THORNICROFT v NEW ZEALAND POLICE [2018] NZHC 2895

THORNICROFT v NEW ZEALAND POLICE [2018] NZHC 2895 [8 November 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-29[2018] NZHC 2895JAYGE DAVID THORNICROFTvNEW ZEALAND POLICEHearing: 7 November 2018Appearances: L R H Grant and M M Dixon for the AppellantF E Cleary for the RespondentJudgment: 8 November 2018REASONS JUDGMENT OF CULL J[1] Mr Thornicroft was sentenced to 11 months' imprisonment by Judge Adeaneon 30 August 2018 for the following charges:1(a) one charge of breaching release conditions;2(b) six charges of theft under $500;3 and(c) four charges of wilful trespass.41 New Zealand Police v Thornicroft [2018] NZDC 18362.2 Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or a $2,000 fine.3 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months' imprisonment.4 Trespass Act 1980, ss 4(4) and 11(2)(a). Maximum penalty three months' imprisonment or a$1,000 fine.[2] Mr Thornicroft now appeals that sentence as manifestly excessive. He submitsthe Judge erred in failing to consider the totality of the offending and failed to takeinto account his guilty plea. Mr Thornicroft does not take issue with a sentence ofimprisonment being imposed as no home detention address is available.[3] The Crown opposes the appeal. Although the Judge did not adopt an orthodoxsentencing methodology, the Crown submits the sentence was within the availablerange.[4] The issue on this appeal is whether the Judge erred in sentencing MrThornicroft and, if so, whether a different sentence should be imposed.[5] After receiving counsel's submissions and hearing from counsel, I delivered aresults judgment, allowing the appeal.5 I now provide the reasons.Factual background[6] Mr Thornicroft's offending occurred on multiple occasions between May andJuly 2018. On 9 May 2018 Mr Thornicroft was released from Hawke's Bay RegionalPrison on release conditions. On 15 May 2018, he breached his released conditionsby failing to report to his probation officer as directed.[7] During this period, Mr Thornicroft stole items on six different occasions. Insum, the items he stole included:(a) groceries and a shopping basket (valued at $105.82);(b) a Samsung gear video recorder (valued at $499);(c) baby clothing (valued at $30);(d) clothing (valued at 125.98);(e) razor blades (valued at 125.16); and5 Thornicroft v R [2018] NZHC 2889.(f) chocolate (valued at $15).[8] The items he stole were from various locations in Napier and Hastings,including Pak n Save and The Warehouse, from which he had previously been givena trespass warning. He entered those properties on four occasions and was chargedwith four charges of wilful trespass.[9] When spoken to, Mr Thornicroft identified that in relation to some of theoffending he needed some new clothes, needed food and did not have any money topay for these items. For two months following his release from prison for previousoffending, Mr Thornicroft reported being homeless and needing to steal to survive.[10] Mr Thornicroft is 26 years old. He has 89 previous convictions, 34 of whichrelate to shoplifting, theft, burglary or other dishonesty offences. He also has 22convictions for breaching release conditions, failing to answer bail or breachingcommunity work. Mr Thornicroft had a disadvantaged upbringing and wasencouraged to shoplift from the age of 10. This appears to be normalised behaviourfor him. He has not had any recent employment and has addiction issues withsynthetic cannabis and methamphetamine.Pre-sentence report[11] The pre-sentence report assessed his likelihood of reoffending as high becauseof the numerous convictions he has amassed in an eight-year period. The reportrecommended a sentence of imprisonment because of Mr Thornicroft's re-offendingwhilst serving an existing sentence, the similar type of offences being committed andhis repeated inability to comply with sentence conditions. The report identified thattime in prison would allow Corrections to work alongside Mr Thornicroft for a morerobust plan for release and recommended release conditions to assist him in thecommunity and allow oversight of him. The report recommended two specialconditions: attendance at a drug and alcohol programme and a psychologicalassessment and treatment programme, as recommended. The report writer noted,however, that Mr Thornicroft is not eligible for any department programmes, andspecifically requested that Mr Thornicroft undergo a psychological assessment toaddress his offending needs.