Gordon v The King

[2025] NZHC 577

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-706

[2025] NZHC 577

BETWEEN

JENNIFER GORDON

Appellant

AND

THE KING

Respondent

Hearing:	10 March 2025
Appearances:	S Georgiou for Appellant J Lowyim for Respondent
Judgment:	19 March 2025

JUDGMENT OF BECROFT J

[Appeal against sentence]

This judgment was delivered by me on 19 March 2025 at 4pm.

Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:

Meredith Connell, Auckland S Georgiou, Auckland

GORDON v R [2025] NZHC 577 [19 March 2025]

What this appeal is about

[1]    Ms Jennifer Gordon appeals against her sentence of two-and-a-half years’ imprisonment  imposed  in   the  Waitakere   District   Court   by  Judge  Pecotic  on  6 November 2024.

[2]    Ms Gordon is a serial and prolific shoplifter. She was convicted of seven shoplifting charges, some for very high value amounts, and one charge of possession of cannabis for supply. The accepted summary of facts identifies Ms Gordon as one of the highest-risk recidivist retail crime offenders in the country.

[3]Ms Gordon appeals on three grounds:

(a)the starting point for the lead Crown charge, or charges, of 21 months’ imprisonment was too high and should have been 16 to 17 months;

(b)the uplift from the lead charges, first for the other police shoplifting charges and then for the cannabis for supply charge, should have been no more than an additional 14 months; and

(c)the reduction of 15 per cent for Ms Gordon’s mental health issues and her rehabilitative efforts was too low and should have been 25 per cent.

[4]    As a result of these errors, Mr Georgiou, whose submissions were well- presented and carefully considered, submitted that the end sentence was manifestly excessive.

[5]    Mr Lowyim, who presented the Crown case precisely, strongly opposed the appeal. He submitted that the sentencing Judge was well within range in respect of all the issues raised by Ms Gordon. The Crown is emphatic that the end sentence is not manifestly excessive.

The offending

[6]    It is important to note the breadth of the offending and the value of the items taken. It is convenient to set out the Crown’s description of the facts, which is not disputed, as follows.

[7]    Between 23 September 2022 and 1 June 2024, Ms Gordon went to numerous retail stores where she took items and left without paying. These items were typically concealed in bags Ms Gordon had brought to the store for that purpose. Ms Gordon would put the items in the bags while in the fitting rooms. On some occasions, Ms Gordon removed security tags before leaving the store.

[8]The particulars of each shoplifting incident are as follows:

(a)23 September 2022: David Jones Newmarket, $1,459.94 of clothes taken.

(b)25 September 2022: David Jones Newmarket, $2,187.40 of clothes taken.

(c)1 November 2022: David Jones Newmarket, $8,490 of clothes taken.

(d)17 December 2022: Rebel Sport Wairau, $2,158.75 of stock taken.

(e)4 April 2023: Farmers Albany, $2,009.96 of duvet sets taken.

(f)8 April 2023: Briscoes Wairau Park and Briscoes Glenfield Mall, $4,329.89 and $2,509 in electrical goods and other merchandise respectively taken.

(g)20 April 2023: Farmers Northwest, $400 of baby clothing.

(h)5 April 2024: Bunnings Westgate, $546.28 of power tools taken but was stopped by security as she was leaving.

(i)1 June 2024: Torpedo 7 Albany, $1,349.97 of clothes taken.

[9]    The total value of the property taken in the offending relating to the Crown charges (being the three thefts from David Jones) was $12,137.34. The total value taken in the offending relating to the police charges was $13,303.85. None of the property was recovered. This offending resulted in seven convictions for theft.

[10]   Separately, on 14 September 2024, Ms Gordon was “traffic-stopped” by police and arrested for an unrelated matter. Police smelled cannabis from the car and searched it. They discovered three resealable bags containing 88.4 grams of cannabis. This resulted in a conviction for possession of cannabis for supply.

Ms Gordon’s background and criminal history

[11]   Ms Gordon is aged in her late 40s. She has a significant criminal history, which stretches to 28 pages. There are 48 previous convictions for shoplifting/theft which span 1999 to 2022. Ms Gordon has a total of 152 dishonesty convictions. She also has a conviction for dealing in methamphetamine from 2019, resulting in two years four months’ imprisonment.

