Luke v Police
[2025] NZHC 540
•17 March 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-52 [2025] NZHC 540
BETWEEN CHEYNE ROBERT LUKE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 March 2025 Appearances:
J C Hannam for Appellant P M Lange for Respondent
Judgment:
17 March 2025
JUDGMENT OF McQUEEN J
[1] Cheyne Luke appeals his sentence of 22 months’ imprisonment in respect of the following charges, to which he pleaded guilty:1
(a)four charges of breaching home detention conditions,2
(b)one charge of breaching post-detention conditions,3
(c)two charges of shoplifting (under $500);4 and
(d)two charges of shoplifting ($500-$1000).5
1 Police v Luke [2024] NZDC 31164.
2 Sentencing Act 2002, ss 80S and 80SA; maximum penalty one year imprisonment or a fine not exceeding $2000.
3 Sentencing Act 2002, s 80U; maximum penalty six months’ imprisonment or a fine not exceeding
$1500.
4 Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment.
5 Crimes Act 1961, ss 219 and 223(c); maximum penalty one year’ imprisonment.
LUKE v NEW ZEALAND POLICE [2025] NZHC 540 [17 March 2025]
[2] Mr Luke was also re-sentenced on two charges of breaching home detention as he had been called up for sentence on those charges.6
[3] Mr Luke appeals the sentence on the basis that it is manifestly excessive because the starting point of three months for each of the breach charges was too high, and that the overall sentence should have been adjusted for totality.
[4] The Police say the sentence imposed was not manifestly excessive and the appeal should be dismissed.
[5]For the reasons below, I dismiss the appeal.
The offending
[6] Mr Luke’s history of offending is relevant to his current offending and the appeal so I outline it below.
Breaching home detention conditions
[7] On 18 October 2023 Mr Luke was sentenced to 10 months’ home detention for four charges of burglary and one charge of receiving stolen property, with standard conditions.
[8] On 21 December 2023 Mr Luke breached a condition of his home detention to not consume drugs by testing positive for methamphetamine and cannabis when directed to provide a urine sample. Mr Luke breached another condition on 13 February 2024 by allowing his electronic monitoring bracelet to go flat. On both charges Mr Luke was convicted and was to come up for sentence if called upon under s 110 of the Sentencing Act 2002.
[9] Mr Luke then breached his conditions of home detention on four separate occasions in July and August 2024. These breaches included failing to report to the New Plymouth Service Centre, failing to complete an alcohol and drug test for which
6 Sentencing Act 2002, s 80S; maximum penalty one year imprisonment or a fine not exceeding
$2000.
his reason was not being able to obtain a car seat for a child he was caring for (although the drug testing site was 350 metres from his residence), and leaving his address without approval on two occasions.
Breaching post-detention conditions
[10] On 21 August 2024 Mr Luke failed to report to his probation officer within 72 hours of his post-detention conditions commencing. Mr Luke was reminded twice on 30 August 2024, but he still failed to comply.
Shoplifting
[11] The shoplifting offences concern four occasions where Mr Luke took items from Rebel Sport and Chemist Warehouse in New Plymouth between 3 and 9 September 2024 while accompanied by his child in a pushchair.
[12] On two occasions Mr Luke entered Rebel Sport and selected various clothing items or footwear and concealed them in the pushchair before leaving without paying. During the second incident when Mr Luke left the store the security alarm went off and after providing an excuse to the store staff, he exited with all the concealed items. About 20 minutes later the defendant’s partner, who had accompanied Mr Luke at the store on the earlier occasion that day, returned one clothing item claiming that it must have fallen into the pushchair and caused the security alarm to go off.
[13] Mr Luke also entered Chemist Warehouse with his child in a pushchair and selected four perfumes and two other products and left without paying. The following day Mr Luke returned with his child in a pushchair and took 17 fragrances and left without paying. A staff member confronted him, and Mr Luke gave back one of the fragrances and left with the remaining stolen goods.
Decision under appeal
[14] In sentencing Mr Luke, Judge Grieg outlined the offending including the charges on which Mr Luke had been called up for sentence. The Judge then examined Mr Luke’s history of convictions for dishonesty offending and breaching his
sentences, noting there were some family violence and drug offences as well. The Judge also recorded the pre-sentence report was “sad reading” and that it assessed Mr Luke as having a very high chance of reoffending, which the Judge agreed with.
[15] The Judge said that despite Mr Luke pleading guilty to the offences as set out in the summary of facts, he seemed to place the blame on his ex-partner and twin sister, in whose company he was during the shoplifting. Judge Grieg said that Mr Luke was a party to and helped in all the shoplifting offending.
