McKenzie v Police

[2015] NZHC 2742

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-454-000022 [2015] NZHC 2742

BETWEEN

ANGUS MCKENZIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 November 2015
Counsel:	M Andrews for Appellant M J R Blaschke for Respondent
Judgment:	6 November 2015

JUDGMENT OF BROWN J

[1]      Mr McKenzie pleaded guilty to eight charges as set out in the table below. He was sentenced as follows by Judge Smith on 25 August 2015 in the District Court

at Palmerston North:1

Date	Offence	Section	Maximum penalty	Sentence imposed
30 January 2015	Theft (less than $500)	Crimes Act 1961, ss 219 and 223(d)	Three months’ imprisonment	1 ½ months’ imprisonment
5 February 2015	Failure to answer police bail	Bail Act 2000, s 24	Three months’ imprisonment; fine not exceeding $1,000	¾ month imprisonment
9 February 2015	Theft (less than $500)	Crimes Act 1961, ss 219 and 223(d)	Three months’ imprisonment	1 ½ months’ imprisonment
12 and 19 February 2015	Breaching conditions	Sentencing Act 2002, s 96	One year imprisonment; fine not exceeding $2,000	1 ½ months’ imprisonment

1      Police v McKenzie [2015] NZDC 16947.

MCKENZIE v NZ POLICE [2015] NZHC 2742 [6 November 2015]

22 February 2015	Theft (less than $500)	Crimes Act 1961, ss 219 and 223(d)	Three months’ imprisonment	1 ½ months’ imprisonment
26 February 2015	Breaching conditions	Sentencing Act 2002, s 96	One year imprisonment; fine not exceeding $2,000	2 ¼ months’ imprisonment
13 March 2015	Theft (less than $500)	Crimes Act 1961, ss 219 and 223(d)	Three months’ imprisonment	1 ½ months’ imprisonment
28 May 2015	Failure to answer bail	Bail Act 2000, s 38	One year imprisonment; fine not exceeding $2,000	1 ½ months’ imprisonment
Total cumulative sentence	12 months’ imprisonment

[2]      Each of the sentences was imposed cumulatively with the consequence that the ultimate sentence was a total of 12 months’ imprisonment.

Facts of the offending

[3]      Mr McKenzie was released from prison on 14 January 2015 and was subject to release conditions. The facts of each charge in chronological order are as follows.

30 January 2015 – Theft

[4]      On  the  afternoon  of  30  January  Mr  McKenzie  went  to  Countdown  on Kimbolten Rd in Feilding.  He took two Countdown chiller bags with him around the store and filled them with grocery items.   He left the store with the bags without paying for the items, setting the door alarms off.  He ran but was apprehended by Countdown staff not far from the store. He made the comment that “I didn’t have any money and was hungry”.  There was $358.20 worth of groceries in the chiller bags.

5 February 2015 – Failure to answer police bail

[5]      Mr McKenzie was placed on police bail following the 30 January incident, and failed to appear at Court on 5 February.

[6]      On the afternoon of 6 February Mr McKenzie went to Melody’s New World in Palmerston North.  He took a chiller bag from near the checkouts and placed some chilled pizzas and packets of bacon inside before leaving the store without paying for the items.

12 and 19 February 2015 – Breaching conditions

[7]      On both 12 and 19 February, Mr McKenzie failed to report to his Probation

Officer.  He did not make contact with the Officer to explain his absence.

22 February 2015 – Theft

[8]      On the afternoon of 22 February Mr McKenzie again went to Melody’s New World, took a chiller bag from near the checkouts and filled it with a number of packets of bacon and confectionery items to the value of $70.35 before leaving the store without paying for the items.  When confronted by a staff member he dropped the bag and ran from the premises.

26 February 2015 – Breaching conditions

[9]      Mr McKenzie was evicted from his probation-approved residence for failing to pay rent.  He did not contact his Probation Officer to confirm a new residential address.   The charging document stated that release conditions were breached by moving to an address in another probation area without consent.

13 March 2015 – Theft

[10]     On the afternoon of 13 March Mr McKenzie was at Warehouse Stationery in the Levin shopping mall.   He took two portable hard drives (worth $458) from a shelf and ran from the store, setting the door alarms off.  He was pursued by a staff member of a neighbouring store.  Mr McKenzie ran from the mall.  He was seen by a witness attempting to remove the security tags from the goods and getting into a waiting vehicle before driving away.