[12]   As I understand it, much of the present offending took place while Ms Gordon was on bail.

Approach on appeal

[13]The Court must allow Ms Gordon’s appeal if satisfied that:1

(a)there was a material error in the sentence imposed on conviction;2 and

(b)a different sentence should be imposed.

[14]In any other case, the appeal must be dismissed.3

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

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

3      Criminal Procedure Act, s 250(3).

[15]   As the Court of Appeal identified in Tutakangahau v R, the court will ordinarily not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.4 It is appropriate for the appeal court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles, or where the sentence is in range but what has gone wrong requires correcting in those particular circumstances.5

First issue – the respective starting points adopted by the District Court Judge

The lead charge

[16]   Judge Pecotic said she adopted the 1 November 2022 theft from David Jones as the lead charge. However, it is apparent the starting point was actually in respect of all of the three Crown charges relating to all three thefts at David Jones. This seems clear from the fact that the Judge adopted the Crown’s suggested starting point in respect of all three Crown charges, and her subsequent reference to the balance of the offending being “the charges that the police are prosecuting”. Therefore, all three Crown charges, by implication, were included in the lead charge’s starting point.

[17]   Mr Georgiou acknowledges the uncertainty. He submits that it ultimately matters little whether the starting point includes all the David Jones charges or is incorporated into the other shoplifting charges. In his submission, the overall error remains.

[18]   In respect of the lead charge(s), the Judge considered the aggravating features to be premeditation and sophistication which were present to a high degree. The Judge also cited the duration of the offending, that the victims are largely commercial businesses and the significant value of the goods.

[19]   I agree with Mr Georgiou that the Judge seems to have conflated the starting point for the lead charge(s) with all the offending. In fact, at that point, the analysis should have been confined to just the David Jones charges. Mr Georgiou submitted that those three offences were not particularly sophisticated or premeditated.

4      Tutakangahau v R, above n 2, at [36].

5      At [32]–[36].

[20]   While I understand Mr Georgiou’s submission, it must be said that Ms Gordon targeted a particular store, and particular clothes within the store, and took them into the changing room. There, she removed the security tag which I presume would otherwise have set off an electronic alarm when leaving and concealed the garments in bags brought to the shop for that purpose. Of course, one can imagine more sophisticated shoplifting, but for an individual acting alone, her method was clearly considered and planned. It must have been thought through in advance. David Jones is a reasonably high-end department store and the value of the items taken at

$12,137.34 was significant. I accept the Crown’s submission that Ms Gordon clearly had a consistent “modus operandi”.

[21]   Comparative cases always are a little problematic as they are so fact specific. But the cases cited by Judge Pecotic indicate that she was on firm ground with her starting point:

(a)In Ross v Police,6 the appellant was sentenced on 18 charges of theft related to shoplifting various items from supermarkets and retail stores between 2 October 2021 and 13 February 2022. On appeal, a starting point of 15 months’ imprisonment was adopted for a theft involving two drones worth $6,849. An uplift of nine months was considered within range for the balance of the thefts, which related to property valued around $11,000. This left a total starting point of 26 months’ imprisonment for items valued around $17,849.

(b)In Collier v Police,7 a starting point of 32 months’ imprisonment was considered within range, albeit stern, for a “spree” of shoplifting charges from 6 October 2016 to 14 February 2017. The offending involved 14 separate items with a total value of $6,181.27.

6      Ross v Police [2022] NZHC 2527.

7      Collier v Police [2017] NZHC 2222.

(c)In Tout v Police,8 an uplift of 18 months’ imprisonment was upheld in respect of eight shoplifting-type thefts “over a relatively short period of time” and relating to goods valued at approximately $6,380. On appeal, the Court considered an uplift of 24 months’ imprisonment would have been available.

[22]If a starting point is adopted for all three Crown charges, relating to over

$12,000 of stolen property, then 21 months’ imprisonment is clearly within range.     I conclude it cannot be criticised.

