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 for each offence. An uplift of three months was adopted for the two breaches of release conditions and a further one month for the possession of the knife. The Judge miscalculated the global starting point as 34 months rather than 33 months.

[7]    A further four-month uplift was applied to reflect that the offending occurred while Mr Smith was subject to release conditions or on bail, and to reflect his previous convictions. The Judge arrived at 38 (correctly calculated 37) months’ imprisonment before any deductions were applied.

[8]    A 20 per cent credit was allowed for guilty pleas, the Judge considering that the maximum deduction was not appropriate given most of the offending had been captured on CCTV. A five per cent deduction was allowed to reflect Mr Smith’s addiction issues, the Judge observing that Mr Smith had not meaningfully engaged in addressing his drug issues. The end sentence imposed was 28 months’ imprisonment.

[9]    The total value of stolen goods was $3,102.27. No reparation was ordered, the Judge determining that such an order would be futile given Mr Smith would not be able to pay reparation in the next five years.

[10]   The Judge did not, in imposing sentence, particularise how the 28-month sentence was applied across the various charges.

Principles on appeal

[11]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error

in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

Submissions

Appellant’s submissions

[12]   Mr Allan, for the appellant, submits the 29-month starting point adopted for the 29 theft charges was too high. He does not take issue with the uplifts applied for breach of release conditions, for the possession of a knife offence or for the offending while on sentence and/or bail. He takes no issue with the deductions allowed.

[13]   Mr Allan submits a proper starting point of no more than 17 months and an end sentence of around 16 months’ imprisonment is appropriate. He submits that leave should be granted to Mr Smith to apply for home detention, albeit he recognises that prospect could only become a reality if he was to be released to a residential treatment facility.

Respondent’s submissions

[14]   Ms Lancaster, for the respondent, submits that the end sentence imposed was stern but within the available range.

[15]   Ms Lancaster submits the mathematical error made by the Judge did not result in an error to the end sentence because the Judge applied the uplift for offending on bail and while on sentence when fixing the adjusted starting point and not at stage two of Moses v R,8 when allowing for personal factors.

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

8      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[16]   Ms Lancaster submits that both the authorities relied on by Mr Allan9 and the further cases she relies on10, support the submission having regard to the number of charges and the total value of goods stolen that the starting point was within range.

Analysis

[17]   A feature which appears to be unique to Mr Smith’s shoplifting offending is that all 29 charges of alleged theft are under $500. Consequently, he faces a maximum sentence for each charge of three months’ imprisonment. Each of the cases relied on by counsel involved theft offending that engaged a higher maximum penalty, permitting the sentencing Judge to take one charge as the leading offence and to then apply an uplift for the balance of the theft charges.

[18]   In Atkins v Police the offender faced nine charges of theft over $1,000 (seven-year maximum penalty) and one lower value theft. The sentencing Judge adopted a starting point of six months’ imprisonment on each of the nine higher value charges on a cumulative basis giving rise to a starting point for the thefts of 54 months’ imprisonment. On appeal Grau J observed that given the thefts involved a spree of offending, a safer approach would have been to fix a starting point for the most serious theft and to then apply an uplift to account for the remainder of the offending of the same type.11 The Judge referred to the guidance on the use of cumulative and concurrent sentences in s 84 of the Sentencing Act 2002 which provides that concurrent sentences of imprisonment are generally appropriate for offences of a similar kind that are a connected series.12 The thefts committed by Mr Atkins were very similar and had occurred within a 12-day period.

[19]   Although not referring to Atkins, Judge Farish adopted the approach taken by the sentencing Judge in that case. On appeal neither counsel suggests that approach was in error. That is because the maximum penalty for the lead theft offence was only three months’ imprisonment. In my view, it was plainly appropriate that the Judge

9      Atkins v Police [2024] NZHC 1730, Palmer v Police [2024] NZHC 1634, Andrews v R [2018] NZHC 3216.

10     Chambers-Mickie v Police [2023] NZHC 2486, Faben v R HC Hamilton CRI-2007-419-109, 26 September 2007, Tout v Police [2021] NZHC 2227, Collier v Police [2017] NZHC 2222

11 At [17].

12 At [17].

impose cumulative sentences for the individual theft charges in order to arrive at an appropriate sentence, notwithstanding that Mr Smith’s offending reflected a pattern of connected offences.

