Theodore v Police

[2018] NZHC 2364

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2018-416-12

[2018] NZHC 2364

BETWEEN

DIANNA MARJI THEODORE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 July 2018, further material provided 15 July,

3 and 7 September 2018

Counsel:

V L Thorpe for Appellant

S L Graham for Respondent

Judgment:

7 September 2018

JUDGMENT OF ELLIS J

[1]    Ms Theodore appeals against a sentence of 25 months’ and two weeks’ imprisonment  imposed  by  Judge  Cathcart  in  the  Gisborne   District  Court   on 15 March 2018.1 The sentence was imposed following Ms Theodore’s pleas of guilty to one charge of burglary and one charge of common assault. Ms Theodore says that the sentence was manifestly excessive.

[2]    The notice of appeal was filed out of time but, in light of the explanation for the delay, it is appropriate to grant an extension of time and I do so, accordingly.2

1      R v Theodore [2018] NZDC 5141.

2      The reasons given for late filing were that her new counsel was assigned on 27 March 2018, it took several weeks to retrieve the file from Ms Theodore’s former lawyer and that her new lawyer made a decision to await the outcome of a sentence appeal by one of Ms Theodore’s co-offenders, Ms McClutchie. That appeal was declined by Grice J: see McClutchie v R [2018] NZHC 829 at [40].

DIANNA MARJI THEODORE v NEW ZEALAND POLICE [2018] NZHC 2364 [7 September 2018]

[3]    As it developed, the original hearing focussed on whether, in imposing a sentence that was six weeks shy of the home detention threshold, the Judge failed to have proper regard to Ms Theodore’s domestic circumstances, namely the care of her dependent children. Because there was a lack of clarity about the precise nature of those circumstances (including the number and age of children previously in her care), an adjournment was granted to enable inquiries to be made and further advice provided.

[4]    It was subsequently confirmed that, prior to her incarceration, Ms Theodore had had the care of three children (aged 6, 10 and 12) and that those children are now in the care of her mother. But the Court was also advised that the home detention address proposed at sentencing was no longer available. Two other possible addresses were proffered and a direction was made by me on 16 July 2018 that the feasibility of these addresses should be assessed, with the adjournment of the appeal to continue in the meantime.

[5]    It appears that assessment was completed on 8 August 2018. For reasons that are not yet clear, however, this assessment was not forwarded to me. So, I was not aware that it had been completed until 3 September 2018, when a memorandum was filed by Ms Thorpe on Ms Theodore’s behalf advising that she no longer sought to have a sentence of home detention substituted because she was optimistic that she would shortly be granted parole.

[6]    After receiving Ms Thorpe’s memorandum I asked the Registry to obtain a copy of the home detention assessment as a matter of urgency, and advised that I would issue my judgment by the end of today. I received a copy this morning. Its contents will be discussed in more detail later in this judgment. In short, however, it advised that neither of the alternative addresses put forward were deemed suitable. I also received today a further memorandum from Ms Thorpe advising that Ms Theodore does now wish the possibility of home detention to be considered. So, I proceed on that basis.

Facts

[7]    The following narrative is taken from the Summary of Facts, on the basis of which Ms Theodore entered her guilty pleas.

Burglary

[8]    Ms    Theodore,    her    two    co-offenders    (Ms    Emily    Wright     and Ms Tarina McClutchie) and the victim (Ms W) were all known to each other. At the time of the offending, Ms Wright was 25 years old, Ms McClutchie was 32 and     Ms Theodore was 30.

[9]    Prior to the offending, Ms McClutchie and Ms W had exchanged heated Facebook messages in relation to a debt Ms McClutchie said that Ms W owed her.

[10]   Mid-morning on 6 April 2017, Ms W and her two-year-old son were at home. Ms W’s half-sister, Ms L was also present. Ms Theodore and the two other women arrived at her address and parked in the driveway. All three got out of the car and walked to the back of the house. Ms W immediately locked the front sliding door. But as she went to lock the back door, she was confronted by the women.

