ALLAN PETER TRAINOR AND NEW ZEALAND POLICE
[2024] NZHC 2971
•11 October 2024
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2024-476-13 [2024] NZHC 2971
BETWEEN ALLAN PETER TRAINOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 October 2024 Appearances:
J B Lovely for Appellant
A-M McRae for Respondent
Judgment:
11 October 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 11 October 2024 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
TRAINOR v NEW ZEALAND POLICE [2024] NZHC 2971 [11 October 2024]
Introduction
[1] Allan Trainor was sentenced on 25 July 2024 to 12 months’ imprisonment by Judge Savage1 on a charge of theft (over $1,000).2 Mr Trainor appeals on the grounds that the Judge did not properly consider parity and gave insufficient credit for his guilty plea.
Facts
[2] A van was reported stolen at 10 am on 4 May 2024. The next morning, the appellant and two associates were waiting inside the van at an Oamaru carpark. Nearby was a large bus. The appellant’s co-offender (his brother) threw a rock through its door, and the men entered to steal the belongings of the tourists aboard the bus. Bags, clothing, passports, cash and electronics were taken. Later that day, the appellant was spotted as a passenger inside the stolen van.
[3] The appellant was remanded in custody on 5 May 2024. He appeared with his brother in the Timaru District Court the following day where they were remanded without plea by consent. Mr Trainor entered not guilty pleas on 21 May 2024 to the two charges he then faced, being theft and unlawfully entering a vehicle.3 His brother was remanded without plea as he had only recently instructed counsel.
[4] Following the withdrawal of a charge of unlawfully entering a motor vehicle, Mr Trainor pleaded guilty to the theft charge on 2 July 2024. While the charging document initially recorded the value of the theft at over $15,000, this amount was disputed and the charge was amended to remove reference to the value of the items lost as a result of the theft.
[5] His brother entered guilty pleas to the charges he faced on 11 June 2024, noting he also had the charge of getting unlawfully into a motor vehicle withdrawn.
1 Police v Allan Trainor [2024] NZDC 17450.
2 Crimes Act 1961, ss 219 & 223(b); maximum penalty seven years’ imprisonment.
3 Section 226(2); maximum penalty two years’ imprisonment.
District Court decision
[6] Mr Trainor was sentenced on 25 July 2024. Judge Savage took a starting point of 12 months’ imprisonment and uplifted that by two months for Mr Trainor’s previous history noting this was the same starting point and uplift as he had taken for Mr Trainor’s brother. He allowed a 15 per cent guilty plea credit noting that, unlike his brother, Mr Trainer initially entered a not guilty plea. As intensive supervision was considered inappropriate in light of Mr Trainor’s recent breaches, the Judge settled on a sentence of 12 months’ imprisonment. No home detention address was proposed.
[7] Because parity is a key ground of this appeal, Mr Trainor’s brother’s sentence should be noted.4 Although the same starting point was adopted on the theft charge, after applying a two month uplift, a 25 per cent guilty plea credit, and a one-month credit for personal factors, the end sentence was nine months’ imprisonment. He was convicted and discharged on the additional charges of intentional damage,5 possession of cannabis6 and possession of a methamphetamine pipe.7
Principles on appeal
[8] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 This Court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.9 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.10
4 Police v Andrew Trainor [2024] NZDC 17445.
5 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
6 Misuse of Drugs Act 1975, ss 7(1)(a) & 2; maximum penalty three months’ imprisonment.
7 Section 13(1)(a) & (3); maximum penalty one year of imprisonment.
8 Criminal Procedure Act 2011, s 250(2) and (3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
10 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
Submissions
Appellant’s submissions
[9] Mr Lovely, for the appellant, accepts that there is no requirement for co-offenders to be treated alike11 and that offenders must be individually sentenced as appropriate.12 Nonetheless, Mr Lovely submits the difference between the appellant’s sentence and his brother’s was a “gross breach of parity”, drawing attention to the three month disparity in sentence length and the additional charges faced by the co-offender.
[10] Mr Lovely also refers to Mr Trainor’s brother receiving a full guilty plea credit, submitting that in light of this, a higher credit of 20–25 per cent is justified for Mr Trainor. The fact Mr Trainor used the Court process to remove the charge which was lacking evidence and to have the theft charge amended to remove the stated value of the loss, should not have led to the huge disparity between the two co-accused.
Respondent’s submissions
[11] Mrs McRae submits the starting point imposed is 14 per cent of the statutory maximum and was within range, considering the significance of the offending to the victims and the extent of loss suffered, likely still in excess of $10,000. Mrs McRae also submits the uplift was warranted in light of the appellant’s record of dishonest offending, and his recent sentence of imprisonment.13 Mrs McRae also notes that the appellant was on parole at the time of the offending.
[12] Mrs McRae points out that Mr Trainor’s brother negotiated the same charge withdrawal without entering a not guilty plea. She also draws attention to the strength of the evidence, noting that there was CCTV footage of Mr Trainor and his co-offender entering the bus.
