McMurtrie v Police
[2015] NZHC 1031
•18 May 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-18 [2015] NZHC 1031
BETWEEN SCOTT PETER MCMURTRIE
Appellant
AND
THE NEW ZEALAND POLICE Respondent
Hearing: 12 May 2015 Counsel:
P Ross for Appellant
A R Garrick for RespondentJudgment:
18 May 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Scott Peter McMurtrie, pleaded guilty to six charges of theft (shoplifting)1 and one of possession of cannabis. Mr McMurtrie was sentenced by Judge Strettell in the District Court at Porirua on 23 March 2015 to 12 months imprisonment, with special release conditions to apply for a period of six months.2
[2] Mr McMurtrie now appeals that sentence as being manifestly excessive.
Facts
[3] Mr McMurtrie’s offending occurred between 3 December 2014 and 3 January
2015. Mr McMurtrie – and his partner, a Ms Smith – stole groceries from five supermarkets and shoplifted a bottle of perfume from a department store.
1 Five of goods valued under $500 (Crimes Act 1961, ss 219 and 223(d)); one of goods valued
$500–$1,000 (Crimes Act 1961 ss 219 and 223(c)).
2 Police v McMurtrie [2015] NZDC 4697.
MCMURTRIE v THE NEW ZEALAND POLICE [2015] NZHC 1031 [18 May 2015]
[4] The grocery thefts were all carried out in a similar way. Mr McMurtrie and Ms Smith, or one or other of them, would enter a supermarket, and fill a trolley with groceries. They would then go to the checkout, tell the operator they had already paid for goods in the trolley and purchase one or two small items which they said they had forgotten to buy. They sometimes provided receipts relating to different purchases as proof of purchase.
[5] On three of those occasions, they were stopped by the supermarket staff at the checkout or shortly after they went through the checkout. The stolen goods were recovered on those occasions. On one occasion they drove away with goods in their possession but were arrested shortly thereafter on another matter. On that occasion the stolen groceries were found when their car was searched, as was the cannabis tinnie on which the charge of possession of cannabis was based. On one further occasion they successfully left the supermarket with stolen goods valued at some
$500 in their possession which were not recovered. The Judge ordered reparation of
$250 with respect to those goods.
[6] Some of the offending occurred while Mr McMurtrie was on bail. On
9 December 2014 Mr McMurtrie was charged with one of the theft under $500 charges, and was on bail from that point onwards. He was further remanded on bail on 12 December for one more of the theft charges, and on 20 December 2014, for two of the theft charges and the possession of cannabis charge.
[7] Mr McMurtrie has eight previous convictions for shoplifting (under $500). He has one other dishonesty conviction, theft of a motor vehicle. He also has a 2014 conviction for possessing cannabis seed. That offending has all occurred since December 2012. Mr McMurtrie does have previous (1993 and 1995) convictions which, in my view, are no longer relevant.
The sentencing decision
[8] In sentencing Mr McMurtrie, the Judge first noted the “spree” of shoplifting that Mr McMurtrie and Ms Smith had engaged in, and that Mr McMurtrie acknowledged he had offended to feed his methamphetamine addiction. The Judge characterised Mr McMurtrie’s offending as involving elements of commerciality and
premeditation. He noted Mr McMurtrie’s history of like offending, comprising some eight offences from 2012 onwards.
[9] At sentencing Mr McMurtrie accepted that imprisonment was the only available sentencing option, there being no available home detention address.
[10] The Judge set a starting point of 12 months imprisonment for Mr McMurtrie’s offending taken overall, including the possession of cannabis charge. He uplifted that starting point by three months, to take account of Mr McMurtrie’s previous convictions. He then allowed a discount of four months on account of Mr McMurtrie’s early guilty pleas and with reference to the totality principle. At that point he reached a sentence of 11 months imprisonment. He then increased that sentence by one month, to take account of the remission of fines of
$3,600.
[11] That period of 12 months imprisonment was imposed in the following, somewhat unusual, way:
· Theft under $500 # 1 : 3 months imprisonment
· Theft under $500 # 2 : 3 months cumulative
· Theft under $500 # 3 : 2 months cumulative
· Theft under $500, # 4 and 5 : 3 months concurrent
· Theft $500 or more, under $1,000 : 3 months cumulative
· Possession of cannabis : 1 month concurrent
· Remission of fines ($3,683.80) : 1 month cumulative
Submissions
[12] For Mr McMurtrie, Mr Ross submits that the sentence of 12 months imprisonment was manifestly excessive because the original starting point of
12 months for the offending “in the round” was too high, the uplift of three months was unnecessary and the Judge did not give sufficient weight to the totality principle.
