Chambers-Mickie v Police

[2023] NZHC 2486

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-80

[2023] NZHC 2486

BETWEEN

RICKY CHAMBERS-MICKIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 December 2023
Appearances:	C J Nicholls for Appellant M K Story for Respondent
Judgment:	18 December 2023

JUDGMENT OF COOKE J

(Sentence appeal)

[1]    Mr Ricky Chambers-Mickie (the appellant) was sentenced on 1 December 2023 by Judge Mika in the Hutt Valley District Court to 10 months and two weeks’ home detention on the following charges to which he pleaded guilty:1

(a)one charge of possession of an offensive weapon;2

(b)one charge of possession of a knife;3

(c)11 charges of theft (under $500);4 and

1      Police v Chambers-Mickie [2023] NZDC 27855.

2      Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.

3      Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or a $2,000 fine.

4      Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment.

CHAMBERS-MICKIE v NEW ZEALAND POLICE [2023] NZHC 2486 [18 December 2023]

(d)one charge of theft (over $1,000).5

[2]    Mr Chambers-Mickie appeals his sentence, saying that the starting point adopted by the District Court Judge was too high, thereby making the end sentence manifestly excessive.

Background

[3]    Between 26 March and 23 April Mr Chambers-Mickie engaged in a series of shoplifting style offences. This included eight occasions where he put petrol in his car or a jerry can without paying with the amounts involved between $5.67 and $89.99. There were then three further thefts of grocery items from Pak n Save Petone, and one theft from The Warehouse in Petone involving goods valued between $120 and $350. Further, on 10 April 2023, Mr Chambers-Mickie went to Briscoes Petone, uplifted an “Alpaca Duvet Inner and a Karcher Window Vac”, collectively valued at $1,034.98. Mr Chambers-Mickie left the store without paying, giving rise to the charge of theft (over $1000).

[4]    On 25 April 2023, the Police stopped Mr Chambers-Mickie in relation to an unrelated   matter   on   Molesworth   Street,   Wellington.   The   Police   arrested  Mr Chambers-Mickie. At that time, the Police found a green kitchen knife, a metal carabiner containing a fold out blade, and a homemade bayonet. This gave rise to the charges of possession of an offensive weapon, and possession of a knife.

[5]    Mr Chambers-Mickie has a significant criminal history, involving a large number of previous convictions for dishonesty offending, many of which have been committed while Mr Chambers-Mickie was on bail. His history includes more serious property offences such as burglary, as well as family violence offending, drug offending, and driving offending. Specifically, Mr Chambers-Mickie has a total of 127 convictions since 2000, 88 of which are for or relate to dishonesty offending.

[6]    When interviewed for the pre-sentence report Mr Chambers-Mickie accepted the summary of facts, and said that he was stealing food and petrol because he was

5      Sections 219 and 223(b); maximum penalty seven years’ imprisonment.

short of money and had no accommodation. He said specifically that the items he stole from Briscoes were so that he had blankets to sleep in his car, and so that he could ‘de-fog’ the windows in his car. He said that he had the weapons in his car for his protection.

[7]    The report-writer recommended a sentence of home detention for the purpose of holding Mr Chambers-Mickie to account whilst providing him the structure to attend a Departmental Medium Intensity Rehabilitation Programme designed to support people to address any relevant underlying factors with regards to their offending, and to assist them to make positive change.

[8]    Mr Chambers-Mickie proposed an address in Johnsonville as the address for home detention, which is a Kainga Ora property, at which he is currently residing alone, and which the report-writer assessed as technically suitable.

[9]    The Judge took a global starting point for the offending, concluding that this should be two years imprisonment. He then uplifted this by two months for previous convictions, before granting a 25 per cent discount for the guilty plea leading to a potential term of imprisonment of 19 months. He then converted this to a sentence of nine and a half months’ home detention, and increased it to 10 months and two weeks’ home detention in connection with remitting fines of $4,220.

Approach to appeal

[10]   Under s 250 of the Criminal Procedure Act 2011 an appeal against a sentence is an appeal against the exercise of a discretion. For Mr Chambers-Mickie to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.6 If these factors are not satisfied, the Court must dismiss the appeal.7 When considering whether a different sentence should be imposed the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.8

Analysis

[11]   I accept Mr Nicholls submissions that the period of the sentence of home detention was manifestly excessive.