[11]   Ms McClutchie then grabbed Ms W by the neck of her shirt and forced her into the wash-house next to the back door. She pulled Ms W’s hoodie over her face and held her head down; a struggle ensued between them. This allowed Ms Wright and Ms Theodore to enter the house through the back-door.

[12]   Once inside, Ms Wright and Ms Theodore removed Ms W’s cell phone and charger, a packet of tobacco, a wallet containing assorted credit cards and personal documents, collectively valued at $100. One of them also took the keys to the Ms L’s Toyota Hilux which was parked in the driveway.  The car was worth around $50,000.

[13]   Ms Wright and Ms Theodore left the house and returned to their car in the driveway. One of them handed the keys to Ms L’s car to a man who was waiting nearby. His  identity  remains  unknown.    The  man  got  into  the  Hilux  and  started  it.

Ms McClutchie let go of Ms W, ran down the driveway and got into the car in which the women had arrived. Both cars then drove away.

[14]   Neither Ms W nor anyone at the house suffered any injuries, although her victim impact statement spoke of ongoing fear and trauma. The Hilux was later recovered six days later in the Bay of Plenty, having been abandoned. It had sustained considerable damage and personal property had been taken from it.

Common assault

[15]   Five days after the burglary Ms Theodore and Ms W ran into each other in a bar. Words were exchanged about what had happened. Ms Theodore then punched Ms W once in the forehead and a passer-by pulled the two apart. Ms W sustained a small scratch to her right cheekbone and a small scratch under her left eye.

Sentencing in the District Court

[16]   The  Judge  sentenced  Ms  Theodore’s  two   co-offenders   together,3   but Ms Theodore separately, later.4 He expressed the view that the agreed facts revealed that all three women had worked together “as a team” and that on the lead charge of burglary, they were each equally culpable.5 He adopted a “global starting point” of  34 months’ imprisonment for all three women.6 Ultimately, Ms Wright was sentenced to 27 months’ imprisonment and Ms McClutchie was sentenced to 30 months’ imprisonment.7

[17]   In Ms Theodore’s case, the starting point of 34 months’ imprisonment was uplifted by three months to account for the common assault charge. The starting point therefore became one of 37 months’ imprisonment.

3      R v Wright [2018] NZDC 605.

4      R v Theodore, above n 1.

5      R v Wright, above n 3, at [22].

6      R v Theodore, above n 1, at [1] and R v Wright, above n 3, at [24].

7      The component parts of that final sentence are discussed later, below.

[18]   The Judge recorded the Provision of Advice to Courts (PAC) report writer’s view that Ms Theodore showed little insight into her offending. She had written a letter of remorse, which he described as “well-written”.8 Taking this together with the fact that Ms Theodore had not tried to shift responsibility for her offending to anyone else, the Judge accepted that she was genuinely remorseful.

[19]   The PAC report also noted that Ms Theodore had four children of whom she had custody. The Judge expressed concern for the welfare of her children but recorded that alternative care arrangements had been put in place.

[20]   The Judge gave a discount of three months’ for remorse and personal circumstances and a full (25 per cent) discount for Ms Theodore’s guilty pleas. The end sentence imposed therefore was 25 months’ and two weeks imprisonment. Reparation in the sum of $3,180 was also ordered by way of addendum.

Ms Theodore’s grounds of appeal

[21]   As recorded in footnote 2 above, Ms McClutchie’s subsequent appeal against her sentence was unsuccessful. In that context Grice J held that there was no error in the 34-month starting point adopted. Given the District Court Judge’s assessment of equal culpability Ms Theodore’s appeal focussed on the uplifts and discounts that related to her circumstances alone. She said that the sentencing Judge erred in:

(a)adopting an uplift for the common assault charge that was too high; and

(b)allowing insufficient credit for remorse and personal circumstances.

