Perry v Police HC Wellington CRI 2010-485-65

[2010] NZHC 2044

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-000065

BETWEEN  SHANNA LEIGH PERRY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 September 2010

Counsel:         K Jefferies for the Appellant

J A Ongley for the Respondent

Judgment:      28 September 2010

ORAL JUDGMENT OF WILD J

[1]      Ms Perry appeals against a sentence of five months home detention imposed on her by Judge Kelly in the District Court at Porirua on 13 May.   Ms Kelly had pleaded guilty to 14 charges of theft spread over a period of three months.  She had stolen goods from various shops to a total value of $2,555.

[2]      Ms Perry is 28, and the mother of three children aged between 8 and 11.  She explained that her offending had been committed to fund a drug addiction, in particular to methamphetamine.  Ms Perry has 19 previous convictions, dating back to 2000.  They are for assaults, wilful damage, disorderly behaviour, EBA offending, but I think Mr Jefferies is correct in saying that none is for dishonesty.

[3]      Judge Kelly took a starting point of 12 months imprisonment.  She uplifted that by three months to reflect the fact that all this offending had been committed while Ms Perry was on bail.  To the increased sentence of 15 months imprisonment

she then applied a discount of 20% for guilty pleas entered at various times, reducing

PERRY V NEW ZEALAND POLICE HC WN CRI 2010-485-000065 28 September 2010

the sentence back down to 12 months imprisonment.  Although the recommendation in  the  probation  report  was  for  a  term  of  imprisonment,  the  Judge  imposed  a sentence of home detention.   She was obviously concerned about the appellant’s three young children.   That seems to be the pivotal consideration.   She took into account the fact that Ms Perry had spent seven weeks remanded in custody.   In imposing sentence she cancelled an existing sentence of 280 hours community work and remitted Ms Perry’s unpaid fines totalling $3,425.  She also imposed a sentence of reparation.  She ordered Ms Perry to make reparation of $2,555, that is the total value of what she had stolen, at the rate of $20 per week.

[4]      Mr Jefferies’ submission on appeal is that the sentence of five months home detention imposed on top of the seven weeks Ms Perry had spent remanded in custody equates to a sentence of 15 months imprisonment, which he contends would have been manifestly excessive.  Mr Jefferies submits that is a sentence at a level reserved for serial dishonesty.  Given that Ms Perry had completed about six weeks of her sentence of home detention before she filed this appeal and the sentence was suspended, Mr Jefferies asks that the appeal be allowed, and the sentence imposed, insofar as it has not been served, simply be quashed.  In short, he says that Ms Perry has served a sufficient sentence either in remand prison or detained in her own home.

[5]      If Mr Jefferies were correct in accepting that time served plus the sentence under appeal commutes to a sentence of 15 months imprisonment, then I would accept that the sentence was manifestly excessive.   It is sufficient to look at two cases to see that that is right.  In the first, Sims v Police HC Christchurch CRI 2008-

409-145, 11 September 2008, the appellant had been charged with seven counts of theft by shoplifting.   Like Ms Perry, he was stealing to support a drug habit.   A sentence of 14 months imprisonment was imposed.  Fogarty J upheld this on appeal. The point about Sims is that the appellant had a history of offending with convictions for theft going back as far as 1995.  The second case is Faben v R HC Hamilton CRI

2007-419-109, 26 September 2007.   Ms Faben had been sentenced to two years imprisonment on 10 counts of theft.   She had stolen goods valued at $3,300 from shops over a period of about 15 months.  She was also ordered to make reparation. On appeal, Randerson J reduced that sentence to 18 months imprisonment.  Again, the point is that Ms Faben had 32 previous convictions for shoplifting.

[6]      However,   I   do   not   accept   Mr   Jefferies’   conversion   to   15   months imprisonment.  The Judge’s sentencing starting point was 12 months imprisonment. I consider that to be within the range available to her, although I consider it is at the upper end.  As Ms Ongley pointed out, that would normally convert to six months home detention.  The Judge imposed a sentence of five months home detention, so there is leniency there.  I also consider that the fact that two other sentences were effectively remitted needs to be factored in when considering whether the sentence under appeal is manifestly excessive.  I am referring to the quashing of the sentence of 280 hours community work imposed on 27 February 2009, and also the Judge’s remitting of fines of $3,425, which she expressly stated was “in lieu of the sentence of home detention imposed today”.

[7]      In all the circumstances, I am not persuaded that the sentence under appeal was manifestly excessive. The appeal is dismissed.

[8]      As requested by the Probation Service in its 27 September memorandum to this Court, I order that Ms Perry’s sentence continue to be suspended pending her next appearance in the District Court, where she faces charges of breaching her sentence of home detention and an application to cancel that sentence.

Solicitors:

Jefferies & Raizis, Wellington for the Appellant
Crown Solicitor, Wellington for the Respondent