Skeaping v Police

[2012] NZHC 1015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-42 [2012] NZHC 1015

BETWEEN  AMBER JANE SKEAPING Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 May 2012

Counsel:         J Schlebusch for the Appellant

F Nizam for the Respondent

Judgment:      14 May 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr J Schlebusch, Public Defence Service, North Shore

Ms F Nizam, Meredith Connell, Office of the Crown Solicitor, Auckland

SKEAPING V POLICE HC AK CRI-2012-404-42 [14 May 2012]

[1]      Ms Amber Skeaping appeals against sentence for theft of $20 of petrol.

[2]      The essential facts are as follows.  On 13 November 2011 at around 9:00 am Ms Skeaping put $20 worth of petrol in her car.  She told the cashier that she had forgotten her EFTPOS card and would return to pay at 11:00 am.  She did not return. She was arrested around nine days later.  She told police she had left a $200 mobile phone as security.  However, she did plead guilty and there is no further information about that phone.

[3]      Ms Skeaping initially pleaded not guilty.  This was on 25 November 2011. She  changed  the  plea  to  a  guilty plea  on  22  December  2011.    It  appears  that sentencing was deferred to 25 January 2012, for reasons noted in the pre-sentence report – in particular to enable a sentence of supervision to be considered.

[4]      Ms Skeaping was sentenced on 25 January 2012.[1]   Judge Dawson noted Ms Skeaping’s guilty plea.   He referred to personal circumstances noted in the pre- sentence report.  He noted that he had heard the submissions from Mr Schlebusch on behalf of Ms Skeaping.   He then said, at the conclusion of his short sentencing remarks:

[1] Police v Skeaping DC North Shore CRI-2011-044-007645, 25 January 2012.

[6]       The probation report notes you as reporting a high level of alcohol abuse and reports also some use of methamphetamine in the last year.  The factors   identified   as   contributing   to   your   offending   are   relationship difficulties with a known offender who is violent towards you, and alcohol abuse, which apparently has escalated since the time the relationship started. You appear to be a person of no fixed abode at this particular time. Supervision is the recommendation of the report.

[7]       Given this is now your second offence for theft and your limited means, I am convicting and sentencing you to a sentence of community work of 40 hours.   You are required to pay reparation of $20 to the Z service station at Greenlane by 15 February 2012.

[8]       I  am  also  sentencing  you  to  nine  months’ supervision,  with  the conditions set out in the probation report applying, in which you are to undertake drug and alcohol assessments and counselling as directed, and to undergo any other counselling as directed by the probation officer.   The purpose of imposing the sentence of supervision is to assist you, to help you find the means to avoid future offending so you can get on with your life.

[5]      The previous conviction for theft referred to was for an offence in July 2010. The criminal history records that on that occasion Ms Skeaping was directed to come up for sentence if called upon within six months.  This earlier offence is described as shoplifting.

[6]      Mr  Schlebusch  appeared  on  the  appeal  for  Ms  Skeaping  and  provided helpfully clear and concise written and oral submissions.   There are two principal submissions.   The first  is  that  Ms  Skeaping’s  circumstances  had  changed  since completion of the pre-sentence report on 6 January 2012.  The relevant matters were that Ms Skeaping had been granted a sickness benefit so there was a possibility she might be able to pay a fine; she had been allocated a Housing New Zealand home so that she could resume day to day care of her children aged 7 and 2 (who were at that time in the care of her mother); and another child was due to be born in April.

[7]      Mr Schlebusch responsibly acknowledged that although the Judge did not expressly refer to these matters, they were matters that Mr Schlebusch put to the Judge and it might properly be assumed that the Judge did take them into account without recording them in his brief sentencing notes in a busy list court.  That was a proper acknowledgement to make and I proceed on the basis that the Judge did take these matters into account.   In any event, the critical question is whether, having regard  to  these  and  all  other  relevant  circumstances,  of  the  offending  and  the offender, the end sentence was manifestly excessive.

[8]      Mr Schlebusch pointed to a number of factors which he submitted would support a conclusion that the sentence was manifestly excessive.  In respect of the offending he noted in particular that it was at the lower end of the scale for this type of offending.   I think it is reasonable to describe it as somewhat opportunistic, particularly bearing in mind Ms Skeaping spoke to the cashier.  However, that aspect of the offending might simply mean that a different type of offence was committed.

[9]      Mr Schlebusch emphasised the impact of this sentence on Ms Skeaping now that she has resumed day to day care of her two older children, and has a new born baby. This submission did, in my judgment, require careful consideration.  However, in the end I am satisfied that the sentence was not manifestly excessive.  To impose a

shorter period of community work would, to a considerable extent, amount to tinkering with the sentence rather than reducing one that is manifestly excessive. This conclusion is reinforced if regard is had to the discretion of the probation officer to  make  necessary  allowances  for  the  circumstances  of  a  person  required  to undertake community work.   There are other avenues also open to the probation officer if particular difficulties are created for Ms Skeaping in complying with this sentence.   There is also the nine months’ supervision with conditions relating to counselling.  However, that aspect of the sentence was clearly justified and, again, is something which  can  be managed  in  a  reasonable way to  meet  Ms  Skeaping’s responsibilities to her children.

[10]     For these reasons I am satisfied that the sentence imposed was not manifestly excessive.  In consequence the appeal is dismissed.

Woodhouse J