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…
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