Thornicroft v Police

[2023] NZHC 2839

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-441-16

[2023] NZHC 2839

BETWEEN

THOREN NORTON THORNICROFT

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 October 2023 (via VMR)

Appearances:

E J Forster for Applicant

B L McKenzie for Respondent

Judgment:

10 October 2023

JUDGMENT OF McQUEEN J

[1]                  On 31 May 2023, in the Hastings District Court, Judge McDonald sentenced Mr Thoren Thornicroft to 18 months’ imprisonment and disqualification from driving for eight months on ten charges to which Mr Thornicroft pleaded guilty.1

[2]                  Mr Thornicroft appealed the sentence imposed upon him, submitting that the sentence was manifestly excessive, because an insufficient discount was given for his guilty plea. Mr Forster, counsel for Mr Thornicroft, calculated that the Judge had only allowed a discount of 18.8 per cent, rather than the full 25 per cent discount to which he says Mr Thornicroft is entitled.

[3]                  The Police opposed Mr Thornicroft’s appeal, submitting that the sentence was within range and the guilty plea discount awarded was sufficient in the circumstances. In particular, Ms McKenzie, counsel for the Police, submitted that the Judge awarded

1      Police v Thornicroft [2023] NZDC 11058.

THORNICROFT v NEW ZEALAND POLICE [2023] NZHC 2839 [10 October 2023]

a 22.22 per cent guilty plea discount, rather than the 18.18 per cent described by    Mr Forster. She says that 22.22 per cent is the correct figure, as uplifts for previous convictions constitute an aggravating factor personal to the offender rather than an aggravating feature of the index offending.2 She submits that, therefore, the guilty plea discount must be calculated by reference to the 18 month adjusted starting point, rather than by reference to the 22 months reached following the imposition of the four month uplift for previous convictions. She says that this is the correct approach on the Court of Appeal’s sentencing methodology set out in Moses v R.3

[4]                  Ms McKenzie submits that 22.22 per cent was sufficient as a guilty plea discount, and that any adjustment to allow for a 25 per cent discount would not be appropriate as the end sentence is not manifestly excessive. She relies on Walker J’s recent comment on guilty pleas that “a mathematical approach is not determinative.

Anything between 20 and 25 per cent is unimpeachable in my view.”4

[5]                  At the hearing Mr Forster responsibly conceded that the correct approach in light of Moses was to apply the discount to the adjusted starting point and that in those circumstances, he could not advance an argument that the sentence was manifestly excessive where the discount applied was  22.22 per cent  rather than 25 per cent.  Mr Forster also confirmed that the appeal was not advanced on separate grounds that the starting point or uplift for previous convictions was too high.

[6]I agree that, in the circumstances, the appeal cannot succeed.

Result

[7]Mr Thornicroft’s appeal is dismissed.

McQueen J

Solicitors:

Crown Solicitor, Napier for Respondent

2      Johnson v R [2023] NZHC 2518 at [35]; citing Stuart v R [2021] NZCA 539 at [15].

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

4      Johnson v R, above n 2, at [36].