Bain v Police

[2025] NZHC 1680

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2025-425-000018

[2025] NZHC 1680

BETWEEN

TANGEE ANN BAIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 June 2025
Appearances:	T J McCullum for Appellant M B Brownlie for Respondent
Judgment:	24 June 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 24 June 2025 at 10.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

BAIN v NEW ZEALAND POLICE [2025] NZHC 1680 [24 June 2025]

The appeal

[1]    Tangee Ann Bain (aka Read) appeals her sentence of 15 months’ imprisonment imposed in the District Court at Invercargill on 11 March 2025.1

[2]    Ms Bain has a lengthy history of appearances before the court, including for shoplifting. The sentence was imposed after she admitted a further series of shoplifting offending across a six-week period, giving rise to nine charges:

(a)burglary (x 4);2

(b)theft under $500 (x 4);3 and

(c)theft between $500–1000 (x1).4

[3]    Ms Bain says the sentence was manifestly excessive, as both the starting point adopted and uplift for prior convictions were excessive, and insufficient credit was given for mitigating factors.

Offending

[4]The facts are laid out in full in the decision of Judge M S Williams.5

[5]    Prior to the current offending, as a result of prior shoplifting incidents, Ms Bain was served with trespass notices excluding her from various large supermarkets and other Southland retailers.

[6]    In summary, on nine occasions between 13 October 2024 and 4 December 2024 Ms Bain shoplifted from large retailers, at various Southland premises of The Warehouse, Mitre 10, New World and Woolworths. The offending generally involved Ms Bain spending some time in the store, often gathering some items and concealing others, before exiting without paying for the concealed items. On occasions she

1      Police v Bain [2025] NZDC 6797.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Sections 219 and 223(d); maximum penalty three months’ imprisonment.

4      Sections 219 and 223(c); maximum penalty one year imprisonment.

5      Police v Bain, above n 1, at [3]–[16].

abandoned other goods she had readied to steal. When offending occurred at premises from which Ms Bain had previously been trespassed it was charged as burglary.

[7]    The first burglary was the first in the sequence. On 13 October, Ms Bain was seen and observed on CCTV at The Warehouse in Invercargill, during which time staff could see items had disappeared from her basket. When challenged, she refused to co-operate to allow her bag to be checked and left the store failing to pay for items she had in her bag. The total amount of items taken, including men’s underwear and a Lynx men’s gift set, were valued at $58.

[8]    Notably, on 24 November, Ms Bain stole $258.95 of batteries and rotary tools from Mitre 10 and, in the second burglary offence, stole $1,217.26 of groceries from New World (from where she was trespassed). On that occasion, Ms Bain entered the supermarket and began filling her trolley with groceries, as well as concealing items in her bag and jacket. After about an hour in the store, she pushed her trolley out through an unmanned checkout  and left  the store without  attempting  to pay.  On  4 December Ms Bain twice entered New World (while trespassed), each time taking approximately $160 worth of groceries, and the second time wearing a different jacket to disguise herself. These were the third and fourth burglary offences.

[9]In all, Ms Bain stole $2,079.68 worth of goods and attempted to take a further

$976.74, totalling $3,056.42.

Reports

[10]   The Judge considered a drug and alcohol assessment report, written by Shane Pleasance (the Pleasance report), an alcohol and drug report commissioned by the appellant and written by Kate Schick (the Schick report), and the pre-sentence report. These reports indicated that Ms Bain has a chronic, long-term addiction to alcohol and methamphetamine. She has previously attempted rehabilitation and subsequently relapsed. I return to the contents of the reports later in addressing addiction and other background factors.

District Court sentencing

[11]   The Judge noted Ms Bain’s  “extensive”  criminal  history,  having  accrued 67 convictions including 38 convictions for shoplifting or burglary and eight convictions for breaching sentences or conditions imposed by the court. He noted the indication in the pre-sentence report of her disregard for the law, as demonstrated by her history of offending when subject to sentence. The Judge observed the present offending was committed after Ms Bain’s release following a term of 12 months’ imprisonment imposed in May 2024 for a cluster of similar offending and thus was not only a continuation of that offending but was also committed while subject to release conditions.

[12]   The Judge accepted it is clear Ms Bain is battling addiction issues that she “clearly has to tackle” but was unimpressed by her historic disinclination to engage with treatment, noting there was a “stark contrast” between her indication of willingness to deal with her addiction issues (in the Schick report) and her recent comments to the pre-sentence report writer. Ms Bain had made it very clear to staff that she does not have an addiction and was only [willing to go to rehabilitation treatment] to “tick the boxes” so she could get her son back.