[12]   I accept that the starting point was too high. As Mr Nicholls submitted the most serious charge carrying the highest maximum penalty involved shoplifting a duvet inner and a window vacuum, together worth just over $1,000 from Briscoes in Petone. This was at a time when the appellant was homeless and living in his car. The next most serious charge was possession of an offensive weapon. This was a homemade item found in his car which was not used in any way. Given this kind of offending, and notwithstanding the cumulative nature of the dishonesty charges, it is difficult to justify a more than two year starting point when compared with comparable cases.

[13]   Whilst there is no tariff judgment for theft, the Court held in Torbarina v Police that sentencing for offending of this type should be determined by the value of the items stolen and the offender’s previous history.9 In that case there were three charges of theft involving items valued at more than $3,000 and the appellant had previously appeared on more than 40 occasions for similar offences. A starting point of 18 months’ imprisonment on all charges was considered well within range.10 In Pyper v Police, 18 months’ imprisonment was adopted as a starting point for four charges of theft of items worth over $2,000 when the appellant had a significant criminal history involving 105 convictions.11 In Wood-Olsen v New Zealand Police a starting point of 12 months’ imprisonment for a series of shoplifting offences of a total value of

$2,876.66 on six occasions was held to be excessive and replaced with nine months.12

8      Tutakangahau v R [2014] NZCA 279 at [32]-[35].

9      Torbarina v Police [2014] NZHC 3221 at [9]–[10].

10 At [13].

11     Pyper v Police [2021] NZHC 1448 at [24]–[29].

12     Wood-Olsen v Police [2020] NZHC 510.

In Asres v Police a starting point of nine months was adopted for various dishonesty offences including two charges of theft for items valued over $3,000.13

[14]   The total value of all items stolen by Mr Chambers-Mickie here was just short of $2,000. Although there are the additional charges in relation to the items found in his car, these were never used in any way. Against that background adopting a starting point of two years, and then uplifting that by two months to 26 months for the previous convictions, is out of step with the authorities.

[15]   In addition Mr Chambers-Mickie committed the spree of offending when he had become homeless, and was living in his car. Whilst he has a long list of prior convictions of a similar kind the last offending was in 2020 and he had avoided re- offending for approximately three years. The further offending had arisen when he had become homeless. He has since found himself a home and is in a more stable state. This has two implications. First, whilst the sentencing principles of denunciation and deterrence are important in those circumstances, it is also important that the sentence focuses on minimising the prospect of re-offending for the protection of the community. A period of home detention will help rehabilitation, including in light of the programmes proposed in the pre-sentence report, but there is a danger that continuing the sentence for a longer period of time may not be optimal for ensuring Mr Chambers-Mickie stabilises himself within the community. The second point is the fact that Mr Chambers-Mickie was homeless and living in his car at the time that many of the thefts appear to be associated with, his impoverished life, and his remorse are personal circumstances that are relevantly taken into account, and warrant a discount. In my opinion a discount of a further 10 per cent was appropriate.

[16]   For these reasons it seems to me that the appropriate starting point is 14 months’ imprisonment, with discounts of 25 per cent for the guilty plea and 10 per cent for personal factors leading to an end sentence of nine months’ imprisonment. Although Ms Story is correct in submitting that commuting that by 50 per cent to arrive at the home detention period is not automatic,14 I consider it appropriate here, which leads to a sentence of four months and two weeks’ home detention. This should

13     Police v Asres [2019] NZDC 18958, upheld on appeal in Asres v Police [2019] NZHC 2760.

14     R v Bisschop [2008] NZCA 229 at [18].

be increased to five months and two weeks’ home detention in relation to the remission of fines.

[17]   The appeal is accordingly allowed and a sentence of five months and two weeks’ home detention is substituted for the sentence of 10 months and two weeks’ home detention. The home detention is otherwise on the same terms and conditions.

Cooke J

Solicitors:
Crown Solicitors, Wellington for Respondent