Uplift for the Police charges

[23]   Judge Pecotic uplifted the 21-month starting point by a further 12 months to reflect the remaining police shoplifting charges relating to $13,304.68 of stolen items. This resulted in a provisional starting point of 33 months’ imprisonment on all of the shoplifting offending.

[24]   The submission  for Ms Gordon is  that no totality  assessment was  made.  Mr Georgiou says that an uplift of no more than nine to 10 months for the remaining dishonesty offending would have been appropriate.

[25]It is submitted that the sentence should be constructed as follows:

(a)a starting point of 16 to 17 months for the single 1 November 2022 David Jones shoplifting, excluding the other two thefts;

(b)An uplift of nine to 10 months for all the remaining dishonesty charges.

[26]   I agree with the Crown that if that approach was adopted, then the uplift for the remaining dishonesty offences would have to include the other two David Jones thefts as well, which would increase the value to almost $17,000 in stolen goods. That amount might justify a standalone starting point of around 28 months’ imprisonment. Application of the totality principle could not justify an uplift of that length. An uplift of 16 months to reflect all those other remaining shoplifting offences would be quite

8      Tout v Police [2021] NZHC 2227.

balanced and appropriate. This would reach the same provisional starting point of 33 months.

[27]   Therefore, on either approach, the starting point is the same. And there is no breach of the totality principle. For the sake of completeness, I add that if concurrent sentences had been imposed, and a concurrent approach was explicitly adopted,9 then again 33 months’ imprisonment appropriately reflects all the shoplifting offending, and also does not breach the totality principle.

[28]When viewed in the round, Ms Gordon’s offending involved a total of over

$25,400 stolen property, which spanned nearly two years, and which targeted large retail stores with some very high value goods stolen.

[29]   It is always possible to highlight differences with other, similar cases. However, overall, I would regard Judge Pecotic’s starting point as consistent with the starting point in Collier, where 32 months was considered stern but within range for property valued at $6,181.00, and Ross where a total starting point of 24 months’ imprisonment was adopted for items valuing around $17,849.

Uplift for cannabis offending

[30]   Judge Pecotic further uplifted the sentence by 10 months for Ms Gordon’s cannabis for supply offending. It is qualitatively different offending from the shoplifting, with an intended commercial element. She considered that the offending fell into Band 2 of R v Terewi.10 She also cited the case of R v Tini, in which a starting point of 25 months’ imprisonment was set for a smaller amount of cannabis (68 g) and a small amount of cash ($211).11

9      See Sentencing Act 2002, s 84(2), which provides guidance on when cumulative or concurrent approaches to sentencing should be adopted, and s 85, which provides that the Court must consider the totality of offending when multiple offences are involved. It is unclear whether Judge Pecotic adopted a cumulative or concurrent approach for the shoplifting offences.

10 R v Terewi [1999] 3 NZLR 62 (CA) at [4].

11 R v Tini [2013] NZHC 2184.

[31]   Mr Georgiou submits that Tini can be distinguished as the appellant was travelling to a large celebration with cannabis and money where it could be readily assumed he would be involved in dealing. Tini, therefore, can be considered as more serious.

[32]   The Judge treated Ms Gordon’s explanation—that she found the cannabis in a next-door flat which used to be occupied by cannabis dealers and was holding it on the basis that it was an asset and she might in the future obtain money from it—with caution. However, the Judge said she would take the explanation at “face value”. That is probably why she felt, when considering the totality of the sentence, that an uplift of no more than 10 months was appropriate in all the circumstances. I cannot fault that approach.

[33]   In my view, taking into account the principle of totality, the eventual adjusted starting point adopted by the Judge of 43 months’ imprisonment is within range and cannot be impugned on appeal.

Personal aggravating and mitigating factors

Uplift for previous offending and offending while on bail

[34]   The five-month uplift for these two different personal aggravating factors is essentially not disputed on appeal. Neither can it be.

Guilty plea

[35]   The reduction of 20 per cent for the guilty plea is not disputed. It is accepted as being appropriate.

Remorse

[36]   The five per cent reduction for remorse, which the Judge accepted as genuine, is also unchallenged.

Personal mental health issues and background circumstances

[37]   In this respect, the Judge allowed a reduction of 15 per cent in light of the specialist report prepared by Dr Grzes.

