Hinaki v Police

[2019] NZHC 1900

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2019-416-11

[2019] NZHC 1900

BETWEEN

ERETI LARA HINAKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (via AVL):	6 August 2019
Counsel:	E V Lynch for Appellant A V Bryant for Crown
Judgment:	6 August 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 2 July 2019, the appellant, Ms Hinaki, was sentenced by Judge Cathcart in the Gisborne District Court to six months’ imprisonment for driving while suspended, breaching community work, failing to answer District Court bail and six shoplifting charges.1

[2]She appeals her sentence on the following grounds:

(a)the Judge erred in not exercising his discretion to convert the sentence of imprisonment to home detention; and

(b)the Judge erred by imposing cumulative penalties which resulted in an excessive sentence, without adjusting for totality.

1      New Zealand Police v Hinaki [2019] NZDC 12871.

HINAKI v NEW ZEALAND POLICE [2019] NZHC 1900 [6 August 2019]

[3]The respondent opposes the appeal.

Factual background

[4]    On 14 November 2017, Ms Hinaki was sentenced to 60 hours’ community work following conviction  on  two  shoplifting  charges.  The  following  year,  on 13 September 2018, she was sentenced to a further 130 hours’ community work on three shoplifting charges and remittance of unpaid fines. On 44 occasions between 23 November 2017 and 25 October 2018, she failed without reasonable excuse to report for community work and complete her hours.

[5]    On 10 July 2018, Ms Hinaki was suspended from driving any motor vehicle until 9 October 2018. She was stopped at a Police checkpoint on 5 October 2018, explaining that she  was  making  arrangements  for  her  daughter’s  birthday.  On 24 October 2018, Ms Hinaki failed to appear in respect of the driving while suspended charge.

[6]    Between November 2018 and May 2019, Ms Hinaki shoplifted from various outlets in Gisborne on eight separate occasions. The items stolen ranged from groceries, curtains, perfume, children’s clothing, and statues.

District Court decision

[7]    As seven of the shoplifting charges were for items valued at less than $500, the Judge treated the one incident where the items were valued at $520 as the lead offending, there being a maximum penalty of one year’s imprisonment for that charge.2

[8]    Reference was made to the pre-sentence report, the Judge noting it suggested Ms Hinaki had struggled to complete community work in the past and that she stole items to provide for her children, although he commented that this was not true for all

2 At [2].

of her offending, as this did not explain her stealing the statues.3 Gambling and a methamphetamine addiction were also put forward as explanations.4

[9]    The Judge adopted a starting point of two months’ imprisonment on the lead offence, with a three-month uplift to reflect the other shoplifting offending, justifying this due to the quantity of offending and that he was required to impose near the maximum available penalty if offending was within the most serious of cases, which he determined it was overall.5

[10]   For the balance of Ms Hinaki’s offending, adjusting for totality purposes, he concluded that an uplift of two months was appropriate.6 He also added an uplift for previous relevant convictions, thereby arriving at a starting point of eight months’ imprisonment which, once the guilty plea discount was taken into account, resulted in an end figure of six months’ imprisonment.7

[11]   The Judge then went on to consider what would be the least restrictive outcome, noting that the pre-sentence report recommended community detention and supervision, with indications being that Ms Hinaki was willing to comply with community-based sentences, although her compliance record was moderate. There was also a suggestion that she would need some assistance with rehabilitation programmes.8

[12]   Concern for her children was noted but, in electing to impose a custodial sentence, the Judge focussed his attention on accountability, denunciation and deterrence. He said:

[16] There are various principles and purposes of the Sentencing Act which play a large part, in my view, in your sentence. I need to hold you accountable for your offending and the financial harm you caused those retailers. There is also a need to denounce your conduct. But the factor that concerns me the most is there is a real need to deter you personally and to deter others like- minded. So, two deterrent factors are at play here. First to try and stop you from offending again. Second, to send a clear message to other prolific

3 At [4].

4      At [5]-[6].

5      At [7] and [9]-[10].

6 At [11].

7      At [12]-[13].

8 At [14].

shoplifters like you that soft sentences are not appropriate. Shoplifting is at an epidemic proportion in Gisborne on the East Coast. And defendants come and go without any real deterrence being offered by the Courts.

[13]   The Judge determined that a term of imprisonment was the least restrictive outcome, not accepting the recommendation of community detention and supervision. He also did not consider home detention to be an appropriate response to the need for general deterrence.9

Approach to appeal

[14]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11

[15]   In cases involving the choice between home detention and imprisonment, which is a fettered discretion, the Court of Appeal has noted that the proper approach on appellate review is the identification of error, if any, in the Court below.12 The very broad discretion granted to sentencing Judges in this respect is guided only by the need to properly consider the purposes and principles of sentencing in determining whether home detention should be granted.13

Home detention

[16]   This Court, in Brittin v New Zealand Police, summarised the principles relating to a sentencing Judge’s choice between home detention and imprisonment as follows:14

(a)Imprisonment is a measure of last resort.

