Marsters v Police

[2012] NZHC 1953

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-58 [2012] NZHC 1953

SARIA MARSTERS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 July 2012

Counsel:         N Bourke for Appellant

A Ewing for Respondent

Judgment:      6 August 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The offending ..................................................................................................................................... [3] District Court sentence ..................................................................................................................... [7] Assessment of appeal......................................................................................................................... [9]

Result ................................................................................................................................................ [17]

MARSTERS v NEW ZEALAND POLICE HC WN CRI 2012-485-58 [6 August 2012]

Introduction

[1]      Saria Marsters is aged 18 years and has a drinking problem.  She is in prison for two burglaries in which she stole alcohol and for two charges of breaching a supervision sentence imposed in respect of other theft and burglary offending.  She appeals against the sentence of six months’ imprisonment which was imposed.

[2]      Ms  Marsters  says  that  a  community  based  sentence  should  have  been imposed given her age, the relatively low level nature of her offending, and her need to address her alcohol problem.  There is no doubt that a community based sentence would have been appropriate for the offending had there been no concerns about her compliance with that sentence.  The issue on this appeal is whether the Judge erred by instead sentencing her to prison because of the compliance concerns.

The offending

[3]      At about 9pm on 19 February 2012 Ms Marsters kicked in the door of a liquor store, entered the store and took two boxes of beer.  She left the store but was apprehended by the police at a nearby address.  On 6 March 2012 Ms Marsters took a cell phone from a fellow passenger on a bus and refused to return it.

[4]      While on bail on the above charges, at about 11.30pm on 14 March 2012 Ms Marsters, along with five associates, broke into the store room door of a liquor store. Several boxes of beer were stolen.  Ms Marsters was apprehended as a result of a match of the fingerprints in the store with Ms Marsters’ fingerprints.  At about 3.30 am on 17 March 2012 Ms Marsters and her associates gained entry to a food and alcohol store by damaging a wall that was covering an insecure door.  Ms Marsters took a box of beer from the store.  The police arrived and Ms Marsters dropped the box and ran off.  She was apprehended by the police shortly afterwards.

[5]      On  20  March  2012  Ms  Marsters  came  before  the  District  Court  for sentencing on the 19 February and 6 March burglary and theft offending.  The Judge noted that Ms Marsters had not previously appeared and obviously had a drinking

problem.   She was sentenced to six months’ supervision with special conditions requiring her to undertake treatment (etc) for alcohol.   She was also ordered to pay reparation.

[6]     Under the supervision sentence, Ms Masters was required to report to Community Probation Services on 3 April and 10 April 2012.  She failed to report on those dates.  She was charged with breaching her supervision sentence.  On 7 May

2012 Ms Marsters was remanded in custody following a number of bail breaches

(mainly breaches of curfew, residence, not to consume alcohol conditions).

District Court sentence

[7]      On 7 June 2012 Ms Marsters came before the District Court for sentencing on the 14 and 17 March burglaries and the supervision sentence breaches.  In rejecting the submissions on behalf of Ms Marsters for a sentence of intensive supervision the Judge noted that:

(a)       “at  the  very  time  [Ms  Marsters]  got  supervision  [she  was]  still

committing offences”;

(b)Ms Marsters had told the probation officer that she was not sorry and did not see why she should offer reparation;

(c)       Ms  Marsters  had  told  the  probation  officer  that  she  was  not particularly interested in addressing her alcohol problem.

[8]      The Judge considered that Ms Marsters had been given her chance but had not taken it.  He considered that she was not motivated to address her problems.  He considered that there was nothing other than her age to indicate that a community based sentence was appropriate.   Taking into account her guilty plea, the Judge imposed a sentence of 6 months’ imprisonment on the burglary charges and one month imprisonment on the supervision breaches (concurrent).  Reparation was also ordered.

Assessment of appeal

[9]      Counsel for Ms Marsters submits that the Judge failed to address why a sentence other than imprisonment would not meet the sentencing purposes.   He submits that, relevant to this assessment, was Ms Marsters’ young age, that her failures to report were at the beginning of her sentence of supervision (before the sentence had been given a chance to work) and that Ms Marsters had shown a willingness to address her drinking problem by reporting to a youth counselling service in Lower Hutt.   He submits that the end result was a sentence that was manifestly excessive.

