IN THE COURT OF APPEAL OF NEW ZEALAND
CA802/2013
[2014] NZCA 32
BETWEEN
AMY JANE BYRNE
Appellant
AND
THE QUEEN
Respondent
Hearing:
17 February 2014
Court:
Ellen France, MacKenzie and Mallon JJ
Counsel:
A Stevens for Appellant
J E Mildenhall for Respondent
Judgment:
24 February 2014 at 11.30 am
JUDGMENT OF THE COURT
A
The appeal against sentence is allowed.
B
The sentence of 12 months’ imprisonment is quashed.
C
We substitute a sentence of three months and two weeks’ imprisonment
together with an order for reparation of $600.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
BYRNE V R CA802/2013 [2014] NZCA 32 [24 February 2014]
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 club’s alarm. Using that knowledge
she was able to enter the cricket club’s premises in the early hours of 15 December
2011. She took $600 from the till for the club’s bar facilities. To cover her tracks
she entered a false record of her whereabouts in her employer’s 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 Byrne’s
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.
1
2
3
R v Byrne DC Dunedin CRI-2012-012-3493, 11 November 2013.
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.
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].
The first was that the offending was “somewhat 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
employer’s trust in the employee and the club’s 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 client’s 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 Byrne’s 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.
4
5
At [35].
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 “the mitigating factors
including the guilty plea”: at [43]).
[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 Byrne’s 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.
6
The Judge’s 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.
We order reparation of $600. Ms Byrne may make arrangements for that to be paid
by instalments.
Solicitors:
Crown Law Office, Wellington for Respondent