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Theodore v Police

Theodore v Police

Case [2018] NZHC 2364 7 September 2018

Sentencing

Remorse

Personal Circumstances

Totality Principle

United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders

Criminal Law

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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…

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.

Continue reading Theodore v Police

Details

AGLC: Theodore v Police [2018] NZHC 2364
Case: [2018] NZHC 2364
Decision Date: 7 September 2018

CaseChat Overview and Summary

Dianna Marji 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. Ms Theodore pleaded guilty to one charge of burglary and one charge of common assault. Ms Theodore argues that the sentence was manifestly excessive and that the sentencing judge erred by not allowing sufficient credit for remorse and personal circumstances. The appeal hearing was adjourned to allow further inquiries to be made about Ms Theodore’s domestic circumstances and the feasibility of home detention. Ultimately, Ms Theodore no longer sought to have a sentence of home detention substituted but indicated she wished the possibility of home detention to be considered. In light of the most recent advice from Corrections, the Court was not in a position to substitute a sentence of home detention. However, the Court found that Ms Theodore’s personal circumstances did warrant a more merciful discount which might facilitate her pursuit of an option that did not see her parted from her children for so long. The appeal against sentence was allowed and a sentence of 23 months’ imprisonment was substituted. Ms Theodore was granted leave to apply for home detention under s 80I of the Sentencing Act 2002.

Orders