MacKay v Police
[2024] NZHC 334
•27 February 2024
NOTE: NAMES OF APPELLANT’S CO-DEFENDANT AND ASSOCIATES AND HOME DETENTION ADDRESS ARE REDACTED IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-003
[2024] NZHC 334
BETWEEN EDEN MAREE MACKAY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 February 2024 Counsel:
M J Utting for Appellant
J E Bourke for Respondent
Judgment:
27 February 2024
ORAL JUDGMENT OF RADICH J
[1] On 22 January 2024, Ms MacKay was sentenced to 12 months’ imprisonment and ordered to pay $3,500 in reparation for one charge of receiving stolen property over $1,000, by Judge Greig in the District Court at Hāwera.1 Ms MacKay brings this appeal on the basis that the Judge took into account irrelevant considerations when determining whether to impose a sentence of home detention, and that the Judge erred in not granting leave for Ms MacKay to apply for home detention at an alternative address. Later on 22 January 2024, she was granted bail with an overnight curfew to an address, pending the outcome of this appeal.
1 Police v MacKay [2024] NZDC 1122 [Sentencing Decision]; and Crimes Act 1961, ss 246 and 247(a).
MACKAY v NEW ZEALAND POLICE [2024] NZHC 334 [27 February 2024]
Background
[2] On 26 November 2023, Ms MacKay and her friend, [ ], had spent the night with the complainant at her house in Whanganui. The next day, Ms MacKay met [ ] after he had stolen the complainant’s car and her cellphone within it. Either [ ] or another associate accessed the complainant’s bank account from her phone and transferred $20,300 in six separate transactions to four different accounts. $1,500 was transferred straight into Ms MacKay’s account. $1,000 was then transferred to Ms MacKay by another defendant and a further $1,000 was given to her by that other defendant in cash.2 The money stolen was part of an ACC payment the complainant had received due to a serious head injury.3 Mr Bourke makes the point that Ms MacKay was closely associated with the primary offending. Mr Utting acknowledges that but refers to it, fairly, as opportunistic. Judge Greig described the offending, quite rightly in my view, as “particularly pernicious”.4
Other background
[3] Ms MacKay has a history of offending going back to 2018. The history involves, mostly, shoplifting. Sentences of reparation, supervision and community detention have been imposed. Ms MacKay was sentenced to home detention of six months for a charge of theft and has convictions for possession or use of methamphetamine.
[4] In a report from the Department of Corrections, the report writer recommended a sentence of home detention with conditions relating to attendance at gambling, alcohol and drug programmes and requiring her not to associate with certain people. The report writer assessed Ms MacKay as being at a medium likelihood of reoffending and a medium risk of harm to others, noting an increase in offending frequency and severity. The address suggested by Ms MacKay for electronic monitoring while on home detention ([ ]) was considered suitable.
2 At [2].
3 At [6].
4 At [6].
District Court decision
[5] Judge Greig gave Ms MacKay a sentencing indication on 27 June 2023. He said that she would receive a starting point of three years’ imprisonment based on what was before him at the time. However, because the information available to him at the time was sparse, he said that he had “not been able to give a sentencing indication” on that day.5
[6] At sentencing, the Judge said that the factors that led to Ms MacKay’s history of offending were her lifestyle, her methamphetamine addiction, her gambling addiction, and her friends and associates.6 The Judge began with a starting point of 16 months’ imprisonment.7 He gave a 25 per cent discount for Ms MacKay’s guilty plea, leaving a sentence of 12 months’ imprisonment. However, the Judge declined to commute the sentence to one of home detention,8 finding effectively that this was the only way to meet the principles of denunciation and deterrence.9 Much of the basis for the Judge’s decision was his view that Ms MacKay was committing a benefit fraud by living with an ex-partner but claiming that they had separated. He said:
[11] Today you have told me that you are on a benefit, which is how you will repay the reparation at the rate of $10 a week. You have told me that you and your partner are separated although still living under the same roof, so I suspect that you are committing a fraud on the taxpayer. So it is being suggested that I give you home detention to an address where you will be committing a further criminal offence, as I understand it.
[7] Because Ms MacKay already had $4,000 in reparation payments outstanding and had previously been on home detention with opportunities to address her addiction issues, the Judge was satisfied that 12 months’ imprisonment and reparation of $3,500 were warranted.10
5 Police v Mackay DC Hāwera CRI-2023-021-175, 27 June 2023 at [4].
6 Sentencing Decision, above n 1, at [4].
7 At [12].
8 At [13].
9 At [14].
10 At [5] and [13].
Approach on appeal
[8] Under s 250 of the Criminal Procedure Act, the Court must allow the appeal if satisfied that there was an error in the sentence and that a different sentence should be imposed. Otherwise, the Court must dismiss the appeal. In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.11
[9] In sentencing, the Judge was to have, and he did have, regard to the purposes of sentencing in the Sentencing Act 2002. He was not able to impose a sentence of imprisonment unless those purposes can only have been achieved by that custodial sentence.12 There are some cases where the purposes of denunciation and deterrence can only be met by a sentence of imprisonment.13 Furthermore, where an offender is on the cusp of home detention, an appellate court will ordinarily defer to the assessment of the sentencing judge, provided their discretion was exercised having regard to the purposes and principles in the Sentencing Act.14 The issue here is whether the conclusion the Judge reached in this case was in error.
