Saia v The Queen

[2012] NZHC 1066

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-419-5 [2012] NZHC 1066

MAREE SAIA

Appellant

v

THE QUEEN

Respondent

Hearing:         17 May 2012

Counsel:         L Walkington for Appellant

R Annandale for Respondent

Judgment:      17 May 2012

ORAL JUDGMENT OF TOOGOOD J

Solicitors:

L Walkington, Barrister, Hamilton:  [email protected]

R Annandale, Almao Douch, Hamilton:  [email protected]

SAIA V R HC HAM CRI2012-419-5 [17 May 2012]

[1]     Maree Saia has appealed against a sentence incorporating five months’ community  detention,  180 hours’  community  work,  and  12 months’  supervision imposed by Judge Connell in the District Court at Hamilton following her guilty pleas  to  10 charges  of  theft  by  shoplifting.    She  contends  that,  having  regard particularly to positive personal factors, the overall sentence was manifestly excessive.

The nature of the offending

[2]      On 8 December 2011, the appellant and two associates embarked on a spree of shoplifting throughout the Bay of Plenty and Waikato regions.   The offending began  in  the Tauranga  area  at  about  midday and  ended  in  Cambridge  at  about

9:50 pm  when  the  offenders  were  apprehended  by  the  Police.    The  offending included stealing food from Countdown Cambridge to a total value of $576.66, and from a New World store totalling $1,797.30.  Clothing valued at $1,227.63 was taken from The Warehouse and $1,078.00 worth of clothing was stolen from K-Mart.

[3]      The sentencing Judge said that he had reached “a very firm conclusion that this was a premeditated and organised shoplifting spree on a very large scale”.[1]   That is a fair description.

[1] R v Saia DC Hamilton CRI-2012-019-345, 1 March 2012 at [4].

[4]      The appellant suggested that in the early stages of the spree she had merely been an observer, but admitted that she had joined later in Cambridge.  The Judge was entitled on account of the guilty pleas, however, to conclude that she should be treated as being equally culpable with her co-offenders.  The appellant was found by the Police leaving the Cambridge Countdown with a pushchair loaded with stolen property.   At a later point, the co-offenders were picked up by the Police in Cambridge and a search of the vehicle they were using revealed that the boot was laden with stolen property from the offending.

[5]      Bearing in mind the graduated scale of maximum sentences available for theft depending on the value of the property taken, the appellant faced a maximum

penalty of seven years’ imprisonment on three of the charges; a maximum of one year’s imprisonment on two of the charges; and a maximum of three months’ imprisonment on the remaining five charges.

Personal factors relating to the appellant

[6]      The appellant is 24 years old and apart from one conviction for driving with excess breath alcohol and other traffic offences, she has no history of offending.  She is obviously an intelligent and capable young woman having obtained formal NZQA qualifications at secondary school and successfully completing the first year of a Health Sciences degree in 2006.  She had been accepted into Dentistry School but was unable to begin that course because of her pregnancy of her now four-year-old daughter.  The appellant was in regular employment in 2009 and 2010 but that was terminated as a result of emotional difficulties she suffered in a relationship break- up.   At the time of her sentencing, and I think still, Ms Saia was living with her mother,  a  16-year-old  brother  and  her  four-year-old  daughter.     Her  family background is described as supportive and stable.

[7]      It seems clear that this offending was wholly out of character.  Although she may have had little choice but to do so, the appellant readily admitted her offending to  the  Police  and  pleaded  guilty before the Community Magistrate  on  her  first appearance in Court.  The probation officer recorded, consistently, that the appellant accepted responsibility for her part in the offending, did not try to justify her actions and acknowledged there was no excuse for stealing.  It seems that her involvement was motivated solely by difficult financial circumstances and a wish to provide for her  family at  Christmas.    She  presented  to  the  probation  officer  as  being  very remorseful and said that she would have liked to have apologised directly to her victims.  She offered to contribute around $30 per week towards reparation.

