Ralph v Police - [2023] NZHC 2353

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000047

[2023] NZHC 2353

MARCELLE RALPH

v

NEW ZEALAND POLICE

Hearing: 11 July 2023

Appearances:

H Kim for the Appellant

D Coulson for the Defendant

Judgment:

28 August 2023

JUDGMENT OF POWELL J

[Appeal against Sentence]

This judgment was delivered by me on 28 August 2023 at 4.00 pm pursuant to
r 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

Solicitors:
Pollett Legal, Tauranga

Counsel:
H Kim
D Coulson

MARCELLE RALPH v NEW ZEALAND POLICE [2023] NZHC 2353 [28 August 2023]

[1] Marcelle Ralph has appealed a sentence imposed by Judge N D Cocurullo on 13 March 2023.1 Coming up for sentence on eight charges namely wilful trespass,2 theft (over $1,000),3 theft (under $500) (x5),4 and possession of utensils,5 Judge Cocurullo sentenced Ms Ralph to 14 months imprisonment,6 and declined Ms Ralph leave to apply for home detention.7

[2] Ms Ralph contends the sentence was manifestly excessive. On her behalf Ms Kim acknowledged the appeal was effectively moot as, taking into account the time spent remanded in custody before Ms Ralph was sentenced, by the time the appeal was heard her release was imminent.

[3] Ms Ralph’s appeal was filed 28 days late, but the Crown accepts that the filing appears to have been delayed due to a delay getting information from the District Court. In those circumstances I am satisfied leave should be granted to appeal.

[4] The Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence and that a different sentence should have been imposed.8 The Court will intervene where the sentence is manifestly excessive,9 but will not engage in “tinkering”.10 The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.11

The District Court decision

[5] In the decision under appeal Judge Cocurullo identified the lead charge as the theft (over $1,000) offence, which as with the other theft charges was for shoplifting. A starting point of nine months’ imprisonment was adopted.12 This was uplifted by three months for the remaining charges, resulting in an adjusted starting point of 12

1      Police v Ralph [2023] NZDC 4571.
2      Trespass Act 1980, ss 4(4) and 11(2)(a). Maximum penalty: 3 months’ imprisonment.
3      Crimes Act 1961, ss 219 and 223(b). Maximum penalty: 7 years’ imprisonment.
4      Sections 219 and 223(d). Maximum penalty: 3 months’ imprisonment.
5      Misuse of Drugs Act 1975, ss 13(1)(a) and (3). Maximum penalty: 1 years’ imprisonment.
6      Police v Ralph, above n 1, at [11].
7 At [5].
8      Criminal Procedure Act 2011, s 250(2).
9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
10     Maihi v R [2013] NZCA 69 at [21]; and Mack v R [2013] NZCA 183 at [16].
11     Tutakangahau v R, above n 9, at [36].
12     Police v Ralph

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ralph v Police

Details

AGLC: Ralph v Police [2023] NZHC 2353
Case: [2023] NZHC 2353
Decision Date: 28 August 2023

CaseChat Overview and Summary

Marcelle Ralph has appealed against the sentence imposed by Judge N D Cocurullo on 13 March 2023. The appeal concerns the sentence for eight charges: wilful trespass, theft (over $1,000), theft (under $500) (x5), and possession of utensils. Judge Cocurullo sentenced Ms Ralph to 14 months imprisonment and declined her application for home detention. Ms Ralph argued that the sentence was manifestly excessive. Her counsel, Ms Kim, acknowledged that the appeal was moot because, considering the time spent in custody before sentencing, Ms Ralph's release was imminent.

The legal issues for the Court to decide were whether the sentence was manifestly excessive and whether the Court should intervene, and if so, to what extent. The Court must allow the appeal if there is an error in the sentence and a different sentence should have been imposed. The Court will intervene where the sentence is manifestly excessive, but will not engage in "tinkering." The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.

The Court found that the sentence was not manifestly excessive. The starting point was well within range, and the uplift for previous convictions was proportionate. The Court found that the total uplift applied was approximately 16.65 per cent rather than the 20 per cent identified in the judgment, and further reduced when accounting for the offending on bail. The Court was satisfied that Judge Cocurullo considered other sentencing options and that imprisonment was appropriate due to Ms Ralph's criminal history and ongoing offending. The appeal was dismissed.

The final orders were that the appeal is dismissed.

Orders