Maxwell v Police

[2020] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-515

[2020] NZHC 219

BETWEEN

MELISSA MAXWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 February 2020
Counsel:	A Maxwell-Scott for Appellant J Kang for Respondent
Judgment:	20 February 2020

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 20 February 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

MELISSA MAXWELL v NEW ZEALAND POLICE [2020] NZHC 219 [20 February 2020]

[1]    Ms Maxwell pleaded guilty to two charges of burglary. She was sentenced in total to two years and three months’ imprisonment. She appeals against the sentence on the basis that it was manifestly excessive. Several appeal issues arise but it is common ground that, with the benefit of a detailed affidavit as to her background, Ms Maxwell deserves a personal circumstances discount, yet she did not receive one. I am also satisfied that Ms Maxwell’s sentence should be commuted to home detention and indicated as much to counsel. My reasons are as follows.

Background

[2]    The background facts can be stated briefly.  The first burglary occurred on   18 January 2015. Between 11.30 am and 2.30 pm on that day, Ms Maxwell entered the victim’s address. Ms Maxwell took a TV, jewellery and a handbag with miscellaneous items, valued at approximately $5,500. The second burglary occurred on Sunday, 5 May 2019 at approximately 12.00 pm. The victim was not present at the time of the burglary. Ms Maxwell entered the address through an unlocked door and began searching the property. She located and took a large amount of jewellery consisting of earrings, necklaces and rings. While Ms Maxwell was searching a bedroom, the victim returned. Ms Maxwell then ran to her vehicle, removed the registration plates and fled the area. She left with multiple jewellery items valued at approximately $17,000 and three passports belonging to the victim.

District Court sentencing notes

[3]    The sentencing notes are brief. Relevantly, they record the following (including handwritten notes in parentheses):

[5]        Turning to your sentence, both the police and prosecution and your lawyer are of the same mind about the outcome and your lawyer has said that there should be an initial starting point in respect of two years’ imprisonment for the lead charge of burglary, that is the one on 5 May 2019, and that there should be a further uplift for the second charge and that a global starting point for sentencing being in the region of two years and six months and two years and eight months reflecting the totality of the charges. Then taking into account the aggravating features that I have mentioned, in respect of the burglary being a private dwelling house and the taking of a large amount of jewellery and property belonging to the offenders, a further uplift be taken making a totality of (thirty-six months).

[6]        Doing these calculations is somewhat calculated to try and reach an equitable overall totality of sentencing and I am allowing a 25 percent discount for the plea of guilty. Ultimately, I have reached a final figure of two years and three months’ imprisonment in respect of those two charges. (That has been calculated back on a total amount of 42 months.)

[7]        In respect of these two charges, taking everything into account including the aggravating features, your private record, your previous sentences, your previous record, your attempts of rehabilitation, you are sentenced to two years and three months’ imprisonment.

Evidence

[4]    Ms Maxwell has filed a detailed affidavit as to her background. It is not opposed. I admit it. While not fresh, it is cogent. Indeed, it is an exemplar of the type of evidence about an offender that is helpful to the sentencing assessment.

[5]    Ms Maxwell is 40 years old. She is Māori. While her upbringing was not marked by poverty, she often saw her father drinking and physically abusing her mother during her childhood. [redacted] She did not graduate from high school and ran away from home when she was 16. She met her first partner about this time. He was a patched gang member and his whole family was involved in the gang member lifestyle. Their relationship involved alcohol, drugs and violence. He was physically abusive. She thought the abuse was normal because of what she had seen growing up. She became involved in criminal activity, much of it with her partner.

[6]    She had her first child at the age of 21. Around this time her partner went to jail. She left him and moved back into the family home to look after her father who had been diagnosed with cancer. She started using methamphetamine as an escape. Her father lost his battle with cancer. About this time her partner was released, and she moved back in with him. They had a second child together. The physical abuse continued. Her partner then went to prison for an assault on her. She left him for good.

[7]    Her second partner was also a patched member of a gang. Drugs, alcohol and violence continued as prominent features in this second relationship. She does not understand how she ended up in the situation again, but she thinks that the physical abuse she suffered caused her to lose self-confidence and respect for herself. She had

two children by her second partner but her relationship with him ended in 2015 as she could not cope with the physical abuse.

[8]    Between 2015 and 2016 she was in and out of prison in relation to a number of dishonesty offences. During her incarceration in 2016, she began ACC counselling [  redacted  ].  She found it therapeutic.  [   redacted   ].  She was released from prison before she could complete her counselling. She really liked her counsellor and tried to contact her after she was released but did not succeed. [ redacted ].

[9]    In 2017 she was living in Hamilton and things were going well. She found employment with the support of Reclaim Another Woman, an organisation supporting disadvantaged women. Unfortunately, her brother died from an epileptic seizure. She was very close to him. She returned to her old ways and started using methamphetamine again.

[10]   Ms Maxwell outlines her battle with addiction. She has been trying to address it since 2009. She has been in and out of various rehabilitation programmes as part of her sentences but there has always been something that has triggered her addiction, most recently, her brother’s death.

[11]   In relation to the present charges she pleaded guilty and requested matters to be transferred to the Auckland District Court so that she could engage with rehabilitation programmes. She was granted electronically monitored bail to Epsom Lodge on 20 September 2019. She began engaging with stage one of the Salvation Army Bridge programme (an eight-week residential rehabilitation programme) and was one unit away from graduating into stage two. She was exited on 4 November for failing a drug test. Another resident at the Lodge had some methamphetamine and she gave in to her addiction. She was subject to a six-week stand down. She said she applied to adjourn the hearing so she could reapply to Epsom Lodge after the stand- down period, but that application was declined.