[20]   Mr Smith’s offending involved 29 distinct offences committed over a four-month period to a value of over $3,100. In applying a starting point of a one-month cumulative sentence for each of the 29 theft charges, the Judge, in my view, adopted a pragmatic and uncomplicated approach, an approach she adopted without reference to authorities. In critiquing the Judge’s approach, Mr Allan highlights that the Judge erroneously understood that the maximum penalty for the sum of the theft charges was six months’ imprisonment. He is right. The Judge did make that reference although I am not sure from reading the notes as a whole that that had any impact on the ultimate construction of the sentence.

[21]   In my view, what was missing from the simplistic and understandable approach adopted by the Judge, was consideration of the totality principle. The question that needs to be asked is whether a starting point of 29 months’ imprisonment for the    29 low-level shoplifting charges was wholly out of proportion to the overall gravity of that offending.

[22]   The critical factors in assessing the appropriate adjusted starting point are the number of charges and the length of time over which Mr Smith offended. Because the value of the property stolen relevant to each charge is less than $500, I consider the total value of the property stolen must carry less weight in setting an appropriate starting point. But regardless of value, this was an example of persistent and premeditated offending, and it was deserving of a stern sentence that might deter a recidivist shoplifter.

[23]   In Palmer v Police the appellant had pleaded guilty to five charges of shoplifting from premises she had been trespassed from. That offending was charged as burglaries and involved low dollar value items. The appellant had also pleaded guilty to 17 charges of theft under $500, one charge of theft $500—$1,000 and one charge of theft over $1,000. On appeal Dunningham  J adopted a starting point  of  10 months for the burglaries, significantly lesser than that imposed in the

District Court and applied an uplift of 10 months for the other thefts.13 I agree with Mr Allan that the offending in Palmer was more serious than Mr Smith’s.

[24]   The other cases relied upon by counsel involved thefts over $1,000 and therefore a maximum penalty of seven years’ imprisonment, so by their very nature, involved more serious offending. Ms Lancaster is right that in some cases, and Chambers-Mickie is an example, a cumulative sentence of about one month has been applied for each theft charge. 14 Chambers-Mickie involved 12 theft charges (but included one over $1,000). None of the cases other than Palmer involved anywhere near the number of charges faced by Mr Smith. But the totality principle does not permit the court to apply a fixed cumulative term to every charge regardless of the number of charges.

[25]   In my view, a starting point for Mr Smith’s theft offending in the region of  22 months’ imprisonment was  appropriate.  That  reflects  his  culpability  for  the 29 distinct offences. When I apply the uncontested adjustments made by the Judge, that leads to an end sentence, rounded down, of 24 months’ imprisonment.

Result

[26]   The appeal is allowed. The previous sentence of 28 months’ imprisonment is quashed and substituted by a sentence of 24 months’ imprisonment I apply as follows:

(i)On 24 of the theft charges, Mr Smith is sentenced to one month’ imprisonment. Each sentence is cumulative such that the total sentence for 24 of the theft charges is 24 months’ imprisonment.

(ii)On the remaining five theft charges, Mr Smith is sentenced to one month’ imprisonment. Each sentence is to be served concurrently with the sentences imposed on the 24 theft charges.

13     At [41] – [43].

14     See Chambers-Mickie v Police [2023] NZHC 2486 at [16], where a starting point of 14 months’ imprisonment was adopted.

(iii)On the two charges of breaching release conditions, Mr Smith is sentenced to two months’ imprisonment, concurrent.

(iv)On the charge of possession of a knife Mr Smith is sentenced to one month’ imprisonment, concurrent.

[27]   I grant Mr Smith leave under s 80I of the Sentencing Act 2002 to apply for release on home detention, but I record that realistically his prospect of release on home detention would require him to propose his release to a rehabilitative facility.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Christchurch

Counsel:
P N Allan, Barrister, Christchurch