[11]     Mr McKenzie failed to appear at Court on this date.

District Court sentencing

[12]     The relevant paragraphs of Judge Smith’s sentencing are the following:

[10]     You appear in front of the Court as a 26 year old man who has managed to amass 39 convictions since 2007.  It is noted that the increase and frequency of offending has occurred although not the escalation and type.     You  currently  have  fines  and  reparations  outstanding  totalling

$9656.73.

[11]      The probation report makes it clear that you are driven by substance abuse, have mental health issues and you have shown poor compliance with health services and medication.   Often the Community Mental Service is unable to know where you are or what sort of state you are in, but assess, and it is clear from your record that it is true, that you are at a high risk of re-offending.

[12]     Further, even though these matters are low in terms of maximum penalties the shoplifting charges each have a maximum of three months, the breach  of  release  conditions  one  year  and  the  breach  of  bail  one  year. Usually this is a situation where some form of community monitoring could be considered but you do not have an address.  Furthermore, I am concerned that you receive and attend the necessary programmes for your substance abuse and possible use of alcohol.

[13]      As a consequence of that, as Mr Andrews has accepted and correctly so, the result is that you are to serve a period of imprisonment.

[14]      Each of these matters, while some of them are of the same nature, are  on  all  separate  dates.    I  have  dealt  with  them  by  way  of  separate sentences for each of them which are cumulative but in doing so the amounts that I set I take into account totality so that the overall sentence is in my view in line with what is appropriate for yourself.  In doing that I take into account your past record, the fact that you have been sentenced to a year in

2014 for shoplifting and other similar matters, put you in a situation where the sentence this time must be of a similar amount.

Grounds of appeal

[13]     Mr  McKenzie  appeals  on  the  grounds  first,  that  the  Judge  erred  in  his application of the totality principle, and second gave insufficient or no discount for his early guilty pleas, leading to a sentence that was manifestly excessive.

[14]     An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.  Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

(a)       for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[15]     A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered but not in a way that amounts to a minor adjustment or ‘tinkering’.   The Court on appeal must concern itself with whether the end sentence imposed is within

range, as opposed to focusing on the process by which the sentence was reached.2

In any other case the Court must dismiss the appeal.

Analysis

[16]     At the outset I note that, while submitting that a deterrent sentence was required in this case, the respondent acknowledged that:

(a)      the decision  did  not  articulate starting points,  deductions  and  end points;

(b)there was no explicit reference to mitigating factors such as mental health or guilty pleas and hence it was not clear to what extent those matters had been taken into consideration.

The  respondent  fairly  accepted  that  the  end  sentence  imposed  of  12  months’

imprisonment was excessive and could not be supported.

2      Tutakangahau v R [2014] NZCA 279 at [36].

[17]     Counsel  for  the  respondent  suggested  that  having  regard  to  Police  v McMurtrie3   and  Kennedy  v  Police4   sentencing  could  have  proceeded  on  the following basis:

a.Starting point of six months’ imprisonment concurrent on the four theft charges (being one and a half months’ imprisonment per charge if cumulatively imposed);

b.Uplift  for  the  four  non-compliance  charges  which  appropriately reflects their repeated nature (as an aggravating factor of the offending)  of  around  four  months’  imprisonment  (taking  into account totality);

c.An uplift to reflect that the appellant has previous convictions for similar offending to which he was sentenced to imprisonment, but has continued to re-offend;

d.        A discount for the early guilty pleas;

e.A discount for mitigating factors if the Court considers these are appropriate.

[18]     In McMurtrie v Police Clifford J considered an appeal against a sentence of one year imprisonment imposed on a number of charges similar to those in the present case.  Between 3 December 2014 and 3 January 2015 Mr McMurtrie and an associate would frequent different supermarkets, fill up a trolley with goods, go to the checkout and tell the operator they had already paid for the majority of the goods and then purchase one or two items they had ‘forgotten’.  The offending was for the primary goal of funding his addiction to methamphetamine.

[19]     That offending gave rise to six theft charges (five of goods valued under

$500,  and  one  of  goods  valued  between  $500-$1,000)  and  one  of  possessing cannabis.  Some offending occurred while on bail.  Mr McMurtrie had eight previous theft convictions, one of theft of a vehicle and one for possession of cannabis.

