Samuels v Police
[2019] NZHC 694
•4 April 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000027
[2019] NZHC 694
BETWEEN JONATHAN PAUL SAMUELS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 April 2019 Appearances:
A McKenzie for Appellant
J H Whitcombe and C C White for Respondent
Judgment:
4 April 2019
JUDGMENT OF COOKE J
[1] Morgan Samuels, formerly known as Jonathan Samuels, pleaded guilty to one charge of theft over $1000, seven charges of theft under $500 and four charges of trespass. On 19 February 2019, the District Court imposed a sentence of 11 months’ imprisonment.1 The appellant appeals on the basis that the sentence was manifestly excessive.
Facts
[2] The appellant has no fixed address, is unemployed and has an alcohol problem. This offending is part of a much wider pattern of shoplifting, trespass and other minor offending which has escalated since 2013, when the appellant’s partner died. This is the appellant’s 18th sentence of imprisonment since 2013.
1 R v Samuels [2019] NZDC 3137.
SAMUELS v NEW ZEALAND POLICE [2019] NZHC 694 [4 April 2019]
[3] The charge of theft over $1000 arises from the appellant taking a near-new iPhone from an unattended bag at a bar on 24 December 2018. The phone case also included a bankcard and identification.
[4]The other charges are as follows:
(a)3 September: two instances of theft from the same supermarket at values of $24 and $20.
(b)2 December: theft from a supermarket of $31.38 of goods.
(c)12 December: theft of $39.16 of goods from the same supermarket.
(d)12 December and 16 December (x2): trespass on the Christchurch bus exchange.
(e)16 December: theft of electrical goods valued at $159.98 from a shop.
(f)17 December: theft of electrical goods valued at $249.98 from one shop and then goods valued at $28.68 from a supermarket, from which the appellant had been trespassed.
[5] The supermarket thefts were all of wine and food. The pre-sentence report identifies alcohol as the major driver of the appellant’s offending, along with ongoing grief. The report notes however that the appellant is not interested in stopping using alcohol and has not completed any alcohol programme commenced.
District Court decision
[6] The Judge first acknowledged that the appellant had written to the Court, apologising for the offending and recognising the cycle of being released from prison, being unable to find accommodation, being exposed to the culture of other homeless people, and offending again. However, the Judge stressed that the main underlying factor in the appellant’s offending is alcohol, and without motivation to address those issues, escaping the pattern will be difficult.
[7] The Judge noted that alongside deterrence and denunciation, a purpose of sentencing in this case is protection of the public, particularly protection of shop owners from having their goods stolen and protection of people on properties from having the appellant go there when they no longer want the appellant there.
[8] The Judge took the theft over $1000 as the lead charge and imposed a starting point of six months’ imprisonment. For the totality of the other offending, he applied an uplift of five months. For offending while subject to release conditions, he applied an uplift of one month and a further two months for criminal history. After a deduction of three months for early guilty pleas, the Judge imposed a final sentence of 11 months’ imprisonment. The Judge also imposed release conditions for six months after the sentence end date of alcohol and drug intervention and attending a departmental programme and/or maintenance group.
Principles on appeal
[9] 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 be 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
Appellant’s submissions
[10] Mr McKenzie, for the appellant, confined his argument to the various uplifts engaged in by the District Court, and the overall end sentence. He does not challenge
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].
the six-month starting point for the lead charge, but submits the uplifts were individually and collectively excessive.
[11] He submits the uplift of five months for the seven thefts under $500 and the four trespasses was excessive bearing in mind the maximum penalties for the offences being three months’ imprisonment. Mr McKenzie also highlights the low value of the thefts, and the total reparation due of $301.
[12] Mr McKenzie submits the one month uplift for offending while subject to conditions and the two month uplift for criminal history were individually or together excessive. He submits there is an element of double counting in these uplifts, and that in total they reflect an uplift of 25 to 30 per cent on account of previous convictions. As such, he submits that issues of totality are engaged. He submits that a total uplift of between one and two months to reflect previous convictions would be appropriate.
[13] In total, Mr McKenzie that a more appropriate final sentence would be eight to nine months’ imprisonment.
Respondent’s submissions
[14] Mr White, for the Police, refers to a number of cases with similar fact scenarios and end sentences of between six and nine months’ imprisonment.
[15] Mr White submits that an appropriate starting point for all eight theft charges would be around six to eight months, and then an uplift for the trespass offending would be appropriate. He submits that the appellant returned to a supermarket three days after being trespassed and stealing further items can be considered a significant aggravating feature.
