Brook v Police

[2025] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-000013 CRI-2025-483-000014

CRI-2025-483-000015 [2025] NZHC 1230

BETWEEN

MORGAN TALIA BROOK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 May 2025
Appearances:	M D McGhie for Appellant K D Turner for Respondent
Judgment:	20 May 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 20 May 2025 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BROOK v NEW ZEALAND POLICE [2025] NZHC 1230 [20 May 2025]

Introduction

[1]    Morgan Talia Brook, aged 36, appeared for sentence in the Whanganui District Court on 27 February 2025, having admitted shoplifting involving seven instances of theft over a ten-month period, twice breaching a sentence of intensive supervision imposed for similar previous offending, and a charge of failing to answer bail.

[2]Ms Brook was sentenced to 16 months’ imprisonment.1

[3]    Ms Brook appeals. It is common ground on the appeal that a series of errors occurred during the sentence calculations and that the end sentence exceeded the term the Judge apparently intended.

[4]    At issue, however, is whether this Court should adjust the sentence and, related, whether cumulative terms were appropriate, on a totality basis and taking into account aggravating and mitigating personal circumstances.

[5]    Further, Ms Brook challenges the Judge’s decision not to commute the term to home detention or grant leave to apply, which she says failed to give sufficient recognition to the purpose of assisting her rehabilitation.

The charges

[6]Of the seven theft charges, two were for shoplifting goods between $500–

$1,0002 and five of shoplifting value of goods under $500.3 There were two charges of failing to report to a probation officer4 and one charge of failing to answer District Court bail.5

1      Police v Brook [2025] NZDC 4503.

2      Crimes Act 1961, ss 219 and 223(c); maximum penalty one years’ imprisonment.

3      Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.

4      Sentencing Act 2002, s 70A(a); maximum penalty six months’ imprisonment or $1,500 fine.

5      Bail Act 2000, s 38(a); maximum penalty one years’ imprisonment or $2,000 fine.

Facts

[7]    The circumstances of the offending were set out by the Judge in full,6 but in brief, fell into three groups.

[8]    The theft offences relate to shoplifting, including from Woolworths, Rebel Sport and Farmers between February and November 2024. Ms Brook would conceal multiple items including clothing, fragrances and, on two occasions, art supplies in a tote or handbag while shopping, making no attempt to pay before exiting the store.

[9]    On 20 March 2024, Ms Brook was sentenced to 12 months’ intensive supervision following convictions for shoplifting, breaching home detention conditions, theft and driving whilst suspended. On 3 April 2024, Ms Brook failed to report to Wellington Community Corrections or make contact to excuse her absence, failing to attend any appointments with Corrections since then until the time the breach caption summary was filed. A further breach occurred when Ms Brook failed to report to Fielding Community Corrections, on 19 September 2024.

[10]   Ms Brook had been admitted to bail on 2 July 2024. On 4 December 2024 she failed to appear in the District Court to answer her bail.

District Court Decision

[11]The respondent agrees a number of errors occurred during sentencing.

[12]   These are best understood within an outline of the sentence as constructed and explained by the Judge in his remarks.

Sentence construction

[13]   After outlining the circumstances of the offending, the Judge noted Ms Brook’s relevant prior history of multiple thefts and failures to appear, and observed Ms Brook is a “prolific shoplifter”.7 The Judge referred also to the recommendation in the pre- sentence report for jail, noting Ms Brook was on intensive supervision at the time of

6      Police v Brook, above n 1, at [2]–[10].

7 At [11].

the offending, and to an alcohol and drug report setting out Ms Brook’s self-report of a wish to “get clean”, reconnect with whanau and tikanga and resume full time parenting.8

[14]    The Judge, while noting it was commendable Ms Brook wanted to get help, was critical of the appellant’s sincerity given her history of spurning previous rehabilitative opportunities. The Judge did not consider a community-based sentence was appropriate having regard to the breaches of Ms Brook’s previous sentence of intensive supervision (to which she remained subject at sentencing).