[12] Mr Thornicroft has been in custody since 28 July 2018. The report identifiedthat Mr Thornicroft would need to serve an imprisonment sentence of more than ninemonths to be able to complete any rehabilitation programmes.[13] Although Mr Thornicroft has had difficulty finding housing in the past, hissister has recently offered for him to stay with her following his release from prison.He began living at this address two weeks prior to his arrest. Although the house wasnot considered suitable for a home detention sentence, the pre-sentence reportobserved this is a pro-social environment for Mr Thornicroft and he recognises theimportance of stable accommodation in establishing an offence-free lifestyle.District Court decision[14] The Judge identified Mr Thornicroft's lengthy criminal history and that he hadonly recently been released from prison when he began offending again. The Judgeobserved "apparently the message that accumulating offending will haveaccumulating consequences, has not been adequately conveyed to Mr Thornicroft."6[15] The Judge considered that because "of the way prison is organised", unless MrThornicroft is sentenced to a period in excess of a certain term, he will not receivecounselling and drug treatment "which he desperately needs and which lies at the rootof his ongoing and apparently incorrigible offending."7 This term was identified inthe pre-sentence report as nine months' imprisonment.[16] Without identifying a starting point or assessing the culpability of MrThornicroft's offending, the Judge "accordingly" imposed sentences of one monthimprisonment for each of the 11 offences, to be served cumulative upon each other.8This resulted in an effective sentence of 11 months' imprisonment.6 Thornicroft, above n 1, at [2].7 At [3].8 At [4].Approach to appeal[17] This appeal is brought under s 250 of the Criminal Procedure Act 2011 as anappeal against a discretion. An appeal against sentence must be allowed if the Courtis satisfied that, for any reason, there is an error in the sentence imposed and a differentsentence should be imposed.9 The focus is on the final sentence and whether that wasin the available range, rather than the exact process by which it was reached.10Grounds of appeal[18] Mr Thornicroft appeals his sentence on the following grounds:(a) there was an insufficient adjustment for the totality of the offending;and(b) the Judge failed to impose a discount for Mr Thornicroft's guilty plea.Parties' positions[19] Mr Thornicroft submits the Judge erred in failing to consider the totality of theoffending when imposing cumulative sentences. Mr Thornicroft submits this resultedin a manifestly excessive sentence. As four of the theft charges were committed at thesame time as the wilful trespass charges, Mr Thornicroft submits these charges shouldhave been sentenced concurrently.[20] Mr Thornicroft further submits the Judge erred in failing to impose a discountfor his early guilty pleas. The full 25 per cent discount should have been imposed.11Ms Grant, counsel for Mr Thornicroft, submits that as the Judge did not impose astarting point, it is difficult to see whether or not a guilty plea discount was in factapportioned to the end sentence.9 As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.10 Ripia v R [2011] NZCA 101 at [15].11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[21] The Crown argues the focus must be on whether the end sentence wasmanifestly excessive in the circumstances and submits this sentence was not.12 TheCrown submits that several factors distinguish Mr Thornicroft's case from those reliedon by Ms Grant, including the number of charges he faces, his numerous previousconvictions and that he was still subject to release conditions when he committed thepresent offending. The Crown further submits the Judge adequately took into accountMr Thornicroft's rehabilitative needs and was correct to prioritise deterrence,denunciation and punishment in his sentence considering Mr Thornicroft has failed toengage with support offered following his previous and last release from prison.Although the Judge did not explicitly identify a discount for Mr Thornicroft's guiltyplea, the Crown submits this ground has no merit as the sentence was within theavailable range.Relevant law[22] Sections 84 and 85 of the Sentencing Act 2002 are relevant here. They provide:84 Guidance on use of cumulative and concurrent sentences ofimprisonment(1) Cumulative sentences of imprisonment are generally appropriate ifthe offences for which an offender is being sentenced are different inkind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if theoffences for which an offender is being sentenced are of a similar kindand are a connected series of offences.