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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1900
Decision Date: 6 August 2019

CaseChat Overview and Summary

In the case of Hinaki v Police, the appellant, Ms Hinaki, was appealing her sentence imposed by Judge Cathcart in the Gisborne District Court. Ms Hinaki was sentenced to six months' imprisonment for various offences, including driving while suspended, breaching community work, failing to answer District Court bail, and six shoplifting charges. The appellant argued that the Judge erred in not exercising his discretion to convert the sentence of imprisonment to home detention and that the Judge erred by imposing cumulative penalties which resulted in an excessive sentence, without adjusting for totality. The respondent opposed the appeal.

The appeal focused on two main issues. The first was whether the Judge erred in not exercising his discretion to convert the sentence of imprisonment to home detention. The Court noted that while imprisonment is a measure of last resort and home detention is a severe sentence, the Judge was entitled to consider that home detention was insufficient to denounce and deter Ms Hinaki, given her history of offending and non-compliance with previous sentences. However, the Court found that the Judge erred in taking the view that home detention was a soft sentence and failed to take into account that it serves a significant denunciation and deterrence function. The Court held that 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.

The second issue was whether the Judge erred by imposing cumulative penalties which resulted in an excessive sentence, without adjusting for totality. The Court found that while the Judge's decision to impose uplifts for the remaining charges and previous offending was within the range available to him, it was not necessary to conclude that an uplift of two months was appropriate for the balance of her offending. Adjusted for totality purposes, the Court found the starting point arrived at was excessive and that six months was sufficient. Once the guilty plea discount was taken into account, an end sentence of four and a half months' imprisonment was reached, which would be converted into a sentence of home detention.

The appeal was granted, and Ms Hinaki's sentence of six months' imprisonment was substituted for one of nine weeks' home detention, to be served at her home address in Gisborne. The sentence of home detention would commence on 7 August 2019, with special conditions imposed, including restrictions on travel, residence, and possession of alcohol or drugs. Ms Hinaki was also required to attend drug counselling, complete the Howard League Driver Licencing programme, and participate in any counselling or programmes as directed by a Probation Officer.

Orders