[13]   The Judge considered the offending aggravated by an element of premeditation; the fact the property taken was, by and large, groceries; the value of the groceries taken (being just over $1,900); the impact and potential impact on occupants and owners of the properties; the extent of the offending; and that the offending was committed out of a sense of entitlement and greed.

[14]   After having regard to two decisions of this Court concerning shoplifting offending charged as burglary,6 the Judge concluded:7

Ms [Bain], in your case, you have a significant criminal history for offending of a similar type. You were clearly trespassed from these stores but between October and December you took it upon yourself to enter these stores on a number of occasions when you were not entitled to do so and you committed burglary and the series of thefts. It is only right, in my view, that these offences are marked with sentences of imprisonment.

6      Charlett v Police [2014] NZHC 3002; and Palmer v Police [2024] NZHC 1634.

7      Police v Bain, above n 1, at [30].

[15]   The Judge took the two burglary charges on 4 December as the lead charges, adopting a starting point of 18 months’ imprisonment. While starting points were identified for the other charges,8 the Judge noted these sentences were to run concurrently, giving a total starting point of 18 months’ imprisonment for the offending.

[16]   This was reduced by 25 per cent for the guilty pleas and 10 per cent for mitigating background factors, including addiction. The Judge rounded up the combined allowance for these personal mitigating factors (35 per cent or, six months) in Ms Bain’s favour; to seven months. Applying an uplift of four months to reflect Ms Bain’s previous convictions, the end sentence was 15 months’ imprisonment.9

[17]Ms Bain was also ordered to pay $1,929.68 in reparation.

Submissions

[18]   Ms McCullum, for Ms Bain, submits the starting point of 18 months adopted for the lead burglary offending was too high. She refers to the cases relied on by the District Court Judge, Charlett v Police10 and Palmer v Police,11 as well as Andrews v R12 and says that, in line with the starting points adopted in Palmer and Andrews, a starting point 10 months was appropriate for the burglary offending. She accepts on this methodology an uplift is required for the remaining offending but argues this should not exceed four months, giving a notional overall starting point of 14 months’ imprisonment.

[19]   The uplift for previous convictions is also challenged; it is argued it should not have exceeded three months’ imprisonment, based on the comparable uplift applied in Charlett in respect of an offender with a far more extensive dishonesty history.

8      A starting point of six months was adopted on the 13 October burglary; taking totality into account, a starting point of two months was taken on the 23 October and 24 November thefts, and for the burglary charge on 24 November, a starting point of 12 months.

9      This was applied against the two December burglary offences, with all other concurrent terms in accordance with the starting points indicated.

10     Charlett v Police, above n 6.

11     Palmer v Police, above n 6.

12     Andrews v R [2018] NZHC 3216.

[20]   Additionally, Ms McCullum submits the deductions for mitigating factors were insufficient. She submits a total deduction of 55 per cent was warranted: no less than 10 per cent should have been applied for the  appellant’s addiction issues, a further 15 per cent should have been applied for other personal mitigating factors contained in the reports and an additional five per cent deduction should have been applied for remorse.

[21]   Resultingly, Ms McCullum submits, the end sentence was manifestly excessive, and an appropriate end sentence would have been between nine and 10- months’ imprisonment.

[22]   For the respondent, Mr Brownlie opposes the appeal. He notes the construction of a sentence is not material if the end sentence was within the available range. By reference to starting points adopted by this Court in similar cases13 and having regard to the sentence imposed rather than how it was calculated, he submits the overall starting point of 18 months’ imprisonment was not manifestly excessive. The deductions and uplifts were proportionate and appropriate, and the end sentence imposed was not manifestly excessive.

Analysis

[23]    I must allow Ms Bain’s appeal only if I am satisfied there is an error in the sentence imposed, and a different sentence should have been imposed. In any other case, I must dismiss the appeal.14 It is a well-engrained principle in the court’s approach to sentence appeals that the measure of error is whether the sentence is shown to be “manifestly excessive”.15 The court may not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.16

13     Including Gardiner [2015] NZHC 1241.

14     Criminal Procedure Act 2011, s 250(3).

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

16     Ripia v R [2011] NZCA 101 at [15].

Starting point

[24]   Sentencing repeated shoplifting offending which includes persistent disregard of trespass notices is not necessarily a straightforward exercise. The cases cited show that where there is a mix of burglary charges and theft charges for underlying shoplifting offending, the Court has tended to approach sentencing by applying a starting point on the burglary charge(s) and uplifting discretely for other dishonesty or related offending.

