SAMUELS v NEW ZEALAND POLICE [2019] NZHC 694

SAMUELS v NEW ZEALAND POLICE [2019] NZHC 694 [4 April 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000027[2019] NZHC 694BETWEEN JONATHAN PAUL SAMUELSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2019Appearances: A McKenzie for AppellantJ H Whitcombe and C C White for RespondentJudgment: 4 April 2019JUDGMENT OF COOKE J[1] Morgan Samuels, formerly known as Jonathan Samuels, pleaded guilty to onecharge of theft over $1000, seven charges of theft under $500 and four charges oftrespass. On 19 February 2019, the District Court imposed a sentence of 11 months'imprisonment.1 The appellant appeals on the basis that the sentence was manifestlyexcessive.Facts[2] The appellant has no fixed address, is unemployed and has an alcohol problem.This offending is part of a much wider pattern of shoplifting, trespass and other minoroffending which has escalated since 2013, when the appellant's partner died. This isthe appellant's 18th sentence of imprisonment since 2013.1 R v Samuels [2019] NZDC 3137.[3] The charge of theft over $1000 arises from the appellant taking a near-newiPhone from an unattended bag at a bar on 24 December 2018. The phone case alsoincluded a bankcard and identification.[4] The other charges are as follows:(a) 3 September: two instances of theft from the same supermarket atvalues of $24 and $20.(b) 2 December: theft from a supermarket of $31.38 of goods.(c) 12 December: theft of $39.16 of goods from the same supermarket.(d) 12 December and 16 December (x2): trespass on the Christchurch busexchange.(e) 16 December: theft of electrical goods valued at $159.98 from a shop.(f) 17 December: theft of electrical goods valued at $249.98 from one shopand then goods valued at $28.68 from a supermarket, from which theappellant had been trespassed.[5] The supermarket thefts were all of wine and food. The pre-sentence reportidentifies alcohol as the major driver of the appellant's offending, along with ongoinggrief. The report notes however that the appellant is not interested in stopping usingalcohol and has not completed any alcohol programme commenced.District Court decision[6] The Judge first acknowledged that the appellant had written to the Court,apologising for the offending and recognising the cycle of being released from prison,being unable to find accommodation, being exposed to the culture of other homelesspeople, and offending again. However, the Judge stressed that the main underlyingfactor in the appellant's offending is alcohol, and without motivation to address thoseissues, escaping the pattern will be difficult.[7] The Judge noted that alongside deterrence and denunciation, a purpose ofsentencing in this case is protection of the public, particularly protection of shopowners from having their goods stolen and protection of people on properties fromhaving the appellant go there when they no longer want the appellant there.[8] The Judge took the theft over $1000 as the lead charge and imposed a startingpoint of six months' imprisonment. For the totality of the other offending, he appliedan uplift of five months. For offending while subject to release conditions, he appliedan uplift of one month and a further two months for criminal history. After a deductionof three months for early guilty pleas, the Judge imposed a final sentence of 11 months'imprisonment. The Judge also imposed release conditions for six months after thesentence end date of alcohol and drug intervention and attending a departmentalprogramme and/or maintenance group.Principles on appeal[9] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can be properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4Appellant's submissions[10] Mr McKenzie, for the appellant, confined his argument to the various upliftsengaged in by the District Court, and the overall end sentence. He does not challenge2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].the six-month starting point for the lead charge, but submits the uplifts wereindividually and collectively excessive.[11] He submits the uplift of five months for the seven thefts under $500 and thefour trespasses was excessive bearing in mind the maximum penalties for the offencesbeing three months' imprisonment. Mr McKenzie also highlights the low value of thethefts, and the total reparation due of $301.[12] Mr McKenzie submits the one month uplift for offending while subject toconditions and the two month uplift for criminal history were individually or togetherexcessive. He submits there is an element of double counting in these uplifts, and thatin total they reflect an uplift of 25 to 30 per cent on account of previous convictions.As such, he submits that issues of totality are engaged. He submits that a total upliftof between one and two months to reflect previous convictions would be appropriate.[13] In total, Mr McKenzie that a more appropriate final sentence would be eight tonine months' imprisonment.Respondent's submissions[14] Mr White, for the Police, refers to a number of cases with similar fact scenariosand end sentences of between six and nine months' imprisonment.[15] Mr White submits that an appropriate starting point for all eight theft chargeswould be around six to eight months, and then an uplift for the trespass offendingwould be appropriate. He submits that the appellant returned to a supermarket threedays after being trespassed and stealing further items can be considered a significantaggravating feature.