[15]   The Judge considered a total (end) sentence “at about 14 months” was appropriate.9 He calculated this by imposing cumulative terms as follows:10

Thefts
14 February 2024	four months’ imprisonment
12 April 2024	two months’ imprisonment11
1 June 2024	two months’ imprisonment
2 July 2024 (x 2)	two months’ imprisonment
15 August 2024	two months’ imprisonment
18 August 2024	two months’ imprisonment
18 November 2024	two months’ imprisonment
Breaches of intensive supervision/bail
Failures to appear in Court	two months’ imprisonment
Breaching intensive supervision (x 2)	three months’ imprisonment

Erroneous process

[16]   As noted, a number of apparently inadvertent errors occurred during sentencing.

8 At [13].

9 At [14].

10     Set out in chronological order for ease of reference.

11     This theft was of goods valued between $500 and $1,000, like the 14 February offending, the remainder thereafter being thefts with value under $500.

[17]   First, in his summary of cumulative terms the Judge imposed two months in respect of a theft on 18 August 2024, as is set  out in the table above.   However,   Ms Turner notes that the District Court file on the appeal does not contain a charging document or summary of facts for that date, and enquiries with Police Prosecutions confirm there was no charge for offending on that date. Nor does the Judge’s initial outline of the factual basis of sentencing refer to a theft on that date.

[18]   Second, the Judge erroneously calculated the cumulative theft terms as adding to 22 months’ imprisonment rather than 21 months. He affirmed 22 months as the appropriate starting point having regard to the totality principle as well as Ms Brook’s history of offending, particularly that the offending may be to fund a drug habit.

[19]   The Judge then applied a two-month uplift for Ms Brook’s relevant previous convictions, but erroneously concluded that this gave a starting point of 26 months’ imprisonment.

Uplifts and reductions for personal factors

[20]   The Judge allowed Ms Brook a ten-month deduction (38.5 per cent from     26 months) for her guilty pleas which were entered at a “very early stage” and for her rehabilitative prospects to address her drug habits and her disassociation from her whānau and tikanga.12

[21]   The Judge determined it was not appropriate to commute the sentence to home detention, finding: “[t]here is an address available to you, but to send you to home detention is completely the wrong message for this type of offending.”13 This was coloured by the circumstances of the offending being to fund Ms Brook’s drug use and not out of necessity to provide for her children.14

12     Police v Brook, above n 1, at [20].

13 At [21].

14 At [22].

Sentencing Approach

[22]   In Ferris-Bromley v R,15 Kos J for the Court of Appeal explained the principles engaged on an appeal against sentence in which there is mathematical (or other) error within the sentence imposed. He referred to the evaluative task for a judge on sentencing (and on appeal of sentence) as characterised by the Supreme Court in Hessell v R, which:16

… reflects the amalgam of sentencing discretion, on the one hand, which ensures the gravity of individual offending and circumstances of the offender are duly assessed, and sentencing consistency, on the other, which tempers sentencing judgment to ensure that sentencing outcomes reflect a policy of like treatment for similar circumstances.

[23]   As Kos J noted, that characterisation “recognises that to reach the end result the sentencing court must balance numerous and sometimes conflicting considerations, and that the range of outcomes within which reasonable disagreement is possible is frequently wide”.17 He continued, relevantly:

[14]      … Whether the exercise is evaluative, discretionary or a hybrid, it is a minimum standard of justice that the Judge direct him or herself to the correct legal elements, have regard to (and only to) relevant considerations and not reach a conclusion that is plain wrong.

[15]      How then is mathematical error to be addressed on a sentencing appeal? Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal if satisfied both that there is error in the sentence imposed on conviction and that a different sentence should be imposed.18 The approach adopted by this Court in such cases is as follows:

(a)A mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected, even if the sentence imposed was still within the available range.19 In such a case of plain error, it would be unjust for that error to be left uncorrected.20

…

15     Ferris-Bromley v R [2017] NZCA 115.

16     At [13], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [43].

17     At [11], citing Kumar v R [2015] NZCA 460 at [81].

18     See for example McKeown v R [2017] NZCA 99 at [20]–[23].

19     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

20     Koroheke v R [2012] NZCA 368 at [21].

Submissions

[24]   Mr McGhie, for the appellant, submits the imposed sentence was manifestly unjust, primarily because the starting point adopted, of 22 months’ imprisonment, was too high. Mr McGhie does not dispute the deductions applied however submits the Judge further erred in not granting home detention.