[25]   In this case, the Judge adopted a starting point in respect of the final (two) burglaries in the series of dishonesty offending as the lead, with all other terms concurrent. The overall starting point thus encapsulated the Judge’s assessment of the culpability of all of Ms Bain’s offending. That is an orthodox approach also, although as I have noted it departed from the prevalent approach in the cases. Regardless of methodology, the ultimate enquiry on appeal is whether the starting point as fixed is within range for the particular offending by the particular offender.

[26]   Caution is always necessary when parsing cases. Each case is to be determined on its own facts, as the range of decisions indicate, but it is helpful to set out a summary of the four decisions counsel rely upon.

[27]   In Charlett, the appellant was a prolific dishonesty offender who had been convicted of one charge of burglary for taking goods worth $21.52 from a supermarket from which he had been trespassed.17 That offending was initially charged as theft and trespass before substituting the burglary charge. On appeal, Mallon J reduced the starting point adopted on the burglary charge to six months’ imprisonment. Concurrent terms of one month imprisonment were imposed for each of two charges of theft: of grocery items worth $13.80, and two bottles of wine and chocolate.

[28]   In Palmer, on appeal the High Court adopted a starting point of 10 months’ imprisonment for five burglary charges in which the appellant had taken approximately $300 worth of goods, by shoplifting from premises from which the

17     Charlett v Police, above n 6.

appellant had been trespassed.18 She had also been convicted of other shoplifting offences comprising 17 charges of theft under $500, one charge of theft between $500 and $1,000 and one charge of theft over $1,000, and related offences comprising two charges of wilful trespass and one charge of behaving threateningly. The value of property stolen ranged from $15 to $869.96, though the appellant had been unsuccessful in leaving a store with $3,460 worth of items spread across  six  trolleys. Dunningham J applied an uplift of ten months’ imprisonment for these offences.

[29]   In Andrews, the appellant was sentenced on 14 charges in total of dishonesty and related offending.19 There were three charges of burglary, two of which related to entry into a supermarket from which she had been trespassed, where she was not successful in taking any goods. The remaining burglary entailed her entering the manager’s office behind a service desk at a department store and removing an iPhone, credit card and driver’s licence from the victim’s handbag. On appeal, Jagose J held a starting point of eight months’ imprisonment should be imposed for the burglary offending, with an uplift of 10 months’ imprisonment for the remaining offending, including two charges of dishonestly using a document, four charges of theft under

$500, two charges of theft between $500 and $1,000, one charge of theft over $1,000, one charge of common assault and one charge of breaching intensive supervision. The total value of goods stolen in relation to the theft charges was approximately $3,500. After uplift for previous history (of four months) the resulting notional starting point was 22 months’ imprisonment, which was reduced for mitigating personal factors, giving an end sentence of 16 months’ imprisonment.

[30]   In Gardiner, the appellant had been convicted of three charges of burglary on an evening when he twice entered through a closed gate into the rear of a takeaway shop, initially taking some food items from a chiller valued at $45 and subsequently a small bucket with unidentified contents, before returning and walking into an adjoining café, from which he took food items valued at $135.20 On appeal Mallon J held a starting point of eight months’ imprisonment was appropriate for these offences,

18     Palmer v Police, above n 6.

19     Andrews v R, above n 12.

20     Gardiner v Police, above n 13.

with an uplift of two months’ imprisonment applied on account of related charges of receiving stolen property (a mountain bike), failure to report for community work and non-payment of fines and for the appellant’s prior convictions comprising five charges of burglary (four under $500 and one $500–$1,000), three charges of theft (under

$500) and one charge of unlawfully being in a building.

[31]   Here, considering the burglary charges in isolation, Ms Bain was sentenced on four burglary charges, for shoplifting from retail outlets she was trespassed from. By comparison, Charlett involved one burglary charge, with a starting point of six months, Palmer involved five burglary charges, with a starting point of 10 months and Andrews involved three burglary charges, with a starting point of eight months. As can be seen, on its face the 18-month starting point the Judge adopted is significantly out of step with starting points in the cases above. However, the enquiry does not stop there as in this case, that figure represents the notional starting point for all the offending.

[32]   The aggravating features of Ms Bain’s offending are the repeated targeting of the same victims, the value of the property taken (the appellant stole or attempted to steal approximately $3,000 worth of items in total), and the extent of the offending (as demonstrated by the total number of charges).

