O'Brien v Police HC Wanganui CRI 2009-083-2789

[2010] NZHC 1005

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2009-083-2789

BETWEEN  NATASHA LEE O'BRIEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 March 2010

Counsel:         M Bullock for Appellant

J Woodcock for Respondent

Judgment:      31 March 2010

ORAL JUDGMENT OF MILLER J

[1]      Ms  O’Brien  appeals  against  a  sentence  of  nine  months  imprisonment imposed on one charge of burglary.

[2]      The facts are that she and a co-offender went to a residential property in her car.  The property was entered and a large number of items, including a television set and valued at some $7,900, were taken.   She denies entering the property herself, although that seems implausible;   in any event it makes no difference to her culpability.

[3]      Ms O’Brien has two previous burglary convictions, two for theft, two for receiving and one for unlawful taking of a motor vehicle, all committed since 2003.

[4]      The present burglary occurred on 9 October 2009 and she was apprehended several days later.  She pleaded guilty on 1 February 2010, shortly before committal.

O'BRIEN V NEW ZEALAND POLICE HC WANG CRI 2009-083-2789  31 March 2010

[5]      The Judge adopted a starting point of 15 months imprisonment having regard to the moderately serious burglary.   In mitigation he noted that she had pleaded guilty and that she had been out of trouble for some time.  (She has a long list of convictions but her most recent offence of dishonesty was committed on 10 February

2007.)

[6]      The Judge refused home detention.   His reasons are unclear – indeed, it appears he may have thought the sentence was unavailable – but it is implicit in his sentencing  notes  that  he  focused  on  deterrence  and  the  need  to  protect  the community.

[7]      On appeal, Mr Bullock argues that an insufficient discount was given for mitigating factors.   The starting point is not challenged, but it should have been reduced  by  50  per  cent  having  regard  to  her  co-operation  with  police,  which extended  to  naming  her  co-offender.    At  sentencing  the  police  accepted  that  a discount of 50 per cent was appropriate.

[8]      The police respond that the sentence was correct.  Although they accepted a discount of 50 per cent for mitigating factors, the starting point should have been higher and the end result was consistent with the submissions made before the Judge.

[9]      Ms O’Brien is a recidivist burglar in terms of Senior v Police, but the number of previous relevant convictions is not large.   Nonetheless, burglary is a serious offence and protection of the public is a significant consideration.  A starting point of

15 months was available.

[10]     The Judge apparently was not aware that Ms O’Brien was pregnant.   Her release date is in July, and her confinement is due in August, although she contends that she faces complications, which mean the baby is likely to come early.  Counsel also submits that she has employment and a stable relationship.

[11]     None of these considerations establish that the end sentence of nine months imprisonment was manifestly excessive.   So far as her pregnancy is concerned, I

would not accept without evidence that she is unable to obtain good medical care at

Wellington Women’s Prison, where she is close to a major hospital.

[12]     Turning to the refusal of home detention, I accept that I should approach the decision afresh in light of the Judge’s reasons.  I have concluded that a sentence of home detention is appropriate for several reasons.

[13]     First, I acknowledge that accountability is an important consideration in cases such  this,  in  which  a  moderately serous  burglary is  committed  by  a  recidivist. Because burglary is committed for profit, it is an economic crime which requires deterrent sentences.   I acknowledge too that she has a number of convictions for breaching  Court  orders.    Second,  and  against  that,  I  note  that  although  she  a recidivist, she is at the lower end of that category.  Third, and importantly, her guilty plea and co-operation with the police were reflected in their acceptance that overall

50 per cent discount was appropriate  and those matters may be reflected in an appropriate case in selection of a less restrictive sentence.  Fourth, I note that her rate of offending has greatly reduced with no relevant offences in the past two years. That appears to be attributable to changed domestic circumstances and perhaps to recent attempts to rehabilitate herself for which some credit should be given.  Lastly, pregnancy is also a relevant consideration, although not a substantial one given the short term of imprisonment and her release date.

[14]     All in all I consider that she should be given the opportunity for rehabilitation that a sentence of home detention reflects.  For these reasons her sentence is set aside and I substitute a sentence of four and a half months of home detention.  Ms O’Brien is at Arohata and will need to be released.  On her release she is to travel directly to

67 Niblet Street, Wanganui and await the arrival of the probation office and representative of the monitoring company.   The conditions of home detention are otherwise as recommended by the probation officer, namely:

•    To  reside  at  67  Niblet  Street  Wanganui  for  the  duration  of  the  Home

Detention sentence;

•    Not to consume or possess alcohol or illicit drugs for the duration of the

Home Detention sentence;

•To attend and complete a psychological assessment and any counselling as may be suggested by that assessment and as may be directed by the Probation Officer;

•To  attend  and  complete  any other  counselling  or programme  as  may be directed by the Probation Officer.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for Respondent