[8]      The probation officer deemed her to be a low risk of reoffending, and there was no indication of any harmful pattern of drug or alcohol abuse or gambling.

[9]      The probation  officer noted  that  the appellant  displayed  a  good  level  of insight into her offending behaviour and appeared very motivated to address the

causes of it.  The probation officer said that the appellant had expressed awareness that she was at risk of a custodial sentence, given the magnitude of her offending, but the Court was invited to consider less restrictive sentencing options in view of her previous good record and the other factors mentioned.   A community detention sentence was seen as providing appropriate punishment and accountability but one which would enable her childcare commitments to continue.  It was suggested that a supervision sentence would enable the appellant to address her rehabilitative needs and offending behaviour, and that a community work sentence would provide an additional punitive measure, 400 hours being available to the Court.

The approach taken by the District Court Judge

[10]     Against a background which was surprisingly positive given the nature of the offending, the District Court Judge said that he had weighed up the prospect of a term of imprisonment very carefully before accepting the recommendation to impose community-based sanctions.

[11]     He noted the absence of prior convictions for offences of dishonesty, and said that that would result in some credit being given to the appellant together with credit for entering pleas of guilty.   The  Judge referred to the positive features of the appellant’s background, including her education history, and observed the serious consequences for her of the convictions in terms of future overseas travel.   The Judge noted the appellant's insight into her behaviour and the high level of remorse and the public apology which the appellant apparently made in Court at the sentencing.

[12]     The Judge concluded his discussion by saying that the circumstances and his assessment of culpability led him to conclude that a five-month term of community detention was warranted.  He said that he acknowledged what counsel for the Crown and the appellant had referred him to in terms of the Sentencing Act, saying that the five-month community detention sentence was one which took account of the plea of guilty which, along with community work and supervision, had regard to the important aspect of the Sentencing Act which said that he must consider the appellant’s circumstances and her future as a young person.

Submissions on behalf of the appellant

[13]     Ms Walkington has argued, nevertheless, that although certain aggravating and mitigating factors were referred to at various times by the District Court Judge in sentencing  the  appellant,  there  was  an  absence  of  analysis  in  his  reasoning  to attribute a starting point to reflect the offending and to move on from that by a quantified recognition of aggravating and mitigating factors relating to the appellant personally and then to quantify the discount for her very early pleas of guilty.

[14]     In  submitting  that  the   sentences  imposed  were  manifestly  excessive, Ms Walkington  submitted  that  the District  Court  Judge  had  made the  following errors:

(a)      the Judge failed to articulate a principled approach to the sentencing, making it difficult to assess the extent to which the appellant had been allowed a discount for her early guilty pleas;

(b)      there was insufficient credit for the appellant’s sincere and palpable

remorse;

(c)      insufficient credit was  given for the assessment  that the appellant represented a low risk of reoffending;

(d)the   sentences   imposed  did   not   take  into   account   the   general desirability  of  consistency  with  appropriate  sentencing  levels  and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances (s 8(e) of the Sentencing Act); and

(e)      the sentence was not the least restrictive outcome as was required by s 8(g) of the Act.

[15]     In protesting that the overall effect of sentences imposed in this case was inconsistent with those imposed in others of a similar kind, Ms Walkington was able to find one example of a sentence being imposed for multiple shoplifting offences,

namely, Police v Nicol.[2]   There the offender pleaded guilty to six shoplifting charges related to offending on the same day to a total value of $8,000.  The offender was on parole at the time for offences involving dishonesty.  All of the property was recovered and following a positive pre-sentence report, a sentence of four months’ community detention was imposed.   Unlike the present case, there were no accompanying sentences of community or work supervision, although in that case, as Ms Walkington  acknowledged,  the  offender  was  still  subject  to  prison  release conditions.

[2] Police, Department of Corrections v Nicol DC Porirua CRI-2010-091-874, 4 May 2010.

[16]     Ms Walkington also submitted that in assessing aggravating or mitigating factors relating to the offending, the Judge failed to acknowledge and give credit for the fact that all stolen property was returned to the victims.