[16] In assessing whether a non-custodial sentence was available, the Judge considered the position of Corrections that community-based sentences were out of the question as there is no chance Mr Luke would comply with their conditions. The Judge noted Mr Luke has two children with another expected in January 2025, but there are incidents of family harm with the most recent occurring on 12 August 2024. In addition, the Judge considered that Mr Luke’s previous attitude towards community sentences had been negative, which was linked to his past struggles with illicit drug use namely methamphetamine. Although Corrections were motivated to provide counselling and other programmes and Mr Luke admitted to struggling with a drug addiction through most of his adult life and said he wanted to attend rehab, Corrections considered that Mr Luke’s good intentions disappear after sentencing. The Judge noted that he had received a letter from Mr Luke which expressed his shame for his offending, that he takes full responsibility for it and will not repeat his behaviour, however, the Judge was not persuaded that Mr Luke’s journey of rehabilitation had actually begun.
[17] The Judge noted that Mr Luke’s counsel urged him to consider a short term of imprisonment, submitting that Mr Luke wants to be the best father he can. The Judge explained to Mr Luke that a failure to stop his actions will directly impact his children’s lives and despite his difficult background his behaviour will continue the cycle with his children likely following in his footsteps.
[18] Against this background and with the need to protect the community and to maintain the integrity of sentences of home detention, the Judge determined that imprisonment was the only option for Mr Luke.
[19] Turning to calculating the sentence of imprisonment, the Judge started with three months on each breach charge, including those that Mr Luke was called up for sentence, and added six months for the shoplifting at Rebel Sport and another six months for the shoplifting at Chemist Warehouse, arriving at a starting point of two and a half years. An uplift of six months was added for previous dishonesty offending and breaching his sentences, taking the sentence to 30 months’ imprisonment (which appears to be an error in calculation, as following the steps taken by the Judge that starting point before credits should be 36 months’ imprisonment). As for credits, despite not specifying the amount for each, the Judge gave Mr Luke credit for the guilty pleas and his background. The final sentence was 22 months’ imprisonment, with six months’ post-detention and special conditions, and an order to pay reparation. Mr Luke’s then current post-detention conditions were cancelled.
Approach on appeal
[20] Section 244 of the Criminal Procedure Act 2011 provides for Mr Luke’s right of first appeal against his sentence. Under s 250 of the Criminal Procedure Act, the appeal court may only allow the appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.7
[21] An appeal against sentence is an appeal against the Judge’s discretion.8 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9 The Court will intervene only if the final outcome is “manifestly excessive” with the route by which the judge reached that outcome relevant to the analysis but seldom pivotal.10
Parties’ positions
[22] Counsel for Mr Luke, Mr Hannam, submits that the starting point is too high, specifically the cumulative three months applied to each of the breach charges. Mr Hannam suggests that there is nothing extraordinary about the breaches, despite there being six individual breaches, and the three-month increments are excessive and
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
8 Filivao v R [2024] NZCA 103 at [30].
9 Tutakangahau v R, above n 7, at [36].
10 Ripia v R [2011] NZCA 101 at [15]; and Kumar v R [2015] NZCA 460 at [81].
do not take into account the principle of totality. Mr Hannam submits that it is apparent the sentence for the breaches is excessive as it is very close to the same sentence on the original offending (ten months home detention, therefore equating to 20 months’ imprisonment). Mr Hannam submits that a starting point of 12 months’ imprisonment, being two months for each breach, is sufficient. He does not dispute the 12 months applied for the shoplifting charges. He arrives at an overall sentence of 16 months’ imprisonment once credit is allowed for a guilty plea. Mr Hannam further says that no uplift for the breach of post detention conditions is required here, as it is sufficiently recognised by a sentence of imprisonment.
[23] Counsel for Police, Ms Lange, submits that reoffending while subject to sentence and conditions requires a firm response from the Court. Relying on Bartlett v Police, Ms Lange submits that a term of two to three months for each of Mr Luke’s breaches was within range.11 Given the nature and number of charges, and against the background of Mr Luke receiving warnings and directions to prevent him breaching his conditions, together with the fact Mr Luke was already subject to appear if called upon, Ms Lange submits the Judge was correct to conclude the sentencing purpose of deterrence was engaged here. Ms Lange asks the Court to infer that, in not applying a separate sentence for the breach of post detention conditions, the Judge was applying the totality principle, as the 18 months’ imprisonment starting point for the other breaches adequately reflects the seriousness of the offending. Ms Lange submits that the sentence for the shoplifting charges was modest and the sentence for the breaches of home detention stern; but the calculation cannot be criticised when viewing the overall totality of the offending.
Discussion
[24] The issue on appeal is whether the starting point was too high, specifically whether the three months applied to each breach of home detention conditions was excessive, such that the overall sentence was manifestly excessive.