[33]   As Ms McCullum notes and the respondent acknowledges, while there is prosecutorial discretion to prefer a burglary charge in these cases in lieu of charges of theft and trespass, it is at the low end of burglary offending. By comparison, and although there is no tariff for burglary offending, Court of Appeal authority suggests a range of starting points for residential burglaries, being between 18 to 30 months’ imprisonment.21

[34]Plainly, the present offending  is more serious than in  Charlett and Gardiner

with respect to both the value of property taken and the extent of the offending.

21     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

[35]   The cases of Palmer and Andrews are the most instructive. Mr Brownlie submits in its totality the offending in the present case is of similar seriousness to Palmer, where the effective starting  point  for  all  the  dishonesty  offending  was 20 months’ imprisonment. Even though one fewer, the burglary charges here are more serious than those in Palmer considering the value of the property taken (with the November burglary, involving property worth $1,217.26, far more serious than all five charges in Palmer combined). However, the balance of the dishonesty offending in Palmer was more serious than the present case, given the number of charges and the value of the most serious theft. Standing back, I consider the overall combination, nature and number of additional dishonesty offences in Palmer indicates a lower (combined) starting point is indicated here.

[36]   Mr Brownlie submits that the burglary offending here is more serious than in Andrews, although the totality of offending is of similar seriousness. I do not agree the burglary offending here is more serious. Although Ms Bain committed four burglaries rather than the three burglaries in that case, on the other hand the first of the burglaries in Andrews was committed with another and involved the deliberate entry into a staff area, with the added invasion of privacy given theft of personal property stolen from a handbag. So, too, I consider Ms Andrews’ remaining offending was more culpable given the nature, number and value of the nine other dishonesty offences, including common assault in the course of one of the burglaries and breach of intensive supervision in that case.

[37]   In light of both Palmer and Andrews I conclude, on either methodology, the (combined) starting point  in  this case was out  of step and that a starting point  of  15 months overall is appropriate. Given the general sentencing approach in the cases and, as the Judge noted in sentencing, that the burglaries are at the lowest end of that category of offending and might otherwise have been charged as thefts and trespass offending, I consider a starting point of 12 months’ imprisonment on the lead burglary offending (the 4 December offences), with an uplift of three months for the remainder of the thefts is appropriate.

Were the mitigating factors under-weighed?

[38]   Addiction will be a mitigating factor where there is a ‘causative connection’ with the offending and can justify a deduction of up to 30 per cent.22 In the Pleasance report, Ms Bain described her methamphetamine use at the time of offending as “very occasional” and “non-dependent”. However, she stated her offending was committed, in part, to fund her previous drug debts, thereby being financially motivated, and that she was not acting under the impulse of addiction at the time of offending. Consequently, Mr Brownlie submits the causal connection of her drug addiction to the offending was minimal.

[39]   Ms McCullum submits Ms Bain’s dishonesty offending had primarily involved theft to repay historic drug debts and to meet her living expenses. She says this offending was fuelled by addiction, providing a clear causal nexus between the addiction and offending, and seeks a discrete deduction of 10 per cent for addiction issues.

[40]   Ms McCullum takes issue with the Judge’s indication that he curbed the deduction given Ms Bain’s perceived reluctance to engage in rehabilitation. As she acknowledges, for rehabilitation to be meaningful and effective the programme must be  one  the  appellant  is  both  willing  and  able  to  commit  to  and  complete.    Ms McCullum submits that Ms Bain expressed to all three report writers “a clear willingness to undertake treatment” and specifically identified two rehabilitation facilities—which indicates her personal consideration of rehabilitation options.

[41]   While all the reports recommend residential rehabilitation (and Ms Bain appears to currently be on a waitlist), the Pleasance report records the appellant’s treatment history as involving two non-residential treatments that were ultimately unsuccessful. Ms Bain felt further non-residential treatment may help her to avoid drug use and noted she was “more willing” to engage with residential rehabilitation “should she feel it necessary”. She described needing to “tick the right boxes” to get her son back.  The Pleasance report recommended counselling as an alternative to a

22     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 507 at [147] and [149]; and Berkland v R [2022]

NZSC 143, [2022] 1 NZLR 509 at [109].

treatment facility, however noted that Ms Bain expressed she did not need counselling in order to help her abstain from drugs.

[42]   These concerns were mirrored in the pre-sentence report. This records that while Ms Bain is “more than aware” of the treatment needed for her addiction, she “continues to make excuses” as to why she cannot attend relevant treatment providers or facilities. The report writer notes that her continued reluctance to engage and wish to dictate the length of any treatment is considered a barrier to compliance and her ability to address her addiction and behaviours. She was consequently assessed as being a moderate to high risk of reoffending. As I have noted, the Judge considered Ms Bain’s suggestion she was willing to deal with her addiction issues to be in “stark contrast” with her comments during preparation of the Pleasance report. I agree.

