HOWARD V POLICE HC AK CRI 2007-404-188 [2008] NZHC 293 (10 March 2008)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CRI 2007-404-188



                BETWEEN                      KATHLEEN JOYCE HOWARD
                                             Appellant

  
             AND                          NEW ZEALAND POLICE
                                             Respondent


Hearing: 
      10 March 2008

Appearances: John Mather for Appellant
             Mark Harborow for Respondent

Judgment:       10 March 2008



                            JUDGMENT OF HARRISON J




_________________________________________________________________________________

SOLICITORS
John Mather (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent


HOWARD V POLICE HC AK CRI 2007-404-188
10 March 2008

[1]    On 31 May 2007 in the District Court at North Shore, Judge Barbara Morris
sentenced Ms Kathleen Howard following
her pleas of guilty to concurrent sentences
of three-and-a-half years imprisonment on many dishonesty charges. The Judge also
imposed
a minimum period of non parole of two years and four months
imprisonment.


[2]    Ms Howard does not appeal against the finite term
of her sentence. She is
wise; if she had taken that step, I would have considered a substantial increase. In
my judgment the sentence
was generous. I appreciate that in part the Judge was
relying on higher authority in fixing an initial starting point of three-and-a-half
years
imprisonment, adjusted upwards to five years given a number of aggravating
features. But in my view an overall adjusted starting
point of seven years or more
would not have been excessive.


[3]    Instead Ms Howard appeals only against the Judge's imposition
of a
minimum term. Her counsel, Mr John Mather, has filed a comprehensive written
synopsis, supplemented by oral argument this afternoon.
While I appreciate the care
taken by Mr Mather, and indeed by Mr Mark Harborow for the Crown, I am satisfied
that the available arguments
fall within a narrow compass and can be dealt with
shortly.


[4]    Ms Howard was described by Judge Morris as the prime mover or
ringleader
in a group of six women who committed a wide range of dishonesty offences on the
North Shore between December 2005 and
August 2006. As Mr Harborow submits,
the group would operate in teams of two or more. Typically one member of the
group would approach
victims, often elderly, for the purpose of distraction while the
other would steal an item, frequently a handbag containing cash
and credit cards.
The group members would then travel to retail outlets where they made fraudulent
use of the cards. In total there
were 67 victims of this offending and the group was
able to obtain more than $172,000 through dishonest means.


[5]    Judge Morris
dealt comprehensively with the detail of the offending. What is
relevant here is that Ms Howard faced 64 charges of theft, receiving,
using a
document and fraud. She was directly responsible for dishonestly obtaining over

$63,000 in this nine month crime spree.
As noted, the Judge adopted a starting point
of three-and-a-half years imprisonment which she increased to five years for
aggravating
factors. Ms Howard was in the practice throughout the relevant period
of re-offending whenever she was granted bail once apprehended
on a crime or
crimes. Also she had 36 previous convictions for using a document between 2002
and 2005.


[6]    Against the starting
point the Judge allowed an appropriate discount of
18 months to take account of Ms Howard's pleas of guilty, her addiction to
methamphetamine,
and her participation in self-improvement courses while in
prison. The Judge justified a minimum term of non parole as follows:

       [24]     Insofar as a minimum parole term is concerned, Mr Mather
       submitted that that time has not come and he points
to the fact that you have
       only served one previous term of imprisonment. I take that into account.
       But I am satisfied that the normal parole period, in your case one year and
       two months, is insufficient to reflect denunciation, to act
as deterrence, and
       to protect the public. I am satisfied that your persistent offending and the
       fact that the probation
report describes you at a high risk of re-offending and
       with low motivation to change, that a two-thirds minimum parole period
of
       two years and four months is appropriate.

[7]    Today Mr Mather has refined his argument on appeal to two principal
propositions.
It is well settled that the approach to be adopted by a sentencing Judge
when considering whether to impose a minimum period of imprisonment
falls into
two stages. One is to satisfy himself or herself that the eligibility otherwise available
for parole after serving one-third
is insufficient for the purposes of holding the
offender accountable for the harm done to the victim and the community,
denouncing
the offender's conduct, deterring the offender and others from
committing the same or similar offending, and protecting the community:
s 86(2)
Sentencing Act 2002. Once that threshold stage is satisfied, the Judge then has a
broad discretion to fix a minimum term
between one and two-thirds of the sentence.


[8]    Mr Mather's primary argument is that the Judge failed to undertake the first
of the two-stage process. However, with respect to him, his submission is plainly
contradicted by the Judge's own words. After reviewing
all the facts, Judge Morris
expressly recorded her satisfaction that the normal parole eligibility period of one
year and two months
imprisonment would be insufficient to reflect denunciation, to

deter and protect the public. That was the exercise which she was
obliged by statute
to carry out. She had an ample basis for her conclusion. I am not satisfied that the
Judge erred in any respect.


[9]    Mr Mather then submits that the Judge failed to provide adequate reasons for
her decision to fix the minimum term at two-thirds.
He says that she was unduly
influenced by the age of the victims ­ many of them who can be described as elderly
were the subjects
of crimes which did not carry more than a maximum term of
imprisonment of 12 months. He says that offending cannot be taken into
account,
even on the totality principle, when deciding on the length of the minimum term.


[10]   Mr Mather may be correct but his
submission is not determinative. What is
plain is Judge Morris' express reliance upon three discrete factors in fixing the two-
thirds
minimum term ­ Ms Howard's persistent offending; her presentation of high
risk of re-offending; and a low motivation to change. Again
the Judge had an ample
factual basis for this conclusion. As Mr Harborow notes, the Court can be `quite
confident that [Ms Howard]
will continue to offend upon eventual release from
custody'.   I am satisfied, as was Judge Morris, that Ms Howard is a habitual
dishonesty offender. She presents little if any realistic prospect of rehabilitation.
Thus the Judge was fully entitled to give such
weight as she considered appropriate
to the high risk of Ms Howard re-offending as a decisive factor within the discrete
ground of
protecting the community from her.


[11]   I am not satisfied that Mr Mather has established either of the two grounds of
Ms Howard's
appeal.      I add what is obvious, namely that I fully endorse the
minimum term of two years and four months imposed by Judge Morris.
Ms Howard's appeal is dismissed.




                                     ______________________________________
               
                     Rhys Harrison J