Tamaka v Police

[2012] NZHC 2340

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-76 [2012] NZHC 2340

BETWEEN  HUIA TAMAKA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 September 2012

Counsel:         C Milnes for Appellant

S A McClean for Respondent

Judgment:      12 September 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1]      Ms Tamaka was sentenced in the District Court at Lower Hutt to two months’

imprisonment on six shoplifting charges.

[2]      This was by no means the first time Ms Tamaka had been convicted of such offending.   She has 29 previous convictions for shoplifting.   The property stolen (mostly clothing) was recovered, but $25.60 worth of groceries stolen from New World Thorndon was damaged in the course of disposal as Ms Tamaka was chased by security staff from the supermarket.

[3]      On the most recent occasions on which Ms Tamaka had been convicted of shoplifting, in 2010/11, the sentences imposed were reparation, community work (100  hours)  and  community detention  (four  months).    Between  2006  and  2010

Ms Tamaka’s record was clean.  In 2004 she was also given six months’ supervision

on shoplifting charges.  Ms Tamaka had not previously been sentenced to any term of imprisonment.

TAMAKA v NEW ZEALAND POLICE HC WN CRI 2012-485-76 [12 September 2012]

[4]      The Judge felt on this occasion it was necessary to imprison Ms Tamaka.  In part that was because, as the Judge put it:

You do not consent to a home detention sentence because you fear that will impact on the children.   I think you should have thought of those sorts of things before you went out stealing on this day.

[5]      Unfortunately, the Judge’s impression was mistaken.   A satisfactory home detention address in Taita existed.  The Department of Corrections report stated that a sentence of home detention had been refused by Ms Tamaka for the reasons given by the Judge.  But that was wrong.  Ms Milnes (who appears for Ms Tamaka) has produced the electronic monitoring offender agreement signed by Ms Tamaka. Contrary to the impression given to the Judge by the Department of Corrections report, Ms Tamaka had consented to home detention.  She had not signed the section of the report refusing to consent with an electronic monitoring sentence at all.

[6]      It   follows   that   the   sentencing   of   Ms   Tamaka   has   proceeded   on   a fundamentally mistaken premise. A sentencing option available to the Court was not considered, because of an error in the Corrections Department report.   That error does not seem to have been picked up by anyone – Judge or counsel – at the time of sentencing.

[7]      I accept that this is a case in which a custodial sentence was appropriate.  I distinguish the position of Ms Tamaka from another offender, who was involved in some of the offending, a Ms Heke, whose appeal against sentence I have today allowed.  Ms Heke was sentenced by the Judge to six weeks’ imprisonment, but I have concluded that that sentence was manifestly excessive given, in particular, Ms Heke’s previous record and the importance of having regard to s 8(g) of the Sentencing Act 2002 which requires that in sentencing an offender the Court must take   into   account   the   least   restrictive   outcome   that   is   appropriate   in   the circumstances.  Ms Tamaka’s position is different from that of Ms Heke, because her previous record is considerably worse.   Whereas I set aside the sentence of imprisonment in the case of Ms Heke, I am not prepared to set aside the custodial aspect of the sentence in relation to Ms Tamaka.   With 29 prior offences, it was inevitable Ms Tamaka would face a short custodial sentence.   She is a recidivist

shoplifter.    A  sentence  of  four  months’  community  detention  and  100  hours’

community work served in 2010/11 has not served as a deterrent.

[8]      In all the circumstances of this case the imposition of a custodial sentence of two months would not have been inappropriate (a starting point of three months – two months on the first charge plus a further one month on the remaining charges, to be served cumulatively – but allowing a 30 per cent discount for remorse and the plea of guilty).  But assuming home detention was available, and it appears that it is, that would have been the proper means of incarceration before taking the fateful step of imprisonment.

[9]      I accept Ms Milnes’ submission that it is not now practical for Ms Tamaka to be placed on home detention, given that she has already served approximately half of her sentence.

[10]     The sentence in the District Court is set aside.  A sentence of one month’s imprisonment is instead directed. For the Crown Ms McClean accepts that is an appropriate course of action.  The reparation order in favour of New World for the sum of $25.60 will stand.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Respondent