Submissions
Appellant’s submissions
[10] Mr Utting, for Ms MacKay, submits the Judge erred in not imposing a sentence of home detention because the reasons for declining home detention were not sufficiently relevant to the assessment under the Sentencing Act. He submits there was no evidence that Ms MacKay was committing benefit fraud through her living arrangements.
[11] He submits that the purposes and principles of sentencing can be met through a sentence of home detention because home detention is a deterrent sentence in itself
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].
12 Sentencing Act 2002, s 16(2)(b).
13 R v Taiepa [2009] NZCA 120; Connolly v R [2010] NZCA 129; and Rowell v Police [2019] NZHC 471.
14 R v D (CA253/08) [2008] NZCA 254 at [66].
– it will allow Ms MacKay to undertake rehabilitative work on her addiction and it will enable her to provide continued support for her four children. He advises that Ms MacKay’s grandparents are able to provide her with a loan that will enable reparation to the victim. It was confirmed in oral submissions this morning that Mr Utting’s firm is holding $3,500 in its trust account for this purpose, if the home detention decision is made.
[12] He points to the report by the Department of Corrections which supports a sentence of home detention and submits that it is the least restrictive sentence appropriate in these circumstances.
[13] It is said for Ms MacKay that, if the Court does not consider that the address that is proposed for home detention is suitable, then Ms MacKay should have been given leave to apply for home detention using a different address.
Respondent’s submissions
[14] Mr Bourke for the Crown submits that in making his decision the Judge has accounted appropriately for the sentencing purposes of deterrence, denouncement, promoting responsibility, providing for the interests of the victim, providing reparation and protecting the community from Ms MacKay. It is submitted that a sentence of home detention was appropriate given that neither home detention nor other community-based sentences had deterred Ms MacKay from this offending. It is acknowledged for the Crown that further information could have been obtained by the Judge about the appellant’s living situation if that was going to be determinative to her sentence. However, it is said that, given the other considerations taken into account by the Judge, it does not appear that this factor was necessarily determinative.
Discussion
[15] In my view, the Judge did err in finding that a sentence of imprisonment was the only way to meet the purposes and principles of the Sentencing Act.
[16] The Judge’s reasons do focus on a view that Ms MacKay was committing benefit fraud, but that is not a conclusion that can safely be drawn. At sentencing,
Ms MacKay told the Court that she and her partner had separated but remained living in the same house, albeit separately, because of housing shortages and because one of them could not afford to move out. That was in my view no adequate basis on which to base an assumption that Ms MacKay is committing benefit fraud in those circumstances and would therefore continue to do so should she be sentenced to home detention. The living arrangements that Ms MacKay had described are plausible.
[17] Another plank in the Judge’s reasoning was that Ms MacKay was not able to repay the victim in full immediately, needing instead to repay her over several years through a payment plan. However, there is now evidence before the Court that, as I say, reparation can take place immediately. Mr Utting has, again as I say, indicated that the funds are ready and available. Mr Bourke accepts that this is relevant information that would have been of relevance to the Judge also in making his decision. But the position is maintained for the Crown that other factors are still of particular concern.
[18] In the circumstances of this offending, a sentence of 12 months’ home detention, with strict conditions, is a significant sentence that does adequately promote the sentencing principles of denunciation and deterrence. Moreover, it will in my view better enable Ms MacKay’s potential rehabilitation, should she abide by the conditions of her detention. Overall, it is the least restrictive sentence available in the circumstances that fulfils the purposes and principles of the Sentencing Act.
[19] For these reasons, I am drawn to conclude that the Judge erred and that the sentence imposed was manifestly excessive.
[20] The appeal is allowed. The sentence of 12 months’ imprisonment is set aside. It is replaced with a 12-month sentence of home detention, to be served on an electronically monitored basis at [ ].
[21]The sentence is to be served on the basis of the following conditions:
(a)Ms MacKay is to attend an assessment for gambling as directed by a probation officer. She is to attend and complete any counselling,
treatment or programme recommended in the assessment as directed by and to the satisfaction of a probation officer.
(b)Ms MacKay is to attend an assessment for alcohol and drug counselling as directed by a probation officer. She is to attend and complete any counselling, treatment or programme as recommended in the assessment as directed by and to the satisfaction of a probation officer.
(c)Ms MacKay is not to communicate in any way or associate with [ ], [ ] or [ ], without the prior written approval of a probation officer.
(d)Ms MacKay is not to associate with or contact [ ] without the prior written approval of a probation officer.
(e)Ms MacKay is not to possess, consume or use any alcohol or drugs that are not prescribed to her.
[22] Reparation of $3,500 is to be paid to the Hāwera District Court. Mr Utting will make arrangements with the Registrar in relation to the way in which that payment is to be made.
Radich J
Solicitors:
Thomson O’Neil & Co, Eltham for Appellant Crown Solicitor, New Plymouth for Respondent
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