Soloman (aka Hanks) v R [2012] NZCA 300 (10 July 2012)

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Soloman (aka Hanks) v R [2012] NZCA 300 (10 July 2012)

Last Updated: 18 July 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/2012 [2012] NZCA 300

BETWEEN MALINDA-LOUISE SOLOMAN (AKA MALINDA-LOUISE HANKS) Appellant

AND THE QUEEN Respondent

Hearing: 3 July 2012

Court: Wild, Heath and Keane JJ

Counsel: A J Bailey for Appellant P D Marshall for Respondent

Judgment: 10 July 2012 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentence of 18 months’ intensive supervision is quashed, and a sentence of 12 months’ supervision substituted.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] This appeal is against one only of three sentences imposed on the appellant, Ms Soloman, by Judge Callaghan in the District Court at Christchurch.[1]
[2] Ms Soloman’s submission is that there was not a proper basis for the Judge to sentence her to intensive supervision. The appropriate sentence was supervision.

Background

[3] On 25 May 2010 Ms Soloman was apprehended shoplifting at a store in Christchurch. She was escorted to the store’s security office. While being spoken to there she assaulted first one, and then a second, female staff member.
[4] Ms Soloman was charged with theft from the store and with two charges of assaulting the store’s security officers. She was also charged with a related breach of bail. She pleaded guilty to the theft charge and to the charge of breaching bail in June 2010. Following a trial in January 2011 she was found guilty of two charges of assaulting the female staff members. The convictions for assault were entered on 25 January 2011. Ms Soloman was remanded for sentence.
[5] A pre-sentence report was prepared, dated 3 March 2011. This recommended sentences of community work, reparation (at the rate the Court thought appropriate), and intensive supervision on the special conditions that Ms Soloman:

• (a) participate in an assessment for alcohol and drug use and participate in any recommended intervention to the satisfaction of her probation officer; and
• (b) undertake counselling as recommended by and to the satisfaction of her probation officer.

[6] In the meantime, the Christchurch earthquake on 22 February 2011 had intervened.
[7] It was not until 21 February 2012 that Judge Callaghan sentenced Ms Soloman. He imposed sentences of 175 hours’ community work, 18 months’ intensive supervision on the special conditions set out in the pre-sentence report, and reparation totalling $1,014.99 to be paid at $20 per week.
[8] Thus, 21 months elapsed between the offending and sentencing, and almost a year from the completion of the pre-sentence report to the sentencing.

The pre-sentence report

[9] There are two relevant aspects to this. First, it records Ms Soloman accepting that she “has an alcohol problem” and was drunk when she committed the offences. The report states that this alcohol problem goes back a number of years, and that Ms Soloman had last been assessed by the Community Alcohol and Drug Service in the latter part of 2009, when the recommendation was to engage with the Service before undertaking residential treatment. The report records that Ms Soloman’s “problematic alcohol use ... was the reason her [two] children were placed in her mother’s care”. The report also records Ms Soloman reporting that she has controlled her drinking more since committing these offences, although she admits to a relapse in the week of the earthquake. The report records Ms Soloman recognising the need to undertake some form of intervention, but a reluctance on her part to undergo residential treatment.
[10] Secondly, the report discussed a number of personal or relationship difficulties. One was depression, for which Ms Soloman had been prescribed medication for the previous two years. Another was difficulties with her partner, including being the victim of an assault by him. A third was difficulties with her mother, starting with abuse during her own childhood, and continuing with her mother being very controlling and manipulative. This made Ms Soloman’s relationship with her mother particularly problematic because her two children were in her mother’s care. The report records that Ms Soloman “believes that she does need some help in the form of counselling”. It recommended the sentences we have set out in [5] above.

Sentencing

[11] Judge Callaghan began his sentencing remarks by noting that the matter “goes back a wee while now”.[2] After summarising the offending the Judge observed:[3]

... it would seem from the report now that you have changed your ways quite a bit which is good and I am also mindful of the fact that it has been a year since there has been any suggestion of any other offending.

Mr Bailey told us that the latter point was one he had emphasised to the Judge.