(3) In determining for the purpose of this section whether 2 or moreoffences committed by 1 offender are a connected series of offences,the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the courtconsiders relevant.12 Relying on the following authorities: Kelly v New Zealand Police [2013] NZHC 1250; andKennedy v New Zealand Police [2013] NZHC 714.85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrentsentences, or a combination of concurrent and cumulative sentences,must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[23] The Judge made several errors in his sentencing decision. The Judge did notconsider either ss 84 or 85 in imposing his sentence. I accept Ms Grant's submissionthat the four charges of wilful trespass and four of the charges of theft occurred on thesame days and are not different in kind. They were a connected series of events andshould have been considered as concurrent sentences, not cumulative sentences, as thelegislation predicates in s 84(2) of the Sentencing Act. Further, the Judge failed toconsider the totality of the offending contrary to s 85, in assessing whether the 11month sentence was appropriate.[24] However, as the Crown submits, the key issue is whether the final sentence of11 months' imprisonment was manifestly excessive. The authorities relied on bycounsel are discussed below to assist with determining whether the sentence wasmanifestly excessive.Case Facts Appeal Final sentenceMcKenzie vNewZealandPolice13Mr McKenziepleaded guiltyto eight charges(four charges oftheft under$500, twocharges offailing toanswer bail andtwo charges ofbreachingconditions).Brown J allowed anappeal against asentence of 12 months'imprisonment.Starting point: BrownJ imposed six months'imprisonment fortheft charges.There was an uplift oftwo months for thefour non-compliancecharges.There was anadditional uplift ofone and a half monthsimposed for previousconvictions (39convictions since2007). The finalstarting point of nineand a half months wasreduced to sixmonths'imprisonment, toreflect the appellant'smental health issuesand early guilty plea.NewZealandPolice vMcMurtrie14Mr McMurtriepleaded guiltyto six charges oftheft (fivecharges forgoods under$500 and onecharge for goodsbetween $500 to$1,000) and onecharge ofpossessingcannabis.Clifford J allowed anappeal against asentence of 12 months'imprisonment.Starting point:Clifford J adopted astarting point of sixmonths' imprisonmentfor the lead charge oftheft. An uplift of onemonth imprisonmentwas imposed as theoffending occurredwhile on bail.A further uplift of onemonth was imposedto reflect the chargeof possessingcannabis. After a 25per cent discount forhis guilty plea, a finalsentence of sixmonths'imprisonment wasimposed.13 McKenzie v New Zealand Police [2015] NZHC 2742.14 New Zealand Police v McMurtrie [2015] NZHC 1031.Case Facts Appeal Final sentenceHoward vNewZealandPolice15Ms Howardpleaded guiltyto six counts oftheft (fourcharges forgoods under$500 and twocharges forgoods between$500 to $1,000).Thomas J allowed anappeal against sixmonths' imprisonmentand six months' releaseconditions.Thomas J imposed asentence of 250hours' communitywork and 12 months'supervision onappeal, withconditions to attendappropriaterehabilitation.Kelly v NewZealandPolice16Ms Kellypleaded guiltyto four chargesof theft (threecharges under$500 and onejust over $500),one charge oftrespass and onecharge ofbreaching acommunitywork order.Toogood J dismissed anappeal against asentence of eightmonths' imprisonmentfor the offending. Onappeal, Toogood Jobserved that a startingpoint of four to fivemonths' imprisonmentwould have beenappropriate for the leadcharge of theft. Hewould have uplifted thesentence by a furthereight months: twomonths' imprisonmentfor the appellant'sprevious convictions;two months for the factthe offending occurredwhile on bail andserving a communitybased sentence; threemonths for the othertheft charges; and onemonth for the charge ofbreaching thecommunity work order.The Judge considered adiscount of two to threemonths was appropriateto reflect the totality ofthe offending. A furtherdiscount of 25 per centToogood J held thesentence of eightmonths'imprisonment wasstern but within theavailable range.15 Howard v New Zealand Police [2015] NZHC 150.16 Kelly, above n 12.for the appellant'sguilty pleas produced asentence of six yearsnine months to sevenand a half months'imprisonment.Case Facts Appeal Final sentenceKennedy vNewZealandPolice17Mr Kennedypleaded guiltyto six charges oftheft.Miller J allowed theappeal as the Judge hadmade an arithmeticalerror in calculating thesentence (should havebeen eight months),however, the appealwas allowed only onthis basis.Eight months'imprisonment.Analysis[25] In light of the authorities, I find the sentence of 11 months' imprisonment wasmanifestly excessive. The value of the goods Mr Thornicroft stole was minimal, andon several occasions he stole items of food or clothing to "survive", as he described.