Smith v Police - [2025] NZHC 244

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-286

[2025] NZHC 244

BETWEEN
DAMIAN BROOKE SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 February 2025

Appearances:

P N Allan for Appellant

J E Lancaster for Respondent

Judgment:

20 February 2025

ORAL JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SMITH v POLICE [2025] NZHC 244 [20 February 2025]

Introduction

[1] Damian Brooke Smith was sentenced on 7 November 20241 to 28 months’ imprisonment following his guilty pleas to 29 charges of theft (under $500),2 two charges of breach of release conditions,3 and possession of a knife in a public place.4 Mr Smith appeals that sentence on the ground it was manifestly excessive.

Facts

[2] Mr Smith was released from prison on 24 January 2024 having been sentenced to a term of imprisonment on charges of theft (x7), burglary and driving offences. He then breached his release conditions by failing to report to probation as directed and by possessing or consuming alcohol.

[3] In the early hours of 15 March 2024, Mr Smith was found by police on a Christchurch street holding a large, serrated kitchen knife which he waved in an aggressive manner as he made his way down the street. He offered no reasonable excuse for being in possession of the knife.

[4] All theft charges arise from shoplifting committed between May and September 2024. Mr Smith was initially charged with several thefts, remanded in custody, and then bailed on 8 July 2024. He then continued to shoplift. The items initially stolen can be largely categorised as food items (such as trays of pies and meat, hot food, confectionary and lasagne), energy drinks, and health and beauty items. There are two instances each of alcohol and petrol theft. At the outset of the offending, the items stolen were generally under $100. As time went on, the thefts became larger in value as Mr Smith began to steal from stores such as Jaycar, Briscoes and Farmers. Over the period of the offending, the lowest value item stolen was an energy drink for
$2.49, and the highest value item was a knife block valued at $329.99.

1      Police v Smith [2024] NZDC 27726.
2      Crimes Act 1961, s 219 and s 223(d); maximum penalty three months’ imprisonment.
3      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment or a fine not exceeding
$2000.
4      Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or fine not exceeding $2000.

[5] Mr Smith is a methamphetamine addict. He says he paid for his drugs by shoplifting. He has been identified as a high risk, nationwide recidivist retail crime offender by the National Retail Investigation Support Unit.

District Court Decision

[6] For the theft charges the Judge adopted a starting point of 29 months’ imprisonment which reflected a cumulative one-month sentence of imprisonment…

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 Smith v Police

Details

AGLC: Smith v Police [2025] NZHC 244
Case: [2025] NZHC 244
Decision Date: 20 February 2025

CaseChat Overview and Summary

Damian Brooke Smith appeals against his sentence of 28 months’ imprisonment imposed following his guilty pleas to 29 charges of theft (under $500), two charges of breach of release conditions, and possession of a knife in a public place. The appeal hinges on the argument that the sentence is manifestly excessive. The District Court Judge adopted a starting point of 29 months’ imprisonment, reflecting one month for each theft charge, and added uplifts and deductions to arrive at a total sentence of 28 months’ imprisonment. Mr Smith’s counsel submits that a more appropriate starting point would have been 17 months’ imprisonment, leading to a sentence of around 16 months.

The court considers the legal issues around the appropriateness of the starting point and the total sentence imposed. The starting point adopted by the Judge for the theft charges is scrutinised, with a focus on whether the cumulative approach was justified given the number and nature of the charges. The court finds that while the Judge’s approach was pragmatic, it lacked consideration of the totality principle, which would have required a more nuanced assessment of the appropriate starting point in relation to the number of charges and the overall gravity of the offending.

The court ultimately determines that a starting point of around 22 months’ imprisonment for the theft charges is appropriate, reflecting the cumulative nature of the offending. After applying the uplifts and deductions, the court concludes that a sentence of 24 months’ imprisonment is more commensurate with the offending. The appeal is allowed, and the sentence is substituted to 24 months’ imprisonment with specific directions on how the sentence is to be applied across the various charges. The court also grants leave for Mr Smith to apply for home detention, contingent on his release to a rehabilitative facility.

Orders