PYPER v NEW ZEALAND POLICE [2021] NZHC 1448

PYPER v NEW ZEALAND POLICE [2021] NZHC 1448 [18 June 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000052[2021] NZHC 1448BETWEEN MELISSA VALERIE PYPERAppellantAND NEW ZEALAND POLICERespondentHearing: 17 June 2021Appearances: C M Ruane for AppellantA M Harvey for RespondentJudgment: 18 June 2021ORAL JUDGMENT OF GENDALL JThis judgment was delivered by me on 18 June 2021 at 11 a.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Melissa Piper (Ms Pyper), following a guilty plea, wassentenced on 8 April 2021 by Judge A M Fitzgibbon in the District Court atChristchurch to 13 and a half months' imprisonment on three charges of stealing itemsvalued less than $500 and one charge of stealing items valued more than $1000. TheJudge also ordered Ms Pyper pay reparation of $863.28.[2] She appeals that sentence.Factual background[3] As to the first charge of theft under $500, the event in question occurred on28 September 2020 at an Invercargill Placemakers store. She took a Makita chargerfrom the power tool section, concealed it under her clothing, and exited the store. Thecharger was worth $300.[4] The second charge of theft under $500 involved a visit on 4 October 2020 to aGore Mitre 10 store. There, she picked up two Makita 18-volt lithium batteries, acolour changing LED lightbulb and a colour changing LED light strip and took themout of their packaging. She then concealed them in her clothing and put the emptypackets back on the shelf. She exited the store. These items were worth $348.44.[5] The one charge of theft over $1,000 involved an event that occurred on15 January 2021, when Ms Pyper entered the Yak's and Yeti's store on Tay Street,Invercargill. There, she took eight pieces of sterling silver jewellery from anunsecured glass cabinet and placed them into her hand bag. She then exited the storewithout paying. The jewellery was worth a total of $1,537.[6] The last charge of theft under $500 involved a visit on 17 January 2021 to aNew World supermarket in Gore. She picked up a basket and went to the meat section.She placed two packets of beef fillet steak and two packets of beef porterhouse steakinto her basket. She then walked to the seafood section and added a container ofcooked prawns to the basket. She moved to a corner of the store and concealed theitems under her clothing. She exited the store. The meat and prawns were worth$214.86.[7] Ms Pyper admitted taking the items. She says, too, that the jewellery has beenrecovered. She maintains the shoplifting was to get money so she could buy syntheticcannabis or food.District Court decision[8] Judge Fitzgibbon in the District Court began her sentencing remarks with thefacts and charges. Then she turned to the pre-sentence report.[9] The Judge considered Ms Pyper's own explanation of events recorded in thepre-sentence report that her recidivist offending was a result of self-reported ADHDand self-medication using synthetic cannabis. The Judge found it important, however,that Ms Pyper had displayed a low level of motivation to attend interventions.[10] Judge Fitzgibbon outlined Ms Pyper's "significant offending history"including convictions for dishonesty, drug use, violence and non-compliance. Shenoted too that Ms Pyper's offending has been regular since 1998, counting105 convictions for stealing items of less than $500 and between $500 and $1,000.Ms Pyper also has other convictions for dishonesty offences in addition to those fortheft.[11] Judge Fitzgibbon considered the probation officer's comment that a moreintensive treatment pathway such as the Kowhiritanga programme is what is neededto mitigate Ms Pyper's risk of reoffending. She commented, however, such aprogramme is only available in prison.[12] The Judge then turned to consider the decision of this Court in Torbarina vPolice.1 There, a starting point of 18 months' imprisonment was regarded as withinrange for similar thefts, given in that case that the offender had 50 previous convictionsover a span of 17 years.1 Torbarina v Police [2014] NZHC 3221.[13] Judge Fitzgibbon also found in the instant case that home detention wasinsufficient to meet the purposes and principles of the Sentencing Act 2002 andadopted the same starting point of 18 months' imprisonment. She then discounted thatstarting point by 25 per cent to take into account Ms Pyper's guilty plea. That left anend sentence of 13 and a half months' imprisonment. Reparation of $863.28 was alsoordered to be paid to the victims.Principles on appeal[14] 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 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.4SubmissionsAppellant's submissions[15] Mr Ruane acknowledged Ms Pyper's very extensive history of theft offendingand that she was imprisoned for lesser offending on 20 March 2020. Responsibly, heaccepted that a starting point of imprisonment was justified here.[16] However, Mr Ruane contended that the starting point of 18 months'imprisonment adopted in the District Court was manifestly excessive.