Palmer v Police
[2024] NZHC 1634
•20 June 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-425-24
[2024] NZHC 1634
BETWEEN JESSICA MAREE PALMER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 June 2024 Appearances:
J A T Ross for Appellant
S E McKenzie for Respondent
Judgment:
20 June 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 20 June 2024 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
PALMER v NEW ZEALAND POLICE [2024] NZHC 1634 [20 June 2024]
Introduction
[1] Jessica Maree Palmer pleaded guilty to 47 charges. Most of these were dishonesty-related, but they also involved drug offending, driving offending and offences involving the police.
[2] There were a substantial number of shoplifting offences. These included 17 charges of theft under $500,1 and one charge each of theft between $500-$10002 and theft over $1000.3 There were also charges relating to shoplifting from premises which she had been trespassed from. These included three charges of burglary by day (under $500),4 two charges of other burglary,5 two charges of wilful trespass,6 and a related charge of behaving threateningly.7
[3] The driving charges included two charges of dangerous driving,8 one charge of failing to remain stopped,9 two charges of failing to stop for red/blue flashing lights,10 seven charges of failing to comply with prohibition,11 one charge of failing to stop,12 and one charge of unlawfully getting into a motor vehicle.13
[4] The police charges included two charges of failing to answer bail,14 one charge of assaults police,15 and one charge of resisting arrest.16
1 Crimes Act 1961, ss 219 and 223(d) — maximum penalty of three months’ imprisonment.
2 Sections 219 and 223(c) — maximum penalty of one year of imprisonment.
3 Sections 219 and 223(b) — maximum penalty of seven years’ imprisonment.
4 Section 231(1)(a) — maximum penalty of ten years’ imprisonment.
5 Section 231(1)(a) — maximum penalty of ten years’ imprisonment.
6 Trespass Act 1980, ss 3(1) and 11(2)(a) — maximum penalty of three months’ imprisonment.
7 Summary Offences Act 1981, s 21(1)(a) — maximum penalty of three months’ imprisonment.
8 Land Transport Act 1998, s 35(1)(b) — maximum penalty of three months’ imprisonment, $4,500 fine.
9 Sections 52A(1)(b) and 114 — maximum penalty of $10,000 fine.
10 Sections 52A(1)(a)(ii), 52A(4), 52A(3), 52A(6) and 114(2) — maximum penalty of $10,000 fine.
11 Section 52(1)(c) — maximum penalty of $10,000 fine.
12 Search and Surveillance Act 2012, s 177(1)(a) and (b) — maximum penalty of three months’ imprisonment.
13 Crimes Act, s 226(2) — maximum penalty of two years’ imprisonment.
14 Bail Act 2000, s 38(b) — maximum penalty of one year of imprisonment, $2,000 fine.
15 Crimes Act, s 192(2) — maximum penalty of three years’ imprisonment.
16 Summary Offences Act, s 23(a) — maximum penalty of three months’ imprisonment.
[5] There was also one charge of possession of a pipe for methamphetamine17 and one charge of possession of cannabis.18
[6] On 7 March 2024, she was sentenced to two years and three months’ imprisonment. Ms Palmer appeals her sentence on the ground it was manifestly excessive because the starting point was outside the range available to the sentencing judge.
Facts
[7] On 10 May 2014, the appellant was forbidden to drive as she did not hold a driver’s licence. She was subsequently convicted twice for driving while forbidden. During the period in which the charges were laid, she still did not hold any form of driver’s licence.
[8] In October 2022, the appellant was observed driving on three occasions, she stole petrol, and failed to remain when spoken to by police.
[9] In December 2022, the appellant was trespassed from PAK’nSAVE for a period of two years. In April 2023, she was trespassed from The Warehouse and Kmart.
[10] Between December 2022 and April 2023, the appellant engaged in shoplifting on multiple occasions, taking goods valued from $15 to $299.99. The goods acquired included grocery items, a Macpac jacket and children’s clothing. Notably, another shoplifting charge involved her filling six trolleys with homeware items to the value of $3460, but the goods did not leave the store.
