Honeybun v Police

[2022] NZHC 3445

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-60

[2022] NZHC 3445

BETWEEN

AMY MARGARET HONEYBUN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 December 2022

Appearances:

N L Laird for the Appellant

R L Hicklin for the Respondent

Judgment:

15 December 2022

ORAL JUDGMENT OF PALMER J

Solicitors/Counsel

Laird Legal Services Limited, New Plymouth Crown Solicitor, New Plymouth

HONEYBUN v NEW ZEALAND POLICE [2022] NZHC 3445 [15 December 2022]

What happened?

[1]    Between 9 May 2022 and 3 July 2022, Ms Amy Honeybun, now aged 34, shoplifted from different shops in New Plymouth: a $50 jacket; a $109 steamer; a

$119.99 coffee grinder; a duvet cover; a number of hair care devices valued at

$1589.92; a $399.99 jacket; and a $69.99 sweatshirt. Some of the offending was undertaken in the company of an associate and Ms Honeybun’s young child. She pleaded guilty to five charges of shoplifting items valued at less than $500,1 and one charge of shoplifting items valued at more than $1,000.2 She wrote a letter expressing her remorse. She has 23 previous convictions for shoplifting and five for other dishonesty offences.

[2]    In April 2021, Ms Honeybun was sentenced to home detention for other offences, which she breached twice. She was admitted to bail in July 2022.   On       8 September 2022, after she had pleaded guilty,  Judge  G  F  Hikaka,  in  the  District Court at New Plymouth, granted her bail. This came with a very strong warning that if she was even tempted in the direction of breaching bail, failing to meet her obligations or reoffending, she would need to start planning for someone else to look after her son because she would not be in a position to do so.3  No incidents arose.

[3]    The Department of Corrections assessed the proposed home detention address as technically feasible but Ms Honeybun as at high risk of re-offending and a medium risk of harm. Corrections reported that the consequences of home detention previously appear not to have deterred her from further offending. There were reports of two family harm incidents between Ms Honeybun and her former partner in August and October 2022. She was described as disruptive and disrespectful during her attendance at two of five sessions of a Departmental Short Motivation Programme and showed no interest in staying over at the marae. This was the third pre-sentence report to recommend imprisonment. The Department was not willing to recommend home detention until further issues could be investigated. Subsequent inquiries suggested that Ms Honeybun’s partner may have be residing at, or regularly frequenting, her

1      Crimes Act 1961, s 223(d): maximum penalty three months’ imprisonment.

2      Section 223(a): maximum penalty seven years’ imprisonment.

3      New Zealand Police v Honeybun [2022] NZDC 17355 at [6]–[7].

proposed  home detention address.    Ms Honeybun’s victims were understandably frustrated by the impact of her offending.

[4]    On 30 November 2022, Judge Hikaka sentenced Ms Honeybun.4 She was then some 19 weeks’ pregnant, a solo mother to a three-year old boy and the sole tenant of a Kāinga Ora home, the only home her son has ever known and where she has been on bail. The Judge said the professional assessment was that she had been given rehabilitation options in the past and they have not worked so he was moving to hold her accountable and deter her from future offending.5 He set a starting point of eight months for the shoplifting of $1,600 of goods, reduced that by two months, or        25 per cent, for her early guilty plea, resulting in an end sentence of six months’ imprisonment.

Submissions

[5]    Ms Laird, for Ms Honeybun, submits that the Judge erred in declining to convert the sentence of imprisonment to one of home detention. Home detention places significant restrictions on liberty. Ms Honeybun has passed regular drug tests and is on top of her addiction since the beginning of 2022 and has been on bail since July 2022 without incident. That address is a suitable address for a non-custodial sentence.

[6]    Ms Hicklin, for the Police,  submits  that  the  Judge  did  not  err  because  Ms Honeybun’s previous home detention did not deter further offending. She acknowledges it is difficult for someone who is pregnant to be in prison but her child’s presence at some of the offending indicates her pregnancy would not provide sufficient motivation to stop her from offending in future.

Should the sentence be converted from imprisonment to home detention?

