Ralph v The Queen
[2021] NZHC 1434
•17 June 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-000046
[2021] NZHC 1434
BETWEEN MARCELLE RALPH
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 June 2021 Counsel:
P J Kaye for appellant J Sutton for respondent
Judgment:
17 June 2021
JUDGMENT OF KATZ J
[Appeal against sentence]
This judgment was delivered by me on 17 June 2021 at 11:00am
Registrar/Deputy Registrar
Solicitors: Pollett Legal Limited, Tauranga Counsel: P J Kaye, Barrister, Auckland
RALPH v R [2021] NZHC 1434 [17 June 2021]
Introduction
[1] Marcelle Ralph pleaded guilty to eight charges of theft, three charges of trespass and one charge of breach of release conditions in the Tauranga District Court. The offending took place between June 2020 and January 2021.
[2] On 11 March 2021, Judge P R Connell sentenced Ms Ralph to 11 months’ imprisonment. She appeals against that sentence on the grounds that:
(a)the Judge erred in imposing a sentence of imprisonment rather than a sentence of intensive supervision; and
(b)if this Court is of the opinion that a sentence of imprisonment is appropriate in all the circumstances, the Judge nonetheless erred by adopting a starting point that was manifestly excessive.
The offending
Theft of property valued at under $500 – 17 June 2020
[3] On 17 June 2020, Ms Ralph was at Rebel Sports Tauranga. She grabbed a pair of Nike slides, valued at $50, and removed the tags from them. Ms Ralph placed the slides down the front of her pants and left the store without paying for them. Rebel Sports staff discovered the theft upon reviewing their CCTV footage. Ms Ralph admitted to taking the slides.
Breach of release conditions – 9 July 2020
[4] On 6 April 2020, Ms Ralph was sentenced to one month of imprisonment for unlawfully taking a motor vehicle, theft and wilful trespass. She was inducted into her release conditions on 18 June 2020.
[5] On 9 July 2020, Ms Ralph failed to report to her probation officer and failed to provide a reasonable explanation for her non-compliance.
Wilful trespass – 23 July 2020
[6] On 18 September 2018, Ms Ralph was served with a trespass notice to refrain from going to Paper Plus Te Puke. On 23 July 2020, Ms Ralph entered Paper Plus Te Puke, walked through the store, and exited through the rear. She told police that she was aware that she was trespassed. Ms Ralph said, however, that she was trespassed between 18 months and two years ago, and she just walked through the store for a short cut.
Theft of property valued at under $500 – 31 October 2020
[7] On 31 October 2020, Ms Ralph was at Gao Trading in Te Puke. She removed seven t-shirts from the display racks, rolled them up and placed them in her jacket. The t-shirts have a total value of $140.
[8] Ms Ralph admitted to police that she had stolen the t-shirts, although she said that she thought she had only stolen five.
Theft of property valued between $500 and $1000 – 11 November 2020
[9] On 11 November 2020, Ms Ralph was at Macpac Bayfair. She walked around the store for a few minutes looking at items of clothing. During this process, she removed three items, rolled them up, and hid them under her clothing. Those items were a man’s jacket, a woman’s rain jacket and a pair of man’s pants, valued at $660.
[10] Ms Ralph left the store without paying. The theft was discovered when store staff found empty coat hangers and reviewed the store’s CCTV footage.
Theft of property valued at under $500 – 24 November 2020
[11] On 24 November 2020, Ms Ralph was at Farmers Bayfair. Security staff observed her take a Philips shaver, valued at $349.99. When staff were not watching, she placed the shaver up her shirt.
[12] Ms Ralph continued wandering around the store and picked up a pair of curling irons and a boxed LED mirror. Security staff approached her as they believed she
might try to steal these items. Ms Ralph initially denied hiding anything, but subsequently pulled out the shaver. She apologised to security and said that she was having a difficult time financially. When spoken to by police, Ms Ralph admitted that she had stolen the shaver.
Theft of property valued at under $500 – 19 December 2020
[13] At approximately 3.40 am on 19 December 2020, Ms Ralph was at a Z petrol station in Tauranga. She removed four bottles of motor oil from the shelf and hid them under her sweatshirt. Ms Ralph then left the store without paying for the oil. The oil, valued at $80, was not recovered.