[11] Several of the shoplifting incidents occurred at stores the appellant had already been formally trespassed from. Two were charged as burglaries and included grocery items, valued at $25 and an incident where the appellant was asked to leave the store before acquiring any goods.
17 Misuse of Drugs Act 1975, subs 13(1)(a) and (3) — maximum penalty of one year of imprisonment, $500 fine.
18 Section 7(1)(a) and (2) — maximum penalty of three months’ imprisonment, $500 fine.
[12] The wilful trespass and threating behaviour charges also arose from shoplifting incidents.
[13] Between 27 July 2023 and 23 September 2023, the appellant engaged in shoplifting of clothing, homeware goods, grocery items, and petrol valued between
$26.99 and $869.96. Three further burglaries were committed during this period being incidents where goods were taken ranging from groceries valued at $26.75 to $184.95 worth of electronic items from stores she had been trespassed from. Some of these stolen goods were recovered. The charge of unlawfully getting into a vehicle arose during this shoplifting spree.
[14] On 2 September, police located the appellant driving a stolen vehicle. She undertook unsafe passing manoeuvres to evade police and did not stop for red and blue flashing lights.
[15] Following this offending, on 12 September 2023 two warrants to arrest were issued as she failed to appear.
[16] On 23 September 2023, the appellant stole $100 worth of clothing which was not recovered.
[17] On 30 September 2023, the appellant failed to stop for red and blue flashing lights. She resisted arrest, attempted to bite the officer holding her wrist and kicked her feet out, and was found with 4.3 grams of cannabis and five glass methamphetamine pipes.
District Court decision
[18] At sentencing, Judge Ingram outlined the charges the appellant faced before turning to the issue of how shoplifters charged with burglary are to be addressed.19 He noted there was no case law directly on this issue. While the burglaries were not ‘typical’ burglaries, (involving breaking into a residential or commercial property at night to steal items), the appellant had gone into commercial premises which she had
19 New Zealand Police v Palmer [2024] NZDC 5024.
been trespassed from due to previous offending with the intention of committing a crime. The Judge determined that repeat offending of this kind should be dealt with by setting a starting point around 12 months’ imprisonment for the first offence, with an additional year for the next few offences and an additional year or six months for those after the third or fourth offence.
[19] The Judge adopted a starting point of around four years for the dishonesty offences (many of which occurred while the appellant was on bail). This was uplifted by six months to cover some of the other offending including the driving offending, and offences involving the police. The Judge also disqualified the appellant from driving for 15 months.
[20] A 20 per cent discount was given for guilty pleas and a 25 per cent discount for the appellant’s background as outlined in the s 27 report. Another 5 per cent was given for parental incarceration and the impact on her family.
[21] The Judge then turned to whether a shorter overall sentence should be given than two years three months’ imprisonment. He acknowledged that as the end sentence came close to a sentence where a community-based sentence might be appropriate, he could reduce an otherwise justified sentence specifically for rehabilitative purposes, but he was satisfied he should not do this. On previous occasions, Judges had given the appellant multiple chances, putting her on bail, and giving her assistance, and she had continued to offend. Further, he noted that the courts should treat burglary charges seriously and impose substantial sentences.
Principles on appeal
[22] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.20 As the Court of Appeal stated 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
20 Criminal Procedure Act 2011, ss 250(2) and 250(3).
justified by accepted sentencing principles”.21 It is appropriate for this 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.22
Submissions
Appellant’s submissions
[23] Mr Ross, for the appellant, referred to a range of cases to submit a significantly lower starting point was justified on the burglary charges. While Mr Ross acknowledged that burglary was available as a charge, he pointed out each of the burglary charges were related to goods under $500 (the highest being $65 where goods left the premises and $184.95 where they did not). Therefore, if they were charged as theft, they would each only attract a maximum sentence of three months’ imprisonment. Trespass also has a maximum penalty of three months’ imprisonment. The only reason the appellant faced a 10 year maximum penalty on each charge instead of three months each on charges of trespass and shoplifting was the exercise of the prosecutorial discretion. He submits this should not markedly impact sentencing where the culpability is identical.
