THORNICROFT v NEW ZEALAND POLICE [2023] NZHC 2839

THORNICROFT v NEW ZEALAND POLICE [2023] NZHC 2839 [10 October 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-16[2023] NZHC 2839BETWEEN THOREN NORTON THORNICROFTApplicantAND NEW ZEALAND POLICERespondentHearing: 10 October 2023 (via VMR)Appearances: E J Forster for ApplicantB L McKenzie for RespondentJudgment: 10 October 2023JUDGMENT OF McQUEEN J[1] On 31 May 2023, in the Hastings District Court, Judge McDonald sentencedMr Thoren Thornicroft to 18 months' imprisonment and disqualification from drivingfor eight months on ten charges to which Mr Thornicroft pleaded guilty.1[2] Mr Thornicroft appealed the sentence imposed upon him, submitting that thesentence was manifestly excessive, because an insufficient discount was given for hisguilty plea. Mr Forster, counsel for Mr Thornicroft, calculated that the Judge had onlyallowed a discount of 18.8 per cent, rather than the full 25 per cent discount to whichhe says Mr Thornicroft is entitled.[3] The Police opposed Mr Thornicroft's appeal, submitting that the sentence waswithin range and the guilty plea discount awarded was sufficient in the circumstances.In particular, Ms McKenzie, counsel for the Police, submitted that the Judge awarded1 Police v Thornicroft [2023] NZDC 11058.a 22.22 per cent guilty plea discount, rather than the 18.18 per cent described byMr Forster. She says that 22.22 per cent is the correct figure, as uplifts for previousconvictions constitute an aggravating factor personal to the offender rather than anaggravating feature of the index offending.2 She submits that, therefore, the guilty pleadiscount must be calculated by reference to the 18 month adjusted starting point, ratherthan by reference to the 22 months reached following the imposition of the four monthuplift for previous convictions. She says that this is the correct approach on the Courtof Appeal's sentencing methodology set out in Moses v R.3[4] Ms McKenzie submits that 22.22 per cent was sufficient as a guilty pleadiscount, and that any adjustment to allow for a 25 per cent discount would not beappropriate as the end sentence is not manifestly excessive. She relies on Walker J'srecent comment on guilty pleas that "a mathematical approach is not determinative.Anything between 20 and 25 per cent is unimpeachable in my view."4[5] At the hearing Mr Forster responsibly conceded that the correct approach inlight of Moses was to apply the discount to the adjusted starting point and that in thosecircumstances, he could not advance an argument that the sentence was manifestlyexcessive where the discount applied was 22.22 per cent rather than 25 per cent.Mr Forster also confirmed that the appeal was not advanced on separate grounds thatthe starting point or uplift for previous convictions was too high.[6] I agree that, in the circumstances, the appeal cannot succeed.Result[7] Mr Thornicroft's appeal is dismissed.McQueen JSolicitors:Crown Solicitor, Napier for Respondent2 Johnson v R [2023] NZHC 2518 at [35]; citing Stuart v R [2021] NZCA 539 at [15].3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.4 Johnson v R, above n 2, at [36].