[12] The Judge then imposed the three sentences, adding that in doing so he had taken into account that the appellant did not have “a long history of previous matters”.[4]

Supervision and intensive supervision

[13] Supervision is governed by ss 45–54A of the Sentencing Act 2002, and intensive supervision by ss 54B–54L. Section 10A of the Act, which sets out the hierarchy of sentences, states that intensive supervision is a more restrictive sentence than supervision.
[14] The differences between the two sentences are essentially three-fold. The first is duration. Supervision can be for a period of up to one year while intensive supervision can be for any period up to two years.[5] Secondly, a programme imposed as a special condition under supervision cannot be residential in nature.[6] There is no such limitation for intensive supervision. Thirdly, only intensive supervision can have as a special condition a requirement for compliance with judicial monitoring: s 54I.
[15] Section 57C provides:

54C Guidance on use of sentence of intensive supervision

A court may impose a sentence of intensive supervision only if it is satisfied that—

(a) a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and

(b) the nature of the offender’s rehabilitative or other needs requires the imposition of conditions—

(i) for a period longer than 12 months; or

(ii) that are not available through the sentence of supervision.

[16] Section 8(g) provides that a sentencing court must impose the least restrictive outcome appropriate in the circumstances, in accordance with the s 10A hierarchy of sentences. When s 54C is read with s 8(g), we accept Mr Bailey’s submission that if the Judge decided that a supervisory sentence was appropriate, he could only impose intensive supervision, as opposed to supervision, if he was satisfied that Ms Soloman needed to attend a residential programme or needed judicial monitoring, or needed supervisory oversight for a period longer than 12 months.
[17] While the pre-sentence report recommended intensive supervision, it did not explicitly say why. More importantly, the Judge did not identify, in terms of s 54C, why he was imposing a sentence of intensive supervision. So it is not clear to us that the Judge applied his mind to the requirements of s 54C, and identified which of those requirements applied here.
[18] There is a further problem with the sentence under appeal. As we have pointed out, by the time the Judge sentenced Ms Soloman the pre-sentence report was approaching a year old. It does not seem that the Judge had any objective information enabling him to be confident that intensive supervision was still an appropriate sentence. He could have called for an up-dating report. He did not, but adopted the year-old report as a constant prescription. We do not think that was appropriate. The Judge noted “from the report” that Ms Soloman had improved her ways. He expressed himself as mindful that there had been no suggestion of other offending by Ms Soloman in the previous year. The point is that Ms Soloman had not offended throughout the 21 months that had elapsed since the offending for which the Judge was sentencing her. Throughout that 21 month period Ms Soloman had seemingly functioned reasonably well in the community without any supervision at all, save perhaps for the two or three days between the imposition of sentence on 21 February 2012 and the filing of the present appeal on 24 February, when s 124(3) of the Summary Proceedings Act 1957 operated to stay the sentences.
[19] An inquiry of the officer-in-charge of this case enabled Mr Marshall, for the Crown, to confirm to us that the appellant has remained offence free up to the hearing of this appeal. R v Moriaty[7] and the many subsequent decisions of this Court that have applied it, permit us to take into account that the appellant has not reoffended throughout the entire two years since she committed, back on 25 May 2010, the offences with which this appeal is concerned.
[20] In the circumstances we have outlined, we consider the appropriate sentence was one of 12 months’ supervision on the same two special conditions.

Result

[21] The appeal is allowed. The sentence of 18 months intensive supervision imposed on 21 February 2012 is quashed. In its place we substitute a sentence of 12 months’ supervision on the special conditions that the appellant is:

• (a) to participate in an assessment for alcohol and drug use and thereafter in any recommended intervention to the satisfaction of her probation officer; and
• (b) to undertake counselling as recommended by, and to the satisfaction of, her probation officer.

[22] The other two sentences imposed by the Judge (community work and reparation) stand unaffected by this appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Hanks DC Christchurch CRI-2010-009-7865, 21 February 2012.
[2] At [1].
[3] At [3].
[4] At [5].
[5] Sentencing Act 2002, s 45(2).
[6] See s 50.
[7] R v Moriaty CA109/84, 10 August 1984.