Ralph v Police
[2023] NZHC 2353
•28 August 2023
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 KimD 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, above n 1, at [7].
months’ imprisonment. A further 50 per cent uplift was then imposed “to appreciate [Ms Ralph’s] disgraceful previous offending record”13 of no less than 226 previous convictions in respect of which Judge Cocurullo noted “at least 111 of those is stealing”.14
[6] His Honour noted that this second uplift also took into account the offending committed on bail. Ms Ralph was then given total discounts of 30 per cent, namely a 25 per cent discount for her guilty plea together with “another five per cent for the other matters which [her] lawyer has raised”.15 This resulted in a net uplift of 20 per cent which his Honour said he rounded up to give an end sentence of 14 months’ imprisonment.16
[7] While noting that the end sentence was “well below the two years”, Judge Cocurullo went on to state:17
As you know I have considered a sentence other than prison, it falls and would fall well short of the least restrictive option. There may well be rehabilitative needs for you but, in my view, the punitive sanction in the deterrence and denunciation outweigh any of that currently.
The case for Ms Ralph
[8] Ms Kim had no issue with the starting point and the uplift for the remaining charges, and also agreed the discounts given by Judge Corucullo for the guilty pleas and other factors were appropriate. Ms Kim, however, took issue with both the extent of the uplift for previous convictions and the lack of sufficient consideration as to whether home detention was appropriate.
[9] Ms Kim relied in particular on several decisions of this Court,18 and a decision of the Court of Appeal.19 In particular, Ms Kim noted that in Pahulu v Police, the
13 At [8].
14 At [3].
15 At [9].
16 At [10].
17 At [10].
18 Pahulu v Police [2020] NZHC 153; Minchin v Police [2017] NZHC 2004; Papa v Police [2019] NZHC 1309.
19 Manikpersadh v R [2011] NZCA 452.
Court held that despite the defendant’s significant number of previous convictions, an uplift in excess of 33 per cent was excessive.20
[10] With regard to the lack of other sentencing options canvassed and the corresponding failure to consider the least restrictive outcome appropriate, Ms Kim submitted that this had been a feature of Ms Ralph’s history, and by itself represented a material error. Ms Kim contended Ms Ralph had generally only received sentences of imprisonment since 1999 and had been denied community-based sentences that were otherwise appropriate. In Ms Kim’s submission the least restrictive outcome on the present charges would have been a short term of imprisonment with leave to apply for home detention if an appropriate address had become available.
Discussion
[11] Having considered the issues raised on behalf of Ms Ralph, I am satisfied that the sentence imposed was not manifestly excessive. The end sentence imposed was within range, albeit arguably stern. Any adjustment would amount to impermissible tinkering, particularly given the appeal was, in any event, moot.
[12] I reach this conclusion for a number of reasons. First, there was no issue taken by Ms Kim with the starting point. That is because it was accepted that it was well within range. This means a higher starting point would have been available to Judge Cocurullo which is important in a context where the appeal Court is looking at the final end sentence, not how it is constructed.21
[13] Secondly, I am not satisfied after analysing the decision that the uplift imposed by Judge Cocurullo was excessive. The principles applicable were recently considered by Dunningham J in Reedy v Police:22
[18] Thus a criminal history in and of itself does not justify an uplift. It must have some relevance to the current sentencing process, for example, by bearing on the blameworthiness of the present offending or on the increased need for further deterrence.
20 Pahulu v Police, above n 18, at [27]–[28].
21 Tutakangahau v R, above n 9, at [36].
22 Reedy v Police [2015] NZHC 1069.
[19] The principles in relation to uplifting the previous offending can therefore be stated as follows:
(a)there will be no uplift for the bare existence of previous convictions – to do so would be to punish offending more than once;
(b)the permissible lines of reasoning, justifying an uplift, fall into three broad categories:
(i)previous convictions bearing upon character and culpability;
(ii)indication of predilection to offend in a specific way (an indicator of reoffending); and
(iii)the need to protect society by the imposition of a deterrent sentence.
This necessarily requires the uplift top be firmly tied to specific aspects of the offender’s criminal history.23
(c)the uplift must remain proportionate to the starting point fixed by the sentencing Judge;24
(d)there is no fixed figure beyond which an uplift will be held to be disproportionate.25 This is a matter to be determined, at first instance, by the sentencing [J]udge having regard to all relevant factors (i.e. number, seriousness, and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).
[14]Dunningham J went on to note:26
…in all this, I observe that the rote recitation of what uplifts have been imposed in previous cases is not determinative, nor can sentencing be reduced to a series of arithmetical calculations. It is a holistic exercise which the sentencing Judge is generally best placed to undertake.
[15] In this case I note that while Judge Cocurullo appeared to indicate that he had rounded the end sentence up, it is in fact clear from the maths the end sentence rounded the uplift for previous convictions and offending on bail down such that the net uplift applied was approximately 16.65 per cent rather than the 20 per cent identified in the judgment. This means the total uplift actually imposed for previous convictions and offending on bail was 46.65 per cent.
23 O’Connor v R [2014] NZCA 328 at [41].
24 See e.g. Tiplady-Koroheke v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478.
25 Ripia v R [2011] NZCA 101 at [10].
26 Reedy v Police, above n 22, at [24].
[16] That figure is reduced still further when an appropriate allowance for the offending carried out on bail is made. The offending on bail was significant as I note it appears four of the shoplifting (theft under $500) offences and the possession of utensils were all committed while Ms Ralph was on bail in respect of the lead offence.
[17] As Mr Coulson submitted, when these factors are taken into account and a figure of, say, 15 per cent is attributed as an uplift for offending on bail, it can be seen that the uplift for the previous offending is around 32 per cent. This is not only considerably less than the 50 per cent ostensibly attributed by Judge Cocurullo in his sentencing decision, but in Ms Ralph’s case there are a truly staggering number of previous convictions and far more previous convictions than in any of the cases cited by Ms Kim in support of the appeal.
[18] I am likewise satisfied that Judge Cocurullo did consider whether other sentencing options were available. It is, in fact, clear from the sentencing notes that Judge Cocurullo understood that a community-based sentence was potentially available but considered that the least restrictive option available was imprisonment as a result of Ms Ralph’s previous criminal history. His Honour specifically (and emphatically) rejected that home detention (or any other community-based sentence) would be appropriate given her history and ongoing offending.
[19] It is quite clear from the sentencing decision that his Honour was trying to make a point to Ms Ralph, so as to get through to her that continued offending of this type was unacceptable. I do accept that Judge Cocurullo went too far in suggesting that a sentence of imprisonment for future dishonesty offending would be inevitable, as that will depend on the seriousness of any future offending. However, any reservations I have with regard to that part of the approach taken in sentencing Ms Ralph does not affect the end sentence imposed in the present case.
[20] Given Ms Ralph’s previous offending history, and in particular her history of dishonesty offences, there was a clear need for deterrence and denunciation. When this is coupled with the fact that there was no suitable address identified for home detention in any event it is difficult to see any error in the approach taken. It is also clear that while Ms Ralph has had in the course of her extensive criminal history many,
generally small, sentences of imprisonment, she has (contrary to Ms Kim’s submission) also previously received a significant number of community-based sentences since 1999 including community work, periodic detention and supervision, through to a suspended sentence in 2021. Given this position and the sheer number of previous offences it is difficult to see why a sentence of imprisonment was not appropriate in this case.
Decision
[21]The appeal is dismissed.
Powell J
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