Kowalewska v Police
[2020] NZHC 3412
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-81
[2020] NZHC 3412
BETWEEN CASSANDRA LOUISE KOWALEWSKA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 December 2020 Counsel:
P H Surridge for Appellant A F Oliver for Respondent
Judgment:
18 December 2020
JUDGMENT OF CHURCHMAN J
Introduction
[1] Ms Kowalewska (the appellant) appeared for sentence on 17 September 2020 in the Porirua District Court on one charge of burglary1 and one charge of threatening behaviour.2 In relation to the charge of burglary, Judge Krebs imposed a sentence of intensive supervision of 18 months, 150 hours of community work, and 18 months of judicial monitoring.3 No specific sentence was imposed in relation to the other charge.
[2]The sentence is appealed on three grounds:
(a)that the Judge wrongly attributed loss of certain property from the burglary to the appellant;
1 Crimes Act 1961, s 231(1)(a). This carries a maximum sentence of 10 years’ imprisonment.
2 Summary Offences Act 1981, s 21(1)(a). This carries a maximum sentence of three months’ imprisonment or a $2000 fine.
3 Police v Kowalewska [2020] NZDC 19264.
KOWALEWSKA v NEW ZEALAND POLICE [2020] NZHC 3412 [18 December 2020]
(b)that the sentence imposed was excessive, and set the appellant up for failure; and
(c)that the Judge erred by not properly explaining how the sentence was calculated and not properly applying a satisfactory methodology for sentencing.
[3]The police (the respondent) oppose all three grounds.
Background
Factual background
[4] Between 20 October 2019 and 10 November 2019, Mr Ives’ bach at Ngawi, Cape Palliser was left unoccupied. During that time, the appellant and her three-year- old daughter were staying at a friend’s house in Cape Palliser. The appellant’s friend left and did not return, leaving the appellant without food, running water or cell phone coverage. The appellant explained to the police that she had no option but to support and sustain herself and her daughter by breaking into the complainant’s bach and stealing items from it. The appellant stated to the police that she only took food and water, while the Summary of Facts (SOF) suggests that the burglary resulted in the loss of a number of items of furniture including chairs, a bed and bedding, pots and pans, and several technological appliances.
[5] The appellant has consistently maintained that the only items she took during the burglary were low value food items that she needed for her survival. She also acknowledged gaining entry by “barging” the door to the dwelling.
[6] The wording of the SOF in this matter has contributed significantly to the problems that have led to this appeal. After referring to the address of the property which was burgled and the relevant dates, it says:
During this time someone has broken open the rear door and stolen food items from cupboards and meat from the freezer, as well as spirits and beer. Larger items including bedding, a coffee machine, UE boom speaker, pots and pans and chairs have also been taken. These items are total valued at about $4000 and damage to the doors in excess of $1000.
[7] The SOF goes on later to specifically record the defendant’s admission that she broke into the property and took food and water and nothing else.
[8] The SOF also sought $650 by way of reparation. This was said to be the insurance excess.
[9] The District Court file records that when the case was first called before Judge Johnston in the District Court on 9 June 2020, the SOF was “accepted not read”.
[10] It is perhaps unsurprising that the appellant accepted the SOF because it clearly recorded her position which was that she took nothing other than food and water, and the SOF does not specifically assert that she was the person who stole the various other items of furniture and utensils said to have been taken.
[11] Also on the Court file was a transcript of an exchange between Mr Surridge, who appeared as counsel at the 17 September 2020 sentencing, and the presiding Judge, Judge Krebs. Mr Surridge repeated the appellant’s claims that all she had taken during the burglary was food and water. The Judge’s response to that is recorded as being:
Well I’d be more impressed with those submissions, Mr Surridge, if this lady came up this morning without any previous convictions. She has a list of prior convictions.
[12] The transcript records that Mr Surridge submitted to the Court that the appellant, who had no means of transport available to her, had walked to the burgled property and had no means of carrying the quantity of property which was alleged to have been taken.
[13] The transcript also records Mr Surridge referring to the fact that there was evidence that the appellant, and her three-year-old daughter who was with her throughout the time that she was at Ngawi, was picked up by a contractor’s truck and taken to Martinborough and she did not have with her any of the furniture, furnishings or other items alleged to have been taken.
