Norman v The the Queen

[2022] NZHC 808

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-37 [2022] NZHC 808

BETWEEN

THERESSA PHILLIPA CHEREE NORMAN

Appellant

AND

THE QUEEN

Respondent

CRI-2022-409-38

BETWEEN

THERESSA PHILLIPA CHEREE NORMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 April 2022
Appearances:	A J McKenzie for Appellant L Fiennes for Respondent
Judgment:	20 April 2022

JUDGMENT OF EATON J

This judgment was delivered by me on                   at                pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NORMAN v R [2022] NZHC 808 [20 April 2022]

Introduction

[1]    Ms Norman pleaded guilty to Crown charges of robbery,1 theft under $500 (x2)2 and using a document for pecuniary advantage (x3).3 She also pleaded guilty to four police charges of theft under $500.4

[2]    On 3 March 2022 Ms Norman was sentenced to two years and six months’ imprisonment by Judge Gilbert.5 She appeals this sentence on the grounds it is manifestly excessive.

Facts

Theft and using a document charges

[3]    Between 10 December 2020 and 15 January 2021 Ms Norman stole groceries from New World. The total value of the groceries was $443.29.

[4]    On 26 February 2021 Ms Norman stole meat products totalling $155.60 from Countdown.

[5]    In the afternoon of 6 March 2021 Ms Norman stole a handbag containing bank cards from a  parked  car in  Cashmere.  She  used  the  bank cards to  buy  goods at Z Energy Cashmere worth $171. Ms Norman then attempted to purchase a $200 Mitre 10 gift voucher from a supermarket and $49.99 worth of goods from Super Liquor, but the transactions failed.

[6]    The next day Ms Norman used a bank card which had been stolen from a handbag in a parked car in the Groynes. She used the bank card to purchase goods from Z Energy Belfast worth $116.90. Ms Norman also attempted to use the bank card four times at New World Northwood but was only successful on one occasion. Also on 7 March 2021, Ms Norman used a credit card which had been stolen from a vehicle on Rapaki Road. She purchased $100 worth of goods from St Martins Garage,

1      Crimes Act 1961, ss 234 and 66; maximum penalty of 10 years’ imprisonment.

2      Section 219 and 223(d); maximum penalty of three months’ imprisonment.

3      Section 228(1)(b); maximum penalty of seven years’ imprisonment.

4      Section 219 and 223(d); maximum penalty of three months’ imprisonment.

5      R v Norman [2022] NZDC 3675.

$200 worth of goods from Mitre 10 and $600 worth of goods from Countdown Colombo Street. Ms Norman also attempted to purchase $266.35 worth of KFC.

[7]    On 8 March 2021 Ms Norman stole $25.90 worth of herbs and cheese from Countdown Eastgate.

Robbery charge

[8]    In the morning of 17 April 2021 Ms Norman and her partner, Mr Tairi, went to the victim’s home, where she lives with her three children. They had known the victim for about two years and were let into the house by her three-year-old child.

[9]    Mr Tairi sat down on the couch and Ms Norman asked the victim if she had any gear or cash. After the victim said no, Ms Norman accused her of talking behind her back to other people.

[10]   The victim asked Mr Tairi and Ms Norman to leave, but they refused. When the victim asked her daughter to get her phone so she could call the police Ms Norman lunged at the victim, grabbed her hair and pulled her to the ground in the living room. She then stomped on the victim’s body, face and back in front of the children.

[11]   During this assault Mr Tairi was close to the victim’s head and said, “we just want $250”. The victim said she had no money but offered her car.  Mr Tairi  and  Ms Norman released the victim to look for her keys. The victim then took her three children to the back garden and screamed for help from the neighbours, passing her children over the back fence before fleeing herself.

[12]Mr Tairi and Ms Norman took the victim’s Samsung cell phone and purse.

[13]The victim sustained bruising to her body and face.

District Court decision

[14]   After noting Ms Norman’s approximately 235 previous convictions, which included a substantial number of dishonesty and violence related convictions, the

Judge turned to the pre-sentence and s 27 report. He recognised Ms Norman had a difficult upbringing and had both alcohol and drug-related issues.

