(Given by Mallon J)
Introduction
[1] Ms Byrne was sentenced to 12 months imprisonment following her conviction at trial on a charge of burglary.[1] She appeals against that sentence contending that a sentence of home detention should have been imposed. In the alternative she contends that the term of imprisonment was manifestly excessive.
Background
[2] Ms Byrne was working as a security guard in Dunedin. In that capacity she attended alarm activations at one of the cricket clubs in that city. From that work she had knowledge of the deactivation code for that clubs alarm. Using that knowledge she was able to enter the cricket clubs premises in the early hours of 15 December 2011. She took $600 from the till for the clubs bar facilities. To cover her tracks she entered a false record of her whereabouts in her employers security log.
[3] Ms Byrne was charged and her trial took place on 23 to 25 September 2013.[2] She was sentenced by Judge Crosbie on 11 November 2013. She continued to deny the offending but was able to pay reparation. By this time she was pregnant with her first child and due to give birth at the end of March 2014. She had been employed as a courier driver for a number of months without any concerns arising. She was aged 31 years and was a first offender. The address where she lived with her partner was assessed as suitable for home detention.
[4] The Judge adopted a starting point for the offending of 16 months imprisonment. He reduced that to 12 months imprisonment because of Ms Byrnes offer to pay reparation and because she was a first offender. Referring to R v Hill, he noted that home detention is a real alternative to imprisonment and can achieve effectively the purposes of denunciation and deterrence depending on the particular case.[3] The Judge rejected home detention as appropriate in this case for two reasons. The first was that the offending was œsomewhat unique? in that it arose by an employee in the security industry.[4] The second was that, in comparison with R v Iosefa, there was no remorse and no guilty plea.[5]
Discussion
[5] In our view the Judge was wrong to discount home detention because the offending occurred in the security industry. Certainly deterrence had particular importance because of the breach of trust the offending involved (both of the employers trust in the employee and the clubs trust in the employer). But there are broadly comparable breaches of trust in other instances of dishonesty offending such as, for example, where a solicitor takes an elderly clients money from a trust account. As Iosefa shows, such offending does not exclude a sentence of home detention on general deterrence grounds. Apart from the breach of trust (and consequent reputational issues for her employer) the only other aggravating factor was Ms Byrnes premeditation and steps taken to cover her tracks. The offending was otherwise at the low end of burglary offending given the amount that was taken and that it was a burglary of a non-residential building.
[6] Nor was home detention excluded on the basis of factors personal to the offender. The absence of a guilty plea and remorse counted against Ms Byrne as the Judge correctly identified. However Ms Byrne was in all other respects an appropriate candidate for home detention. She was a first offender. The amount she took was relatively small and she was able to pay reparation. She had worked for a number of months in a position of trust as a courier driver without incident. These matters all pointed to her low risk of reoffending. Imprisonment was not therefore required because of any special need for individual deterrence. There were also positive consequences from a prospective mother being able to serve her sentence in the community.
[7] In summary neither the seriousness of the offending nor the personal factors excluded home detention. Home detention would have met the sentencing purposes and principles. Home detention was therefore the least restrictive available sentence and should have been imposed. As we have reached this conclusion it is not necessary to consider the submission advanced on Ms Byrnes behalf, which was put in the alternative, that the sentence was manifestly excessive. However we consider that it would have been open to the Judge to have adopted a lower starting point than he did.[6]
[8] Taking into account that the starting point adopted by the Judge was at the high end, a sentence of no more than six months home detention would have been appropriate. It is necessary to adjust this because Ms Byrne has already served around three and half months imprisonment. Ms Byrne is due to give birth at the end of March 2014. If we were to impose home detention it would need to be subject to conditions enabling her to attend medical visits for antenatal care, to give birth and for post-natal care. As Ms Byrne has served time in prison when the least restrictive available sentence was home detention, we consider a sentence which achieves immediate release is the appropriate outcome in these circumstances. We therefore substitute her sentence with a shorter prison term (three months and two weeks) so that she will be released immediately. This sentence has no precedent value. It is merely a response to the present circumstances.
[9] In the District Court reparation of $600 was sought and Ms Byrne accepted it would be imposed. We consider it should be ordered.
Result
The appeal is allowed. We quash the sentence of 12 months imprisonment. We substitute a sentence of three months and two weeks imprisonment. We order reparation of $600. Ms Byrne may make arrangements for that to be paid by instalments.
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[1] R v Byrne DC Dunedin CRI-2012-012-3493, 11 November 2013.
[2] She was charged with stealing cash from the cricket club on two other occasions as well as on the above occasion. At trial she was found not guilty in respect of these other occasions but guilty in respect of the 15 December 2011 occasion.
[3] At [32] citing R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [32]“[33]; see also R v Iosefa [2008] NZCA 453 at [41].
[4] At [35].
[5] At [36] citing R v Iosefa, above n 3. We note that in Iosefa the sentencing Judge in that case was not impressed with what he saw as a late guilty plea and self-serving expressions of remorse. The latter view was challenged on the appeal. This Court did not directly address this point. In resentencing Mr Iosefa the Court allowed a 33 per cent discount for œthe mitigating factors including the guilty plea?: at [43]).
[6] The Judges high starting point reflected the submissions that were before him. Counsel for the Crown submitted that the appropriate starting point was 18 months imprisonment. Counsel for Ms Byrne (not her present counsel on this appeal) submitted that it should be in the region of 15 to 18 months imprisonment. Present counsel makes a comparison with some other cases which indicate that a lower starting point could have been taken.