[22]   As noted earlier, the overarching focus of the appeal as it developed before me was that even a short reduction of the sentence would render home detention available and that that was the sentence that should be imposed. My preliminary view was that that argument potentially had some force, which gave rise to the events I set out at the beginning of this judgment.

8      R v Theodore, above n 1, at [6].

[23]   While that argument is relevant only to the second ground of appeal, for completeness I address both grounds, in turn.

Uplift for common assault

[24]   Ms Thorpe submitted that the three-month uplift to the starting point for the common assault charge was excessive, in light of the totality principle. Although she acknowledged that Ms Theodore’s position at sentencing had been that a three-month uplift on that charge was appropriate, she said that this was predicated on the adoption of a lower starting point.

[25]   Issue was also taken with what is said to be a different approach taken to the uplift  to  the  one  taken  by  the  Judge  when  sentencing  Ms  McClutchie.9   In   Ms McClutchie’s case, the Judge considered that the (different) additional charges should attract concurrent sentences of seven months’ imprisonment,10 but imposed an uplift of only five months following a totality assessment. As I understood it, the argument advanced for Ms Theodore was that there should have been a similar adjustment downwards for totality in her case.

[26]   And lastly, it was submitted that the effect of the uplift was particularly harsh because it took the end sentence over the 24 month home detention threshold. The sentence of imprisonment was manifestly excessive because it was the result of an uplift for offending which, taken on its own, would have attracted a community based sentence.

[27]I am unable to agree with these submissions.

[28]   First, the Judge expressly considered totality. After rejecting the Crown’s proposed six-month uplift as “excessive on a stand-alone and on a totality basis”, he said “the appropriate increase is one of three months’ imprisonment adjusted for totality purposes and I adopt that approach”.11

9      Ms McClutchie was sentenced for unrelated charges of obtaining by deception and accessing a computer for dishonest purposes as well as the burglary charge.

10     One month for the obtaining by deception charge and six for the accessing a computer system for a dishonest purpose charge.

11     R v Theodore, above n 1, at [4].

[29]   Secondly, the comparison with Ms McClutchie’s case is misplaced. A totality assessment does not require that an uplift for other offending be less than the concurrent sentence imposed for that offending. Section 85 of the Sentencing Act 2002 (the SA) states:

85       Court to consider totality of offending

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[30]   The relevant inquiry is therefore simply whether, after the application of an orthodox sentencing approach (including uplifts and discounts), the penalty imposed for the most serious offence (here, the burglary) is an appropriate reflection of the totality of the offending. And as I have said, no quibble is or can be taken with the Judge’s starting point. He then expressly considered totality. The end sentence cannot in my view be said to be out of the available range.

[31]   Ms Thorpe submitted that the combined three-month (approximately eight per cent) discount applied by the Judge for remorse and personal circumstances was inadequate. She said that, based on Hessell v R,12 and other decisions which have

12     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

applied the Hessell dicta to the facts of the particular case,13 a discrete discount for remorse of five per cent was warranted and that an additional and larger discount should be allowed for the impact of incarceration on Ms Theodore’s dependent children.

Discount for remorse and personal circumstances

[32]   Ms Thorpe submitted that the combined three-month (approximately eight per cent) discount applied by the Judge for remorse and personal circumstances was inadequate. She said that, based on Hessell v R14 and other decisions which have applied the Hessell dicta to the facts of the particular case15 a discrete discount for remorse of five per cent was warranted and that an additional and larger discount should be allowed for the impact of incarceration on Ms Theodore’s dependent children.

[33]   By and of itself there is nothing in the point about remorse. Notwithstanding the letter written by Ms Theodore the PAC report recorded that (a month earlier) she continued to take responsibility for the offending. Arguably affording her a discount at all on that count was generous. There is no discernible error on that front.

[34]   The issue of her dependent children is more complex. I begin with some general points and then turn to consider Ms Theodore’s case.