[25]   Ms Turner, for the respondent, accepts there was mathematical error in the Judge’s sentence calculation however submits the sentencing approach was correct and the end point of imprisonment was not manifestly excessive. Ms Turner submits the Judge was acting within legitimate discretion in declining to allow Ms Brook home detention.

Analysis

Sentence approach — cumulative or concurrent; was adjustment for totality required?

[26]   Guidance on the use of cumulative and concurrent sentences of imprisonment is set out in s 84 of the Sentencing Act 2002:

(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a)      the time at which they occurred; or

(b)      the overall nature of the offending; or

(c)      any other relationship between the offences that the court considers relevant.

[27]   Ms Turner acknowledges Ms Brook’s offending could be considered a pattern of connected offences but submits the Judge’s cumulative approach was appropriate and points to and relies on the Judge’s indication he considered the appropriate end sentence was around 14 months.

[28]   Mr McGhie argues that the end sentence is manifestly excessive principally because of the cumulative terms applied by the Judge, and the failure to adjust those for totality. 21 Counsel submits the sentence imposed is out of line with four cases to which he refers me: McKenzie v Police,22 Samuels v Police,23 Thornicroft v Police24 and Smith v R.25

[29]   In McKenzie v Police, Mr McKenzie admitted four charges of theft under $500 (for unsophisticated shoplifting similar to Mr Brook’s), two charges of breaching conditions and two charges of failing to answer bail. An end sentence of 12 months’ imprisonment was successfully appealed and substituted for six months’ imprisonment. The Judge constructed the starting point as follows:26

Because all of the theft charges are in respect of goods valued under $500, it is difficult to discern a lead charge in Mr McKenzie’s offending … I consider that an appropriate starting point is six months’ imprisonment with an uplift of two months for the non-compliance charges. A further uplift of one and a half months is justified to reflect the appellant’s previous convictions for similar offending.

[30]   Mr McKenzie’s offending could be categorised as less serious than Ms Brook’s given all four instances were under $500, three were shoplifting food from a supermarket (one of these being only for $70.35) with a total value of goods far under that stolen by Ms Brook. Further, the offending was described as a “spree of related offending” which was “opportunistic” and “unsophisticated”.27

21     Sentencing Act, s 85.

22     McKenzie v Police [2015] NZHC 2742.

23     Samuels v Police [2019] NZHC 694.

24     Thornicroft v NZ Police [2018] NZHC 2895.

25     Smith v Police [2025] NZHC 244.

26     McKenzie v Police , above n 23,t [27].

27     At [22] and [27].

[31]In Samuels v Police, the appellant was convicted of one charge of theft over

$1,000, seven charges of theft under $500 (shoplifting from supermarkets) and four charges of trespass. The District Court Judge applied six months’ imprisonment to the lead offence of theft over $1,000, but it was the uplifts for the balance offences which constituted the subject matter of the appeal. The District Court Judge had applied an uplift of five months for the further shoplifting charges, two months for the trespass charges and one month for offending whilst on release conditions. The Judge on appeal found this to be inconsistent with similar cases, and that five months for all remaining offending and breaching release conditions was an appropriate uplift to the lead offence.28 The end sentence of 11 months’ imprisonment was quashed, and a sentence of nine months’ imprisonment substituted.

[32]   In Thornicroft v Police, 11 months’ imprisonment was imposed on six charges of theft under $500, one charge of breaching release conditions and four charges of wilful trespass. The appeal was successful, and the sentence substituted for six months’ imprisonment. A mitigating factor of Mr Thornicroft’s offending was that he was reportedly homeless for several months and stole food and clothes to survive, explaining some of his theft charges,29 Further, two of the instances of theft were of low value being $30 and $15. The Judge considered:

[28]     Although Mr Thornicroft does have an extensive criminal history, it is clear his offending is motivated by deprivation and his drug dependency. While that does not excuse his offending, these factors should be considered in assessing the circumstances of his offending and the appropriate sentence to impose. … Provided that he is able to access rehabilitative support and treatment on release from prison, there is no reason for a prolonged sentence for theft of small-value items and nuisance offending, albeit repetitive. That is why the special release conditions are appropriate, to give Mr Thornicroft support and an opportunity to change his lifestyle in the community.

