Soloman (aka Hanks) v The Queen - [2012] NZCA 300

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/2012
[2012] NZCA 300

BETWEEN MALINDA-LOUISE SOLOMAN (AKA MALINDA-LOUISE HANKS)
Appellant

AND THE QUEEN
Respondent

Hearing: 3 July 2012

Court: Wild, Heath and Keane JJ

Counsel: A J Bailey for Appellant
P D Marshall for Respondent

Judgment: 10 July 2012 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of 18 months’ intensive supervision is quashed, and a sentence of 12 months’ supervision substituted.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

This appeal is against one only of three sentences imposed on the appellant, Ms Soloman, by Judge Callaghan in the District Court at Christchurch.[1]
[1] R v Hanks DC Christchurch CRI-2010-009-7865, 21 February 2012.
Ms Soloman’s submission is that there was not a proper basis for the Judge to sentence her to intensive supervision. The appropriate sentence was supervision.

Background

On 25 May 2010 Ms Soloman was apprehended shoplifting at a store in Christchurch. She was escorted to the store’s security office. While being spoken to there she assaulted first one, and then a second, female staff member.
Ms Soloman was charged with theft from the store and with two charges of assaulting the store’s security officers. She was also charged with a related breach of bail. She pleaded guilty to the theft charge and to the charge of breaching bail in June 2010. Following a trial in January 2011 she was found guilty of two charges of assaulting the female staff members. The convictions for assault were entered on 25 January 2011. Ms Soloman was remanded for sentence.
A pre-sentence report was prepared, dated 3 March 2011. This recommended sentences of community work, reparation (at the rate the Court thought appropriate), and intensive supervision on the special conditions that Ms Soloman:
(a)participate in an assessment for alcohol and drug use and participate in any recommended intervention to the satisfaction of her probation officer; and
(b)undertake counselling as recommended by and to the satisfaction of her probation officer.
In the meantime, the Christchurch earthquake on 22 February 2011 had intervened.
It was not until 21 February 2012 that Judge Callaghan sentenced Ms Soloman. He imposed sentences of 175 hours’ community work, 18 months’ intensive supervision on the special conditions set out in the pre-sentence report, and reparation totalling $1,014.99 to be paid at $20 per week.
Thus, 21 months elapsed between the offending and sentencing, and almost a year from the completion of the pre-sentence report to the sentencing.

The pre-sentence report

There are two relevant aspects to this. First, it records Ms Soloman accepting that she “has an alcohol problem” and was drunk when she committed the offences. The report states that this alcohol problem goes back a number of years, and that Ms Soloman had last been assessed by the Community Alcohol and Drug Service in the latter part of 2009, when the recommendation was to engage with the Service before undertaking residential treatment. The report records that Ms Soloman’s “problematic…

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.

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Details

Case: [2012] NZCA 300
Decision Date: 10 July 2012

CaseChat Overview and Summary

In the case of Soloman (aka Hanks) v The Queen, the appellant, Malinda-Louise Soloman, challenged the sentence of 18 months' intensive supervision imposed by the District Court at Christchurch, arguing that the appropriate sentence was 12 months' supervision. The appeal was heard by Wild, Heath, and Keane JJ in the Court of Appeal of New Zealand on 3 July 2012. The primary legal issue was whether the District Court Judge had properly applied the requirements of the Sentencing Act 2002 when imposing the sentence of intensive supervision on Ms Soloman. The Court found that the Judge did not adequately consider the statutory criteria for imposing intensive supervision, as required by s 54C of the Sentencing Act, nor did the Judge explain why intensive supervision was necessary in this case. Furthermore, the Court held that the Judge failed to consider the appellant's conduct and lack of reoffending over the two years since the original offence, which was relevant to the sentencing decision. As a result, the Court of Appeal allowed the appeal, quashed the sentence of 18 months' intensive supervision, and substituted a sentence of 12 months' supervision with the same special conditions. The other two sentences, community work and reparation, were left unaffected.

Orders