[35]   A useful stepping off point is that the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders with their Community (the Bangkok Rules) were adopted in 2010.16 The Rules are predicated on the proposition that women prisoners are a vulnerable group with specific needs. It further notes that many existing prison facilities were designed primarily for male prisoners, but the “number of female prisoners has significantly increased over the

13     Ms Thorpe referred me in particular to Haimona v New Zealand Police [2018] NZHC 472 and

Benson v New Zealand Police [2018] NZHC 296.

14     Hessell v R [2010] NZSC 135, [2011] NZLR 607.

15     Ms Thorpe referred me in particular to Haimona v New Zealand Police [2018] NZHC 472 and

Benson v New Zealand Police [2018] NZHC 296.

16     United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) GA Res 65/229 (2011).

years”.17 That accords with recent reports in this country that the number of women prisoners has increased by 56 per cent in the last five years and by 19 per cent in the single year ending May 2018.18

[36]Relevantly, r 64 of the Bangkok Rules provides:19

Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.

[37]   There is, as well, a considerable amount of overseas’ material relating to this issue. By way of example only, the Bangkok Rules lie behind a recent discussion paper produced by the Prison Reform Trust in the United Kingdom.20 The paper includes recommendations that:21

1The government should review the sentencing framework to ensure appropriate recognition of and provision for an offender’s sole or primary care responsibilities, in relation to both custodial and non-custodial sentencing.

…

3Sentencing guidelines should be strengthened by the addition of an ‘Overarching Principle' setting out the court’s duty to investigate sole or primary caring responsibility of defendants and to take these responsibilities into account in sentencing decisions.

…

6Judges, district judges and magistrates should be obliged to consider non-custodial sentences for offenders with primary care responsibilities, and in cases when imprisonment is an option should consider a community order, deferred or suspended sentence.

17     At 2. The Rules note (at 7), however, that many of the issues addressed by them apply equally to men with parental responsibilities.

18     Laura Walters “Huge rise in female prison population ‘a problem’: Corrections boss” Stuff (online ed, 1 March 2018). Department of Corrections “Prison Facts and Statistics – March 2018”

< ison_stats_march_2018.html>.

19     The Bangkok Rules, above n 16, at 19.

20     S Minson, R Nadin and J Earle Sentencing of Mothers: Improving the sentencing process and outcomes for women with dependent children (Prison Reform Trust, 2015).

21     At 4.

[38]   These recommendations essentially recognise and confirm dicta from the Courts in the United Kingdom, most notably the extensive discussion in R v Petherick where the Court of Appeal observed (inter alia): 22

… a criminal court ought to be informed about the domestic circumstances of the defendant and where the family life of others, especially children, will be affected it will take it into consideration. It will ask whether the sentence contemplated is or is not a proportionate way of balancing such effect with the legitimate aims that sentencing must serve.

...

… it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.

… the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver … .

… in a case where custody cannot proportionately be avoided, the effect on children or other family members might (our emphasis) afford grounds for mitigating the length of sentence, but it may not do so. If it does, it is quite clear that there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges.

[39]   As far as the position here is concerned, New Zealand has not ratified the Bangkok Rules, but the Government position is that women offenders are managed in a manner that takes into consideration their specific needs and family circumstances.23 And s 8(j) of the SA requires a sentencing Court to take the circumstances of an offender into account if they would render an otherwise appropriate sentence disproportionately severe. It is widely accepted that the impact of a sentence on an offender’s dependent children is one matter which may engage that requirement. Unsurprisingly, there have been a number of New Zealand cases which discuss and apply s 8(j) in that context. They include:

22     R v Petherick [2012] EWCA Crim 2214 at [20] and [22] – [24] (footnotes omitted).

23     New Zealand’s Sixth Periodic Report on the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment of Punishment (2013).

