Pyper v Police
[2021] NZHC 1448
•18 June 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000052
[2021] NZHC 1448
BETWEEN MELISSA VALERIE PYPER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 June 2021 Appearances:
C M Ruane for Appellant
A M Harvey for Respondent
Judgment:
18 June 2021
ORAL JUDGMENT OF GENDALL J
This judgment was delivered by me on 18 June 2021 at 11 a.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
PYPER v NEW ZEALAND POLICE [2021] NZHC 1448 [18 June 2021]
Introduction
[1] The appellant, Melissa Piper (Ms Pyper), following a guilty plea, was sentenced on 8 April 2021 by Judge A M Fitzgibbon in the District Court at Christchurch to 13 and a half months’ imprisonment on three charges of stealing items valued less than $500 and one charge of stealing items valued more than $1000. The Judge also ordered Ms Pyper pay reparation of $863.28.
[2]She appeals that sentence.
Factual background
[3] As to the first charge of theft under $500, the event in question occurred on 28 September 2020 at an Invercargill Placemakers store. She took a Makita charger from the power tool section, concealed it under her clothing, and exited the store. The charger was worth $300.
[4] The second charge of theft under $500 involved a visit on 4 October 2020 to a Gore Mitre 10 store. There, she picked up two Makita 18-volt lithium batteries, a colour changing LED lightbulb and a colour changing LED light strip and took them out of their packaging. She then concealed them in her clothing and put the empty packets back on the shelf. She exited the store. These items were worth $348.44.
[5] The one charge of theft over $1,000 involved an event that occurred on 15 January 2021, when Ms Pyper entered the Yak’s and Yeti’s store on Tay Street, Invercargill. There, she took eight pieces of sterling silver jewellery from an unsecured glass cabinet and placed them into her hand bag. She then exited the store without paying. The jewellery was worth a total of $1,537.
[6] The last charge of theft under $500 involved a visit on 17 January 2021 to a New World supermarket in Gore. She picked up a basket and went to the meat section. She placed two packets of beef fillet steak and two packets of beef porterhouse steak into her basket. She then walked to the seafood section and added a container of cooked prawns to the basket. She moved to a corner of the store and concealed the
items under her clothing. She exited the store. The meat and prawns were worth
$214.86.
[7] Ms Pyper admitted taking the items. She says, too, that the jewellery has been recovered. She maintains the shoplifting was to get money so she could buy synthetic cannabis or food.
District Court decision
[8] Judge Fitzgibbon in the District Court began her sentencing remarks with the facts and charges. Then she turned to the pre-sentence report.
[9] The Judge considered Ms Pyper’s own explanation of events recorded in the pre-sentence report that her recidivist offending was a result of self-reported ADHD and self-medication using synthetic cannabis. The Judge found it important, however, that Ms Pyper had displayed a low level of motivation to attend interventions.
[10] Judge Fitzgibbon outlined Ms Pyper’s “significant offending history” including convictions for dishonesty, drug use, violence and non-compliance. She noted too that Ms Pyper’s offending has been regular since 1998, counting 105 convictions for stealing items of less than $500 and between $500 and $1,000. Ms Pyper also has other convictions for dishonesty offences in addition to those for theft.
[11] Judge Fitzgibbon considered the probation officer’s comment that a more intensive treatment pathway such as the Kowhiritanga programme is what is needed to mitigate Ms Pyper’s risk of reoffending. She commented, however, such a programme is only available in prison.
[12] The Judge then turned to consider the decision of this Court in Torbarina v Police.1 There, a starting point of 18 months’ imprisonment was regarded as within range for similar thefts, given in that case that the offender had 50 previous convictions over a span of 17 years.
1 Torbarina v Police [2014] NZHC 3221.
[13] Judge Fitzgibbon also found in the instant case that home detention was insufficient to meet the purposes and principles of the Sentencing Act 2002 and adopted the same starting point of 18 months’ imprisonment. She then discounted that starting point by 25 per cent to take into account Ms Pyper’s guilty plea. That left an end sentence of 13 and a half months’ imprisonment. Reparation of $863.28 was also ordered to be paid to the victims.
Principles on appeal
[14] 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.2 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”.3 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.4
Submissions
Appellant’s submissions
[15] Mr Ruane acknowledged Ms Pyper’s very extensive history of theft offending and that she was imprisoned for lesser offending on 20 March 2020. Responsibly, he accepted that a starting point of imprisonment was justified here.
