Harrison v Police [2014] NZHC 2912 (20 November 2014)

Last Updated: 8 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000320 [2014] NZHC 2912

BETWEEN	VICTORIA HARRISON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 November 2014
Appearances:	Y Lee for the Appellant C McCool for the Respondent
Judgment:	20 November 2014

_{[ORAL] JUDGMENT OF WYLIE J}

HARRISON v POLICE [2014] NZHC 2912 [20 November 2014]

Introduction

[1] The appellant, Ms Harrison, was sentenced to five months’ imprisonment on

three charges of shoplifting by Judge Sharp in the District Court at Auckland on

22 August 2014.

[2] I am told by Mr Lee, appearing on behalf of Ms Harrison, that she has served the majority of her sentence and that she is currently in Epsom House obtaining assistance with alcohol and substance abuse problems. Mr Lee tells me that if this appeal is unsuccessful, the appellant is likely to be taken back into custody for a few

– perhaps up to seven days – to complete the sentence imposed on her.

[3] The sentence was imposed in respect of three charges of shoplifting (under

$500) pursuant to ss 219 and 223(d) of the Crimes Act 1961. The maximum penalty available on each charge was one of three months’ imprisonment. There were some related charges – namely two charges of being an unlicensed driver and failing to comply with prohibitions, one charge of operating a vehicle carelessly and one charge of possession of a minor amount of cannabis, Ms Harrison was convicted and discharged in relation to those matters.

Background Facts

[4] Ms Harrison is 23 years’ old. She has six children. The eldest is 12 years’

old. The youngest, at the time of sentencing, was only seven weeks’ old.

[5] Notwithstanding her youth, Ms Harrison has amassed a very large number of convictions. She has approximately 33 honesty-related convictions for matters such as shoplifting, petty theft and the like. She also has convictions for trespass, wilfully failing to comply with prohibitions, refusal to answer bail, failing to give information to the police and the like. She is clearly a recidivist offender. That was accepted by Mr Lee.

[6] Ms Harrison has faced a range of sentences from the Court. Her offending started in 2005. She was sentenced initially to supervision, then to community work, then to social welfare supervision. She was sentenced to further periods of

supervision and then to intensive supervision. There have been other sentences requiring her to pay reparation, and various fines. The sentence imposed by Judge Sharp was the first sentence of imprisonment.

[7] The facts are relatively straightforward:

(a) On 19 July 2003, Ms Harrison went to a service station. She filled her car with petrol worth $104.39. She then drove off without making any attempt to pay. When she was subsequently apprehended, she did not deny the offending. She simply said that while she could not remember the incident, she would take responsibility for it.

(b) On 25 November 2013, Ms Harrison entered into a Mad Butcher store. She put a number of meat products into her handbag, and went out of the store making no attempt to pay for the items. The total value of the items was $49.94. Other driving-related offending occurred during the course of this offending. She was spoken to by the police later in the day; she admitted to stealing the goods from the Mad Butcher shop.

(c) On 10 February 2014, Ms Harrison went to a service station in Dargaville. She filled up a motor vehicle with petrol worth $79.15. She then drove off without paying for the petrol. She was later stopped by the police. On two separate occasions, she gave false details to the police. Ultimately, she admitted her identity. She could give the police no explanation as to why she stole the petrol or why she was driving while forbidden.

[8] Ms Harrison was summoned to appear in respect of the offending which occurred in July 2013 on 7 November 2013. She failed to appear and a warrant for her arrest was issued. On 26 November 2013, she was brought before the Court and she entered guilty pleas in respect of the July 2013 theft and the theft from the Mad Butcher store on the previous day. She was bailed to appear for sentence on

11 December 2013. She failed to appear for sentence on that day, and a further

warrant for her arrest was issued. In relation to the offending at Dargaville in February 2014, a guilty plea was entered on 11 February 2014 – the day after the offending. On that occasion, Ms Harrison was remanded in custody overnight. On

12 February 2014, she appeared on all active charges, and she was granted bail through to sentencing on 6 May 2014. She failed to attend at the probation officer’s for a pre-sentence report interview. She failed to appear at sentencing on 6 May

2014, and a warrant for her arrest was issued yet again. She was located by the police on 14 June 2014. She appeared on 16 June 2014, and was bailed through to a new sentence date on 25 July 2014. She failed to respond to three letters and an email, and was not present when a home visit was conducted by probation services on 14 July 2014. She did, however, appear on 25 July 2014. For some reason which is not clear from the file, sentencing was delayed through until 22 August 2014.

The District Court Decision

[9] Judge Sharp started by referring to Ms Harrison’s family circumstances, and

her 33 previous shoplifting convictions. He then noted as follows:

You have an extensive history of breaching rehabilitative sentences. There comes a point in respect of everybody that people cease trying rehabilitation because they do not work.

The Judge acknowledged that Ms Harrison’s offending was not at a high level, but he noted its persistence. He described her as a recidivist offender. He observed that it did not seem to matter what the courts had said or done to her in the past, and observed that she had paid no regard whatsoever to any sentence that had been imposed on her.