(a)Ransom v R where the  District  Court  sentenced  the  defendant  to 18 months’ imprisonment after allowing a discount of 20 per cent for the defendant’s six-year-old child who had “considerable behavioural difficulties” that were “exacerbated by his mother’s absence from the family home”. On appeal, no issue was taken with the discount but the Court of Appeal quashed the sentence of imprisonment and substituted one of nine months home detention coupled with 75 hours of community work, on the grounds (inter alia) of the defendant’s need to care for her child.24

(b)R v Porter-Riley where the defendant was sentenced to nine months’ home detention, which included a discount of six months (18 per cent) for her personal circumstances which included (inter alia) the need for her to take care of her new born baby. Although her remaining nine children were not able to live at the home detention address they would be able to live with their father (the defendant’s partner) in the family home nearby (the family home was not suitable for home detention) and they would be able to visit their mother regularly.25

(c)Zheng v R where the sentence of two years and nine months’ imprisonment which had been imposed by the High Court included a nine-month discount (21 per cent) for (inter alia) the fact that the defendant was the sole caregiver of her two dependent children.26 On appeal, the Court of Appeal quashed the sentence of imprisonment and substituted a sentence of eight months home detention with special conditions. While not expressly saying that this reduction was because of her dependent children, the Court did say that reducing the sentence to one where home detention became an available sentencing option (24 months) would take account of the “particular hardship of prison for her”.27

24     Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.

25     R v Porter-Riley HC Auckland CRI-2010-092-14703, 12 April 2011.

26     Zheng v R [2015] NZCA 451.

27     This included medical conditions, that she was the sole caregiver for her two dependent children and the fact that she spoke “virtually no English”.

(d)Proctor v Police where in sentencing the defendant to two years and five months’ imprisonment, the District Court took no account of the impact a sentence of imprisonment would have on her family. On appeal, the High Court had the benefit of a psychiatric report detailing the impacts of incarceration on her two young children (aged three and five). The Court quashed the sentence and substituted a sentence of  12 months home detention with special  conditions  coupled  with  100 hours of community work. In doing so, the High Court gave a    15 per cent discount for (inter alia) the young dependent children.28

(e)R v Walker where the defendant was given a 10 per cent discount “out of compassion for [his] children and to provide [him] with some encouragement”. The end sentence was one of three years and eight months’ imprisonment.29

(f)R v Ralph where the defendant was sentenced to 12 months’ home detention which included a discount of seven months (20 per cent) to account for her six-year-old child. She was the primary caregiver of the child because the father worked full time and was the sole breadwinner. The District Court expressly considered psychologist reports that the child’s development would be affected by the mother’s imprisonment.

The sentence was upheld on appeal to the High Court.30

(g)R v Lyon where a sentence of two years and four months’ imprisonment, included a seven month (20 per cent) discount to account for the fact that the defendant was the primary caregiver of the children, his partner would lose her prospective re-employment and the family would lose their main income for the duration of his incarceration.31

28     Proctor v Police [2016] NZHC 2656.

29     R v Walker [2017] NZHC 2303 at [18].

30     R v Ralph [2018] NZHC 794. The child suffered from significant health issues, including developmental and attachment difficulties.

31     R v Lyon [2018] NZHC 1434.

This case

[40]   In turning now to Ms Theodore’s case, it is important to reiterate at the outset that the impact of the sentencing on the welfare of Ms Theodore’s children was clearly of concern to the sentencing Judge. It also needs to be acknowledged that the information before him about Ms Theodore’s domestic circumstances was limited, at best. The PAC report simply referred to her having four children and that it was proposed that one of them (the nine-year-old) would live with her in the event she received a sentence of home detention. No reasons were given for that. Nor was there any reference in the report as to the alternative care arrangements that were proposed in the event of a sentence of imprisonment. It appears that the Judge was advised of these at the sentencing hearing itself.32

[41]   It is also potentially relevant to note that at the time the PAC report was prepared Ms Theodore’s proposed home detention address was in Christchurch.33 She had previously lived (presumably with her younger three children) in Gisborne. So even if home detention had both been available and considered appropriate by the sentencing Judge it would have involved uprooting them from their schools and their friends in Gisborne; disruption to their lives on that score would therefore have occurred regardless of the sentence imposed.