[33]   The Judge structured the sentence as follows: starting point of six months’ imprisonment with uplifts of one month for Mr Thornicroft’s previous offending and one month for offending on post-release conditions, and then applied deductions of 30 per cent.

28     Samuels v Police , above n 24, at [22] referencing McKenzie v Police, above n 17; Henry v Police

[2016] NZHC 800; and McMurtie v Police [2015] NZHC 2742.

29     Thornicroft v Police, above n 25, at [25].

[34]   In Smith v R, Mr Smith was convicted of 29 charges of theft under $500, two charges of breaching release conditions and possession of a knife in a public place. The point on appeal was the starting point for the theft convictions. The District Court Judge had adopted a starting point of 29 months’ imprisonment for the charges which was overturned on appeal and a 22-month starting point substituted instead. The appeal was allowed, and the end sentence of 28 months’ imprisonment was quashed and substituted with 24 months’ imprisonment. Relevantly, the District Court Judge had applied a one-month cumulative sentence on each theft charge which was found to create a manifestly unjust outcome: “the totality principle does not permit the court to apply a fixed cumulative term to every charge regardless of the number of charges.”30

[35]   Having regard to these decisions Mr McGhie submits an eight-month starting point would be appropriate for the theft charges with a two-month uplift for the non- compliance charges and a one-and-a-half-month uplift for previous offending.

[36]   Ms Turner submits that Ms Brook’s offending is most comparable to that in Smith and therefore a starting point of 18 months’ imprisonment for the thefts was within range. Ms Turner accepts the five-month uplift for breaching of condition charges could have been lower however submits it was open for the Court to uplift for offending whilst subject to bail and sentence conditions which did not occur.31

Were the starting point and uplifts too high, having regard to totality?

[37]   The offending is capable of approach on either cumulative or concurrent basis but, having adopted the cumulative assessment as the Judge did, I consider the resulting starting point due to the number and nature of the uplifts applied did warrant a reduction for totality. I agree that, having regard to the cases to which Mr McGhie has referred me, together with the mathematical and charge errors, the starting point imposed was too high.32

30 At [24].

31     Sentencing Act, s 9(1)(c); and Clunie v R [2013] NZCA 110 at [22].

32 At [27].

[38]   The offending is similar to that in Thornicroft v Police and Samuels v Police. Because Ms Brook has two charges for theft between $500-$1,000, a starting point of eight months can be adopted for these. The five thefts under $500 are all of a similar kind (having regard to s 84 of the Sentencing Act) and a concurrent sentence of three months’ imprisonment is adopted for these. The non-compliance charges are more serious than some of the cases referred to in that they appear to be wilful breaches without justification, and a three-month uplift is therefore appropriate. A further one- month  uplift  appropriately  reflects  Ms  Brook’s  previous  similar  offending  of  33 previous convictions for  theft/shoplifting.33  This  leads  to  a  starting  point  of 15 months’ imprisonment. I consider this appropriate having regard to the totality principle.

Aggravating and mitigating factors

[39]   I adopt the approximate 40 per cent deduction applied by the Judge. This appears appropriate given Ms Brook’s early pleas and deductions for background factors of whānau and tikanga disassociation, addiction-driven offending and rehabilitative prospects. However, that the offending took place whilst Ms Brook was on intensive supervision warrants an additional one-month uplift. This leads to an end sentence of ten months’ imprisonment.

Home detention — fresh evidence on appeal

[40]   The Judge declined  home  detention,  which  was  sought  to  reside  with  Ms Brook’s father and children in Fielding.34 Ms Brook’s wishes to seek treatment for her substance use issues set out in the AOD report before the Judge. The Judge, perhaps understandably, was not persuaded he could place significant weight on these indications of intent given Ms Brook’s history of spurning sentences intended to allow that opportunity, and repeated disregard for court orders. For the same reasons, the Judge declined leave to apply.

33     I have reached a different number of previous shoplifting convictions than set out in the pre- sentence report and by the Crown who state 36 previous shoplifting offences.

34     However, the pre-sentence report, dated 19 November 2024 reported the consent of the occupants could not be ascertained.