[20]     The District Court Judge there constructed the 12 months’ imprisonment

sentence in a similar fashion to this case, which Clifford J described as “somewhat unusual”: by imposing discrete cumulative sentences for the theft charges.5    There

3      Police v McMurtrie [2015] NZHC 1031.

4      Kennedy v Police [2013] NZHC 714.

5 At [11].

were also some concurrent sentences imposed.   One ground of appeal in that case was that the Judge gave insufficient weight to the totality principle.

[21]     After considering a number of similar cases, Clifford J adopted the orthodox sentencing methodology of reaching a starting point on the lead charge (six months for theft of goods over $500) reflecting the aggravating and mitigating features of that charge.   Clifford J chose not to uplift the starting point for Mr McMurtrie’s previous   convictions   given   that   he   had   not   previously   been   sentenced   to imprisonment  –  his  Honour  said  the  “progression  to  the  inevitable  sentence  of

imprisonment does, in itself, take account of that earlier offending”.6   A one month

uplift  was  imposed  for  the  offending  whilst  on  bail,  as  well  as  a  one  month cumulative sentence for the possession of cannabis charge.   The full 25 per cent Hessell discount was allowed for the guilty plea.

[22]     Mr McKenzie’s offending can be similarly characterised to that in McMurtrie

– a spree of related offending, including the charges for breaching conditions – with two exceptions: first there is no charge of the gravity of the lead charge in McMurtrie and secondly there is no unrelated charge like Mr McMurtrie’s possession of cannabis.

[23]     Section 84 of the Sentencing Act 2002 provides guidance on the use of cumulative and concurrent sentences of imprisonment as follows:

(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—

6 At [29].

(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.

[24]      When  either concurrent  or cumulative sentences  are imposed,  s  85 then directs that the Court must consider adjusting the sentence to reflect the totality of the offending as a whole:

(1)Subject  to  this  section,  if  a  court  is  considering  imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If,  because  of  the  need  to  ensure  that  the  total  term  of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)      If only concurrent sentences are to be imposed,—

(a)      the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[25]     The relationship between the two sections is described by the authors of

Adams on Criminal Law as follows:7

The approach to cumulative and concurrent sentences set out in s 84 does not have the effect of overriding the totality principle embodied in s 85 … : in sentencing for multiple offending, the total sentence imposed must reflect the overall criminality of the offending. Where

7      Bruce Robertson (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA84.04].

References omitted.

concurrent sentences would otherwise be appropriate, they should not be used where they would prevent the proper implementation of that principle; cumulative sentences should be used instead … This may include cumulative sentences that in aggregate exceed the maximum penalty for any one of the offences where that is required to reflect the overall criminality.

Decision

[26]     I  agree  with  counsel  for  both  the  appellant  and  the  respondent  that  the sentence in the present case was excessive and that there appear to have been errors both in the imposition of cumulative sentences in respect of the bail and breaching conditions  charges  and  in  omitting to  allow discounts  for early guilty plea and personal mitigating factors.

[27]     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.   All of his theft offending, while brazen, was opportunistic, unsophisticated and likely to be detected given the presence of CCTV.   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. That produces an overall starting point of nine and a half months’ imprisonment.

[28]     It is apparent that the appellant suffers from mental health issues as noted in the Department of Corrections report.  I agree with Mr Andrews that a 15 per cent discount should be allowed in that respect.  Furthermore counsel are in agreement that there should be a discount for the guilty pleas.  I consider that a full 25 per cent is appropriate.

[29]     The   application   of   these   discounts   results   in   an   end   sentence   of approximately six months’ imprisonment.  Consequently the appeal is allowed and the original sentences are quashed.

[30]     In substitution the following cumulative sentences are imposed:

CRN 15054000463 : one and a half months’ imprisonment; CRN 15054001663 : one and a half months’ imprisonment; CRN 15054001664 : one and a half months’ imprisonment; CRN 15054001665 : one and a half months’ imprisonment;

and the following concurrent sentences are imposed:

CRN 15054000591 : one month imprisonment; CRN 15054002047 : one month imprisonment; CRN 15054500262 : one month imprisonment; CRN 15054500263 : one month imprisonment.

The total term of imprisonment will be six months.

Brown J

Solicitors:

M Andrews, Barrister, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North