[17] Overall, he suggested that imprisonment was inappropriate for Ms Pyper hereand instead a constructive and rehabilitative sentence was needed. He acknowledged2 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].Ms Pyper's recidivism and that she has offended, among other things, to support adrug habit. He endeavoured to argue there was little evidence generally thatdeterrence, insofar as it relates to severity of punishment, prevents or reducesoffending in a case such as the present. In support of this submission Mr Ruanereferred to the fact that prevention is more cost-effective than imprisonment.5[18] Mr Ruane further submitted, perhaps rather cynically, that a sentence ofimprisonment would do nothing in this case other than simply to keep Ms Pyper outof circulation for a time. He said she will be released having served half her sentenceand, without a proper and rigorous rehabilitation programme, based on pastperformance, she will simply fall back into offending. The root causes of heroffending, he said, need to be addressed and an intensive rehabilitative sentence shouldhave been imposed in the District Court.[19] Mr Ruane filed further submissions in which he provided a psychologicalreport on Ms Pyper prepared in May 2019. At the hearing of this appeal, he handedup a 15 June 2021 report from Ms Pyper's counsellor and a June 2021 email exchangebetween Ms Helen Whittington, a probation officer involved with Ms Pyper, andhimself. I have now had an opportunity to consider this material and have taken intoaccount the matters raised there in my conclusions on this appeal.Respondent's submissions[20] In response for the Crown, Mr Harvey began by properly noting that onsentence appeals this Court should not engage in "tinkering". He reiterated that thefocus must be whether the sentence imposed by the Judge was within range. On thisaspect, he referred me to three authorities – Torbarina v Police, Davies v Police andMcMurtrie v Police.6 Mr Harvey acknowledged that the starting points in Davies andMcMurtrie were lower than the starting point here, but submitted neither of those casesinvolved an offender with such a significant history of relevant previous convictions.Therefore, he suggested the 18-month starting point was within range.5 Mr Ruane cited Peter Gluckman Using evidence to build a better justice system: The challenge ofrising prison costs (Office of the Prime Minister's Chief Science Advisor, Wellington, 29 March2018) at 13.6 Torbarina v Police, above n 1; Davies v Police [2019] NZHC 3081; and McMurtrie v Police[2015] NZHC 1031.[21] Mr Harvey also contended here that the Judge was entitled to considerdeterrence and denunciation as primary purposes in sentencing particularly givenMs Pyper's low motivation to engage with rehabilitation.Analysis[22] There is no tariff judgment for theft. The starting point in these cases is reachedby considering the value of items stolen and the offender's previous convictions.7[23] Any sentence imposed needs to deter Ms Pyper and others from committingthe same or similar offending and to denounce her conduct. Her offending here wasboth premeditated and deliberate, and that is relevant to assessing an appropriatestarting point.[24] In Torbarina v Police, Mr Torbarina stole items on three occasions. On thefirst occasion they were worth $1399, the second $730 and the third $1045. He hadnearly 50 previous convictions. A starting point of 18 months was upheld on appeal.8[25] In the present case, Ms Pyper stole items of lesser value than that, althoughthese events occurred on four occasions. She also has more than twice as manyprevious convictions as Mr Torbarina. The cases are therefore broadly comparable, inmy view, and should attract similar starting points.[26] In Davies v Police, Mr Davies stole power tools valued at around $1000 onfour occasions. He did so while he was supposed to be completing community workfor previous dishonesty offending. While on bail for the power tool thefts, Mr Daviesstole jackets valued at almost $1,000. Excluding the uplift for offending on bail butincluding uplifts for previous convictions and totality, the starting point reached wasone of 14 months' imprisonment. Mr Davies had 18 dishonesty related convictions. 9[27] Mr Davies' offending was more serious than Ms Pyper's but, as I see it, herprevious convictions greatly exacerbate her culpability and justify a higher starting7 Torbarina v Police, above n 1, at [9].8 Torbarina v Police, above n 1.9 Davies v Police, above n 6.point. While Mr Davies displayed a "developing pattern of offending", Ms Pyper hasaccrued over 100 relevant convictions. Torbarina is ultimately the more comparablecase.[28] In McMurtrie v Police, Mr McMurtrie stole items of lesser value and had farfewer previous convictions, so in contrast to Ms Pyper's position, the case, in my view,is not a particularly comparable one.10[29] The starting point of 18 months' imprisonment adopted by Judge Fitzgibbonhere was therefore appropriate.[30] No issue is taken with the Judge's application of a 25 per cent discount forMs Pyper's guilty plea. This leaves the end sentence at the 13 and a half months'imprisonment imposed.