Mr Ross accepts that imprisonment is the only sentencing option, there being no available home detention address.
[13] The Police acknowledges the somewhat unusual combination of cumulative and concurrent sentences used by the Judge to impose the end sentence of 12 months imprisonment. The Police submit, however, that the overall starting point, the discount for mitigating features and the end sentence were all within the available range, albeit at the upper end of that range.
Analysis
[14] Section 84 of the Sentencing Act 2002 provides guidance on the use of cumulative and concurrent sentences in the following terms:
(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.
[15] Adams comments on the relationship between that approach and the totality principle as follows:3
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 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
3 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed) at [SA84.04] (cross references and footnotes omitted).
exceed the maximum penalty for any one of the offences where that is required to reflect the overall criminality.
[16] As the Judge recognised, Mr McMurtrie pleaded guilty to what was, in effect, a spree of shoplifting offences over a relatively short period of time. Applying the s 84 guidance, the orthodox approach to sentencing would have been to treat the one charge of theft, $500-$1,000, as the lead charge, and impose a sentence with respect to that charge that responded to the criminality of Mr McMurtrie’s shoplifting offending (subject to the maximum term of 12 months being sufficient for that purpose) and then to impose a cumulative sentence with respect to the charge of possession of cannabis.
[17] That Judge Strettell did not take that approach does not, of itself, mean that the sentence arrived at was manifestly excessive or otherwise wrong in principle. However, where a Judge does not take the recognised approach to sentencing, almost inevitably such errors are more likely to occur.
[18] The Judge arrived at his 12 month starting point without any reference to authority. On appeal, Mr Ross for Mr McMurtrie and Ms Garrick for the Police relied on the same three cases involving shoplifting in support of their respective contentions: Kelly v Police,4 Howard v Police5 and Kennedy v Police.6
[19] Ms Kelly appealed a sentence of eight months imprisonment for offending involving three charges of theft of items valued at under $100 and one charge of theft of items valued at just over $500. Toogood J said that that sentence seemed inordinately high. In dismissing Ms Kelly’s appeal, however, the Judge acknowledged the significance of Ms Kelly’s previous history. Ms Kelly had a lengthy history of shoplifting, and other dishonesty, offending. She also had numerous convictions for transport-related offences and had been prosecuted on a number of occasions for breaching court orders. She had previously been sentenced to imprisonment. In the lead-up to the offending for which she was sentenced to
eight months imprisonment:
4 Kelly v Police [2013] NZHC 1250.
5 Howard v Police [2015] NZHC150.
6 Kennedy v Police [2013] NZHC 714.
(a) She had received a “lenient but constructive” sentence (intensive supervision and community work) on shoplifting, breach of bail and breach of community work order charges.
(b)Two days after that sentencing she shoplifted again, and did so twice more in the following months, including from a supermarket where she had been banned by a trespass notice.
(c) Whilst on bail on those three charges, and still subject to the earlier community work and intensive supervision sentences, she reoffended a further time by shoplifting products valued at over $500 from a pharmacy.
[20] Given that background, Toogood J concluded that a term of four to five months imprisonment for the single theft, two days after sentencing, would not have been unreasonable. After that uplifts of four months would have been required to reflect the aggravating circumstances of Ms Kelly’s previous record and offending whilst on bail, of three months for the less serious theft charges and one month for the separate offending involving breaching the community work order. In that way, a starting point of 12 to 13 months was, Toogood J concluded, within range. A guilty plea discount from that starting point would have resulted in an end sentence of around seven and a half months, by reference to which the sentence of eight months, whilst stern, was not manifestly excessive. Any reduction would simply have been tinkering.
[21] Ms Howard appealed a sentence of six months imprisonment and six months post-release conditions for a one-day shoplifting spree involving six charges. Two where the value of the goods was between $500 and $1,000 and four where the value was less than $500. In imposing that sentence, the District Court Judge stressed that what had determined matters was Ms Howard’s previous history for theft and other dishonesty offending, beginning in 1992. Thomas J allowed the appeal, and sentenced Ms Howard to a combination of community work (250 hours) and supervision (12 months). In doing so, Thomas J was influenced by the fact that
Ms Howard, who had by the time of the appeal served three weeks of her prison sentence, had not before received a rehabilitative sentence.