[14] Mr Surridge attempted to explain that the SOF did not particularise the specific items which it was alleged the appellant had taken. The Court’s response was to say:
The summary of facts describes what was taken from (inaudible 15:08:57) including the coffee machine, (inaudible 15:09:00) speaker, pots, pans, chairs (inaudible 15:09:04) and that’s what she’s pleaded guilty to.
[15]Mr Surridge’s response is recorded as being:
Well (sic) I didn’t certainly takes (sic) chairs, pots and pans, bedding because she hadn’t, but the summary of facts refers to the total goods taken which is the subject of an insurance claim obviously and they seek to sheet home the
$650 excess to her and that’s a matter for the Court to determine whether it’s fair or not.
[16] Ultimately, the discrepancy between what the appellant admitted taking and what the SOF referred to as having been taken by “someone” was never resolved. In the sentencing notes, the Judge said:4
The summary of facts suggests that the burglary resulted in the loss of a number of items of furniture, a bed, bedding and so forth. I cannot resolve that issue today. You accepted the summary of facts when you pleaded guilty on 9 June before Judge Johnston and he has noted that on the document itself. It refers to the bedding items, a coffee machine, speakers, pots, pans and chairs. You suggest through your counsel that in fact others have been responsible for aspects of that burglary. As I say, I cannot resolve that. What I can determine is that you broke into the property and did steal a number of items. I intend to impose the reparation order sought in respect of the insurance excess only so I do not need to resolve the exact extent of what you took.
[17]Later in the sentencing notes,5 the Judge says:
You are sentenced to pay reparation in the sum of $650 which is the excess of the insurance. The actual amount that was lost was $1000 worth of damage and probably $4000 worth of property but the insurance company has covered most of that.
[18] Contrary to the Judge’s earlier statement that he did not need to resolve the issue of exactly what property the appellant took, this statement would tend to indicate that he approached the sentencing exercise on the basis that the appellant was responsible for all of the property that went missing. In the situation where there was
4 Police v Kowalewska (Sentencing Notes) [2020] NZDC 19264 at [3].
5 At [10].
a fundamental dispute on the point, it was not open to the Judge to ignore the dispute and proceed on that basis.
[19] A further compounding factor is that although it is not referred to in the SOF or in the Judge’s sentencing notes, the victim impact statement before the District Court contains an entry which says: “Police have recovered the two hand-drawn pictures which we are very thankful for.” This is a reference to two items stolen in the burglary which the victim had indicated had great sentimental value. There is nothing in the file before the Court to connect the appellant with the recovery of these items and, given the nature of the clear and consistent assertion by the appellant that she only took food and water, one would have thought that if there were any evidence linking her to the recovery of other property, that would have been mentioned in the SOF.
[20] Where there is a plea of guilty but a dispute as to the contents of a SOF, if that dispute is likely to have a material influence on the sentence imposed, then the appropriate procedure is to adjourn the matter for a disputed facts hearing. That is what should have occurred in this case.
[21] The burglary charge was only one of the charges that the appellant was up for sentence on. The second charge (threatening behaviour) concerned an unrelated event on 30 September 2019. The appellant arrived at the complainant’s house and used her bare hand to smash a window. The appellant then walked around to the other side of the house and gained entry through a side door. She swore at the complainant, who was at the address at the time, and demanded that she pay some money to her daughter, threatening to come back if she did not.
District Court decision
[22] After setting out the relevant facts, the Judge acknowledged the appellant’s history of previous convictions (mainly related to drugs, alcohol and driving, as well as breaching Court orders), as well as the appellant’s pre-sentence report, which detailed her difficulties with finding a permanent place to live while raising a child and dealing with substance abuse, as well as having previously been in an abusive
relationship and continuing to deal with the trauma from that. The report recommended a fine, community work and supervision.
[23] While acknowledging that the starting point for domestic burglaries was ordinarily one of imprisonment, the Judge noted that in the unusual circumstances of this case (both in terms of the appellant’s personal background and the situation that she found herself in), it was not required. However, the Court held that this was also not an appropriate case for a discharge without conviction, nor was a fine appropriate as the appellant would be unlikely to pay it, given she had no home to live in and a young daughter to look after.