[31] The real question in this appeal, however, is whether the Judge ought to havegranted a non-custodial sentence.[32] On this aspect, I will first set out aspects from what I see as a helpful pre-sentence report. Then I will address Mr Ruane's submissions on this aspect.[33] The pre-sentence report writer recorded Ms Pyper's admissions that the theftof the jewellery was opportunistic and that she used the money from the power toolsto buy synthetic cannabis for herself and her partner. Ms Pyper also, it seems, believesher recidivist shoplifting behaviour is a result of her ADHD, for which she self-medicates using synthetic cannabis. However, the report writer assessed her offendingrelated factors here as her drug use, and her unhealthy relationships, lifestyle andattitude. The writer recorded her low level of motivation to attend or engage withinterventions and the fact both community and custodial sentences in the past have notdeterred her offending.11 A sentence of imprisonment with a more intensive treatmentpathway was recommended.10 McMurtrie v Police, above n 6.11 Ms Whittington, in her 15 June 2021 email to Mr Ruane which was handed up to the Court,confirmed: "A phone call to her case manager advised Ms Pyper is not motivated to completeKowhiritanga "[34] Ms Pyper appears to have at least one pro-social influence. The pre-sentencereport writer made contact with one of her long-time friends who confirms her ongoingsupport if Ms Pyper addresses her drug issues. It would appear that even she can seethat it is Ms Pyper who needs to take the first step towards her rehabilitation.[35] The report writer noted the Kowhiritanga Programme, a four-month intensiveprogramme provided in prison, was due to commence shortly. That programmeaddresses anti-social attitudes, criminal associates, poor self-control, impulsivity,problem solving skills and alcohol, drug and relationship difficulties. Issues mightarise, however, as to whether or not Ms Pyper has a sufficient period left to serve inher sentence until her statutory release date to enable her to complete such aprogramme.[36] Turning now to the psychological report Mr Ruane has provided, I note thatthis is several years old and, in my view, it adds little to the pre-sentence report.[37] Mr Ruane urges this Court to impose a constructive and rehabilitative sentenceand, for that purpose, reduce her imposed prison sentence to allow her releaseimmediately. He suggests more time for Ms Pyper in prison will not break the cycleof her offending and will achieve little.[38] Due to what seems to be Ms Pyper's low motivation, I find there is little utilityat this point in sentencing her on the basis she will actively try to rehabilitate herself.There is no evidence she is willing to do that. And here, all the evidence before theCourt seemed to suggest Ms Pyper is someone who has shown no wish to co-operatewith assistance provided to her – no buy-in on her part to complete or ensurecompliance with programmes offered. Generally, she is someone who routinely, itseems, declined appointments, although her counsellor's 15 June 2021 report providedlate to this Court might offer some possible hope for the future. But, in any event,there is only so much the Court can do in a situation like the present. Generally,rehabilitation programme availability needs to be prioritised to cases where anoffender demonstrates a willingness to address the causes of their offending.[39] Similarly, Mr Ruane's submissions relating to the desirability of earlyintervention carry little weight in the particular circumstances here. It needs to beacknowledged, as I see the position, that, in reality, although some intervention isdesirable and indeed necessary for Ms Pyper, it is too late for early intervention here.Ms Pyper is 41. The underlying causes of her offending are numerous andlongstanding. Only a concerted effort by Ms Pyper herself alongside intensiverehabilitation will address those causes.[40] I also reject any submission that the Judge's sentence lacked a rehabilitativepurpose. In prison Ms Pyper has been, and will continue to be, unable to accesssynthetic cannabis, which appears to be a key driver of her offending. She willtherefore have the benefit of a prolonged period of abstinence before she re-enters thecommunity. It seems she may also have a possible chance to participate in aKowhiritanga programme or something similar. These appear to be the kind ofenforced intensive rehabilitation she needs. It does seem she was involved in anintensive programme in 2020 but exited it when she was released from prison, whichis unfortunate.[41] Overall then, I conclude that there has been no error in the sentence imposedby the District Court here. That sentence of Judge Fitzgibbon reflects the sentencingprinciples of deterrence, denunciation and rehabilitation, it is in the appropriate rangeand not manifestly excessive.Conclusion[42] For all these reasons this appeal is dismissed....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to:Craig Ruane, Barrister, Christchurch