[24] In support of this submission, Mr Ross pointed to Thornicroft v New Zealand Police where the defendant was charged with shoplifting and trespass rather than burglary.23 In Thornicroft a six-month starting point was given for six thefts (ranging in value from $15 to $499), four of which were from premises he was trespassed from. Mr Ross submits a similar starting point should be adopted for the appellant on the burglary charges here, given there was similar offending taking goods from similar places, but where the goods were of lower value.
[25] Mr Ross also submitted a lower starting point was justified having regard to burglary sentencing decisions.24 Notably, applying the factors from R v Nguyen, and looking at comparable decisions, he says a six month starting point was justified
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
22 Ripia v R [2011] NZCA 101 at [15].
23 Thornicroft v New Zealand Police [2018] NZHC 2895.
24 Senior v Police (2000) 18 CRNZ 340; R v Nguyen CA110/01, 2 July 2001; and Arahanga v R
[2012] NZCA 480; [2013] 1 NZLR 189.
having regard to the limited sophistication of the offending, the commercial nature of the premises, the low monetary value and lack of sentimental value of the goods, the lack of other property damage, the limited emotional impact (compared to burglaries of residential homes) and limited impact of the multiple burglaries (a total of $301.70 or $116.75 actually removed from the store).25
[26] Mr Ross then submits the following uplifts would be appropriate to reflect other charges:
(a)the other shoplifting offences – eight months’ imprisonment;
(b)unlawfully getting into a motor vehicle – two months’ imprisonment;
(c)possession of cannabis and methamphetamine pipes – conviction and discharge;
(d)driving offences – one month imprisonment;
(e)assaulting police and resisting police – two months’ imprisonment;
(f)the fact that a number of offences occurred while on bail – three months’ imprisonment; and
(g)previous dishonesty convictions – one to two months’ imprisonment, though the Court could use its discretion to provide no uplift as these were minimal.
[27] Regarding discounts, Mr Ross submits that the credits were not unduly generous. In particular, the 25 per cent awarded for the criminogenic factors outlined in the s 27 report was submitted to be appropriate. Notably, the appellant had limited convictions prior to her brother’s suicide in 2019, which was livestreamed and the
25 Thornicroft v New Zealand Police, above n 24; Charlett v Police [2014] NZHC 3002; Davies v Police [2019] NZHC 3081; Garrett v Police [2019] NZHC 1411; and Bulmer v Police [2016] NZHC 2973.
resulting trauma saw the appellant turn to methamphetamine and develop an addiction. This addiction was an operative cause of her offending and Ms McKenzie submitted that in relation to Berkland v R and Zhang v R, the 25 per cent credit was appropriate to reflect the causative connection between her addiction and the offending.26
[28] Mr Ross submits the Judge was correct to allow a discount for the impact of parental incarceration on the appellant’s three young children. Indeed, he submits a 10 per cent discount would have been appropriate in the circumstances of this case. While he acknowledges the children were not in her care because of her drug addiction she was still involved in their lives. Further, the appellant’s desire to conquer her drug addiction so she can resume her children’s care in the future is a powerful motivating factor for her to rehabilitate, as was the case in Philip v R. The majority in that case noted “We do not find it helpful to characterise such discounts as “rare” or to emphasise, to the exclusion of other factors, whether the defendant is the primary caregiver or the seriousness of the offending. What is required is a consideration of all of the relevant circumstances which must include the child’s interests.”27
Respondent’s submissions
[29] Ms McKenzie, for the respondent, acknowledges that the starting point adopted was outside the range available. However, the discounts imposed can be categorised as generous which reduces the impact of the excessive starting point.