[12]   Her current time in prison, together with her most recent attempt at rehabilitation, has provided her with greater insight. She is now 40 and does not want to keep living a life of crime. Her eldest daughter will be attending [ redacted ]

soon. She would like more counselling. She completed the Te Ira Wahine programme and completed the one-on-one short motivation programme. She is currently in full- time employment in prison.

[13]   Ms Maxwell also expresses remorse for what she had done and indicates a preparedness to engage in a restorative justice process.

Jurisdiction

[14]   This is an appeal pursuant to s 250 of the Criminal Procedure Act 2011. It is common ground that the appellant must satisfy the Court that:

(a)there is an error in the sentence that was imposed; and

(b)a different sentence should be imposed.

[15]“Error” includes a sentence that is manifestly excessive.1

Assessment

[16]   The starting point of 36 months adopted by the Judge for the offending was well within range. It is not clear that the Judge incorporated within this starting point an uplift for previous convictions,2 but I agree with Mr Kang for the Police that a higher starting point was available to the Judge to account for Ms Maxwell’s poor criminal history, say, in the order of 40 months.3 But the total absence of consideration of personal mitigating factors meant that the sentence did not correctly engage the sentencing framework, or the purposes and principles of sentencing. No regard was given to the causative factors underpinning Ms Maxwell’s offending and no informed assessment of her capacity to rehabilitate was made. The sentence is therefore erroneous.

1      Tutakangahau v R [2014] NZCA 279 at [31]-[35].

2      She has eight convictions for burglary, three for receiving, five for theft, 36 for dishonest use of a document, one for obtaining by deception and one for unlawfully taking a motor vehicle.

3      The Judge refers to a discount of 25 per cent from “42” months in her judgment but that does not tally with the end result.

[17]   In fairness, the Judge did not have any of the background information which is now available to me. The PAC report was woefully inadequate. There is no background information in that report that might have assisted the Judge in forming a view about Ms Maxwell’s personal circumstances and how they might bear on culpability and/or rehabilitation. That report refers to three earlier reports. These were not made available to me, but I am advised that these reports contained no further background information, other than a record of Ms Maxwell’s extensive criminal history. Therefore, like the Court of Appeal in Betteridge,4 I consider that the PAC report was so deficient as to be prejudicial to Ms Maxwell.

[18]   With the benefit of Ms Maxwell’s affidavit, I am satisfied a reasonably substantial  personal  circumstances  discount  should   have   been   afforded   to   Ms Maxwell. In this regard, I note that the following relevant key factors identified in s 27 are engaged:

Relationship of background to offending

(a)Ms Maxwell’s upbringing was marred by [redacted] abuse which left her emotionally scarred and vulnerable;

(b)Ms Maxwell left home at 16, without having completed her schooling, which would have left her ill-equipped to cope with life’s demands;

(c)Ms Maxwell moved into a social context where drugs, violence and criminality were normalised – and she was physically abused;

(d)Ms Maxwell became addicted to methamphetamine; and

(e)her offending coincides with her life immersed in drugs, violence, and episodes of trauma.

4      Betteridge v R [2019] NZCA 513.

Processes tried to resolve issues relating to the offending

(f)Ms Maxwell has endeavoured to rehabilitate and address her methamphetamine addiction on several occasions and, while she has failed to do so, those failures must be seen in a context of ongoing trauma, including physical abuse and loss of loved ones; and

(g)most recently, Ms Maxwell has endeavoured to complete rehabilitation programmes and was about to gain entry into a residential programme before succumbing to her addiction again.

How support from family, whānau or community may be available to help prevent offending

(h)Epsom Lodge has confirmed that it  can  offer  accommodation  to  Ms Maxwell; and

(i)Ms Maxwell will be subject to the rules of the Lodge, including drug testing.

[19]   Mr Kang, responsibly in my view, suggested a discount of 15 per cent (inclusive of remorse) is available to Ms Maxwell. But I think this inadequately reflects Ms Maxwell’s reduced actual and relative culpability – there is a clear nexus between her cycle of offending and her vulnerability brought on by an upbringing immersed in violence [redacted], an ongoing pattern of abuse at the hands of violent partners, and her drug addiction. It also inadequately responds to her capacity to rehabilitate, at the age of 40, if enabled to do so within the right setting – as here – Epsom Lodge.

[20]   What then is the appropriate discount? For my part, a discount between 20-30 per cent is available,5 which is sufficient to trigger consideration of home detention. To elaborate, on a starting point of 40 months, a discount between 20-30 per cent would bring the starting point between 28-32 months.  After a further discount for

5      See S-G v Heta [2018] NZHC 2453 at [59]-[60], [64]-[65]; in Zhang v R [2019] NZCA 507 at

[157]-[162], [149], [201], [224], [258]-[259].

guilty plea of 25 per cent, that would result in an end sentence of imprisonment of anywhere between 21-24 months.

[21]   So, I  allow  the  appeal.  The  sentence  of  imprisonment  is  quashed.  As Ms Maxwell has served 3.5 months of her sentence and was remanded in custody for about four months, I commute her sentence to eight months’ home detention (from a starting point of 12 months) commencing from 12.00 pm, 21 February 2020. I note in this regard that Ms Maxwell in fact hoped for a reasonably lengthy period of home detention at Epsom House, to ensure that she has access to its rehabilitative programmes.

[22]   I direct that parts of this judgment be suppressed to maintain Ms Maxwell’s privacy. Those parts have been blanked out accordingly.