11 Police v Egden [1977] 1 NZLR 123 (CA) at 126.
12 R v Kohey (2003) 20 CRNZ 62 (CA) at [20].
13 Reedy v Police [2015] NZHC 1069 at [19]; R v Arthur [2005] 3 NZLR 739 (CA); R v Ward [1976] 1 NZLR 588 at 591 (CA).
[13] Mrs McRae identifies a technical error by the Judge failing to follow the Moses v R methodology14 that meant the guilty plea credit allowed to Mr Trainor and his brother was higher than it should have been. It appears the Judge applied the guilty plea credit to the adjusted 14-month starting point. The Judge ought to have applied the 15 per cent credit to the 12-month starting point, not to the starting point uplifted by the previous convictions. Both the uplifts and the discounts needed to be applied at the second stage of sentencing per Moses. Accordingly, the guilty plea credit should have been 1.8 months, as opposed to 2.1 months. Ultimately this is of no moment as the Judge was entitled to, and did, round it to two months. The same error was made with the co-offender, who should have received a sentence of ten months’ imprisonment on a correct Moses calculation.
[14] However, even if a 20 per cent discount had been allowed, the end result would be 11.6 months’ imprisonment, as opposed to the 12 months imposed. Finally, she refers to the brother providing material that justified a further credit, a course of action not pursued by Mr Trainor’s then counsel.
Analysis
Parity
[15] In addressing the question of parity, both counsel referred to R v Kohey where the Court of Appeal held:15
[20] Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
(emphasis added)
[16] Judge Savage was clearly alive to the need for parity in adopting the same starting point and uplift for both offenders.16 These were both clearly appropriate.
14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
15 R v Kohey, above n 12.
16 Noting that Mr Trainor’s brother has a similar history of offending.
The starting point reflected the fact the victims were 15 tourists on their penultimate day in this country and while the value of the loss suffered was not agreed, the loss of personal items including passports, clothing and electronics would inevitably have been significant to the victims. No reparation order was made, and many items (as well as some cash) were not recovered.
[17] The two-month uplift adopted was also appropriate. Mr Trainor has accrued more than 10 dishonesty convictions since 2016, the most recent receiving a sentence of imprisonment on 7 December 2022.17 Mr Trainor’s relevant offending history justifies an uplift on each of those bases. I note that Mr Trainor was on parole at the time of the offending, which also supported there being an uplift, although the Judge did not refer to this. It seems Mr Trainor’s brother had a similarly chequered offending history and received the same uplift.
[18] The Judge then explicitly noted that a lower guilty plea credit would be given because, unlike the co-offender, Mr Trainor initially pleaded not guilty, maintaining that stance until 2 July.
[19] Regarding the removal of the unlawfully entering charge, Mr Trainor’s brother negotiated the same resolution without entering a not guilty plea to the charges he was subsequently sentenced on. He also pleaded guilty as soon as counsel had considered the charges and earlier than Mr Trainor. That factor justifies a difference in guilty plea discount which is discussed in more detail below.
[20] Regarding Mr Trainor’s brother’s additional charges, the Judge was entitled to convict and discharge him on them. The one-month credit allowed based on a letter from his counsel that addressed his personal circumstances was equally justified.18 No such information was submitted by Mr Trainor to the District Court or this Court.
[21] Although Mr Lovely has stressed the 25 per cent difference in end sentence between the offenders, there are identified reasons for that discrepancy, and, in any
17 Seven charges of unlawfully taking a motor vehicle, two charges of receiving, one charge of burglary and some driving charges.
18 Police v Andrew Trainor, above n 4, at [5].
event, the impact of that percentage difference is less than it might otherwise seem, noting that neither sentence is over 12 months.
[22] With those factors in mind, the sentence does not offend the parity principle. A reasonably minded independent observer, aware of all circumstances at play, would not be of the view that something had gone wrong with the administration of justice.19
Insufficient guilty plea credit
[23] While Mr Lovely submits Mr Trainor could receive up to 25 per cent credit for his guilty plea, the available credit could not be more than 20 per cent. The case review hearing was not the “first reasonable opportunity” to plead guilty, though it was not overly late either.20 Mr Trainor and his associates were captured on CCTV and found in the stolen van hours later by police with some of the stolen goods, so there was a strong case to answer. I do not consider the steps taken to negotiate withdrawal of the second charge affected when he could plead guilty. It is clear he could have entered a guilty plea to the theft (or at least indicated he would, subject to removing the reference to the $15,000 value), while resisting the charge that was subsequently withdrawn.
[24] In any event, even if a 20 per cent credit had been awarded here (and I recognise it could have been), that would result in a sentence of 11.6 months. An adjustment on this basis would plainly be tinkering.21
[25] Apart from the minor Moses error, which favoured the appellant, there is no error in the sentence, and the end sentence is not manifestly excessive.
Conclusion
[26]The appeal is dismissed.
Solicitors:
JMJ Lawyers Ltd, Timaru Crown Solicitor, Timaru
19 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
21 Grey v Police [2023] NZHC 2065 at [59].
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