9 At [17].

10     Tutakangahau v R [2014] NZCA 279.

11     Ripia v R [2011] NZCA 101 at [15].

12     Manikpersadh v R [2011] NZCA 452 at [12].

13     R v Vhavha [2009] NZCA 588 at [29].

14     Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (citations omitted).

(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.

(c)When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.

(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.

(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.

(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.

(h)The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[17]   Counsel for Ms Hinaki, Mr Lynch, submits that the Judge over-emphasised the need for deterrence and denunciation, failing to account for factors that supported a sentence of home detention and, by not addressing these relevant matters, erred when balancing the overall ss 7 and 8 considerations of the Sentencing Act 2002 (the Act).

[18]   While it is acknowledged that the weight a Judge attaches to a particular factor is not a basis to challenge the exercise of a discretion,15 he argues that that differs when the Judge focuses solely on factors to the exclusion of others and fails to accurately balance all relevant matters. He references Fairbrother v R in which the Court of Appeal held that an assessment that focuses only on one purpose such as deterrence, to the exclusion of others, amounts to an error of law.16

15     McConnel v R [2013] NZCA 303 at [15].

16     Fairbrother v R [2013] NZCA 340 at [29].

[19]   The s 7 sentencing purposes include assistance to an offender’s rehabilitation and reintegration, important purposes which are absent from the sentencing decision. Factors favourable to home detention, such as the appellant’s personal circumstances in being the sole carer of her three young children, were not addressed by the Judge and it is submitted, by Mr Lynch, that this led to an error in the discretionary exercise.

[20]   I do not accept that the Judge erred in focussing on the purposes of deterrence and denunciation. In doing so, he did not focus solely on just one of the s 7 sentencing purposes, deterrence and denunciation being two separate purposes.   He also, as   Mr Lynch notes, paid particular attention to the need to protect Gisborne shop owners from Ms Hinaki as a ground for the imposition of a custodial sentence, although I accept Mr Lynch’s submission that this factor could have been achieved through the imposition of home detention.

[21]   As to the rehabilitative purpose of the Act, Mr Lynch states that Ms Hinaki has acknowledged she needs help and confirmed her willingness to participate in rehabilitative activities and it is argued that, where there are real prospects of rehabilitation and a willingness to engage with counselling, this should be an important consideration to keep her in the community.17 He submits that the Judge did not take into account her rehabilitation prospects, promoting instead denunciation and deterrence.

[22]   However, as Ms Bryant for the respondent submits, Ms Hinaki’s apparent willingness to engage in rehabilitation was expressed against a background of ongoing failures to appear in Court, to engage in her current sentence, and offending while subject to sentence and on bail. She further submits that, while home detention may be appropriate where an offender is motivated to change, and the Judge did not explicitly refer to the principle of rehabilitation, it was open to the Judge to attach minimal weight for this principle. I accept Ms Bryant’s submissions on this point.

[23]   Mr Lynch further argues that the Judge failed to recognise that home detention is a punitive sentence that is only one step below imprisonment in the hierarchy of

17     R v Hill [2008] 2 NZLR 381 at [39].

sentencing, carrying with it a large amount of denunciation and deterrence.18 While he accepts that there are cases where the purposes of denunciation and deterrence can only be met by a sentence of imprisonment, whether due to the serious nature of the offending or matters particular to the offender, Mr Lynch submits that Ms Hinaki’s case is not one of these situations. He notes that the majority of Ms Hinaki’s offending carried maximum penalties of only three months’ imprisonment and, therefore, could be categorised as less serious, and her sentence of six months’ imprisonment is well below the two-year cut off period required to trigger home detention as being available. He points out that the Court of Appeal has observed that the further the prison sentence is from the two-year cut off period, the more likely it is that home detention will be appropriate.19 Finally, he reminds me that Ms Hinaki has never previously received a sentence of imprisonment.

[24]   For the respondent, Ms Bryant, submits that the Judge was entitled to consider that home detention was insufficient to denounce and deter Ms Hinaki. First, it is argued that, for offending of this kind, many of the incidents of theft were particularly brazen and the offending was spread over a period of six months. Secondly, Ms Hinaki has five previous convictions for shoplifting since 2017, along with two others from 2010 and 2011, as well as other previous convictions. Finally, this offending persisted undeterred, notwithstanding that she was subject to a sentence (for similar offending) and to bail.