[24] Instead, the Judge imposed a sentence in relation to the burglary charge of 140 hours’ community work, as well as period of intensive supervision for 18 months, which included that the following conditions:
(a)that the appellant undertakes counselling for life skills as directed and parenting skills as directed to the satisfaction of the probation officer; and
(b)that the appellant undertakes any programmes such as budgeting and otherwise that are thought appropriate by the probation officer.
[25] The Judge also sentenced the appellant to pay reparation to the sum of $650, which was the excess of the insurance, as well as imposing an 18-month period of judicial monitoring, to allow the Judge to monitor the appellant’s sentence.
[26] The Judge does not deal at all with the second charge of threatening behaviour. Even if he thought that no increase beyond the penalty for the burglary charge was required, the Judge was obliged to say what the sentence on the second charge was.
Position of the parties
The appellant
[27] Counsel for the appellant submitted under the first ground of appeal that the Judge made a “pivotal error” by concluding that the appellant had stolen all of the items, rather than just food and water, from the house. Counsel stressed that the SOF did not obviously and clearly set out and identify the appellant as being responsible for the loss suffered, but rather simply stated that “someone” stole the items. According to counsel, this conclusion led the Judge to impose an excessive sentence on the appellant, on the assumption that she had, in fact, stolen all of the items.
[28] On the second ground of appeal, counsel submitted that given the appellant’s personal circumstances as set out in the pre-sentence report, the Judge imposed a sentence that was “suspect and excessive”, because her lack of a consistent and stable living environment would make it difficult for her to satisfy the conditions in her sentence, effectively setting her up to fail. Counsel referred to two probation reports as evidence of the difficulties that the appellant had in complying with community- based sentences.
[29] Under the third ground of appeal, counsel submitted that the Judge did not apply any settled methodology or calculation in applying the sentence that was imposed, and did not provide a nuanced, correct or even demonstrable assessment of the defendant and her part in the offending.
The respondent
[30] In response to the first ground, counsel for the respondent submitted that the Judge did not assume or conclude that the appellant stole all of the items in the property.
[31] Therefore, counsel submitted that it could not be assumed that the Judge proceeded on the basis that the appellant was responsible for the theft of all items taken from the property. This was said to be supported by the Judge’s decision to order reparation exclusively in respect of the insurance excess, which reflected the general
loss to the property, rather than the specific items stolen. According to counsel, even if the Judge did proceed on the basis that the appellant was responsible for all of the stolen items, the end sentence was not manifestly excessive given that, as noted by the Judge, the starting point for domestic burglaries was usually one of imprisonment.
[32] Turning to the second ground of appeal, it was submitted that counsel for the appellant had failed to come up with an alternative sentence, and that it was unclear what other sentence could have been imposed other than imprisonment. Therefore, the sentence imposed was entirely appropriate in the circumstances.
[33] Finally, on the third ground of appeal, counsel submitted that the Judge did in fact apply an appropriate sentence with the correct calculation and methodology. The Judge:
(a)noted the factual dispute in relation to the number of items taken and indicated the basis upon which the sentence was imposed;
(b)noted the appellant’s personal aggravating factors and the finding of the pre-sentence report; and
(c)indicated which purposes and principles of sentencing he considered to be most relevant to the sentencing.
Approach on appeal
[34] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, 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.6 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.7
6 Tutakangahau v R [2014] NZCA 279.
7 Ripia v R [2011] NZCA 101 at [15].
Relevant law and analysis
[35] There are two errors in the Judge’s sentencing. Firstly, he was, in the circumstances, obliged to resolve the significant dispute of facts. For the reasons discussed above,8 it was not open to the Judge to state that the appellant had accepted the SOF. The SOF was ambiguous on this critical issue. The appellant had been consistent throughout that she had only taken food and water in the burglary. Secondly, the Judge has failed to impose any sentence at all on the second charge and has not explained why he has not done so.
Analysis
[36] I cannot be confident that had the disputed facts been resolved that the Court would have imposed the sentence it did. Neither is it clear what sentence the Court intended imposing on the second charge. The Court needs to specify that.
Outcome
[37] Accordingly, the appeal is allowed and the matter remitted to the District Court for re-consideration in accordance with this decision.
Churchman J
Solicitors:
Mana Law, Paremata for Appellant
Luke Cunningham & Clere, Wellington for Crown
8 At [5]-[19].
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