[16] He submits that a further uplift for offending while subject to conditions andcriminal history was appropriate, given the appellant's 69 previous dishonestyconvictions and 12 further trespass convictions. Mr White submits that the Judge wasright to take into account the need to protect the community when sentencing theappellant.[17] Mr White submits that the end sentence was not manifestly excessive and theappeal should be dismissed.Analysis[18] I essentially agree with the submissions for the appellant that the ultimate endsentence here was excessive, and that this has been the consequence of the uplifts thathave been engaged in.[19] Although the cases referred to by counsel involve their own circumstances theydo provide some guidance. In particular:(a) In Henry v Police, the appellant pleaded guilty to 13 charges of theft,breaching release conditions and possession of methamphetamine.5Eight of the shoplifting charges were for theft under $500 and theremaining five for theft between $500 and $1000. Six of the shopliftingcharges involved theft from six different stores on one day, and theremaining seven charges arose over a period of eight months. The totalvalue of the stolen property was $5,568.23. On appeal, Clark J heldthat a six month starting point for the spree offending would have beenappropriate, and the end sentence of nine months' imprisonment wasnot excessive. That sentence included discounts for time spent on EMbail and timing of the charges, along with for guilty pleas.(b) In McKenzie v Police, the appellant pleaded guilty to four charges oftheft under $500, two charges of failure to answer bail and two ofbreaching conditions.6 Brown J in the High Court held that an endsentence of 12 months' imprisonment was excessive and replaced itwith an end sentence of six months' imprisonment. A starting point ofsix months was appropriate for the theft charges with uplifts of twomonths for the non-compliance charges and one and a half months for5 Henry v Police [2016] NZHC 800.6 McKenzie v Police [2015] NZHC 2742.criminal history, with discounts allowed for mental health issues andguilty pleas.(c) In McMurtrie v Police, the appellant pleaded guilty to six charges oftheft (five under $500 and one between $500 and $1000) and onecharge of possession of cannabis.7 In the High Court Clifford Jconsidered that a starting point of six months for all the theft offendingwould be appropriate, with an uplift of one month for offending whileon bail and a cumulative sentence of one month on the cannabis charge,plus a discount for guilty plea. Clifford J thus quashed the end sentenceimposed in the District Court of 12 months' imprisonment andsubstituted a sentence of six months' imprisonment.[20] The present case seems to me to be more serious than McKenzie andMcMurtrie, but comparable to Henry.[21] As the Court of Appeal said in Tutakangahau v R the focus is on the sentenceimposed, rather than the process by which it was reached.8 But here it seems to methat the overall end sentence is excessive, and inconsistent with the above cases, andthat this has been the result of an erroneous application of uplifts.[22] There is no dispute concerning the starting point of six months' imprisonmentfor the lead charge of theft over $1000, which is in line with the above cases. However,a further uplift of five months to reflect the other theft and trespass charges, the furthertwo month uplift for the remaining charges, and the one month uplift for offendingwhile on release conditions results in an end sentence that is inconsistent with thesecases. The uplifts are significantly greater than the starting point. The ultimate resultbrings the totality principle into play. Most of the offending here occurred in a three-week period, much less than the eight months in Henry, and the total value of the theftswas significantly lower than the similar offending in Henry. Whilst I acceptMr White's point that the other factors are identified as separate matters under s 9, andare accordingly capable of assessment as separate matters, with totality in mind, in my7 McMurtrie v Police [2015] NZHC 1031.8 Tutakangahau v R, above n 3 at [36].view a total uplift of five months for both the other offending and breach of releaseconditions would be more appropriate.[23] The Judge referred to the principles identified in ss 7 and 8 of the SentencingAct 2002 including deterrence, denunciation and the protection of the public. Hereferred to the protection of shop owners being exposed to the repeated offending thathas been engaged in. But it has been demonstrated that short terms of imprisonmentare not effective in breaking the appellant's cycle of offending. A longer short-termprison sentence is unlikely to make any material difference in terms of these factors.If the appellant's cycle of offending is to be prevented other measures directed topreventing reoffending will need to be effective.[24] On the basis outlined above, with a discount for guilty pleas of 25 per cent theend sentence would be nine months' imprisonment. This sentence would be more inline with the authorities.Conclusion[25] The appeal is allowed and a sentence of nine months' imprisonment issubstituted.Cooke JSolicitors:Crown Solicitors Office, Christchurch for Respondent