was on bail, he uplifted the sentence by six months. The Judge also took into account that the reparation to be paid would take years to be paid back and added an uplift of another six months for that. The Judge then remarked on Mr Clarke’s long and sad list of previous convictions, particularly for dishonesty offending. The Judge considered that the list of dishonesty convictions required another six months uplift to be added to the sentence taking the sentence to one of three and a half years before any mitigating factors.
[13] With regard to mitigating factors, the Judge allowed a discount of 25% for the guilty plea taking the sentence down to a final position of 30 months imprisonment. Mr Clarke was sentenced to 30 months imprisonment and ordered to pay reparation of half the total sum being $2045.27.
Submissions
[14] The grounds of appeal for the appellant here were first, that the starting point adopted for the lead theft offence was too high; secondly, the Judge in the District Court mistakenly aggravated the starting point on the basis that the appellant could not pay reparation; thirdly, the Judge erred in treating the lead offence as pre- meditated; fourthly, the significant differences between the appellant and her co- offender ought to have been taken into account; fifthly, the Judge failed to take into account the appellant’s youth and that she had publicly apologized for her actions; sixthly, the Judge did not provide a sufficient discount for the appellant’s previously unblemished criminal history and lastly, that the sentence imposed could not be said to be the least restrictive outcome here in accordance with s 8(g) Sentencing Act
2002.
[15] For the appellant, Ms Drummond’s submissions were effectively that a sentence of imprisonment was entirely inappropriate. She maintained that the appellant should not have been treated in the same way as her co-offender Mr Clarke, and yet that is precisely what was happened.
[16] Her submission was that a non-custodial sentence of community work, supervision and reparation was appropriate in this case. She said that the appellant’s previous employment is still available to her. As to the appropriate amount of community work to be imposed, Ms Drummond noted that in a similar case Iketau v Police,1 the offender received 75 hours community work and $500 reparation for what admittedly was lower level offending than in the instant case.
[17] For the respondent, before me Mrs Orchard effectively conceded that there was an error in the approach taken by the District Court Judge in this case. She acknowledged that the appellant was a young offender who was only 18 at the time of the offending, she had no previous convictions, and in Mrs Orchard’s words it seemed “she had come under the spell of her partner, a hardened co-offender”.
[18] Mrs Orchard also acknowledged quite properly in my view that, while the District Court Judge refers to the major offending being pre-meditated, there was no evidence of that. She accepted that this was essentially opportunistic offending. Mrs Orchard also submitted that it was essentially a minor offence for the appellant here to simply go along with her co-offender and then to come to his aid when he was later engaged in a fight.
[19] Mrs Orchard noted that the only real risk factor for reoffending here was the appellant’s relationship with Mr Clarke, her co-offender. And, given the critical importance of rehabilitation in a case such as this, she suggested that it would be counter-productive here for the appellant to be imprisoned and then for she and her previous partner Mr Clarke to both be released from prison at similar times.
[20] Mrs Orchard however did suggest that some deterrence was needed because of the nature of the victim here, a general hospital serving the entire community, and
the despicable act of theft from a neo-natal ward. Her submission however was that community work in the vicinity of 150 to 200 hours, supervision and reparation orders would meet this and be appropriate here.
Discussion
[21] I agree with both Ms Drummond and Mrs Orchard here that the District Court Judge in this case erred in his approach by treating the appellant in a similar manner to her co-offender Mr Clarke, when there were significant differences between the two offenders.
[22] In this offending, the appellant was clearly not the lead offender and I accept that she was significantly influenced by her partner Mr Clarke. The lead offending of theft was not premeditated – the couple had gone to the hospital to visit an associate and while there, engaged in this opportunistic offending. It is clear from the evidence before the District Court that Mr Clarke instigated the offending and that the appellant went along with it.
[23] The appellant was only 18 years old at the time of the offending. The decision in Churchward v R2 suggests that the age of a defendant is a relevant factor in sentencing due to the neurological differences between young people and adults, the former generally being people who may be more impulsive than adults. In addition, it noted the effect of imprisonment on young people can be crushing, although young people it is said do have a greater capacity for rehabilitation. Offending by a young person it is said is frequently a phase which passes, and criminal convictions at that stage of a person’s life may have a disproportionate
impact on the ability of a young person to gain meaningful employment and play a worthwhile role in society. In my view these are all factors at play here.
[24] In this case, it is clear too that the appellant has no previous criminal record.
[25] In light of the need under s 8(g) Sentencing Act 2002 to impose the least restrictive outcome that is appropriate in the circumstances here, and given the
appellant’s relatively low level of offending, the influence of her partner, a hardened co-offender here, her young age at the time of the offending, her lack of previous convictions, her ability and willingness to pay reparation, her public apology and her early guilty plea, I am of the view that this appeal should be allowed, the sentence of imprisonment quashed and a non-custodial sentence imposed in its place.
Decision
[26] For all the reasons outlined above this appeal succeeds. The sentence of imprisonment in the District Court is quashed.
[27] Orders have been made whereby that sentence of imprisonment is replaced with the sentence outlined at [3](b), (c), (d) and (e) herein which for the sake of completeness I now repeat.
[28] The following orders have now been made:
(a) The sentence of imprisonment imposed in the District Court was quashed.
(b) This sentence was replaced with a sentence of:
(i) 110 hours’ community work on the theft charge;
(ii) 40 hours’ community work on the unlawfully getting into a
motor vehicle charge and the assault charge;
(c) In addition, a period of nine months supervision was imposed;
(d)An order for reparation of $2045 made earlier was reconfirmed with an order that this amount be paid at the rate of $50 per week;
(e) An order was made that upon the appellant’s release from prison she was to report to Stanmore Road Work Centre within 72 hours of release.
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Gendall J
Solicitors:
Linda Drummond, Christchurch
Raymond Donnelly, Christchurch
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