[16] However, Mr Ruane contended that the starting point of 18 months’ imprisonment adopted in the District Court was manifestly excessive.
[17] Overall, he suggested that imprisonment was inappropriate for Ms Pyper here and instead a constructive and rehabilitative sentence was needed. He acknowledged
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
Ms Pyper’s recidivism and that she has offended, among other things, to support a drug habit. He endeavoured to argue there was little evidence generally that deterrence, insofar as it relates to severity of punishment, prevents or reduces offending in a case such as the present. In support of this submission Mr Ruane referred to the fact that prevention is more cost-effective than imprisonment.5
[18] Mr Ruane further submitted, perhaps rather cynically, that a sentence of imprisonment would do nothing in this case other than simply to keep Ms Pyper out of circulation for a time. He said she will be released having served half her sentence and, without a proper and rigorous rehabilitation programme, based on past performance, she will simply fall back into offending. The root causes of her offending, he said, need to be addressed and an intensive rehabilitative sentence should have been imposed in the District Court.
[19] Mr Ruane filed further submissions in which he provided a psychological report on Ms Pyper prepared in May 2019. At the hearing of this appeal, he handed up a 15 June 2021 report from Ms Pyper’s counsellor and a June 2021 email exchange between Ms Helen Whittington, a probation officer involved with Ms Pyper, and himself. I have now had an opportunity to consider this material and have taken into account the matters raised there in my conclusions on this appeal.
Respondent’s submissions
[20] In response for the Crown, Mr Harvey began by properly noting that on sentence appeals this Court should not engage in “tinkering”. He reiterated that the focus must be whether the sentence imposed by the Judge was within range. On this aspect, he referred me to three authorities – Torbarina v Police, Davies v Police and McMurtrie v Police.6 Mr Harvey acknowledged that the starting points in Davies and McMurtrie were lower than the starting point here, but submitted neither of those cases involved an offender with such a significant history of relevant previous convictions. Therefore, he suggested the 18-month starting point was within range.
5 Mr Ruane cited Peter Gluckman Using evidence to build a better justice system: The challenge of rising prison costs (Office of the Prime Minister’s Chief Science Advisor, Wellington, 29 March 2018) at 13.
6 Torbarina v Police, above n 1; Davies v Police [2019] NZHC 3081; and McMurtrie v Police
[2015] NZHC 1031.
[21] Mr Harvey also contended here that the Judge was entitled to consider deterrence and denunciation as primary purposes in sentencing particularly given Ms Pyper’s low motivation to engage with rehabilitation.
Analysis
[22] There is no tariff judgment for theft. The starting point in these cases is reached by considering the value of items stolen and the offender’s previous convictions.7
[23] Any sentence imposed needs to deter Ms Pyper and others from committing the same or similar offending and to denounce her conduct. Her offending here was both premeditated and deliberate, and that is relevant to assessing an appropriate starting point.
[24] In Torbarina v Police, Mr Torbarina stole items on three occasions. On the first occasion they were worth $1399, the second $730 and the third $1045. He had nearly 50 previous convictions. A starting point of 18 months was upheld on appeal.8
[25] In the present case, Ms Pyper stole items of lesser value than that, although these events occurred on four occasions. She also has more than twice as many previous convictions as Mr Torbarina. The cases are therefore broadly comparable, in my view, and should attract similar starting points.
[26] In Davies v Police, Mr Davies stole power tools valued at around $1000 on four occasions. He did so while he was supposed to be completing community work for previous dishonesty offending. While on bail for the power tool thefts, Mr Davies stole jackets valued at almost $1,000. Excluding the uplift for offending on bail but including uplifts for previous convictions and totality, the starting point reached was one of 14 months’ imprisonment. Mr Davies had 18 dishonesty related convictions. 9
[27] Mr Davies’ offending was more serious than Ms Pyper’s but, as I see it, her previous convictions greatly exacerbate her culpability and justify a higher starting
7 Torbarina v Police, above n 1, at [9].
8 Torbarina v Police, above n 1.
9 Davies v Police, above n 6.
point. While Mr Davies displayed a “developing pattern of offending”, Ms Pyper has accrued over 100 relevant convictions. Torbarina is ultimately the more comparable case.
[28] In McMurtrie v Police, Mr McMurtrie stole items of lesser value and had far fewer previous convictions, so in contrast to Ms Pyper’s position, the case, in my view, is not a particularly comparable one.10
[29] The starting point of 18 months’ imprisonment adopted by Judge Fitzgibbon here was therefore appropriate.