[22] Mr Kennedy appealed a sentence of nine months imprisonment on six charges of theft (shoplifting) of items of modest value. Mr Kennedy was an alcoholic, lived an unstable and chaotic lifestyle and had had recurrent contact with the justice system. His conviction history exceeded 10 pages in length. Shoplifting and trespass featured prominently. Mr Kennedy had been sentenced to several short terms of imprisonment. Very recently, Mr Kennedy had been sentenced to a year’s intensive supervision. Further convictions had, however, followed. Against that background, Miller J did not consider that an overall starting point sentence of
12 months (two months imprisonment for each offence) was excessive. As the Judge put it when sentencing Mr Kennedy a substantial allowance had to be made for personal aggravating factors, including his many previous convictions (36 for shoplifting alone). In Miller J’s assessment, he could not be deterred and would have continued to offend more or less incessantly.
[23] As can be seen, the starting point and end sentences in Kelly and Kennedy were significantly influenced by criminal histories of considerably more seriousness than Mr McMurtrie’s. In Kelly, the Judge described the eight months sentence as seeming inordinately high, and only able to accept it because of Ms Kelly’s highly aggravating pattern of very recent offending. Mr Kennedy’s sentence, as upheld by Miller J, reflected his extensive criminal history, including previous terms of imprisonment, and Miller J’s acceptance that that history showed Mr Kennedy simply could not be deterred and that the community required protection against him.
[24] For the Police, Ms Garrick acknowledged those factors, but said that the more serious nature of Mr McMurtrie’s offending justified the sentence imposed. I am not persuaded by that submission. It can be difficult to deconstruct a sentencing exercise where starting point sentences include recognition of previous offending. Toogood J’s analysis by reference to which he was persuaded that Ms Kelly’s sentence was not, in fact, inordinately high is of assistance. The Judge’s four to five month starting point included the considerably aggravating factor that Ms Kelly had,
on that occasion, only been sentenced two days previously for shoplifting and that she stole from a supermarket from which she had been banned. In the absence of those factors, it can be inferred that a somewhat lower starting point would have been seen by Toogood J as appropriate. Toogood J suggested a starting point sentence on the other shoplifting charges of three months. The balance of the starting point of 12 to 13 months represented the aggravating circumstances of Ms Kelly’s previous record, the fact she offended whilst on bail and the separate uplift of one month for a breach of her community work order. For not dissimilar offending, therefore, a starting point sentence in the vicinity of six months – absent the particular aggravating features – would appear to be what Toogood J had in mind.
[25] It is harder to do the equivalent exercise as regards the sentences imposed on Ms Howard and Mr Kennedy. It is sufficient to note that Thomas J allowed Ms Howard’s appeal, and that Miller J declined Mr Kennedy’s appeal very much by reference to the failure of previous custodial and other sentences to have any impact on Mr Kennedy’s long pattern of offending whatsoever and, in that context, the need to deter and to protect the public from him.
[26] In Howard, and notwithstanding the appellant’s considerably worse history of offending than Mr McMurtrie’s, Thomas J allowed an appeal against a sentence of imprisonment, and substituted one of community work and supervision.
[27] Against that background, and – following the guidance from s 84 of the Sentencing Act – taking as the lead charge the one theft involving goods with a value in excess of $500, in my view a starting point sentence of six months imprisonment would have been an appropriate response to the six instances of shoplifting to which Mr McMurtrie pleaded guilty.
[28] That conclusion reflects my assessment that there was not, in fact, a great deal of premeditation in this offending in any relevant sense. Certainly Mr McMurtrie, as he has before, offended to support his methamphetamine habit. But the manner of his offending, the very obvious (as reflected by the outcome) practice of filling a supermarket trolley and then presenting to the cashier with the
unconvincing explanation of previous payment, lacked any sophistication and invited detection.
[29] I do not think that starting point required an uplift on account of previous offending. Mr McMurtrie has not previously been sentenced to imprisonment. I think the progression to the inevitable sentence of imprisonment does, itself, take account of that earlier offending. Mr McMurtrie did, however, offend whilst on bail. An uplift of one month in those circumstances is appropriate, giving a starting point sentence for the shoplifting offending of seven months.
[30] On the single charge of possession of cannabis, a cumulative sentence of one month would have been appropriate.
[31] Given that whilst fines were remitted, Mr McMurtrie was being sentenced to imprisonment, I do not think that eight months starting point needs to be uplifted on account of that remission.
[32] Mr McMurtrie is entitled to a 25 per cent discount for his guilty plea.
[33] In my view, therefore, the appropriate sentence for Mr McMurtrie is six months imprisonment.
Result
[34] I therefore allow Mr McMurtrie’s appeal, quash the sentence of 12 months imprisonment imposed upon him and substitute one of six months imprisonment.
[35] Given Mr McMurtrie’s background, I think post-release conditions are appropriate. There will therefore be post-release conditions, as imposed by the
District Court Judge, but for a period of three months.
Solicitors:
Public Defence Service, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
Clifford J
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