[7]    Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed.  The focus is on whether the end sentence is within the  available

4      New Zealand Police v Honeybun [2022] NZDC 23635.

5      At [16]–[17].

range.6 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.7

[8]    I consider there are three problems with the District Court’s  sentence.  First,  s 16(1) of the Sentencing Act 2002 requires the court to 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. Section 16(2) prevents a court from imposing a sentence of imprisonment unless it is satisfied that the sentence is being imposed for specific purposes in s 7 which 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. Those principles include the requirement to impose the least restrictive outcome that is appropriate in the circumstances. There is no indication in the judgment that the Judge considered this. Yet the Court of Appeal has stated that a Judge must make “a considered and principled choice between the two forms of sentence”.8

[9]    Second, an important factor underlying Ms Honeybun’s offending appears to be her addiction to methamphetamine. This year, she appears to have made progress in addressing her addiction. She has tested negative for drugs with her Probation Officer since February 2022. Rehabilitation from her addiction is crucial to preventing her reoffending. This does not appear to have been factored into the Judge’s reasoning.

[10]   Third, the effect of Ms Honeybun’s imprisonment on the availability of her Kāinga Ora accommodation and the impact of that on her son do not appear to have been explicitly considered by the Judge. If she loses that accommodation, her son loses the only home he has ever known. It would also engender significant disruption to her life just before she gives birth to another child. There is research in New Zealand showing a connection between parental imprisonment and youth offending, research in New South Wales showing that imprisoning parents is not in the best interests of their children and research showing that imprisonment creates practical barriers to the parent-child relationship.9  These effects are relevant to the rights of the children under

6      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].

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

8      Fairbrother v R [2013] NZCA 340 at [30].

9      Francessca Maslin What about the children? Sentencing defendants who are parents of dependent children [2022] NZLJ 367 at 369 – 370, citing: Oranga Tamariki Evidence Centre Youth Justice Pathways: an examination of wellbeing indicators and outcomes for young people involved with

arts 2, 8, 12, 14, and 20, and particularly art 3, of the United Nations Convention on the Rights of the Child of 1989, which New Zealand has ratified.10 These are mandatory relevant considerations in sentencing Ms Honeybun.

[11]   I consider that the effects of imprisonment on Ms Honeybun’s children, when combined with her rehabilitative steps, make a sentence of imprisonment disproportionately severe compared with her level of offending, in terms of ss 8(h) and (i) and 9(4)(a) of the Sentencing Act 2002.11 Should Ms Honeybun not recognise the significance of potential imprisonment, and reoffend again, this outcome is unlikely to be available in the future.

[12]   I am concerned by the suggestion that Ms Honeybun is not disclosing other people who may be residing in her home. Ms Honeybun has informed Corrections that she is the only resident of her home and those are her instructions to her counsel. I am happy to proceed, but only on that basis, and subject to a condition.

Result

[13]   I allow the appeal. I quash Ms Honeybun’s sentence of imprisonment and substitute it with a sentence of three months’ home detention at her home of [redacted], from the date of her sentencing in the District Court. I also impose the conditions that she must:

(a)ensure that she remains the only adult resident of her home during her sentence and no males be present at the address other than family members;

(b)not possess, consume or use any alcohol or drugs not prescribed to her;

youth justice (2021) at 16; Parliament of New South Wales, Committee on Children and Young People, Support for children of imprisoned parents in New South Wales June 2022, at 6; and Superu Improving outcomes for children with a parent in prison (June 2015) at 1.

10 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).

11 Hogan v Ministry of Social Development HC Napier CRI 2005-441-24 8 July 2005 at [46]; Theodore v Police [2018] NZHC 2364 at [35]–[39] at [46]; R v A HC Wellington CRI- 2007-032- 477, 3 October 2008 at [20]–[22]; Sulusi v New Zealand Police [2020] NZHC 3314 at [28]; R v Keyte [2022] NZHC 1063 at [46].

(c)attend assessment for a Women’s Medium Intensity Rehabilitation Programme as directed by a Probation Officer; and

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

Palmer J