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: lynwalkington@xtra.co.nz
R Annandale, Almao Douch, Hamilton: rba@almaodouch.co.nz

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…

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.

Continue reading Saia v The Queen

Details

AGLC: Saia v The Queen [2012] NZHC 1066
Case: [2012] NZHC 1066
Decision Date: 17 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Maree Saia appealed against a sentence imposed by Judge Connell in the District Court at Hamilton. The sentence was a combination of five months of community detention, 180 hours of community work, and 12 months of supervision. Saia pleaded guilty to ten charges of theft by shoplifting. She argued that the sentence was manifestly excessive, particularly considering her personal circumstances. The offending took place over a period of several hours on 8 December 2011, and involved stealing items from various stores throughout the Bay of Plenty and Waikato regions. The total value of the stolen goods amounted to approximately $5,679.59.

The legal issues in this case were whether the District Court Judge had applied an appropriate sentencing approach, and whether the sentence imposed was manifestly excessive. Saia argued that the Judge had failed to articulate a principled approach to sentencing, and had not given sufficient credit for her early guilty pleas, remorse, and low risk of reoffending. The Crown submitted that the sentence was justified, given the seriousness of the offending and Saia's personal circumstances. It was also argued that the combination of sentences demonstrated that the Judge had paid regard to the least restrictive outcome.

The Court found that while the Judge had considered the appellant's good character, remorse, and guilty pleas, his generalised approach did not specify how the sentences imposed reflected those considerations. However, the Court was satisfied that the Judge had approached the case with care and concern, and that the sentence imposed was within the range of options available to him. The Court also found that the sentence was not manifestly excessive and dismissed the appeal.

In light of the appellant's recent employment in Auckland, the Court recommended that appropriate variations to the terms of the community detention order should be made as a matter of urgency. The period of supervision imposed was designed to assist the appellant, not to punish her, and the Probation Service had the means to apply the appropriate degree of intervention and to terminate the supervision early if the circumstances warranted it.

Orders