[30] Turning first to the lead charges (being the five burglary charges), Ms McKenzie refers to Charlett v Police.28 In Charlett, the appellant returned to a PAK’nSAVE store he had been trespassed from and took a bottle of wine and three chocolate bars, valued at $21.52. He was initially charged with trespass and theft, however after instructing counsel to enter guilty pleas, the prosecution advised the charges were being withdrawn and replaced with a charge of burglary. On appeal, Mallon J held a starting point of no more than six months was appropriate for the burglary charges.
26 Berkland v R [2022] NZSC 143 at [108]; and Zhang v R [2019] NZCA 507 at [138].
27 Philip v R [2022] NZSC 149; [2022] 1 NZLR 571 at [56].
28 Charlett v Police, above n 25.
[31] Ms McKenzie also referred to Andrews v R where the appellant was convicted of a spree of dishonestly offending which included burglary (three charges), dishonestly using a document (two charges), theft under $500 (four charges), theft between $500–$1000 (two charges), theft over $1000, common assault and breach of intensive supervision.29 The burglary charges were the lead charges and attracted a starting point of eight months’ imprisonment. These burglaries included two instances of entering stores from which the appellant was trespassed and the third relating to entering a store and taking belongings from the victim’s bag located behind the service desk. Jagose J also imposed a 10 month uplift for the remaining charges.
[32] Given the five burglary charges, Ms McKenzie submitted 18 months’ imprisonment was appropriate. Further, she submits an uplift of 15 months is appropriate to reflect the remaining 20 dishonesty charges, an uplift of six months for the police offending, and an uplift of three months to recognise that most of the offending occurred whilst the appellant was subject to bail. This would result in an overall starting point of three years and six months’ imprisonment.
[33] Regarding the cultural report, Ms McKenzie agrees a discount was appropriate but disputes the amount. In particular, she accepts the criminogenic factors relevant to sentencing were sexual abuse as a child by her mother’s partner, the live-streamed suicide of her brother, exposure to domestic violence, the use and addiction to methamphetamine and mental health challenges.
[34] However, with reference to Blackburn v Police30 and Rushton v Police,31 Ms McKenzie submitted a discount of 25 per cent was excessive and that 15 per cent would have been more appropriate to account for addiction and background factors.
[35] In Blackburn, a 10 per cent discount was given to recognise the defendant’s disconnection from Māori culture, a considerable history of drug and alcohol addiction, introduction to alcohol at age eight, addiction to Oxycontin and later
29 Andrews v R [2018] NZHC 3216.
30 Blackburn v Police [2023] NZHC 3780.
31 Rushton v Police [2023] NZHC 2754.
methamphetamine, exposure to serious violence in his childhood and to Mongrel Mob parties at his residence during a year of his childhood.
[36] In Rushton, a five per cent discount was given in respect of early exposure to domestic violence, leaving school after year 10, experiences with homelessness and crime, mental health, disconnection with te ao Māori and use of synthetic cannabis.
[37] Finally, Ms McKenzie submits that a five per cent discount for parental incarceration was available but generous given the appellant was not the primary caregiver.
[38] Taking into account the submissions she makes on both starting point and discounts results in an end sentence of 27 months’ imprisonment. Consequently, the sentence imposed was not manifestly excessive and she submits the appeal should be dismissed.
Analysis
Starting point
[39] The starting point is to be assessed having regard to the aggravating and mitigating features of the offending and in light of the starting points adopted for comparable offending. Here, the cases submitted by both the respondent and the appellant are helpful with regards to the starting point for the burglary charges.
[40] I accept the charge of burglary was open to the prosecutor and, as Judge Ingram acknowledges, when prosecutorial discretion is used to lay more serious charges, this is a consideration when sentencing.32 However, the primary consideration is the actual level of criminality. Here, the value of goods taken from the premises on these five charges was approximately $300 in total, but only $117 was unrecoverable. Furthermore, I accept Mr Ross’s analysis of the offending in light of the factors identified in Nguyen. It clearly falls at the very lowest end of burglary offences.
