MARCELLE RALPH v NEW ZEALAND POLICE [2023] NZHC 2353

MARCELLE RALPH v NEW ZEALAND POLICE [2023] NZHC 2353 [28 August 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-000047[2023] NZHC 2353MARCELLE RALPHvNEW ZEALAND POLICEHearing: 11 July 2023Appearances: H Kim for the AppellantD Coulson for the DefendantJudgment: 28 August 2023JUDGMENT OF POWELL J[Appeal against Sentence]This judgment was delivered by me on 28 August 2023 at 4.00 pm pursuant tor 11.5 of the High Court Rules..Registrar/Deputy RegistrarSolicitors:Pollett Legal, TaurangaCounsel:H KimD Coulson[1] Marcelle Ralph has appealed a sentence imposed by Judge N D Cocurullo on13 March 2023.1 Coming up for sentence on eight charges namely wilful trespass,2theft (over $1,000),3 theft (under $500) (x5),4 and possession of utensils,5 JudgeCocurullo sentenced Ms Ralph to 14 months imprisonment,6 and declined Ms Ralphleave to apply for home detention.7[2] Ms Ralph contends the sentence was manifestly excessive. On her behalf MsKim acknowledged the appeal was effectively moot as, taking into account the timespent remanded in custody before Ms Ralph was sentenced, by the time the appealwas heard her release was imminent.[3] Ms Ralph's appeal was filed 28 days late, but the Crown accepts that the filingappears to have been delayed due to a delay getting information from the DistrictCourt. In those circumstances I am satisfied leave should be granted to appeal.[4] The Court must allow the appeal if it is satisfied that, for any reason, there isan error in the sentence and that a different sentence should have been imposed.8 TheCourt will intervene where the sentence is manifestly excessive,9 but will not engagein "tinkering".10 The focus is on whether the sentence is within the appropriate range,rather than the process by which the sentence was reached.11The District Court decision[5] In the decision under appeal Judge Cocurullo identified the lead charge as thetheft (over $1,000) offence, which as with the other theft charges was for shoplifting.A starting point of nine months' imprisonment was adopted.12 This was uplifted bythree months for the remaining charges, resulting in an adjusted starting point of 121 Police v Ralph [2023] NZDC 4571.2 Trespass Act 1980, ss 4(4) and 11(2)(a). Maximum penalty: 3 months' imprisonment.3 Crimes Act 1961, ss 219 and 223(b). Maximum penalty: 7 years' imprisonment.4 Sections 219 and 223(d). Maximum penalty: 3 months' imprisonment.5 Misuse of Drugs Act 1975, ss 13(1)(a) and (3). Maximum penalty: 1 years' imprisonment.6 Police v Ralph, above n 1, at [11].7 At [5].8 Criminal Procedure Act 2011, s 250(2).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].10 Maihi v R [2013] NZCA 69 at [21]; and Mack v R [2013] NZCA 183 at [16].11 Tutakangahau v R, above n 9, at [36].12 Police v Ralph, above n 1, at [7].months' imprisonment. A further 50 per cent uplift was then imposed "to appreciate[Ms Ralph's] disgraceful previous offending record"13 of no less than 226 previousconvictions in respect of which Judge Cocurullo noted "at least 111 of those isstealing".14[6] His Honour noted that this second uplift also took into account the offendingcommitted on bail. Ms Ralph was then given total discounts of 30 per cent, namely a25 per cent discount for her guilty plea together with "another five per cent for theother matters which [her] lawyer has raised".15 This resulted in a net uplift of 20 percent which his Honour said he rounded up to give an end sentence of 14 months'imprisonment.16[7] While noting that the end sentence was "well below the two years", JudgeCocurullo went on to state:17As you know I have considered a sentence other than prison, it falls and wouldfall well short of the least restrictive option. There may well be rehabilitativeneeds for you but, in my view, the punitive sanction in the deterrence anddenunciation outweigh any of that currently.The case for Ms Ralph[8] Ms Kim had no issue with the starting point and the uplift for the remainingcharges, and also agreed the discounts given by Judge Corucullo for the guilty pleasand other factors were appropriate. Ms Kim, however, took issue with both the extentof the uplift for previous convictions and the lack of sufficient consideration as towhether home detention was appropriate.[9] Ms Kim relied in particular on several decisions of this Court,18 and a decisionof the Court of Appeal.19 In particular, Ms Kim noted that in Pahulu v Police, the13 At [8].14 At [3].15 At [9].16 At [10].17 At [10].18 Pahulu v Police [2020] NZHC 153; Minchin v Police [2017] NZHC 2004; Papa v Police [2019]NZHC 1309.19 Manikpersadh v R [2011] NZCA 452.Court held that despite the defendant's significant number of previous convictions, anuplift in excess of 33 per cent was excessive.20[10] With regard to the lack of other sentencing options canvassed and thecorresponding failure to consider the least restrictive outcome appropriate, Ms Kimsubmitted that this had been a feature of Ms Ralph's history, and by itself representeda material error. Ms Kim contended Ms Ralph had generally only received sentencesof imprisonment since 1999 and had been denied community-based sentences thatwere otherwise appropriate. In Ms Kim's submission the least restrictive outcome onthe present charges would have been a short term of imprisonment with leave to applyfor home detention if an appropriate address had become available.Discussion[11] Having considered the issues raised on behalf of Ms Ralph, I am satisfied thatthe sentence imposed was not manifestly excessive. The end sentence imposed waswithin range, albeit arguably stern. Any adjustment would amount to impermissibletinkering, particularly given the appeal was, in any event, moot.