Thornicroft v Police - [2018] NZHC 2895

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-29

[2018] NZHC 2895

JAYGE DAVID THORNICROFT

v

NEW ZEALAND POLICE

Hearing: 7 November 2018

Appearances:

L R H Grant and M M Dixon for the Appellant F E Cleary for the Respondent

Judgment:

8 November 2018

REASONS JUDGMENT OF CULL J

[1] Mr Thornicroft was sentenced to 11 months’ imprisonment by Judge Adeane on 30 August 2018 for the following charges:1

(a)one charge of breaching release conditions;2

(b)six charges of theft under $500;3 and

(c)four charges of wilful trespass.4

1      New Zealand Police v Thornicroft [2018] NZDC 18362.
2      Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or a $2,000 fine.
3      Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
4      Trespass Act 1980, ss 4(4) and 11(2)(a). Maximum penalty three months’ imprisonment or a
$1,000 fine.

THORNICROFT v NEW ZEALAND POLICE [2018] NZHC 2895 [8 November 2018]

[2] Mr Thornicroft now appeals that sentence as manifestly excessive. He submits the Judge erred in failing to consider the totality of the offending and failed to take into account his guilty plea. Mr Thornicroft does not take issue with a sentence of imprisonment being imposed as no home detention address is available.

[3] The Crown opposes the appeal. Although the Judge did not adopt an orthodox sentencing methodology, the Crown submits the sentence was within the available range.

[4] The issue on this appeal is whether the Judge erred in sentencing Mr Thornicroft and, if so, whether a different sentence should be imposed.

[5] After receiving counsel’s submissions and hearing from counsel, I delivered a results judgment, allowing the appeal.5 I now provide the reasons.

Factual background

[6] Mr Thornicroft’s offending occurred on multiple occasions between May and July 2018. On 9 May 2018 Mr Thornicroft was released from Hawke’s Bay Regional Prison on release conditions. On 15 May 2018, he breached his released conditions by failing to report to his probation officer as directed.

[7] During this period, Mr Thornicroft stole items on six different occasions. In sum, the items he stole included:

(a)groceries and a shopping basket (valued at $105.82);

(b)a Samsung gear video recorder (valued at $499);

(c)baby clothing (valued at $30);

(d)clothing (valued at 125.98);

(e)razor blades (valued at 125.16); and

5 Thornicroft v R [2018] NZHC 2889.

(f)chocolate (valued at $15).

[8] The items he stole were from various locations in Napier and Hastings, including Pak n Save and The Warehouse, from which he had previously been given a trespass warning. He entered those properties on four occasions and was charged with four charges of wilful trespass.

[9] When spoken to, Mr Thornicroft identified that in relation to some of the offending he needed some new clothes, needed food and did not have any money to pay for these items. For two months following his release from prison for previous offending, Mr Thornicroft reported being homeless and needing to steal to…

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.

Keep reading for free

Create a free CaseChat account to read Thornicroft v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 2895
Decision Date: 8 November 2018

CaseChat Overview and Summary

The case of Thornicroft v Police involves an appeal by Mr Thornicroft against a sentence of 11 months' imprisonment imposed by Judge Adeane for breaching release conditions, theft, and wilful trespass. The key issues were whether the sentence was manifestly excessive and whether the Judge erred by not adequately considering the totality of the offending and the discount for Mr Thornicroft's guilty pleas. Mr Thornicroft argued that the sentence was excessive and that the Judge failed to consider the totality of the offending and the discount for his guilty pleas. The Crown opposed the appeal, arguing that the sentence was within the available range. The High Court allowed the appeal and imposed a sentence of six months' imprisonment, accompanied by special release conditions.

The Court found several errors in the District Court's decision. The Judge did not consider the relevant sections of the Sentencing Act 2002, which provide guidance on the use of cumulative and concurrent sentences of imprisonment. The Judge failed to consider whether the four charges of wilful trespass and four of the charges of theft were a connected series of events, and thus should have been sentenced concurrently, not cumulatively. The Judge also failed to consider the totality of the offending when assessing whether the 11-month sentence was appropriate. However, the key issue was whether the final sentence of 11 months' imprisonment was manifestly excessive. The Court found that the sentence was manifestly excessive, given the minimal value of the stolen goods and Mr Thornicroft's motivation for stealing to survive. The Court also found that the Judge placed undue weight on denunciation and deterrence and failed to give Mr Thornicroft a full 25 per cent discount for his guilty pleas. The Court accepted that a more appropriate sentence was six months' imprisonment, taking into account the relevant factors.

Orders