Theft of property valued at over $1000 – 24 December 2020
[14] On 24 December 2020, Ms Ralph was at the Macpac Bayfair store. She selected five items of clothing and placed them under her clothing. She then left the store without paying for the items.
[15] Ms Ralph offloaded those items, and returned to the store about 10 minutes later to repeat this process. She took several more items of clothing. The total value of the items taken was $1659. When spoken to by police, Ms Ralph admitted stealing the items.
Wilful trespass – 24 December 2020
[16] On 27 November 2020, Ms Ralph was served with a trespass notice for the Bayfair Shopping Complex. On 24 December 2020, Ms Ralph entered Macpac Bayfair for the purpose of committing the above theft.
Theft of property valued at under $500 – 2 January 2021
[17] On 2 January 2021, Ms Ralph was in Pak’nSave Papamoa. She placed numerous packs of bacon and three packs of scotch fillet steak into a trolley. While down one of the aisles, she placed some of the packs of bacon under her clothing and the three packs of steak down the rear of her pants. She then abandoned the trolley, leaving a few packs of bacon still in it.
[18] Ms Ralph was stopped by security after attempting to leave the store. She initially refused to hand over the stolen items, however, eventually returned six packs of bacon. Ms Ralph refused to return the remaining items, valued at $111.63, and left the store. When spoken to by police, Ms Ralph admitted that she had stolen the items.
Theft of property valued at under $500 – 3 February 2021
[19] On 3 February 2021, Ms Ralph went into Life Pharmacy Bayfair. She removed a plastic container of Spirulina Balance powder and hid it under her shirt. Ms Ralph then left the store without paying for the powder. The powder is valued at $34.99.
[20] A soft tag fitted to the container caused the shop alarm to sound. Ms Ralph continued walking and left the Bayfair shopping centre. She was spoken to the following morning by police and admitted stealing the powder.
Wilful trespass – 3 February 2021
[21] On 27 November 2020, Ms Ralph was served with a trespass notice on behalf of the Bayfair Shopping Complex. On 3 February 2021, Ms Ralph went to the Bayfair shopping centre and committed the above theft. She told police that she had a box full of trespass notices and could not remember where she was and was not trespassed from.
District Court sentencing
[22] On 11 March 2021, Ms Ralph was sentenced by Judge Connell.1 His Honour noted Ms Ralph’s 26-page list of prior convictions, and that she was “back before the Court facing sentencing for exactly the same type of offending.” The Judge did not see how, given Ms Ralph’s drug addiction problems and prior breaches of non-custodial sentences, she could be trusted to carry through with a non-custodial sentence. The Judge was also concerned that Ms Ralph’s moderate risk of self-harm through methamphetamine would be difficult to control if she was in the community.
1 Police v Ralph [2021] NZDC 4576.
[23] The Judge noted that the Probation Service considered intensive supervision could be appropriate, and that Ms Ralph had apparently been making an effort in recent times. The Judge was somewhat sceptical, however, as to whether this was a genuine effort to reform or was simply to “put on a good show” for the Court.
[24] Judge Connell imposed a sentence of imprisonment. He set a starting point of 15 months’ imprisonment for the lead charge of theft of $1,659 worth of property from Macpac Bayfair. The Judge then applied an uplift of one month for all the charges that have a maximum penalty of three months’ imprisonment,2 and an uplift of three months for the remaining charge with a maximum penalty of one years’ imprisonment.3 The Judge convicted and discharged Ms Ralph on the remaining charges of trespasses and breach of release conditions. These uplifts brought the starting point to 19 months’ imprisonment.
[25] The Judge then applied a discount of 25 per cent for the early guilty pleas and a three-month discount (approximately 16 per cent) to recognise the rehabilitative progress made by Ms Ralph. The final sentence was therefore 11 months’ imprisonment. His Honour also imposed post detention conditions, which included a requirement to attend an appropriate drug and alcohol assessment and to refrain from consuming alcohol or drugs. Judge Connell did not make any reparation orders, as he considered that Ms Ralph would not be in a position to meet any such order.
Did the Judge err by failing to impose a non-custodial sentence?