[25]   Ms Bryant further submits that other relevant factors provide further justification for the Judge to decline to impose a sentence of home detention. Her arguments concerning rehabilitation have already been addressed. Ms Bryant notes that Ms Hinaki had demonstrated an unwillingness to complete community work due to having sole care of her children, despite her being able to complete such hours while they were at school.

[26]   As to remorse, although Ms Hinaki displayed some to the pre-sentence writer, Ms Bryant submits this must be considered in the context of a spree of dishonesty offending commencing on 21 November 2018, just two months after her last sentence

18     R v Iosefa [2008] NZCA 453 at [41].

19     Manikpersadh v R, above n 12, at [22].

for dishonesty offending and while she was still subject to and in breach of that sentence.

[27]   Finally, she was assessed by the pre-sentence report writer as having a moderate likelihood of reoffending. In all the circumstances, Ms Bryant submits the Court could have little confidence that Ms Hinaki would comply with a sentence of home detention or that she would be deterred by such a sentence.

[28]   While, as I noted, I do not accept that the Judge erred in focussing on deterrence and denunciation, it is my view that he erred in taking the view that home detention was a soft sentence and he failed to take into account that it serves a significant denunciation and deterrence function. Although Ms Hinaki’s history of compliance with Court imposed conditions is not particularly reassuring, she has not yet been subject to a sentence of home detention and it is to be hoped that she would make the most of any opportunity to demonstrate that she can comply with its more onerous requirements.

[29]   In the circumstances, home detention would be the least restrictive form of sentence that would serve the purpose of deterrence and denunciation while taking into account Ms Hinaki’s family situation.

Excessive sentence

[30]   Mr Lynch submits that the starting point was not adequately adjusted for totality, resulting in the imposition of a sentence that was not warranted considering the gravity of the offences. Ms Hinaki has no previous convictions for driving while suspended or disqualified and it is submitted that a first-time offender would routinely be sentenced to a fine or community-based sentence. She also had no previous convictions for breaching community work and the net effect of a two-month cumulative sentence resulted in a total period of imprisonment out of proportion to the gravity of her offending.

[31]   While it is acknowledged that Ms Hinaki’s previous conviction history is an aggravating factor, Mr Lynch submits that it is not at a level to justify a one-month imprisonment uplift. Her last sentence imposed for shoplifting resulted in a sentence

of community work and it is argued that an uplift significantly greater than the previous sentence must give cause for thought. It is noted that, in McMurtie v Police, where an appellant with eight previous convictions for shoplifting who had not previously received a sentence of imprisonment was sentenced, no uplift was provided.20

[32]   Ms Bryant submits that the uplifts were entirely appropriate and well within range. She says the Judge explicitly adjusted for totality when uplifting for the remaining charges.

[33]   While I accept that the Judge’s decision to impose a three-month uplift to reflect the other shoplifting offending was within the range available to him, as was the one-month uplift for her previous offending, I do not agree that it was necessary to conclude that an uplift of two months was appropriate for the balance of her offending. Adjusted for totality purposes, it is my view that the starting point arrived at was excessive. In the circumstances, it is my view that six months was sufficient. Once the guilty plea discount is taken into account, an end sentence of four and a half months’ imprisonment is reached, which will be converted into a sentence of home detention.

[34]   Ms Hinaki needs to understand that this is done in the hope of her rehabilitation. She needs also to understand that her future is in her hands and failure to comply with this sentence must inevitably result in imprisonment.

Result

[35]   Therefore, the result of this appeal is that for the reasons I have given, the appeal is granted.

[36]   Ms Hinaki’s sentence of six months’ imprisonment is to be substituted for one of nine weeks’ home detention, to be served at her home address of [redacted], Gisborne. Mr Lynch has confirmed that that address is still available to her. It was an address which was ascertained as being suitable in the PAC report.

20     McMurtie v Police [2015] NZHC 1031 at [29].

[37]   I note that the nine-week period of home detention is fixed having regard to the time Ms Hinaki has served in prison pending this appeal.

[38]   As a result of logistical issues in arranging bus travel from Auckland to Gisborne, the sentence of home detention will commence on 7 August 2019.

[39]The special conditions imposed will be:

(a)Travel directly to [redacted], and wait there until your home detention connection is completed.

(b)To reside at [redacted], and not move to any new residential address without the prior written approval of a Probation Officer.

(c)To remain at [redacted], at all times unless an absence has been authorised by a Probation Officer.

(d)Not to possess, consume or use any alcohol or drugs not prescribed to you.

(e)To attend an assessment for drug counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(f)Undertake and complete the Howard League Driver Licencing programme and abide by the rules of the programme to the satisfaction of a Probation Officer.

(g)To attend any counselling/programmes as directed by a Probation Officer.

Churchman J

Solicitors:
Crown Solicitor’s Office, Gisborne for Crown

Counsel:
E Lynch, Barrister, Gisborne for Appellant