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Jailed thief wins appeal

Judge’s sentence too long; offender to serve rest of sentence at home

Judge’s sentence too long; offender to serve rest of sentence at home

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A Gisborne mother of three jailed last month for stealing a $520 statue and other lesser offences has won a High Court appeal against the six-month sentence.

The High Court found the sentence imposed on Ereti Lara Hinaki, 28, by Judge Warren Cathcart was too long and reduced it to four and a half months. It also converted the remainder to home detention.

Hinaki had been in custody for five and a half weeks — the equivalent of an 11-week prison term. The remainder of the sentence converts to nine weeks home detention.

She will also have to undergo assessment and counselling for drugs and other issues, and do a driving programme.

Hinaki pleaded guilty to the lead charge — theft of goods valued between $500 and $1000 (the statue) for which a maximum term of a year’s imprisonment applies.

She also pleaded guilty to 10 lesser offences — seven thefts from other shops (involving goods under $500), driving while her licence was suspended, breaching bail and breaching community work.

Some of the offences were while she was on bail and still subject to a community work sentence imposed for similar shoplifting offences two months earlier. She failed to complete 93 hours of that sentence.

Judge Cathcart’s decision to jail Hinaki was not anticipated by counsel Elliot Lynch, who endorsed a sentence of community detention coupled with community work, recommended by the Department of Corrections.

Judge Cathcart said “soft sentences were not appropriate” and it was time to send a deterrent message to Hinaki and other shoplifters.

“Shoplifting is epidemic in Gisborne and offenders come and go without any real deterrence offered by the courts.

“I consider the least restrictive outcome is imprisonment and I don’t consider home detention is an appropriate response. No sentence apart from a term of imprisonment satisfies all requirements of the Sentencing Act,” the judge said.

Shoplifter's prison sentence is ruled excessive on appeal

As Hinaki was led away, Mr Lynch was left to make arrangements for her children — aged 5, 10, and 12 — who were to be collected from school a few hours later.

Mr Lynch appealed the sentence on the grounds the judge erred in not exercising his discretion to convert the sentence of imprisonment to home detention and by imposing cumulative penalties, without adjusting for totality, had reached an excessive sentence.

Hinaki had no previous convictions for driving while suspended or disqualified, or for breaching community work. First-time driving offences routinely resulted in a fine or community-based sentence, so two months uplift applied by Judge Cathcart for these alone was excessive and disproportionate to the gravity of the offending, Mr Lynch submitted.

Hearing the appeal last week, Justice Churchman agreed. He said the two-month uplift was unnecessary. Adjusted for totality, the starting point was excessive.

Judge Cathcart was not wrong to focus on the Sentencing Act principals of deterrence and denunciation, but had erred by considering home detention was insufficient to meet those needs, Justice Churchman said.

“Although Ms Hinaki’s history of compliance with court-imposed conditions is not particularly reassuring, she has not yet been subject to a sentence of home detention and it is to be hoped that she would make the most of any opportunity to demonstrate she can comply with its more onerous requirements.

“In the circumstances, home detention would be the least restrictive form of sentence that would serve the purpose of deterrence and denunciation while taking into account Ms Hinaki’s family situation.”

Justice Churchman warned Hinaki his decision was in the hope of her rehabilitiation. Her future was in her hands and failure to comply would inevitably result in imprisonment.

The Crown opposed the appeal.

Prosecutor Amanda Bryant submitted the uplifts applied by Judge Cathcart were entirely appropriate and well within range.

Ms Bryant said the judge explicitly adjusted for totality when uplifting for the remaining charges. Judge Cathcart was entitled to consider home detention was insufficient to denounce and deter Hinaki. Many of the thefts were particularly brazen and the offending occurred for six months.

Hinaki had five previous convictions for shoplifting since 2017, along with two others from 2010 and 2011, as well as other previous convictions. Her offending persisted undeterred, notwithstanding she was subject to a sentence (for similar offending) in breach of that sentence, and on bail.

Ms Bryant also pointed to Hinaki’s demonstrated unwillingness to complete community work due to having sole care of her children, despite her being able to complete such hours while they were at school.

