Tuki v Police
[2020] NZHC 806
•24 April 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-000006
[2020] NZHC 806
IN THE MATTER OF an appeal against sentence BETWEEN
JAYMIE URSULLA TUKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 April 2020 Counsel:
A S Bloem and A J Gordon for the Appellant S T Patia for the Respondent
Judgment:
24 April 2020
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 24 April 2020 at 12.30 pm.
Registrar/Deputy Registrar
Solicitors: Bloem and Associates, Auckland
Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei
TUKI v POLICE [2020] NZHC 806 [24 April 2020]
[1] Ms Tuki was sentenced to 16 months’ imprisonment for a raft of dishonesty offences, breaching her release conditions and failing to report.1 She appeals on the grounds that the Judge did not give her credit for time spent on EM bail, the 15 per cent discount for a guilty plea was too low, and the Judge failed to consider home detention as the least restrictive sentence in the circumstances.
Offending
[2] Ms Tuki is 34 years of age. She is of Ngāti Raukawa descent. She has four children, the eldest of whom is an adult now. None of her children reside with her permanently, but she had periodic care of her youngest children prior to her incarceration.
[3] Ms Tuki has an extensive criminal history, involving mostly dishonesty offending. She has amassed 155 convictions, with 99 prison sentences. Between 2017 and 2019, Ms Tuki accumulated 15 theft and shoplifting charges, with the only breaks being for the time she was in custody.
[4] The offending the subject of the appealed sentence arose out of events in 2019. On 30 May 2018, Ms Tuki was released from a sentence of imprisonment for burglary, shoplifting and theft. She was to report weekly. Ms Tuki failed to report and was remanded in custody from 1 December 2018 to 22 February 2019. She was released, instructed again to report, and failed to do so.
[5] On 24 April 2019, Ms Tuki went to a fashion store in Takapuna. While there, she took two shirts with a total value of $318.
[6] On 5 May 2019, a bag was stolen from the Glenfield Pool and Leisure Centre. The bag contained $600 cash, and credit and debit cards. Ms Tuki was charged with receiving those cards, and then using them to purchase cigarettes from two different petrol stations.
1 Police v Tuki [2020] NZDC 4483.
[7] On 25 June 2019, Ms Tuki stole products valued at $100 from Birkenhead Countdown.
[8]On 19 July 2019, Ms Tuki entered a store and took $11 from an honesty box.
[9] On 15 August 2019, Ms Tuki entered the Wellsford Pharmacy. She took two cosmetic items with a total value of $51.98.
[10]Ms Tuki pleaded guilty to:
(a)Three charges of shoplifting;2
(b)One charge of theft;3
(c)One charge of obtaining by deception;4
(d)One charge of dishonestly using a document;5
(e)One charge of breach of release conditions;6
(f)One charge of failure to report.7
Personal circumstances
[11] The pre-sentence report writer records that Ms Tuki has suffered significant traumas in her life, including the death of her father at the hands of her mother, and a disrupted childhood due to changing care arrangements. Most recently, she was granted EM bail due to the trauma suffered as a result of finding her long-term friend and cellmate dead following a suicide.
2 Crimes Act 1961, s 223. Maximum penalty three months’ imprisonment.
3 Crimes Act 1961, s 223. Maximum penalty three months’ imprisonment.
4 Crimes Act 1961, s 240. Maximum penalty three months’ imprisonment.
5 Crimes Act 1961, s 228(1). Maximum penalty seven years’ imprisonment.
6 Sentencing Act 2002, s 96. Maximum penalty one year imprisonment or $2,000 fine.
7 Bail Act 2000, s 38. Maximum penalty one year imprisonment or $2,000 fine.
[12] Previously, Ms Tuki has attributed her offending to kleptomania, but more recently she has acknowledged a longstanding addiction to methamphetamine. She says that she has not previously mentioned a methamphetamine addiction because she was scared of losing custody of her children.
[13] Ms Tuki was residing in Auckland at the time of the offending, but moved North to disassociate herself from people who had a negative influence on her life. She enrolled in a drug and alcohol programme in Moerewa as a means of addressing her drug addiction. The pre-sentence report writer records that Ms Tuki’s attendance was sporadic and she had failed to engage with the programme. However, affidavit evidence filed by and on behalf of Ms Tuki takes issue with that assessment, as is discussed further on in this judgment.
[14] Based on the frequency of her offending and the limited insight that she showed into the impact of her offending on her victims, the report writer assessed Ms Tuki as having a high risk of re-offending and a medium risk of harm within the community.
Approach to appeal
[15] The appeal is brought pursuant to s 250 of the Criminal Procedure Act 2011. An appeal court must allow an appeal against sentence if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should have been imposed. Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence was reached.8
Was there a failure to apply a discount for EM bail?
[16] Section 9(2)(h) of the Sentencing Act 2002 requires a Judge to take into consideration time spent on EM bail. The Judge does not appear to have been asked to consider such a discount at sentencing, and so, unsurprisingly, did not explicitly address it in his notes.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[17] Ms Tuki was initially remanded in custody on 29 August 2019. She was then granted EM bail on 4 November 2019 following the suicide of her cellmate. Ms Tuki spent a little over four months on EM bail. Her counsel informs me that the only approved absences from home during this time were to allow Ms Tuki to attend rehabilitation services. Ms Tuki was fully compliant and there were no breaches. I consider some discount to allow for the restrictions on Ms Tuki’s liberty is appropriate and I apply a discount of two months’ imprisonment.
Was the guilty plea discount too low?
[18] The Judge applied a 15 per cent discount for the guilty plea. Counsel for Ms Tuki says this discount was too low and the guilty pleas were entered at the first reasonable opportunity.
