Howard v Police - [2015] NZHC 150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0019

CRI-2014-044-4601 [2015] NZHC 150

DENISE LORI HOWARD

v

NEW ZEALAND POLICE

Hearing: 9 February 2015

Appearances:

D Matthews for the Appellant
K Eastwood for the Respondent

Judgment:

12 February 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 12 February 2015 at 3.20 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Manukau. Meredith Connell, Auckland.

HOWARD v NEW ZEALAND POLICE [2015] NZHC 150 [12 February 2015]

Introduction

[1] On 23 November 2014, the appellant, Ms Howard, with others went on a shoplifting spree. She was charged with six counts of theft. Two of the six charges, where the value of the goods was between $500 and $1000, fall under s 223(c) of the Crimes Act 1961 and carry a maximum term of one year’s imprisonment. The other charges, where the value does not exceed $500, fall under s 223(d) of the Crimes Act
1961 and carry a maximum of three months’ imprisonment.1

[2] The Judge sentenced the appellant to six months’ imprisonment and six months’ release conditions on six charges of theft. Only one of the others allegedly involved was charged and her case has yet to be dealt with.

[3] Ms Howard has appealed against that sentence. At the hearing I gave a results judgment confirming that the appeal was allowed. The sentence of imprisonment was set aside and a sentence of 250 hours of community work and 12 months’ supervision was imposed. I now give my reasons for that.

Factual background

[4] The appellant is 42 years old. She is a single woman, has six children and is in receipt of a benefit. Her children are currently looked after by her former partner.

[5] Ms Howard went on a shoplifting spree with two others at the Albany Mega Centre in the North Shore. She took a number of items from various stores in the mall. In total, $2435 worth of property was taken. The stolen goods were all located in the appellant’s vehicle and returned to the stores in saleable condition.

[6] Ms Howard pleaded guilty at the first opportunity.

District Court Decision

[7] On 20 January 2015 Ms Howard was sentenced in the District Court to six

months’ imprisonment on the two charges under s 223(d), with an uplift of one

1 Crimes Act 1961, s 223.

month to take into account the other offending and her previous history with a reduction of one month to take into account her guilty plea.

[8] The Judge stressed that what determined the matter was the appellant’s previous history. The appellant has a number of thefts and other dishonesty offences, beginning in 1992.

[9] The Judge called the offending a “pre-planned shoplifting spree.”2 The focus was on denouncing the conduct, instilling responsibility and imposing a sentence of deterrence.

Ground(s) of Appeal

[10] Ms Howard appeals her sentence on the grounds that the Judge erred in imposing a sentence…

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.

Continue reading Howard v Police

Details

AGLC: Howard v Police [2015] NZHC 150
Case: [2015] NZHC 150
Decision Date: 12 February 2015

CaseChat Overview and Summary

In Howard v Police, Denise Lori Howard was sentenced to six months' imprisonment for six counts of theft. Howard appealed the sentence, arguing that the judge had erred in imposing a sentence of imprisonment. The High Court allowed the appeal and substituted the sentence with 250 hours of community work and 12 months' supervision. The court found that the judge had failed to sufficiently consider the rehabilitative prospects for the appellant, particularly given the positive remarks in the oral pre-sentence report. The principles of concern to the judge could have been met in a less restrictive way that would have been more proportional to the offence. The court also found that the appellant had not been given the correct discount for a guilty plea and that the Crown agreed that, if the appeal were to be allowed, a combination of community work and supervision was the appropriate outcome. The appeal was allowed, and the sentence of imprisonment was set aside.

Orders