[15]   The Judge identified the aggravating factors of the offending as the serious violence inflicted, the refusal to leave the victim’s home when asked, the presence of the victim’s children, and that Ms Norman acted in concert with Mr Tairi.

[16]   A starting point of two years and ten months’ imprisonment was adopted for the robbery charge. Allowing for totality, an uplift of six months was imposed for the nine other dishonesty charges.

[17]   A 15 per cent uplift was then applied for Ms Norman’s previous convictions and the fact she was on the post detention phase of a sentence of home detention at the time of offending. The Judge allowed a 20 per cent credit for Ms Norman’s guilty plea and a further 20 per cent reduction for background matters canvassed in the reports provided to the Court. He did not consider an additional discount for remorse was warranted referring to Ms Norman’s apology letters as standard form letters received from persons to be sentenced. This led to an end sentence of two and a half years' imprisonment.

Principles on appeal

[18]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Submissions

Appellant’s submissions

[19]   Mr McKenzie, for Ms Norman, submitted the starting point on the robbery charge was stern but accepted it was not outside of the permissible range. He advanced four grounds of appeal.

[20]   First, he submitted the Judge applied an excessive uplift of 15 per cent for  Ms Norman’s previous convictions and the fact the offending was committed while she was on sentence. Mr McKenzie acknowledged Ms Norman has an extensive record of dishonesty offending which would warrant an uplift on the dishonesty charges, but highlighted she has no history of robbery, which he described as a crime foremost of violence. Given this, and when calibrated with the uplift of six months imposed for the other dishonesty offending, Mr McKenzie submitted an uplift of three months would have been appropriate.

[21]   Second, Mr McKenzie submitted the Judge made a mathematical error in reaching the end sentence.

[22]   Third, it was submitted the Judge made no discrete allowance for totality, which was especially detrimental given the stern starting point of 34 months' imprisonment for the robbery charge. Mr McKenzie suggested an adjustment of three months for totality would have been justified.

[23]   Lastly, Mr McKenzie submitted the Judge erred in dismissing Ms Norman’s letter of apology, display of remorse and willingness to attend restorative justice. It was submitted the Judge’s implied reasoning that Ms Norman’s history of offending would have provided experience of writing insincere letters was in conflict with the  s 27 and pre-sentence report. Mr McKenzie submitted a discount of one to three months would have been appropriate for these factors.

[24]   Overall, Mr McKenzie submitted a sentence of no more than 24 months’ imprisonment would have been appropriate. Because Ms Norman had been in custody for almost 12 months a lesser sentence of home detention was moot.

Respondent’s submissions

[25]   Ms Fiennes, for the Crown, contended the 15 per cent uplift was appropriate given Ms Norman’s history of violence and dishonesty offending. She referred to Ms Norman’s 140 odd relevant convictions, including convictions for theft, shoplifting, assault, assault on a person in a family relationship, assaults on police, burglary and obtaining by deception. Ms Fiennes referred to R v Whittaker as comparable authority, in which the Judge would have imposed a 12-month uplift for Mr Whittaker’s 150 previous convictions for violence and dishonesty offending, but based on personal mitigating factors adopted an uplift of six months.8

[26]   Ms Fiennes submitted there was no mathematical error as the Judge’s calculations accorded with the two-step sentencing methodology set out in Moses v R.9

[27]   Ms Fiennes observed that when uplifting the starting point on the robbery charge by just six months for the other dishonesty offending the Judge recorded he was “allowing for totality”.10

[28]   Lastly, Ms Fiennes submitted the Judge did not err in refusing a discrete discount for remorse and a willingness to attend restorative justice. Ms Fiennes submitted the remorse discount is earned by showing an understanding of the wrongfulness of the conduct and its effects on the victims, as well as accepting responsibility.11 Ms Fiennes submitted that a discount for remorse was not warranted given Ms Norman’s continued pattern of offending and the fact this offending occurred while Ms Norman was subject to post detention conditions. Additionally, Ms Fiennes submitted the 20 per cent discount provided by the Judge for “various background mitigating circumstances” was generous and may have included discounts for matters of rehabilitation and willingness to attend restorative justice.

8      R v Whittaker [2018] NZDC 1158.

9      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

10     R v Norman, above n 5, at [33].

11     Whitcombe v Police [2018] NZHC 1409 at [27].

Analysis

[29]   The ultimate question for determination is whether the end sentence of two and a half years’ imprisonment, was manifestly excessive.