[26] Mr Kaye, for Ms Ralph, submitted that the Judge erred in imposing a sentence of imprisonment rather than a non-custodial sentence. He noted that Ms Ralph is a chronic shoplifter who has served many prior sentences of imprisonment. Sentences of imprisonment have accordingly failed to deter her from further offending or assist in her rehabilitation. Mr Kaye’s initial position was that a sentence of intensive supervision, or in the alternative, a sentence of home detention, would therefore be more appropriate. During the course of the hearing, however, he focussed on the supervision option. That is because Ms Ralph will be eligible for automatic release
2 These are the six charges of theft of property with a value less than $500.
3 This is the charge of theft of $660 worth of property from Macpac Bayfair.
on parole in two and a half months (halfway through her sentence of 11 months). Accordingly, by the time a home detention address was found and assessed for suitability she is likely to have completed most of her sentence of imprisonment.
[27] The respondent submitted that the Judge did not err in imposing a sentence of imprisonment. The Judge properly considered Ms Ralph’s cycle of recidivism and was sceptical that a further non-custodial sentence would have any rehabilitative effect or meet the other purposes and principles of sentencing. Although a sentence of imprisonment may not be rehabilitative, the respondent submitted that the same also appears to be the case for any other type of sentence, given that Ms Ralph’s history includes a number of non-custodial sentences.
[28] Ms Ralph is currently aged 49. She is a habitual shoplifter with an extremely lengthy list of prior convictions, dating back to 1987. Those convictions are predominantly for theft, dishonesty, drug and driving offences. For the last 25 years or so, Ms Ralph has offended almost every year. She apparently suffers from a methamphetamine addiction, as well as various mental health issues.
[29] From 1994 to 2010, Ms Ralph was typically sentenced to non-custodial sentences (including community work and supervision) or given leave to apply for home detention. Those non-custodial sentences, over a 16 year period, appear to have had little or no impact on Ms Ralph’s offending.
[30] From 2010 onwards, Ms Ralph has received a number of sentences of imprisonment for offending of a similar nature to the present offending. She has been sentenced to approximately 125 sentences of imprisonment, although many of these sentences have been concurrent and, in a number of cases, Ms Ralph was granted leave to apply for home detention.
[31] Mr Kaye’s submissions focused on the ineffectiveness of custodial sentences in assisting Ms Ralph’s rehabilitation. The difficulty, however, is that non-custodial sentences have also been ineffective in advancing Ms Ralph’s rehabilitation. Her pattern of offending appears to be deeply entrenched and difficult to change. Nevertheless, the Judge’s view appears to have been that a custodial sentence would
be more likely to serve at least some rehabilitative purpose than a non-custodial sentence. In particular, his Honour noted that Ms Ralph’s moderate risk of self-harm through methamphetamine would be difficult to control if she was in the community. He also imposed post detention conditions aimed at addressing Ms Ralph’s mental health and addiction issues, including a requirement to attend an appropriate drug and alcohol assessment; to refrain from consuming alcohol or drugs; to complete any programmes or treatments determined by the Probation Service; and to complete any counselling suggested by the Probation Service.
[32] In my view, imposing a sentence of imprisonment on Ms Ralph cannot be said to be an inappropriate or manifestly excessive sentencing response to what is clearly a very difficult case. Ms Ralph is in the unfortunate position that the Court can have little confidence that a non-custodial sentence would have any meaningful rehabilitative effect. It seems likely that her offending is underpinned by addiction issues and that these issues are so entrenched that they cannot realistically be addressed in the community. Rather, admission to a residential treatment facility is possibly the only realistic way in which Ms Ralph’s underlying issues may be able to be properly addressed. That, however, is not an option that is currently before me for consideration.
[33] It is possible (although perhaps not likely) that being forced to give up methamphetamine for a period, combined with the post release conditions that have been imposed, may assist Ms Ralph to address her addiction issues. Further, rehabilitation is not the sole purpose of sentencing. The sentence imposed must also hold the offender accountable, denounce their conduct and protect the community from further offending.4 In light of Ms Ralph’s lengthy history of similar offending, a sentence of imprisonment arguably advances those purposes better than a non-custodial sentence.
[34] Overall, I have not been persuaded that the Judge erred in concluding that imprisonment was the appropriate sentence in all the circumstances of this case.
4 Sentencing Act 2002, ss 7(1)(a), (e) and (g) respectively.
Did the Judge adopt a starting point that was too high?
