Kirikino v Police

[2023] NZHC 1821

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-103 CRI-2023-409-104

[2023] NZHC 1821

BETWEEN

MIRA KIRIKINO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 July 2023
Appearances:	J Tupaea and J E M Freeman for Appellant G E R Alloway for Respondent
Judgment:	12 July 2023

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 July 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

KIRIKINO V POLICE [2023] NZHC 1821 [12 July 2023]

[1]    Mira Kirikino was sentenced in the District Court at Christchurch on 23 May 20231 to three months’ home detention on three charges of wilful damage,2 possession of an offensive weapon,3 and common assault.4

[2]    She appeals her sentence on the basis the Judge failed to take into account the time she had spent in custody when calculating the length of her home detention.

Background

[3]    On 20 December 2022, Ms Kirikino was drinking at an associate’s address. The property was set back off the street on a shared driveway. An argument developed and Ms Kirikino grew  angry.  She  picked  up  a  hammer  and  broke  a  window. Ms Kirikino then walked down the driveway, towards the street. She broke a window of a second victim’s property, who was sitting in the room at the time.

[4]    Ms Kirikino then threw the hammer before continuing to walk away into the middle of the nearby street while being followed by the two victims. In an adjacent street, Ms Kirikino turned around and punched the associate in the nose.

[5]    Following her arrest on 20 December, Ms Kirikino was originally denied bail. She was remanded in custody from 21 December 2022 until she was granted EM bail on 1 February 2023. She remained on EM bail until her sentencing on 23 May 2023, although, in April she was remanded in custody for three days following a breach that involved her leaving the address.

[6]    Additionally, on 20 May 2023, while on EM bail, Ms Kirikino went to her neighbour’s address, a conjoined flat, and confronted the occupant about cigarettes. When he told her he had none, she became upset and retrieved a block of timber from her flat. She hit two of the victim’s windows, causing them to break. Ms Kirikino was arrested but granted bail on 22 May until her sentencing the following day.

1      New Zealand Police v Kirikino [2023] NZDC 10290.

2      Summary Offences Act 1981, s 11(1)(a) — maximum penalty 3 months’ imprisonment or a fine not exceeding $2,000.

3      Crimes Act 1961, s 202A — maximum penalty 3 years’ imprisonment.

4      Summary Offences Act, s 9 — maximum penalty 6 months’ imprisonment or a fine not exceeding

$4,000.

Principles on appeal

[7]    An appeal against sentence may only be allowed if this Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.6 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.

District Court decision

[8]    Prior to the second incident, Ms Kirikino accepted a sentence indication from Judge Callaghan that home detention would constitute an appropriate sentence.

[9]    At sentencing, Judge O’Driscoll considered that, despite the additional charge, a sentence of home detention remained appropriate. He acknowledged Ms Kirikino’s substantial criminal history and high risk of re-offending and warned her that continued similar behaviour may leave the Court with limited options, other than a custodial sentence.

[10]   The Judge took into account Ms Kirikino’s guilty pleas and time spent on EM bail before reaching an end-sentence of three months’ home detention on each of the charges, which the Judge considered appropriate on a “totality basis”. Six months’ post-detention conditions were imposed. Orders totalling $1,050 were made for reparation.

The appeal

[11]   The appeal is brought on the single ground that the Judge failed, when calculating the period of home detention,  to take into account the amount of time  Ms Kirikino had spent in custody on remand.

5      Criminal Procedure Act, ss 250(2) and 250(3).

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

[12]   Counsel appearing for Ms Kirikino noted s 82 of the Sentencing Act 2002 prohibits pre-sentence detention being taken into account when calculating a custodial sentence. However, it was rightly submitted this restriction does not apply to a sentence of home detention, and the Judge was not barred from considering whether time spent in custody should impact on the sentence.7 Ms Freeman suggested the Judge likely overlooked the time Ms Kirikino had spent in custody and that, if now included in the sentence calculation, a sentence of one week’s home detention should result.

[13]   The Crown acknowledged time spent in custody should ordinarily be taken into account in setting a sentence of home detention, and that there was nothing to indicate less than full equivalence should be provided in this case.

[14]   Mr Alloway, who appeared on behalf of the Crown, submitted the six weeks Ms Kirikino had spent in custody would ordinarily be reflected in a three-month reduction in the calculation of the nominal sentence of imprisonment which was to be commuted to home detention. However, in the circumstances of the present case, he suggested time spent in custody was likely to have already been accounted for in sentencing Ms Kirikino. Assuming this to be the case, on his submission, the Judge must have reached an end-sentence of nine months’ imprisonment, which would have resulted in a sentence of three months’ home detention after taking into account three months for time spent in custody.

[15]   Mr Alloway argued this nine-month sentence would not have been manifestly excessive given Ms Kirikino’s significant criminal history.

Analysis

[16]   Both parties agree it would be appropriate for Ms Kirikino’s sentence to have included an allowance for  the  time  she  had  spent  in  custody  on  remand.  As  Mr Alloway observed, neither the sentence indication, nor the sentencing remarks offer much information as to whether time spent in custody was actually considered.

7      Citing Mason v New Zealand Police [2022] NZHC 1845; and Vakapora v Police [2022] NZHC 493.

It appears the Judge took a holistic approach to the sentencing and was primarily focussed on whether the indicated nature of the sentence, being one of home detention, would still be appropriate given the further offending. It may be he did not turn his mind to the question of credit for time spent in custody, given mention was made to deductions for guilty pleas and time spent on EM bail, but it remains unclear.