[30]   On appeal the starting point is not challenged. I have not found the cases referred to by counsel to be directly analogous to the facts of this case. I agree the starting of two years and ten months’ imprisonment was at the upper level of the appropriate range.

Uplift

[31]   In sentencing an offender, the court must take into account recognised aggravating factors. Those factors include that the offence was committed while the offender was on bail or still subject to a sentence,12 and the number, seriousness, date, relevance and nature of any previous convictions.13

[32]   The Judge fixed the uplift of  15  per  cent  (six  months)  by  reference  to  Ms Norman’s vast criminal history (235 convictions) and that she was on post detention release conditions at the time of the robbery.14 The uplift was fixed by reference to the global starting point of 40 months’ imprisonment. Whilst Ms Norman accepts an uplift was called for, she takes issue with the level of uplift.

[33]   An uplift should not be imposed simply by reference to the fact of previous convictions. A default position of imposing an uplift in that circumstance would re- punish an offender for past offending.15 Any uplift must reflect a considered response to specific aspects of an offender's previous criminal history.16 An uplift might be appropriate for deterrence and public protection principles.17 Previous convictions might be an indicator of the offender’s character and enhanced risk of re-offending and therefore justify an uplift. The Court of Appeal in Jones v R referred with approval

12     Sentencing Act 2002, s 9(1)(c).

13     Section 9(1)(j).

14     R v Norman, above n 5 at [35].

15     R v Casey [1931] NZLR 594 (CA) at 597

16     O’Connor v R [2014] NZCA 328 at [41].

17     Te Hau v R [2013] NZCA 431 at [18].

to Beckham v R18 and the principle that an uplift will only be warranted if the previous convictions indicate some tendency to commit the particular type of offence for which the offender is before the court.19

[34]   As noted by the Court of Appeal when considering sentencing for dishonesty offending in Burton v R, “[s]ubstantial uplifts for aggravating factors, including previous convictions, may be necessary to respond to calculated offending by recidivists”.20 Mr Burton was a recidivist burglar and was sentenced in relation to serious burglaries and other offending.

[35]   Offending while still subject to a sentence is an aggravating factor the court must take into account in sentencing.21 As the Court of Appeal recognised in R v Clunie an uplift for offending while on sentence is not double-counting but a reflection of an offender’s disregard for court processes and orders.22 Uplifts of 20 per cent have been upheld in cases of offending whilst subject to a sentence for similar offending.23

[36]   Ms Norman has multiple previous convictions for dishonesty offending. Mr McKenzie accepts an uplift was appropriate in relation to the nine dishonesty offences but not on the robbery charge.

[37]   Mr McKenzie submitted an offence of robbery is a crime foremost of violence. Pursuant to s 86A of the Sentencing Act 2002 robbery is a serious violent offence. He submitted the robbery was an entirely uncharacteristic offence for Ms Norman. It therefore bore no nexus to her extensive history and did not warrant an uplift.

[38]   On the other hand, s 234 of the Crime Act 1961 defines robbery as “theft accompanied by violence or threats of violence to any person or property…” and the offending might be seen as a worrying escalation in Ms Norman’s entrenched pattern of dishonesty. Ms Norman is not a stranger to violence, with eight previous

18     Beckham v R [2012] NZCA 290

19     Jones v R [2021] NZCA 402 at [33].

20     Burton v R [2018] NZCA 355 at [42].

21     Sentencing Act 2002, s 9(1)(c)

22     R v Clunie [2013] NZCA 110

23     Lavea v R [2014] NZCA 192 at [24]; Benson v R [2013] 39 at [1] – [11].

convictions for what appear to be low level assaults committed between 2001 and 2019.

[39]   It is not clear from the sentencing notes that the uplift imposed reflects a considered response to Ms Norman’s criminal history. The Judge was not helped by the absence of  an  explanation  for  the  offending.  Mr  McKenzie  has  described Ms Norman as a friend of the victim of the robbery and says she had previously babysat for her children. He says a debt was owed by the victim to Ms Norman. He contends the offending was spontaneous, uncharacteristic and quite distinguishable from any prior offending.