[16] He submits that a further uplift for offending while subject to conditions and criminal history was appropriate, given the appellant’s 69 previous dishonesty convictions and 12 further trespass convictions. Mr White submits that the Judge was right to take into account the need to protect the community when sentencing the appellant.
[17] Mr White submits that the end sentence was not manifestly excessive and the appeal should be dismissed.
Analysis
[18] I essentially agree with the submissions for the appellant that the ultimate end sentence here was excessive, and that this has been the consequence of the uplifts that have been engaged in.
[19] Although the cases referred to by counsel involve their own circumstances they do provide some guidance. In particular:
(a)In Henry v Police, the appellant pleaded guilty to 13 charges of theft, breaching release conditions and possession of methamphetamine.5 Eight of the shoplifting charges were for theft under $500 and the remaining five for theft between $500 and $1000. Six of the shoplifting charges involved theft from six different stores on one day, and the remaining seven charges arose over a period of eight months. The total value of the stolen property was $5,568.23. On appeal, Clark J held that a six month starting point for the spree offending would have been appropriate, and the end sentence of nine months’ imprisonment was not excessive. That sentence included discounts for time spent on EM bail and timing of the charges, along with for guilty pleas.
(b)In McKenzie v Police, the appellant pleaded guilty to four charges of theft under $500, two charges of failure to answer bail and two of breaching conditions.6 Brown J in the High Court held that an end sentence of 12 months’ imprisonment was excessive and replaced it with an end sentence of six months’ imprisonment. A starting point of six months was appropriate for the theft charges with uplifts of two months for the non-compliance charges and one and a half months for
5 Henry v Police [2016] NZHC 800.
6 McKenzie v Police [2015] NZHC 2742.
criminal history, with discounts allowed for mental health issues and guilty pleas.
(c)In McMurtrie v Police, the appellant pleaded guilty to six charges of theft (five under $500 and one between $500 and $1000) and one charge of possession of cannabis.7 In the High Court Clifford J considered that a starting point of six months for all the theft offending would be appropriate, with an uplift of one month for offending while on bail and a cumulative sentence of one month on the cannabis charge, plus a discount for guilty plea. Clifford J thus quashed the end sentence imposed in the District Court of 12 months’ imprisonment and substituted a sentence of six months’ imprisonment.
[20]The present case seems to me to be more serious than McKenzie and
McMurtrie, but comparable to Henry.
[21] As the Court of Appeal said in Tutakangahau v R the focus is on the sentence imposed, rather than the process by which it was reached.8 But here it seems to me that the overall end sentence is excessive, and inconsistent with the above cases, and that this has been the result of an erroneous application of uplifts.
[22] There is no dispute concerning the starting point of six months’ imprisonment for the lead charge of theft over $1000, which is in line with the above cases. However, a further uplift of five months to reflect the other theft and trespass charges, the further two month uplift for the remaining charges, and the one month uplift for offending while on release conditions results in an end sentence that is inconsistent with these cases. The uplifts are significantly greater than the starting point. The ultimate result brings the totality principle into play. Most of the offending here occurred in a three- week period, much less than the eight months in Henry, and the total value of the thefts was significantly lower than the similar offending in Henry. Whilst I accept Mr White’s point that the other factors are identified as separate matters under s 9, and are accordingly capable of assessment as separate matters, with totality in mind, in my
7 McMurtrie v Police [2015] NZHC 1031.
8 Tutakangahau v R, above n 3 at [36].
view a total uplift of five months for both the other offending and breach of release conditions would be more appropriate.
[23] The Judge referred to the principles identified in ss 7 and 8 of the Sentencing Act 2002 including deterrence, denunciation and the protection of the public. He referred to the protection of shop owners being exposed to the repeated offending that has been engaged in. But it has been demonstrated that short terms of imprisonment are not effective in breaking the appellant’s cycle of offending. A longer short-term prison sentence is unlikely to make any material difference in terms of these factors. If the appellant’s cycle of offending is to be prevented other measures directed to preventing reoffending will need to be effective.
[24] On the basis outlined above, with a discount for guilty pleas of 25 per cent the end sentence would be nine months’ imprisonment. This sentence would be more in line with the authorities.
Conclusion
[25] The appeal is allowed and a sentence of nine months’ imprisonment is substituted.
Cooke J
Solicitors:
Crown Solicitors Office, Christchurch for Respondent
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