[43]   Ms McCullum submits a further reduction is warranted on account of significant personal mitigating factors. She says Ms Bain has endured a history of severe and complex trauma, including abuse from an early age, parental neglect, household instability, and exposure to intergenerational addiction and violence. She submits this trauma directly contributed to the development of entrenched substance use disorders, which underlie the offending. The Schick report notes substance use disorders, a predisposition for developing such disorders, adverse childhood experiences and mental health issues appear to have contributed to Ms Bain’s offending. The respondent acknowledges these factors may have contributed to the appellant developing a drug addiction and accruing resulting debts, though the causal contribution of these factors is secondary given the offending was primarily financially motivated.

[44]   Ms McCullum relies on Waikato-Tuhega v R where the Court of Appeal held a 15 per cent deduction for personal factors was appropriate.23 However, this deduction incorporated the appellant’s drug and alcohol issues. In Berkland, the appellant received a 10 per cent deduction for his deprived background and the role of addiction in his methamphetamine supply offences, and a deduction of 10 per cent to reflect his efforts at rehabilitation, which were noted as “exceptional”.24

23     Waikato-Tuhega v R [2021] NZCA 503 at [52]–[57].

24     Berkland v R, above n 22, at [160].

[45]   I consider the 10 per cent  deduction here  appropriately incorporated both  Ms Bain’s upbringing and addiction issues. A discrete discount for efforts at rehabilitation was not appropriate given the concerns noted regarding Ms Bain’s prior lack of engagement with rehabilitation services and the limitations around her willingness to engage. None of which is to say that Ms Bain should not be encouraged to seize the opportunities to be offered, but that considering the limited causal nexus between personal mitigating factors, the offending and the appellant’s risk of reoffending, the 10 per cent deduction was appropriate and not out of the range available to the Judge.

Remorse

[46]   Ms McCullum also submits a discrete deduction of five per cent was warranted for remorse. Ms Bain made statements to the report writers such as “I know it was wrong and stupid, and I regret it.” But regret and remorse are not synonymous. A remorse deduction requires something more than the bare acceptance of responsibility inherent in the plea. I am unable to find any tangible evidence of genuine remorse that would warrant separate recognition.

Uplift for previous convictions

[47]   A four-month uplift was applied having regard to Ms Bain’s prior history. At 39 years old, she has accrued 67 prior convictions across her adult life, predominantly for dishonesty offending as well as multiple convictions for non-compliance with court orders or sentences.

[48]   Ms McCullum notes care must be taken not to repunish Ms Bain for her criminal history.25 She says she would not have been imprisoned for this offending absent that history and contends the uplift here should be no more than three months— that applied in Charlett where the offender had nearly double the number of prior convictions.26

25     Wharerau v Police [2017] NZHC 72 at [13].

26     Charlett, above n 4.

[49]   As the Judge recognised, the nature and extent of Ms Bain’s previous like offending and her return to such offending so swiftly after (and while subject to release conditions of) the sentence of imprisonment previously imposed in May 2024, are of particular concern. Since May 2022, she has regularly engaged in dishonesty offending. An uplift was certainly available. Had I not adjusted the overall starting point, I would consider it available, if stern. However, it is appropriate to check the uplift in view of the overall starting point and on that basis three months is appropriate.

End sentence

[50]   Taking a starting point on the lead burglary offending of 12 months, uplifting three months for the thefts, applying the deductions of 25 per cent for the guilty plea and 10 per cent for the addiction and other background factors, and uplifting three months for previous convictions, rounded in Ms Bain’s favour, the end sentence is  12 months’ imprisonment.

Result

[51]The appeal is allowed in part.

[52]   The sentence of six months on the first burglary charge (concurrent), is not disturbed. The remaining sentences imposed are quashed, and sentence imposed in substitution:

(a)12  months’  imprisonment  on  the  two  lead  burglary  offences  on  4 December;

(b)nine months’ imprisonment on the second burglary, on 24 November 2024;

(c)three months imprisonment on the theft charges; and

(d)all of which to run concurrently.

[53]   There will be the standard release conditions for six months and there will be special release conditions on the conditions set out in the report.

[54]The reparation order for $1,929.68 remains.

………………………………………

Preston J

Solicitors:
Crown Solicitor, Invercargill

Counsel:

Southern Law, Invercargill