[35] Mr Kaye submitted that, in any event, the starting point adopted by the Judge was too high. He referred to the District Court decision of Police v Perry, where the defendant had committed one theft over $1,000; three thefts between $500 and $1000; and eight thefts under $500.5 All were shoplifting related.6 The offending was committed in order to fund the defendant’s methamphetamine addiction.7 The total value of the goods stolen from retailers who sought reparation, was approximately
$2,555.8 (It is not clear what the total value of the goods stolen was). The defendant offered to pay reparation for the entire $2,555 amount at a rate of $20 per week.9 Mr Kaye submitted that, relative to Perry, a starting point of 10 months’ imprisonment would be appropriate in this case.
[36] The respondent submitted that the Judge did not adopt a starting point that was too high. The respondent referred to Sims v Police, where a defendant with a history of dishonesty offending and theft was sentenced to 14 months’ imprisonment on seven charges of theft.10 The respondent also cited Faben v R, where a defendant with a history of dishonesty offending and theft was sentenced to 18 months’ imprisonment for ten shoplifting charges, one theft from a vehicle, one of trespass and one breach of bail.11 Accordingly, the respondent submitted that an end sentence of 11 months’ imprisonment was well within range.
[37] I do not find Police v Perry particularly helpful. Given the different way in which the sentences were structured in that case and the present case it is necessary to look at the sentencing process in totality in order to make a meaningful comparison. The end sentence in Perry was 12 months imprisonment, slightly greater than in this case. (That sentence was then commuted to five months home detention, which took into account the period Ms Perry had spent on remand). Similar guilty plea discounts were applied (20 per cent for Ms Perry and 25 per cent for Ms Ralph). Ms Perry was
5 Police v Perry DC Napier CRI-2010-091-1074, 13 May 2010 at [2].
6 At [5]-[9].
7 At [11].
8 At [9].
9 At [9] and [29].
10 Sims v Police HC Christchurch CRI-2008-409-145, 11 September 2008.
11 Faben v R HC Hamilton CRI-2007-419-109, 26 September 2007.
ordered to pay reparation of $2,555 (unlike Ms Ralph), a factor that will generally justify a reduction in sentence. Neither defendant had their sentence uplifted for their previous convictions – although such an uplift would certainly have been justified in Ms Ralph’s case. Ms Perry’s sentence was uplifted, however, by three months to take into account that her offending occurred while on bail. Ms Ralph’s sentence was not similarly uplifted to reflect that her earlier offending occurred when she was subject to release conditions and her later offending occurred when she was on bail. Accordingly, viewing the two sentences overall, Ms Ralph’s sentence is not out of line with that of Ms Perry. Indeed, she was treated more leniently than Ms Perry in several respects.
[38] In Sims v Police, the defendant was convicted of seven thefts of variety of goods, including television sets, copper, groceries, and car batteries.12 The defendant’s offending was to fund his methamphetamine addiction.13 On appeal, the appellant submitted that a sentence of around 11 months’ imprisonment was appropriate.14 Fogarty J rejected this submission and held that a sentence of 14 months’ imprisonment was not manifestly excessive.15
[39] Ms Ralph has been sentenced for a greater number of charges of theft than Mr Sims. Both defendants’ offending was driven by drug addiction. Ms Ralph’s sentence of imprisonment, however, is three months shorter than the Mr Sim’s period of imprisonment.
[40] In Faben v R, the defendant was sentenced to 18 months’ imprisonment for ten shoplifting charges, one theft from a vehicle, one of trespass and one breach of bail.16 Only one of the theft charges related to property valued at over $1,000.17 On appeal, Randerson J considered that the appropriate starting point was 18 months’ imprisonment, and applied a six month uplift for prior convictions.18
12 Sims v Police HC Christchurch CRI-2008-409-145, 11 September 2008 at [2].
13 At [2].
14 At [5].
15 At [9].
16 Faben v R HC Hamilton CRI-2007-419-109, 26 September 2007 at [7].
17 At [7].
18 At [19].
[41] Ms Ralph has been convicted of theft of items of similar value to Ms Faben. However, the starting point adopted by the Judge for Ms Ralph’s offending is three months less than that adopted by Randerson J for Ms Faben’s offending. Randerson J also applied a greater uplift for the other offending.
[42] Overall, I have not been persuaded that the starting point of 15 months’ imprisonment adopted by the Judge in this case is outside of the available range.
[43]The Judge therefore made no error in the sentence imposed.
Result
[44]The appeal is dismissed.
Katz J
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