[17]   The ultimate question for the appeal Court must be whether the final sentence was manifestly excessive. Sentences for offending such as this vary considerably depending on the circumstances of the individual case. Combinations of reparation orders, fines, community work, community detention, and relatively short periods of home detention all feature in somewhat analogous offending. Despite Ms Kirikino’s criminal history and offending while on bail, a nine-month sentence of imprisonment, as Mr Alloway suggested the Judge may have had in mind prior to commutation to home detention, would appear to represent a relatively stern approach.

[18]   In Cash v Police,8 the appellant faced charges for a minor assault, behaving threateningly, and wilful damage that involved breaking a window. On appeal, the Court held the starting point of 12 months and an end-sentence of 10 months’ imprisonment (commuted to four months’ home detention and 80 hours community work) was manifestly excessive. A starting point of no more than three months’ imprisonment was considered appropriate. In that case, the Judge noted the appellant had served 41 days of the home detention sentence at the time of the judgment, and this was considered to be sufficient punishment.

[19]   Different approaches have been taken to the issue of how to recognise time spent on remand in custody when imposing sentences of home detention. In some decisions, the sentencing Court has deducted half the remand period from the home detention sentence on the basis that, as home detention is typically half of the equivalent prison sentence, it is consistent to allow half of the time served on remand in custody to be factored into the final sentence (the “two equals one” approach).9 However, most cases appear to have adopted the approach of adjusting the period of

8      Cash v Police [2016] NZHC 2748.

9      Wharrie v R [2019] NZHC 633 at [30] – [33].

home detention to equivalently reflect the time spent in custody on a “one for one” basis.10

[20]Fitzgerald J in Mason v Police commented as follows:11

I can see merit in both approaches. A two for one approach recognises that a sentence of imprisonment and a sentence of home detention are not the same and are not intended to be the same. In those circumstances, and as Ms Bourke observed in her oral submissions, any perceived “unfairness” in the two for one approach simply reflects that home detention is not the equivalent of imprisonment and in the hierarchy of sentences, is a less restrictive sentence. On the other hand, the rationale for the one for one approach is that an offender sentenced to a sentence of home detention, which is itself based on a term of imprisonment, should ultimately be in no worse position (in terms of the length of their home detention sentence) than if the sentence of imprisonment had not been commuted to home detention.

(footnote omitted)

[21]   Whatever the preferable approach to such calculations, I think it clear that, as held by this Court in Mason v Police, any such discount is more appropriately applied after converting the sentence from imprisonment to home detention, rather than beforehand.12 As noted by Ms Freeman, this accords with s 82 of the Sentencing Act which directs the Court not to take account of time served when determining the length of a term of imprisonment. Moreover, whatever process is applied, the exercise remains an evaluative one.13

Decision

[22]   In the present case there is very limited information on the process adopted in reaching the final sentence. The sentence indication simply references home detention as the appropriate outcome, and the sentence itself immediately arrives at such an end sentence accompanied by a suggestion that the starting point was imprisonment of some length. This, no doubt, is a reflection of the busy nature of the District Court’s work and the need to take a summary approach to much of its decision-making when dealing with this level of offending. Home detention or prison is likely to have been

10     Kirk v R [2019] NZHC 3361; R v Tai [2021] NZHC 2769; Paul v Police [2021] NZHC 1924; Pou v Police [2021] NZHC 1068; and Harris v Police [2022] NZHC 345.

11 At [35].

12 At [31].

13     Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [16].

the decisive consideration that informed Ms Kirikino’s guilty plea, hence the nature of the sentence indication.

[23]   Ms Kirikino spent 43 days in custody prior to being granted bail. She appears to have spent three days in custody in early April and two days in custody just prior to her sentencing. At the time of hearing her appeal, she had spent 50 days on home detention, being a little over half the term imposed. She has approximately 40 days to serve of her original sentence.

[24]   I consider there is a certain artificiality in trying to reconstruct how the sentence was calculated. The prime consideration, both when providing the sentence indication and imposing sentence, was the appropriateness of a non-custodial sentence in the form of home detention. Ms Freeman argued that, in putting the sentence indication into effect, the Judge appears to have overlooked the fact that Ms Kirikino spent some of her time on remand in custody because he did not mention this factor when setting the length of the period of home detention but did note these considerations. However, it might equally be arguable that, while the Judge mentioned Ms Kirikino’s extensive record, this was only in reference to whether home detention remained a viable sentence. There is no mention of the sentence having been uplifted for her long record of similar offending. Does that mean, for the purposes of the appeal, that this countervailing factor was also not taken into account?

[25]   While I have some reservations in doing so, I think I can only realistically proceed on the basis the Judge considered that three-months’ home detention accurately reflected Ms Kirikino’s culpability and represented a commensurate sentence. It would have been appropriate at that point to have then made an adjustment for time spent on custodial remand when setting what would have otherwise been the appropriate sentence. Approaching the matter in that way, and mindful that any deduction of this type requires an evaluative approach, I would allow a month for time spent in custody in order to take account of that part of the sentence already effectively served.

Result

[26]   The appeal is allowed. The three-month sentence of home detention is quashed and substituted with a sentence of two months’ home detention.

Solicitors:

Crown Solicitor, Christchurch