Minchin v Police - [2017] NZHC 2004

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2017-454-11 [2017] NZHC 2004

BETWEEN
KYLIE JASMINE MINCHIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 August 2017

Counsel:

J A Younger for Appellant
J J Harvey for Respondent

Judgment:

22 August 2017

JUDGMENT OF THOMAS J

Introduction

[1] On 27 June 2017, the appellant, Kylie Minchin, was sentenced to six months’

imprisonment on three charges of theft by shoplifting of items valued at less than

$500.1 The maximum penalty in respect of each charge is three months’ imprisonment.2 Given her personal circumstances, which included the terminal illness of her partner, Ms Minchin was admitted to bail pending her appeal against sentence.

[2] Ms Minchin appeals against the sentence on the grounds it was manifestly excessive.

Factual background

[3] Ms Minchin is 37 years old. She lives with her partner and four year old great niece, for whom she cares permanently.

1 Police v Minchin [2017] NZDC 13925.
2 Crimes Act 1961, s 223(d).

MINCHIN v NEW ZEALAND POLICE [2017] NZHC 2004 [22 August 2017]

[4] Ms Minchin committed three separate acts of shoplifting. On 6 November

2017, she stole milk, chocolate and potato chips valued at $37.48 from a Z-Energy petrol station. She has since paid reparation. On 19 February 2017, while on bail for the earlier offending, Ms Minchin stole meat and razor blades with a value of $90 from a New World store. On 13 April 2017, Ms Minchin stole stamp collecting items valued at $100 from a New Zealand Post store.

[5] Ms Minchin pleaded guilty to each charge at early opportunities: at the second appearance following disclosure for the first; at a case review hearing for the second; and at the first appearance for the third.

[6] Ms Minchin has over 70 convictions amassed over 19 years. Over half of these relate to theft. She has variously been sentenced to community work, supervision, community and home detention, and imprisonment. Her latest sentence, imposed for theft under $500, was one month and two weeks’ home detention, with standard and special conditions.

Pre-sentence report

[7] The pre-sentence report recommended home detention with post-sentence conditions for at least six months. The conditions were to attend alcohol and drug assessments, to attend a psychological assessment, and to attend any treatment, counselling, or programmes as recommended by those assessments or by a probation officer.

[8] The writer considered Ms Minchin to have a low risk of harm to others, but high risk of reoffending. The writer noted there had been no escalation in her offending. She had recently completed a home detention sentence with post-detention conditions successfully. This, combined with her remorse to her victims, led the writer to assess her willingness and ability to comply with such a sentence as high. That sentence would limit her ability to shoplift, hold her accountable, and provide rehabilitative measures suited to her current problems, which were assessed as alcohol and drug use, and offending-supportive attitudes. The writer did, however, acknowledge that a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 2004
Decision Date: 22 August 2017

CaseChat Overview and Summary

In Minchin v Police, Kylie Minchin appealed against the sentence of six months' imprisonment imposed by the District Court for three shoplifting charges, each involving items valued at less than $500. The High Court was required to decide whether the sentence was manifestly excessive and whether the District Court erred in not considering a sentence of home detention.

The Court held that the sentence was manifestly excessive because it did not adequately account for mitigating factors such as Minchin's early guilty pleas and her difficult personal circumstances, including the terminal illness of her partner. The Court found that the appropriate global starting point should have been five months' imprisonment, but a significant discount for the guilty plea and the mitigating circumstances brought the appropriate sentence to around three and a half months' imprisonment. Additionally, the Court found an error in the District Court's failure to consider a sentence of home detention as a less restrictive alternative, especially given the short duration of the sentence and the potential for rehabilitation.

The High Court allowed the appeal and substituted the sentence with one of eight weeks' home detention with special conditions aimed at addressing Minchin's rehabilitative needs. These conditions included attending alcohol and other drug assessments, psychological assessments, and any recommended treatment or programmes.

Orders