[17]     While acknowledging that the nature of the offending put the appellant at risk of a sentence of imprisonment, Ms Walkington submitted that a stand-alone sentence of community detention may well have been sufficient to mark the nature of the offending when all of the positive mitigating factors relating to the appellant were brought to account.

Submissions on behalf of the Crown

[18]     Mr Annandale submitted on behalf of the respondent that the sentence of the District Court Judge was justified having regard to the totality of the offending and the personal circumstances of the appellant.  He argued that the Judge’s decision to impose a combination of sentences was not only permissible in terms of s 19 of the Sentencing Act, but was also consistent with the recommendation of the probation officer.    He  argued  that  the  combination  of  sentences  demonstrated  that  Judge

Connell had paid regard to the least restrictive outcome[3] in circumstances where the

scale of the offending warranted the imposition of a  sentence of imprisonment, notwithstanding the appellant’s good record, her genuine remorse and her guilty pleas.

[3] Sentencing Act 2002, s 8(g).

[19]     Mr Annandale argued that the punitive elements of community detention and community work were appropriately engaged to meet the sentencing purposes of accountability, denunciation and deterrence.  He also submitted that the Judge was entitled to the view that a 12-month period of supervision was necessary to assist the appellant to reintegrate into the community and not reoffend.   Given that the appellant’s offending was motivated by her financial difficulties, supervision for the maximum period available of 12 months was appropriate to ensure monitoring and support.  He said that the extent to which Ms Saia needs direction and close contact with the Probation Service is a matter appropriately left to the discretion of the probation officer.

[20]     Mr Annandale noted that the other of the appellant’s co-offenders who has been sentenced received a sentence of 10 weeks’ imprisonment for the offending and other matters.[4]   I note that that offender’s personal circumstances were very different, including the fact that she has a long list of previous convictions, including for dishonesty, drug offending and breaches of Court orders.   In the circumstances, I view the sentence imposed on that offender as lenient.

[4] R v Kerr DC Tauranga CRI-2012-19-1819, 21 March 2012.

[21]     While  acknowledging  that  the  Judge  did  not  specify the  amount  of  any discount for the appellant’s guilty pleas or the extent to which the sentence had been reduced on that account, Mr Annandale submitted that the Judge had plainly taken the guilty pleas into account in deciding not to impose a sentence of imprisonment and that it was the end sentence that must be examined on appeal, rather than the

precise process by which the sentence was reached.[5]

Discussion

[5] R v Peters CA12/03, 14 May 2003 at [13].

[22]     Judge Connell’s sentencing notes indicate that he had read the comprehensive pre-sentence report with some care and had taken on board the probation officer's recommendation, and counsel’s submissions, in support of community-based sentences.   But although the Judge said that he had acknowledged his obligations under the Sentencing Act and given credit for the appellant’s good character, her

remorse and her pleas of guilty, his generalised approach does not specify how the sentences imposed reflected those considerations.  It is clear that the appellant has been left with the impression that the District Court Judge did not, in fact, give her the credit to which she said she was entitled.

[23]     Among  the  reasons  why  contemporary  sentencing  practice  requires  a structured approach are that it assists the courts to achieve consistency of sentencing as required by the Act, and that it enables offenders to understand the basis upon which they have been sentenced, so offenders can be satisfied that the task has been undertaken analytically, rather than by the exercise of a broad discretion by the sentencer.

[24]     The staged approach was summarised recently by the Court of Appeal in R v

Clifford in this way:[6]

[6] R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23

[60]      ... Adapting the guidance given in R v Taueki, in light of this Court’s judgment in Hessell (CA) and the correction of that judgment in the Supreme Court’s judgment in Hessell (SC), the appropriate staged approach to sentencing is:

(a)       Step  one:  starting  point  involving  the  assessment  of  the gravity of the offending, including any mitigating or aggravating factors relating to the offence.

(b)       Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.

(c)       Step three: a discount for a guilty plea if the offender has pleaded  guilty. This  should  take  into  account  the  factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 per cent prescribed by the Supreme Court in that judgment.