[12] I reach this conclusion for a number of reasons. First, there was no issue takenby Ms Kim with the starting point. That is because it was accepted that it was wellwithin range. This means a higher starting point would have been available to JudgeCocurullo which is important in a context where the appeal Court is looking at thefinal end sentence, not how it is constructed.21[13] Secondly, I am not satisfied after analysing the decision that the uplift imposedby Judge Cocurullo was excessive. The principles applicable were recently consideredby Dunningham J in Reedy v Police:22[18] Thus a criminal history in and of itself does not justify an uplift. Itmust have some relevance to the current sentencing process, for example, bybearing on the blameworthiness of the present offending or on the increasedneed for further deterrence.20 Pahulu v Police, above n 18, at [27]–[28].21 Tutakangahau v R, above n 9, at [36].22 Reedy v Police [2015] NZHC 1069.[19] The principles in relation to uplifting the previous offending cantherefore be stated as follows:(a) there will be no uplift for the bare existence of previousconvictions – to do so would be to punish offending more thanonce;(b) the permissible lines of reasoning, justifying an uplift, fall intothree broad categories:(i) previous convictions bearing upon character andculpability;(ii) indication of predilection to offend in a specific way(an indicator of reoffending); and(iii) the need to protect society by the imposition of adeterrent sentence.This necessarily requires the uplift top be firmly tied tospecific aspects of the offender's criminal history.23(c) the uplift must remain proportionate to the starting point fixedby the sentencing Judge;24(d) there is no fixed figure beyond which an uplift will be held tobe disproportionate.25 This is a matter to be determined, at firstinstance, by the sentencing [J]udge having regard to allrelevant factors (i.e. number, seriousness, and nature ofprevious convictions, previous sentences imposed, timeelapsed since the last conviction etc).[14] Dunningham J went on to note:26in all this, I observe that the rote recitation of what uplifts have beenimposed in previous cases is not determinative, nor can sentencing be reducedto a series of arithmetical calculations. It is a holistic exercise which thesentencing Judge is generally best placed to undertake.[15] In this case I note that while Judge Cocurullo appeared to indicate that he hadrounded the end sentence up, it is in fact clear from the maths the end sentence roundedthe uplift for previous convictions and offending on bail down such that the net upliftapplied was approximately 16.65 per cent rather than the 20 per cent identified in thejudgment. This means the total uplift actually imposed for previous convictions andoffending on bail was 46.65 per cent.23 O'Connor v R [2014] NZCA 328 at [41].24 See e.g. Tiplady-Koroheke v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478.25 Ripia v R [2011] NZCA 101 at [10].26 Reedy v Police, above n 22, at [24].[16] That figure is reduced still further when an appropriate allowance for theoffending carried out on bail is made. The offending on bail was significant as I noteit appears four of the shoplifting (theft under $500) offences and the possession ofutensils were all committed while Ms Ralph was on bail in respect of the lead offence.[17] As Mr Coulson submitted, when these factors are taken into account and afigure of, say, 15 per cent is attributed as an uplift for offending on bail, it can be seenthat the uplift for the previous offending is around 32 per cent. This is not onlyconsiderably less than the 50 per cent ostensibly attributed by Judge Cocurullo in hissentencing decision, but in Ms Ralph's case there are a truly staggering number ofprevious convictions and far more previous convictions than in any of the cases citedby Ms Kim in support of the appeal.[18] I am likewise satisfied that Judge Cocurullo did consider whether othersentencing options were available. It is, in fact, clear from the sentencing notes thatJudge Cocurullo understood that a community-based sentence was potentiallyavailable but considered that the least restrictive option available was imprisonmentas a result of Ms Ralph's previous criminal history. His Honour specifically (andemphatically) rejected that home detention (or any other community-based sentence)would be appropriate given her history and ongoing offending.[19] It is quite clear from the sentencing decision that his Honour was trying tomake a point to Ms Ralph, so as to get through to her that continued offending of thistype was unacceptable. I do accept that Judge Cocurullo went too far in suggestingthat a sentence of imprisonment for future dishonesty offending would be inevitable,as that will depend on the seriousness of any future offending. However, anyreservations I have with regard to that part of the approach taken in sentencing MsRalph does not affect the end sentence imposed in the present case.[20] Given Ms Ralph's previous offending history, and in particular her history ofdishonesty offences, there was a clear need for deterrence and denunciation. Whenthis is coupled with the fact that there was no suitable address identified for homedetention in any event it is difficult to see any error in the approach taken. It is alsoclear that while Ms Ralph has had in the course of her extensive criminal history many,generally small, sentences of imprisonment, she has (contrary to Ms Kim'ssubmission) also previously received a significant number of community-basedsentences since 1999 including community work, periodic detention and supervision,through to a suspended sentence in 2021. Given this position and the sheer number ofprevious offences it is difficult to see why a sentence of imprisonment was notappropriate in this case.Decision[21] The appeal is dismissed._______________________________Powell J