[42]   The advice now received by this Court is only somewhat more detailed. But the gist of that advice is that:

(a)Ms Theodore has had six children. One has died, one is an adult and the remaining four are aged 15, 12, 10 and 6;

(b)the 15-year-old is cared for on permanent basis by whanau;

(c)the 6, 10 and 12-year-old children are, subsequent to Ms Theodore’s sentence, cared for by her mother, in Auckland; and

32     In fairness, it should also be recorded that the PAC Report writer had recommended a non-custodial sentence.

33     Although Ms Thorpe recently advised that the address originally proposed was in Gisborne (Lyndhurst Street) it seems clear that it was in fact in Christchurch (Lyndhurst Crescent).

(d)all the three of younger children would live with Ms Theodore in the event home detention was substituted on appeal.34

[43]   And lastly, there is further relevant information contained in the most recent home detention assessment. One of the two addresses that were the subject of that report was Ms Theodore’s mother’s address in Auckland where Ms Theodore’s children now live. But that address was deemed unsuitable as a home detention address because Ms Theodore’s 28-year-old brother is presently  living  there  on EM Bail. In the circumstances (by which I principally mean the fact that her children are living at the address) it seems to me that this should not be determinative and may be an issue requiring future exploration.

[44]   In cases where there is a risk that an offender such as Ms Theodore may be sentenced to imprisonment it seems to me to be imperative that the sentencing Court receive as much information about her or his domestic circumstances and, in particular, the impact of such a sentence on any dependent children. I respectfully adopt and endorse the dicta from Petherick in that regard. In Ms Theodore’s case that information does not seem to have been available and, even now, more detail would be helpful. As a matter of practicality, the responsibility for ensuring that this is so must probably lie primarily with PAC report writers and with defence counsel.35

[45]   As well, there is a conundrum presented by the fact that Ms Theodore’s children have now been parted from her for some months and have already been required to relocate from Gisborne to Auckland. And as noted earlier, it seems that even a sentence of home detention would not necessarily have permitted the family to stay together.

[46]   All that said, however, the end sentence received by Ms Theodore was, very much, on the “cusp” in terms of the home detention threshold. Ms Theodore had never served a custodial sentence before. The Judge did not indicate that he would not have entertained such a sentence, had it been available. In my view, this is a case where Ms Theodore’s personal circumstances do warrant a more merciful discount which, as

34     It remains unclear why the original proposal was that only one of them would.

35     I record that Ms Thorpe was not acting for Ms Theodore at sentencing.

things presently stand, might facilitate her pursuit of an option that does not see her parted from her children for so long. A more generous discount of six months (16 per cent) seems to me to be in line with the cases to which I have referred above, and is more consistent with the wider principles which underlie the Bangkok Rules. After taking into account a full guilty plea discount, the  end sentence would be one of    23 months’ imprisonment. Home detention therefore becomes a possibility.

Result

[47]   Ms Theodore’s appeal against sentence is allowed. The sentence of 25 months and two weeks’ imprisonment is quashed and a sentence of 23 months’ imprisonment is substituted. There will be a concurrent sentence of three months’ imprisonment on the assault charge.

[48]   In light of the most recent advice from Corrections as to the suitability of   Ms Theodore’s proposed addresses I am not in a position to substitute a sentence of home detention today. But as indicated earlier I am not myself convinced that the presence of her brother at her mother’s address should, without more, be disqualifying. That is a matter which may need to be explored further. It seems to me that the appropriate course is to grant her leave to apply under s 80I of the SA and so I do so. Whether leave is granted if an application is made will be a matter for the District Court.

Rebecca Ellis J