(Footnotes omitted)

[25]     The cases most commonly before the Higher Courts are those which are sufficiently serious to justify a presumption that the starting point will be a term of imprisonment  for  more  than  two  years.    In  those  circumstances,  the  three-step

approach is one which poses no particular difficulty for a sentencing Judge.

[26]     But there is no guideline judgment for sentencing for shoplifting, no doubt because the circumstances of such offending are infinitely various, as the staggered approach to sentencing required by s 223 of the Crimes Act 1961 demonstrates. Furthermore, such cases are most commonly dealt with in District Courts by Judges dealing with lengthy lists of cases where there are often no sentencing notes, so it is not easy without comprehensive research to identify a pattern of sentencing which might provide assistance in endeavouring to achieve consistency which is one of the sentencing considerations required by s 8.

[27]     More significantly, once a Judge has determined that a community-based sentence is appropriate, and then turns to consider the mix of sentences appropriate to meet the sentencing purposes set out in s 7, the more nuanced approach required is not easily susceptible to percentage discounts for remorse and guilty pleas.

[28]     I am satisfied that in this case the District Court Judge approached this case with care and concern.   Bearing in mind the seriousness of the offending and the need for general deterrence, because of the effect of this type of offending on the business community, a sentence of imprisonment was one which was available to him.  It follows that his decision to impose a community-based sentence instead is tangible recognition of the guilty pleas, the remorse, the appellant’s good character, and her rehabilitative prospects.

[29]     I do not consider it relevant that the property, or most of it which was stolen during this enterprise, was recovered.   That was merely fortuitous based on the alertness of the Police who apprehended the offenders very soon after the offending. It reflects no credit at all on the offenders or this offender in particular.

[30]   Judge Connell’s thoughtful discussion of the sentencing issues may be contrasted with the two or three sentences used by the Judge who sentenced Ms Kerr in discussing his  approach which contained no  analysis of the offending or the offender’s circumstances.   I consider Ms Kerr to have been fortunate not to have received a sentence of between six and 12 months’ imprisonment.   Similarly, the more lenient sentence imposed upon Mr Nicol by a very experienced District Court Judge should not determine the appropriate sentence in this case.

[31]     Ms Walkington   submitted   that   the  combined   sentences   of  community detention and community work have had a crushing affect on the appellant, and have resulted, for example, in her not being able to fulfil her ambition of returning to University this July.  But apart from the inconvenience and possible embarrassment of wearing an ankle bracelet and having to be home overnight, the restraints of community detention are far less restrictive than those of imprisonment.   As the mother of a four-year-old child, it could be expected that, in any event, Ms Saia’s ability to be out at night is limited.

[32]     I understand that the appellant is finding it difficult to accommodate her obligations with regard to community detention given that she has now obtained full time work in Auckland, which I am told started today.  The appellant also wishes to return to University in Auckland in due course.   But the terms of her community detention sentence require her to live in Tauranga and be at home between 7:00 pm and 7:00 am.  It is undesirable that she should be obliged to travel to Auckland and back each day to fulfil her work obligations.  The appellant is to be commended for obtaining employment and should be encouraged to maintain it, so I record my view that appropriate variations to the terms of the community detention order should be made as a matter of urgency.

[33]     Another Judge may have looked  at imposing community detention  for a shorter period of say three or four months, but to reduce that aspect of the appellant’s sentence now would be to apply a degree of hindsight bearing in mind the positive response of the appellant since she was sentenced, and it would involve tinkering with the District Court Judge’s overall approach.  The period of supervision imposed is designed to assist the appellant, not to punish her, and the Probation Service has the means  to  apply the  appropriate  degree  of  intervention  and  to  terminate the supervision early if the circumstances warrant it.

[34]     In all of the circumstances, I consider the sentences imposed by the Judge to have  been  within  the  range  of  options  to  him.    It  follows  that  they  were  not manifestly excessive and the appeal is dismissed.

............................................

Toogood J