32 New Zealand Police v Palmer, above n 19, at [12].
[41] In Charlett v New Zealand Police, six months was found appropriate for one burglary charge in a similar situation of shoplifting low value groceries and in Andrews v R, an eight-month starting point was adopted for three burglary charges, two of which involved entering a trespassed business and one which involved taking staff belongings.33 In light of these cases, which were not before the District Court Judge, I consider a 10 month starting point is appropriate for the burglary offending.
Uplifts
[42] As the Judge reached a total of three years six months for the burglary offending,34 he uplifted that by six months for the other dishonesty offending35 and six months for the balance of the offending, in particular the driving offending and the offending against the police.36 However, these uplifts were likely affected by the very high starting point and the need to consider totality. As the starting point for the burglary offences was so high (three years six months against my revised starting point of 10 months), I need to review the balance of the sentence as well.
[43] In my view, the remaining dishonesty offences warrant a 10 month uplift. The other convictions including the police offending and driving offending warrant a six-month uplift.
[44] I also consider that a further three-month uplift is appropriate to recognise that a substantial amount of this offending occurred while the appellant was on bail. This takes the starting point to two years and five months.
[45] I do not consider an uplift should be imposed for previous convictions given they are minimal in number, the value of goods ($16.99) taken is negligible, and the sentences imposed were at the lowest end of the sentencing hierarchy.
Discounts
[46]The 20 per cent discount guilty plea awarded is not contended.
33 Charlett v New Zealand Police, above n 25; and Andrews v R, above n 29.
34 At [6].
35 At [8].
36 At [8].
[47] Despite the appellant not being a primary caregiver, the 5 per cent discount awarded is appropriate following the direction in Philip.37
[48] I accept the personal background of the appellant outlined in the s 27 report, in particular the traumatic circumstances of her brother’s death in 2019 and the resultant use of and addiction to methamphetamine, has a causative link to the current offending. I consider a 25 per cent discount is generous in light of the other cases discussed on appeal, I nevertheless would not alter it on appeal.
[49]In summary, I consider discounts totalling 50 per cent are appropriate.
Home detention/time served
[50] The adjusted starting point is 29 months. Applying a 50 per cent discount, the end sentence is 14 months two weeks’ imprisonment, which is a short-term sentence as defined in the Sentencing Act 2002.
[51] However, given the appellant has been in custody since her arrest on 30 September 2023, having been denied bail on 17 October 2023, it appears she has served approximately eight and a half months of her sentence.38 This means she is likely to be time served and able to be released as a consequence of this decision, and there is no point in considering whether leave to apply for home detention is appropriate under s 80I of the Act. However, it does bring into play the question of whether to impose special conditions on the appellant under s 93(2)(b). I consider that in addition to the standard conditions, the following conditions as recommended in the pre-sentence report should apply.
1.To attend an assessment for drug counselling, including residential treatment as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment and to the satisfaction of a Probation Officer.
2.Not to possess, consume or use any alcohol or drugs not prescribed to you.
3.Not to associate with or contact your co-offender Gypsy Dee without the prior written approval of a Probation Officer.
37 Philip v R, above n 27.
38 New Zealand Police v Palmer [2023] NZDC 22720.
[52] In all other respects, the sentences on the individual charges, save for the burglary charges, stand.
Conclusion
[53] The appeal is allowed. The sentence on the charge of burglary from PAK’nSAVE, Invercargill,39 (charge 2994), is quashed and a sentence of 14 months two weeks’ imprisonment is substituted. The concurrent sentences imposed in respect of the other charges remain unchanged.
[54] The following special conditions are imposed under s 93(2) of the Sentencing Act 2002.
1.To attend an assessment for drug counselling, including residential treatment as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment and to the satisfaction of a Probation Officer.
2.Not to possess, consume or use any alcohol or drugs not prescribed to you.
3.Not to associate with or contact your co-offender Gypsy Dee without the prior written approval of a Probation Officer.
[55]The conditions are to apply until six months after the sentence expiry date.
Solicitors:
Crown Solicitor, Invercargill
Copy to:
J A T Ross, Barrister, Invercargill
39 Which is the only burglary on which the full sentence of two years three months was imposed.
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