[10]     Counsel  for  the  respondent  accepts  that  for  this  kind  of  offending  a community based sentence would ordinarily have been appropriate.   This is confirmed by the sentences imposed on Ms Marsters’ co-offenders in the 17 March

2012 offending.  One co-offender was sentence to six months’ supervision subject to special conditions.   Another was convicted and ordered to pay reparation.   (Two others are being dealt with in the Youth Court and the fifth entered a not guilty plea.)

[11]     Counsel for the respondent submits that, as Ms Marsters had not supplied a suitable address for an electronically monitored sentence, the options open to the Judge were intensive supervision or imprisonment.   She submits that Ms Marsters history showed a fairly flagrant disregard for Court-imposed conditions of bail and that the Court was entitled to conclude that she was unlikely to comply with a sentence of intensive supervision.  That being so, she submits that the only available sentence was imprisonment.

[12]     I agree with the submissions for the respondent, except that community work would also have been an option had Ms Marsters’ compliance with court orders not been a concern.   Section 16 of the Sentencing Act 2002 is to the effect that a sentence of imprisonment must not be imposed unless the Court is satisfied that the sentencing purposes cannot be achieved other than by a sentence of imprisonment. However this is subject to section 17 of the Sentencing Act, which provides that:

Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment on an offender if satisfied on reasonable grounds that the

offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

[13]     The Judge appears to have thought that the burglaries on 14 and 17 March

2012 were committed when Ms Marsters had already been subject to a sentence of supervision.  That is not correct.  She had been charged with and was on bail on the first two charges, when she committed the second two burglaries, but she had not yet been sentenced.   The 14 and 17 March 2012 burglaries were committed in fairly quick succession after the first two charges, were similar in kind, and were all at a time when Ms Marsters was drinking heavily.  It would therefore have been open to the Judge to have considered whether the existing six months’ supervision was a sufficient sentence or whether a further sentencing response was necessary.

[14]     The difficulty for the Judge was that, by the time he was sentencing Ms Marsters on the second two charges, she had breached bail nine times on dates between 29 March 2012 and her remand in custody on 4 May 2012.  She had also failed to report on 3 and 10 April under her supervision sentence.  Her pre-sentence report provided no basis for thinking that Ms Marsters’ ability to comply with a community based sentence had improved.  She had no suitable address to go to, and was assessed by the probation officer as lacking remorse and as not wanting to stop drinking alcohol.  The reasons advanced by counsel on her behalf (refer [9] above) were not sufficient to overcome these concerns.

[15]     In these circumstances, despite Ms Masters’ young age and the relatively minor nature of her offending, the Judge was entitled to conclude that a sentence of imprisonment was appropriate.   That said, I am concerned about the term of imprisonment imposed.   I raised this with her counsel on the appeal.   He did not advance submissions about this, preferring to concentrate on the unsuitability of an imprisonment sentence.  He did, however, submit that the Judge’s approach was in error because he did not set a starting point and then give a discount for her age and her guilty plea.

[16]     In my view the six month term of imprisonment was manifestly excessive. Counsel for the respondent provided two cases by way of comparison.[1]    However both of those cases were more serious than here.  In my view, bearing in mind that a supervision   sentence   and/or   community   work   would   ordinarily   have   been appropriate, a starting point of no more than 6 months’ imprisonment was warranted for the two burglaries.  From this I would deduct two months for youth and the guilty

plea. That would mean a sentence of four months’ imprisonment.

Result

[1] Randall v Police HC Hamilton CRI 2009-419-81 15 February 2010; Te Amo v Police HC Rotorua CRI 2009-463-104 14 December 2009.

[17]     The appeal is allowed.  The six months’ imprisonment sentence on the two burglaries is quashed and replaced with a sentence of four months’ imprisonment. The standard and special release conditions and the reparation order remain the same.   The concurrent sentence of one month imprisonment on the supervision breaches and the order cancelling the supervision sentence also remain in place.

Mallon J