[40]   Mr McKenzie highlights that Ms Norman’s extensive history does not include either serious violence offending or violence directly associated with dishonesty offending. He submits it would be wrong to view the robbery offence as merely an escalation of past offending.

[41]   Categorising this robbery and the relationship it bears to Ms Norman’s past offending is not without difficulty. Ultimately, I am not persuaded the robbery was merely an escalation of Ms Normans’ past offending or that her history indicates a tendency to commit a serious violent offence. Rather, it seems to have been quite distinct in nature and arising from a conflict with an associate, no doubt influenced by the presence of her partner, Mr Tairi. I accept it bears only a marginal relationship to her past offending and warranted a modest, if any, uplift to the global starting point.

[42]   That is not to say the Judge was wrong to impose an uplift. An uplift was called for in fixing the sentence to be imposed for the nine dishonesty offences. Ms Norman is undoubtedly a recidivist thief undeterred by prior sentences of imprisonment for very similar offending. An uplift, proportionate to the sentence otherwise to be imposed, was called for. Mr McKenzie suggested a three month uplift.

[43]   Further, it was open to the Judge to impose an uplift on the global starting point to reflect that Ms Norman repeatedly offended while subject to the post detention release condition phase of a sentence of home detention.

[44]   I find the global uplift of 15 per cent equating to six months, was excessive. An uplift of no more than four months was appropriate to reflect previous convictions and offending while still subject to a sentence.

Mathematical error

[45]   I do not accept the Judge made a mathematical error in calculating the end sentence. The two-step process in Moses was adopted.24 Mr McKenzie’s approach requires any uplift for previous convictions to be applied in calculating the adjusted starting point, and then applying the available discounts.

[46]   An uplift for previous convictions or offending while still subject to a sentence is a personal aggravating factor. As such it is factored in at stage two. The adjusted starting point taken by the Judge was 34 months for the robbery uplifted by six months for the dishonesty offences. The 15 per cent uplift for previous history was properly considered alongside, and off set against, the credit for the guilty plea (20 per cent) and the s 27 report factors (20 per cent) leaving a net credit of 25 percent.

Totality principle

[47]   I do not accept the Judge failed to consider the totality principle. The Judge expressly referred to totality when fixing the uplift of six months for the nine dishonesty offences.

[48]   On 30 June 2020 Ms Norman was sentenced to six months’ home detention for 16 shoplifting charges. That would indicate a starting point of at least 12 months imprisonment for that offending. In my view, a similar starting point was available for the nine offences. An uplift of only six months for the dishonesty offending could

24     Moses v R, above n 9.

be seen as generous, and a global starting point of 40 months’ imprisonment reflects a considered application of the totality principle.

Remorse

[49]   The Judge refused to allow a discrete credit for remorse, an apology and a willingness to attend restorative justice. I agree it is clear the Judge resolved not to allow any reduction for remorse. It  follows  I  do  not  accept  the  submission  of Ms Fiennes that remorse was included within the 20 per cent reduction for personal factors.

[50]   I have considered Ms Norman’s apology letters. I agree with the Judge that genuine remorse for the multiple victims of Ms Norman’s dishonesty is dubious. I accept she expresses remorse to the victim of the robbery but it does not follow that a discrete discount must apply.

[51]   The  appropriateness  of  a  discrete  remorse  discount  is   determined   by Ms Norman’s recidivist dishonesty offending and the fact she offended while on sentence. As the Judge suggested, actions speak louder than words, and Ms Norman is yet to demonstrate a change in her behaviour. The Judge did not err in refusing a discrete credit over and above the 40 per cent credit allowed for the  guilty plea  and  s 27 report factors.

Conclusion

[52]   It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.25

[53]   I have found the 15 per cent uplift to be excessive. However, I have come to the view that to allow the appeal and reduce the sentence by two or three months would amount to tinkering. A sentence of two years and six months imprisonment for a

25     Ripia v R [2011] NZCA 101 at [15].

robbery involving stomping on the victim’s head in the victim’s own home and in front of her children is not manifestly excessive.

Result

[54]The appeal is dismissed.

...................................................

Eaton J

Solicitors:
Raymond Donnelly & Co, Christchurch

Copy to:

Andrew McKenzie, Barrister, Christchurch