[30] No issue is taken with the Judge’s application of a 25 per cent discount for Ms Pyper’s guilty plea. This leaves the end sentence at the 13 and a half months’ imprisonment imposed.
[31] The real question in this appeal, however, is whether the Judge ought to have granted a non-custodial sentence.
[32] On this aspect, I will first set out aspects from what I see as a helpful pre- sentence report. Then I will address Mr Ruane’s submissions on this aspect.
[33] The pre-sentence report writer recorded Ms Pyper’s admissions that the theft of the jewellery was opportunistic and that she used the money from the power tools to buy synthetic cannabis for herself and her partner. Ms Pyper also, it seems, believes her recidivist shoplifting behaviour is a result of her ADHD, for which she self- medicates using synthetic cannabis. However, the report writer assessed her offending related factors here as her drug use, and her unhealthy relationships, lifestyle and attitude. The writer recorded her low level of motivation to attend or engage with interventions and the fact both community and custodial sentences in the past have not deterred her offending.11 A sentence of imprisonment with a more intensive treatment pathway was recommended.
10 McMurtrie v Police, above n 6.
11 Ms Whittington, in her 15 June 2021 email to Mr Ruane which was handed up to the Court, confirmed: “A phone call to her case manager advised Ms Pyper is not motivated to complete Kowhiritanga …”
[34] Ms Pyper appears to have at least one pro-social influence. The pre-sentence report writer made contact with one of her long-time friends who confirms her ongoing support if Ms Pyper addresses her drug issues. It would appear that even she can see that it is Ms Pyper who needs to take the first step towards her rehabilitation.
[35] The report writer noted the Kowhiritanga Programme, a four-month intensive programme provided in prison, was due to commence shortly. That programme addresses anti-social attitudes, criminal associates, poor self-control, impulsivity, problem solving skills and alcohol, drug and relationship difficulties. Issues might arise, however, as to whether or not Ms Pyper has a sufficient period left to serve in her sentence until her statutory release date to enable her to complete such a programme.
[36] Turning now to the psychological report Mr Ruane has provided, I note that this is several years old and, in my view, it adds little to the pre-sentence report.
[37] Mr Ruane urges this Court to impose a constructive and rehabilitative sentence and, for that purpose, reduce her imposed prison sentence to allow her release immediately. He suggests more time for Ms Pyper in prison will not break the cycle of her offending and will achieve little.
[38] Due to what seems to be Ms Pyper’s low motivation, I find there is little utility at this point in sentencing her on the basis she will actively try to rehabilitate herself. There is no evidence she is willing to do that. And here, all the evidence before the Court seemed to suggest Ms Pyper is someone who has shown no wish to co-operate with assistance provided to her – no buy-in on her part to complete or ensure compliance with programmes offered. Generally, she is someone who routinely, it seems, declined appointments, although her counsellor’s 15 June 2021 report provided late to this Court might offer some possible hope for the future. But, in any event, there is only so much the Court can do in a situation like the present. Generally, rehabilitation programme availability needs to be prioritised to cases where an offender demonstrates a willingness to address the causes of their offending.
[39] Similarly, Mr Ruane’s submissions relating to the desirability of early intervention carry little weight in the particular circumstances here. It needs to be acknowledged, as I see the position, that, in reality, although some intervention is desirable and indeed necessary for Ms Pyper, it is too late for early intervention here. Ms Pyper is 41. The underlying causes of her offending are numerous and longstanding. Only a concerted effort by Ms Pyper herself alongside intensive rehabilitation will address those causes.
[40] I also reject any submission that the Judge’s sentence lacked a rehabilitative purpose. In prison Ms Pyper has been, and will continue to be, unable to access synthetic cannabis, which appears to be a key driver of her offending. She will therefore have the benefit of a prolonged period of abstinence before she re-enters the community. It seems she may also have a possible chance to participate in a Kowhiritanga programme or something similar. These appear to be the kind of enforced intensive rehabilitation she needs. It does seem she was involved in an intensive programme in 2020 but exited it when she was released from prison, which is unfortunate.
[41] Overall then, I conclude that there has been no error in the sentence imposed by the District Court here. That sentence of Judge Fitzgibbon reflects the sentencing principles of deterrence, denunciation and rehabilitation, it is in the appropriate range and not manifestly excessive.
Conclusion
[42]For all these reasons this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Craig Ruane, Barrister, Christchurch
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