[25]To calculate Mr Luke’s sentence, the Judge concluded:12
11 Bartlett v Police [2023] NZHC 3624 at [13].
12 Police v Luke, above n 1, at [22] (emphasis added).
So it is three months on each breach charge, including the ones that you are being re-sentenced on. So that is 18 months. And the thefts from Rebel Sports add six months for that, and the two thefts from the Chemist Warehouse adds six months to that. So that is a total of two and a half years. I increase that by six months for all of the offending in the past (the dishonesty and the breaches), so that is 30 months. I give you credit for your guilty plea and your background, and that brings it down to 22 months. So that is your end sentence.
[26] It appears the Judge made either a calculation or typographical error in stating that the adjusted starting point was 30 months. Counsel for Police, Ms Lange, contends that the adjusted starting point was 36 months, and the Judge applied a 25 per cent discount for guilty plea and a 15 per cent discount for background, thereby reaching a final sentence of 22 months’ imprisonment. As already noted, the position of Police is that the Judge’s failure to address the breach of post-detention conditions can be understood as an aspect of totality. I agree with Ms Lange that the Judge likely intended to refer to 36 months and consider that the failure to refer to the breach of post-detention conditions in calculating the sentence was likely a simple oversight. Using a starting point of 36 months allows an analysis of the discounts given by the Judge that is consistent with the end sentence of 22 months’ imprisonment, as a 25 per cent discount for guilty pleas together with a 14 per cent discount for background results in a discount of 14 months.
[27] Against this context, I consider whether the three-month period applied to each of the breaches of home detention (of which there are six in total) results in an excessive starting point. Mr Hannam suggests the appropriate sentence for the breaches should have been two months for each and therefore the starting point for those breaches should be 12 months’ imprisonment. Ms Lange says that two to three months is appropriate in the circumstances here, relying on Bartlett,13 although she accepts that this will be a matter to be assessed on the factual circumstances arising in any particular case.
[28] In Bartlett, this Court considered the circumstances there (one charge of non- compliance with home detention conditions and a return to the sale of methamphetamine to support Mr Bartlett’s addiction) would have justified an uplift of
13 Bartlett v Police, above n 11.
two or three months rather than the one month imposed by the sentencing Judge.14 However, it was not necessary for the Court to consider a situation of multiple breaches as arises here. In Dawson v Police, this Court concluded that a six-month uplift for four separate sentence breaches was stern (although finding even if that was the case, the adjusted starting point was within range).15 Mr Dawson had demonstrated a similar disregard as Mr Luke for his conditions of home detention.
[29] I accept a cumulative sentence for the home detention breaches was appropriate given the breaches were different in nature and time. While I agree with the Judge that the principle of deterrence is clearly engaged in relation to Mr Luke, a starting point of 18 months’ imprisonment in relation to the six breaches is certainly stern.
[30] However, what I am required to do is to step back and consider the sentence as a whole and whether it is manifestly excessive. As the Court of Appeal stated in Kite v R, the failure of a Judge to mention the totality principle is of no moment if the sentence imposed was not out of proportion to the gravity of the offending.16
[31] It is accepted by both counsel that imprisonment was the appropriate sentencing option. To reinforce that point, this is not the first time Mr Luke has received a sentence of imprisonment for breaching non-custodial sentences, and the record shows he has been repeatedly non-compliant with community-based sentences.
[32] Here, in my view through simple oversight, the sentencing Judge did not include in his calculation of the sentence any reference to the breach of post detention conditions. I am not persuaded by Mr Hannam’s argument that this charge was properly omitted from consideration as it has been addressed through the type of sentence imposed here, namely imprisonment. Rather, I consider this is relevant to assessing totality.
14 At [13].
15 Dawson v Police [2023] NHZC 3441 at [19].
16 Kite v R [2018] NZCA 485 at [21].
[33] Ms Lange submits that the six-month uplifts for the two sets of shoplifting offending is modest but did not refer me to any authorities in support. I consider that the uplift was within range but is not necessarily fairly categorised as modest.
[34] The shoplifting offending occurred against a background of Mr Luke’s previous convictions including seven burglaries, seven counts of theft, two receives property and one unlawfully taking a vehicle. In addition, Mr Luke committed the offending in the presence of his young child and used the pushchair in which the child was travelling to conceal stolen property. The four occasions of shoplifting occurred within a week of each other.
[35] The offending relating to the breaches occurred against Mr Luke’s history of not complying with sentences. This supports the imposition of a stern sentence. Mr Luke has committed six breaches of home detention without justification. This continues Mr Luke’s pattern of not complying with community-based sentences. While Mr Luke has recently expressed a desire to improve his behaviour in the interests of his children it is difficult to place much reliance on this in the circumstances, including where he took his child to the retail stores at which he committed the shoplifting.
[36] Taking these factors into consideration and looking at the sentence as a whole, I consider that the end sentence of 22 months’ imprisonment is within range, if stern.
[37] Accordingly, I am not satisfied there was a material error that resulted in a sentence which is manifestly excessive, nor am I satisfied that a different sentence should be imposed.
Result
[38]The appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth for Appellant
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