[10] The Judge expressed the view that it was desirable that she should be able to look after her youngest child, and be in a rehabilitative environment, but that he could not see this as a realistic possibility. He observed that the maximum penalty in relation to each of the shoplifting charges was three months’ imprisonment. He then went on to impose cumulative sentences in respect of the shoplifting charges. He set a starting point of two months in relation to each charge – making a total of six months’ imprisonment. He then gave Ms Harrison a discount of one month for her guilty pleas, and imposed a term of imprisonment of five months. He observed that

there was no other way that he could make her accountable for what she had done. The Judge expressed the view that the sentence was the least restrictive outcome that he could impose on her. He also imposed post-release conditions, to give Ms Harrison a chance to deal with her addiction problems. He observed as follows:

...But the most important part of the sentence is that you finally realise that you cannot do this without there being consequences...

Submissions

[11] Mr Lee, in comprehensive submissions made on behalf of Ms Harrison, submitted that Judge Sharp was wrong to impose cumulative sentences for the shoplifting, and that a final sentence of home detention should have been imposed. He placed particular emphasis on Ms Harrison’s young children, and the fact that she has made efforts in recent times to rehabilitate herself through the services available at Epsom House. He noted her intention to turn over “a new leaf”, and put it to me that that intention is motivated by her need to care for her young family.

[12] Ms McCool, appearing for the Crown, accepted that Judge Sharp did not follow the stepped methodology noted in decisions such as R v Martin,¹ and Hessell v R.² However, she submitted that it is the end result that falls for consideration. She submitted that the sentence of five months imposed by Judge Sharp was appropriate in the circumstances. She submitted that the Judge had

regard to the relevant purposes of sentencing – namely accountability and deterrence, that it was open to him to take a cumulative approach, on a totality basis, and that the sentence was not disproportionately severe. She also submitted that the Judge did take into account Ms Harrison’s personal circumstances.

Analysis

[13] This appeal has been brought pursuant to s 250 of the Criminal Procedure Act

2011. That section provides that the court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction, and secondly, that a different sentence should have been imposed. In any other case, the court

must dismiss the appeal. The section confirms the approach taken by the courts under the old Summary Proceedings Act 1957. That approach was set out in R v Shipton³ as follows:

(a) There must be an error vitiating the lower court’s original sentencing discretion – the appeal must proceed on an error principle;

(b) To establish an error in sentencing it must be shown that the Judge in the lower court made an error, whether intrinsically or as a result of additional material submitted to the appeal court;

(c) It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion;

It is trite law that the court should not interfere when the sentence is within the range that can properly be justified by accepted sentencing principles.

[14] Judge Sharp did not follow the conventional approach generally adopted in sentencing. However, what is required is not a critical examination of the Judge’s sentencing method, but rather, an evaluation of the appropriateness or otherwise of the sentence ultimately imposed.⁴

[15] Judge Sharp imposed cumulative sentences in respect of each of the shoplifting charges. He imposed a sentence of two months’ imprisonment on each, to give a total starting point of six months.

[16] Section 84 of the Sentencing Act 2002 deals with the imposition of concurrent sentences. It provides that concurrent sentences are generally appropriate if the offences to which the offender is being sentenced are of a similar kind and are a connected series of offences.

[17] There is no doubt here that the offences which Ms Harrison committed were similar in kind. They were not, however, a connected series of offences. They were

separate in time. They occurred on three distinct occasions, against three different victims. In my view, imposing a separate sentence in respect of each offence was not inappropriate, and was one way of ensuring that an operative sentence was imposed in respect of each aspect of the offending, and for each victim. Ultimately the decision to impose cumulative, or concurrent sentences was for the sentencing Judge to exercise in his discretion. I cannot see that he has erred in that regard.

[18] The Judge allowed a credit of one month for the guilty pleas. That equates to approximately 17 percent.

[19] It would have been open to the Judge to allow a marginally higher discount or perhaps 20–25 percent. However, in my view, he was entitled to take into account the fact that, in regard to the offending which occurred in July 2013, Ms Harrison failed to appear and that a warrant for her arrest had to be issued. She did not enter a guilty plea at the first available opportunity. She only did so after she was brought before the Court in November 2013. While it would be possible to allow a marginally greater discount, to do so would, in my judgment, only be tinkering.

[20] It is appropriate to look at other shoplifting cases. I note that in Wirihana v Police,⁵ this Court upheld a starting point of 12 months’ imprisonment for six shoplifting charges, including some while on bail, along with other driving-related charges. The offender in that case was also a recidivist. In McNally v Department of Corrections,⁶ the offender received eight months’ imprisonment for two charges of shoplifting, two of trespass, one of assaulting a police officer and one of breaching community work. That sentence was in substitution for an earlier sentence of community work which was opposed by the Department of Corrections.

[21] The Judge did, and was entitled to take into account the fact that Ms Harrison is a recidivist offender. He was entitled to impose a sentence which reflected the totality of her offending. A sentence of five months was within the acceptable range, particularly having regard to her previous convictions, and her record of failing to

comply with community-based sentences. The sentence imposed was within the acceptable range.

_{[22] The appeal is dismissed.}

Wylie J