[41]   As Ms Turner submits, an appeal against a refusal to commute a sentence to home detention is an appeal against the exercise of a fettered discretion. The weight a Judge attaches to a particular factor is not a basis to challenge this discretion so long as the Judge does not fail to consider relevant factors or take into account irrelevant factors.35

[42]   Ms Turner cites McConnel v R where the Court of Appeal determined imprisonment was appropriate given the Judge had regard to the appellant’s prior breaches on bail and community-based sentences, that the offending took place at home (drug dealing), the lack of remorse and a lack of real interest in taking rehabilitative steps demonstrated by previous conduct and a pre-sentence report.36 Of course, a distinguishing factor in this case is Ms Brook could not reoffend from home.

[43]   It is relevant that Ms Brook has 13 previous convictions for non-compliance with bail or community-based sentences from 2015, most recently in August 202337 and a long history of offending whilst on bail. Also relevant is that Ms Brook committed almost all this most recent bout of offending whilst on intensive supervision.

[44]   However, I accept, as did the Judge, Ms Brook’s offending is addiction-driven, and I must consider what sentence will allow her the greatest rehabilitative prospects.

[45]   On the appeal, Mr McGhie sought leave to adduce fresh evidence showing that Ms Brook’s application to the residential rehabilitation Salvation Army Bridge programme has been completed and is under consideration. Counsel for the respondent did not oppose. I granted leave to admit the evidence. Mr McGhie also provided a copy of the AOD report, which was not upon the appeal file received from the District Court.

[46]   I have found this aspect of the appeal challenging, given the matters which rightly weighed with the Judge and the report writer as to Ms Brook’s ability to follow through with rehabilitative intent. Ms Brook is a recidivist offender who appears to

35     McConnel v R [2013] NZCA 303 at [15]–[16].

36     McConnel v R at [16].

37     Again, I counted only 13 but the Crown have submitted it is 14.

be driven by addiction. Given this, the Judge assessed the proposal to her father’s address was not appropriate. I agree. However, in view of the fresh evidence admitted on the appeal, I consider it appropriate to grant leave to apply, to allow for a potential application should a suitable address be obtained which I expect would only be to a residential rehabilitative facility.

Conclusion

[47]   The inadvertent errors in sentence calculation of the 16-month term of imprisonment have contributed to a sentence which I have found to be manifestly excessive, in the circumstances. Although deterrence and protection of the public is a legitimate concern, this was not the least restrictive sentence which could have been imposed and did not give effect to the relevant principle of rehabilitation.38

[48]   This Court has the benefit of fresh evidence indicating that there may be a suitable residential placement becoming available to address the patent rehabilitative needs of Ms Brook to seek treatment for her substance use underpinning persistent offending. It is appropriate to grant leave to apply on this basis, accordingly.

Result

[49]The application to adduce further evidence is allowed.

[50]   The appeal is allowed. The 16-month sentence is quashed and substituted with a sentence of ten months’ imprisonment, recorded as follows:

(a)four months’ imprisonment, cumulatively on each charge of theft over

$500;

(b)two months’ imprisonment on the 1 June 2024 theft, cumulative;

(c)two months’ imprisonment each, concurrent, on the two charges of breaching intensive supervision and one charge of failing to appear; and

38     Sentencing Act, s 7.

(d)all other sentences and release conditions imposed by the Judge are untouched.39

[51]   The special release conditions imposed by the Judge remain should Ms Brook serve out the sentence of imprisonment. If Ms Brook is successful in attaining a suitable address and is granted home detention, it would appear likely these may be imposed as special release conditions of that sentence although that will be a matter for the court considering any application.40

[52]   Leave is granted to apply under s 80I, should a suitable address be obtained, and I refer to my above comments at [46] that in my view only a residential rehabilitative facility would likely be appropriate in the circumstances.41

………………………………………

Preston J

Solicitors:

Crown Solicitor, Whanganui Ruapehu Legal, Whanganui

39     Police v Brook, above n 1, at [24].

40     Sentencing Act 2002, s 80D

41     This indication is not a condition on the grant of leave itself, which s 80I does not permit: Scully v Police [2024] NZHC 2654.