[19] Ms Tuki’s first appearance was on 29 May 2019 for breach of release conditions. Other charges were added, and there were several Court appearances in relation to bail. The charge relating to the theft of $11 from the honesty box had originally been charged as burglary. Following discussions between counsel, this charge was downgraded to theft. Subsequently, Ms Tuki pleaded guilty to all charges at the case review hearing on 27 November 2019.
[20] Although the guilty plea discount was not at the earliest opportunity, I accept that pleading guilty to all charges once laid, and after the downgrading of one of those charges, was a pragmatic decision. It also appears that some of the delay in pleading guilty may be attributed to issues with late disclosure. On the other hand, Ms Tuki did make admissions about some of the offending in her DVD interview and so the case against her was relatively strong.
[21] In my view, a discount in the region of 20 per cent for the guilty plea could have been justified in Ms Tuki’s case. The quantum of any discount is a matter of discretion for the Judge, and if this was the only discount in issue, I would not have been inclined to differ from the sentencing Judge. However, taken together with the discount for EM bail, a discount of 20 per cent for the guilty plea, results in a three- month discount to the total end sentence. That is more than just trifling. Accordingly, I apply a discount of 20 per cent for the guilty plea.
Should the sentence have been home detention?
[22] Ms Tuki’s end sentence was within the range for consideration of home detention. The Judge did not expressly refer to the possibility of home detention, but he did say that the need to hold Ms Tuki accountable and to protect the community required a full-time custodial sentence.
[23] On a short-term basis, that must be correct. A short-term sentence of imprisonment would appear to be the most effective way of protecting the public from the harm caused by Ms Tuki’s offending. That is borne out by the fact that the only break in Ms Tuki’s offending between 2017 and 2019 was due to her being incarcerated.
[24] But whether imprisonment promotes protection from harm, deterrence and accountability long-term must also be considered. Ms Tuki’s pattern of offending indicates that short-term sentences of imprisonment have been ineffective in deterring her from offending in the same way again. There is no reason to suggest that this pattern will not continue, that is, Ms Tuki will simply serve her sentence of imprisonment and re-offend once again when released. A sentence of imprisonment does not therefore deter Ms Tuki, nor protect the public from harm long-term.
[25] Further, whether a home detention sentence would meet the principles and purposes of sentencing, including accountability and the protection of the community must also be considered. The primary benefit of a home detention sentence would be the opportunities it would offer to Ms Tuki to address the underlying causes of her offending. These may include kleptomania and methamphetamine addiction. (I say “may” because these causes are self-reported and there is nothing, as yet, to corroborate that self-report). Addressing the underlying causes of her offending may be the best opportunity to break the cycle of offending and incarceration, thus protecting the community from harm.
[26] Home detention would also promote Ms Tuki’s rehabilitation and reintegration into society. Those principles are just as important as the other principles and purposes
of sentencing.9 There are limited rehabilitative programmes available for those sentenced to short-term sentences of imprisonment. However, a sentence of home detention would allow Ms Tuki to continue to address the underlying causes of her offending through available programmes.
[27] I accept that the number of convictions for failing to appear and breach of release conditions gives reason to be concerned about Ms Tuki’s ability to comply with a sentence of home detention. On the other hand, Ms Tuki spent four months on EM bail without incident and she reports being drug-free since August 2019. That, combined with the fact that Ms Tuki took the proactive step of moving away from associates in Auckland suggests that Ms Tuki may now be motivated to make a significant change in her life.
[28] That brings me to the question of the rehabilitative programme that Ms Tuki has been attending, and would like to continue attending, if a sentence of home detention was substituted on appeal. Ms Tuki has filed three affidavits in support of her appeal. These affidavits were not before the Judge at the time of sentencing. The police raise some concerns about the credibility of the affidavits, but do not oppose their admission. The affidavits set out relevant information regarding the Whakamana Tangata programme, and Ms Tuki’s engagement with it prior to her incarceration. They contain information relevant to the question of home detention and are admitted on that basis.
[29] In terms of Ms Tuki’s engagement, it is clear from the affidavits that Ms Tuki attended the programme when approved to do so by the EM bail team. Her only absences were due to her youngest children being with her for a period of time. It appears that Ms Tuki has involved herself with the programme and it has had a positive influence on her rehabilitation.
[30] Overall, I consider something needs to change if there is to be a different outcome for Ms Tuki. A short-term sentence of imprisonment has some short-term benefits, but Ms Tuki’s history suggests it will not ultimately protect the public from harm or deter her from offending again. It will not promote Ms Tuki’s rehabilitation
9 Doolan v R [2011] NZCA 542 at [38].
which may be the most effective way to prevent further harm to the community in the future. Balancing all these factors in the mix, I consider a sentence of home detention is the least restrictive sentence in the circumstances.
[31] However, additional information is required before a sentence of home detention may be substituted for the existing sentence of imprisonment. Although the proposed home detention address has been assessed as technically compliant, the consent of the owner/occupiers has not been obtained. Further, since the address was first assessed, the country has been placed into lockdown as a result of the Covid-19 virus. Whether the address remains suitable in light of the risks posed by the Covid- 19 virus will also need to be considered, and I intend to order an updated report on the proposed address.
Result
[32] The appeal is allowed. The end sentence of 16 months’ imprisonment is quashed and substituted with an end sentence of 13 months’ imprisonment. The construction of the sentence is set out at [14] of the District Court Judge’s decision. The term of each sentence, and the cumulative or concurrent nature of that sentence remains the same, except that the eight months’ imprisonment imposed for one charge of obtaining/receiving the debit card is to be quashed and substituted for five months’ imprisonment.
[33] Leave to apply for home detention is reserved. An updated report on the proposed address is ordered. The consent of the owner/occupiers is required, and the report should specifically address any particular risks posed by the Covid-19 virus.
Edwards J
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