While Hinaki expressed some remorse to the author of the pre-sentence report, it needed to be considered in the context of a spree of dishonesty offending that started just two months after her last sentence.

A Gisborne mother of three jailed last month for stealing a $520 statue and other lesser offences has won a High Court appeal against the six-month sentence.

The High Court found the sentence imposed on Ereti Lara Hinaki, 28, by Judge Warren Cathcart was too long and reduced it to four and a half months. It also converted the remainder to home detention.

Hinaki had been in custody for five and a half weeks — the equivalent of an 11-week prison term. The remainder of the sentence converts to nine weeks home detention.

She will also have to undergo assessment and counselling for drugs and other issues, and do a driving programme.

Hinaki pleaded guilty to the lead charge — theft of goods valued between $500 and $1000 (the statue) for which a maximum term of a year’s imprisonment applies.

She also pleaded guilty to 10 lesser offences — seven thefts from other shops (involving goods under $500), driving while her licence was suspended, breaching bail and breaching community work.

Some of the offences were while she was on bail and still subject to a community work sentence imposed for similar shoplifting offences two months earlier. She failed to complete 93 hours of that sentence.

Judge Cathcart’s decision to jail Hinaki was not anticipated by counsel Elliot Lynch, who endorsed a sentence of community detention coupled with community work, recommended by the Department of Corrections.

Judge Cathcart said “soft sentences were not appropriate” and it was time to send a deterrent message to Hinaki and other shoplifters.

“Shoplifting is epidemic in Gisborne and offenders come and go without any real deterrence offered by the courts.

“I consider the least restrictive outcome is imprisonment and I don’t consider home detention is an appropriate response. No sentence apart from a term of imprisonment satisfies all requirements of the Sentencing Act,” the judge said.

Shoplifter's prison sentence is ruled excessive on appeal

As Hinaki was led away, Mr Lynch was left to make arrangements for her children — aged 5, 10, and 12 — who were to be collected from school a few hours later.

Mr Lynch appealed the sentence on the grounds the judge erred in not exercising his discretion to convert the sentence of imprisonment to home detention and by imposing cumulative penalties, without adjusting for totality, had reached an excessive sentence.

Hinaki had no previous convictions for driving while suspended or disqualified, or for breaching community work. First-time driving offences routinely resulted in a fine or community-based sentence, so two months uplift applied by Judge Cathcart for these alone was excessive and disproportionate to the gravity of the offending, Mr Lynch submitted.

Hearing the appeal last week, Justice Churchman agreed. He said the two-month uplift was unnecessary. Adjusted for totality, the starting point was excessive.

Judge Cathcart was not wrong to focus on the Sentencing Act principals of deterrence and denunciation, but had erred by considering home detention was insufficient to meet those needs, Justice Churchman said.

“Although Ms Hinaki’s history of compliance with court-imposed conditions is not particularly reassuring, she has not yet been subject to a sentence of home detention and it is to be hoped that she would make the most of any opportunity to demonstrate she can comply with its more onerous requirements.

“In the circumstances, home detention would be the least restrictive form of sentence that would serve the purpose of deterrence and denunciation while taking into account Ms Hinaki’s family situation.”

Justice Churchman warned Hinaki his decision was in the hope of her rehabilitiation. Her future was in her hands and failure to comply would inevitably result in imprisonment.

The Crown opposed the appeal.

Prosecutor Amanda Bryant submitted the uplifts applied by Judge Cathcart were entirely appropriate and well within range.

Ms Bryant said the judge explicitly adjusted for totality when uplifting for the remaining charges. Judge Cathcart was entitled to consider home detention was insufficient to denounce and deter Hinaki. Many of the thefts were particularly brazen and the offending occurred for six months.

Hinaki had five previous convictions for shoplifting since 2017, along with two others from 2010 and 2011, as well as other previous convictions. Her offending persisted undeterred, notwithstanding she was subject to a sentence (for similar offending) in breach of that sentence, and on bail.

Ms Bryant also pointed to Hinaki’s demonstrated unwillingness to complete community work due to having sole care of her children, despite her being able to complete such hours while they were at school.

While Hinaki expressed some remorse to the author of the pre-sentence report, it needed to be considered in the context of a spree of dishonesty offending that started just two months after her last sentence.

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