[38]   Mr Georgiou submits that the discount should have been 25 per cent with a further 10 per cent reduction reflecting her attempts at rehabilitation.

[39]   It is clear that Ms Gordon has had a very sad personal life. For privacy reasons there is no need to set out all the details. Suffice to say, she now suffers from anxiety, depression and addictions. Dr  Grzes  also  seemed  to  agree  with  the  view  that Ms Gordon suffers from post-traumatic stress disorder.

[40]   On top of that, Dr Grzes assessed Ms Gordon as suffering from kleptomania. Dr Grzes suggests that Ms Gordon has likely coped with her history of trauma through stealing, substance abuse and gambling. In Dr Grzes’ opinion, Ms Gordon is suffering from kleptomania as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V-TR). Dr Grzes notes that the onset of kleptomania for Ms Gordon occurred in adolescence and appears to be chronic. However, it is also noted that some of her offending behaviour is motivated by personal gain. It should be distinguished from kleptomania and should be considered as an ordinary act of theft motivated by the usefulness of the object or its monetary worth.

[41]   Sentencing those who are chronic shoplifters, here with kleptomania, is a notoriously problematic exercise for sentencing courts. Courts are sympathetic to those with demonstrated mental health issues, particularly where there is a causal relationship of some kind between the offending and the demonstrated mental health issues. Significant reductions are sometimes justified.

[42]   The mental ill health need not be the main or proximate cause of the offending; it is sufficient for it to be a contributing cause.12

12     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

[43]   The sentencing Judge was alive to this issue and in my view she considered it carefully. She noted, for instance, the inconsistency between the psychologist’s report, which stated that Ms Gordon shoplifted when she did not need to, and Ms Gordon’s report to the probation officer that she shoplifted to sell items to order, for cheaper prices than could be purchased in the store.

[44]   Therefore, a delicate sentencing exercise is called for, one that acknowledges Ms Gordon’s deep-seated anxiety, depression and post-traumatic syndrome together with kleptomania and, on the other hand, accounts for her ongoing and admitted propensity to steal to order for cash advantage. This latter feature does not seem consistent with shoplifting to dull the psychological pain and to escape the mental health pressures that Ms Gordon faces.

[45]   The Judge’s discount of 15 per cent could arguably have been slightly more, but it was within the appropriate range. I agree with the Crown that it was open to Judge Pecotic to moderate her discount in light of the inconsistencies in Ms Gordon’s explanation for her offending.

[46]   Other cases relied upon by Mr Georgiou deal with substantially more serious mental illness, with a far stronger nexus with the offending. This appears not to be a case where, but for Ms Gordon’s disorders and trauma, the offending would not have happened.

[47]   As for Ms Gordon’s rehabilitative efforts, it is unclear if the Judge gave any discount for these efforts, either as part of her 15 per cent discount for mental health and background factors or as part of the five per cent discount for remorse.

[48]   I note that Ms Gordon’s rehabilitative efforts comprised seeing an ACC counsellor  between  23  April  2024   until   her   arrest   for   drug   offending   on 16 September 2024. Notably, Ms Gordon continued to offend during this period, committing a theft at the Torpedo 7 Store in Albany. It is always encouraging to a court when an offender undertakes significant rehabilitative efforts, and this will often justify recognition in the sentencing process. Here, it seems to me that what is relied

upon by Ms Gordon is simply too little and too early in the process to justify any discrete discount, and Judge Pecotic was not at fault for failing to give one.

Conclusion

[49]   In my view, despite Mr Georgiou’s thoughtful and considered analysis of Judge Pecotic’s sentence, each challenged aspect is within the available range. There is no demonstrated error in the Judge’s approach.

[50]   More importantly, when I stand back, the sentence of two years and six months’ imprisonment for Ms Gordon’s offending cannot be considered manifestly excessive.

[51]   I conclude by emphasising that while courts are traditionally sympathetic to those (often women) with deep-seated psychological problems leading them to struggle with lifelong and habitual shoplifting, the sentencing Judge was alive to all these issues. Her very careful and comprehensive decision reflected and balanced all the necessary factors. This process ultimately resulted in an appropriate sentence.

[52]The appeal is dismissed.

Becroft J