[26] In addition, the Judge made several errors in imposing a sentence of 11months' imprisonment:(a) the Judge erred in imposing a sentence that was long enough to ensureMr Thornicroft accessed rehabilitation programmes in prison,especially when post-release conditions were recommended in the pre-sentence report to achieve the rehabilitation he needs;(b) the Judge placed undue weight on denunciation and deterrence;(c) the Judge failed to consider whether the sentence should be imposedcumulatively or concurrently, based on whether the incidents were a17 Kennedy, above n 1212.connected series of events, in accordance with the legislative guidanceunder s 84 of the Sentencing Act;(d) the Judge failed to consider the totality of the offending in light of thesentence imposed, contrary to s 85 of the Sentencing Act; and(e) the Judge failed to give Mr Thornicroft a full 25 per cent for his guiltypleas, entered at the first available opportunity.18[27] From his sentencing notes and the comments in the pre-sentence report, itappears the Judge considered that imprisonment of over nine months was the best andonly way for Mr Thornicroft to access rehabilitative measures in prison. The pre-sentence report, however, expressly recommended special release conditions requiringdrug and alcohol treatment and psychological assessment in the community.[28] Although Mr Thornicroft does have an extensive criminal history, it is clear hisoffending is motivated by deprivation and his drug dependency. While that does notexcuse his offending, these factors should be considered in assessing thecircumstances of his offending and the appropriate sentence to impose. Further, MrThornicroft now has relatively stable accommodation available to him, at his sister'saddress. Provided that he is able to access rehabilitative support and treatment onrelease from prison, there is no reason for a prolonged sentence for theft of small-valueitems and nuisance offending, albeit repetitive. That is why the special releaseconditions are appropriate, to give Mr Thornicroft support and an opportunity tochange his lifestyle in the community.[29] The Court must impose the least restrictive outcome that is appropriate in thecircumstances.19 I accept Ms Grant's submission that a more appropriate sentence issix months' imprisonment, in light of the above authorities:20(a) a starting point of six months' imprisonment;18 This discount should be given after the culpability of the offending has been assessed: see Hessell,above n 11, at [72].19 Sentencing Act 2002, s 8(g).20 McKenzie, above n 13; McMurtrie, above n 14; and Howard, above n 15.(b) one month uplift for Mr Thornicroft's previous relevant offending;(c) one month uplift for Mr Thornicroft's offending while on post-releaseconditions;(d) five per cent discount for Mr Thornicroft's personal circumstances andremorse (including his prospects of rehabilitation in finally having aresidential address); and(e) a discount of 25 per cent for his early guilty pleas.[30] This produces a final sentence of six months' imprisonment.Result[31] I am allowing this appeal. The sentence of 11 months' imprisonment isquashed. In substitution, one month's imprisonment is imposed on each of the sixtheft charges to be served cumulatively on each other, together with five concurrentsentences of one month on the remaining charges, totalling six months' imprisonment.I also impose two special release conditions, attaching for a period of six months afterthe sentence expiry date, namely:(a) Mr Thornicroft is to attend and complete an appropriate alcohol anddrug counselling, programme or treatment including residentialrehabilitation to the satisfaction of a probation officer. The specificdetails of the appropriate programme shall be determined by hisprobation officer.(b) Mr Thornicroft is to attend an assessment for a departmentalpsychologist as directed by a probation officer. He is to attend andcomplete any counselling, treatment or programme as recommended bythe assessment as directed by and to the satisfaction of his probationofficer.Cull JSolicitors:Elvidge & Partners, Napier for Crown