Thornicroft v Police
[2018] NZHC 2895
•8 November 2018
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 survive.
[10] Mr Thornicroft is 26 years old. He has 89 previous convictions, 34 of which relate to shoplifting, theft, burglary or other dishonesty offences. He also has 22 convictions for breaching release conditions, failing to answer bail or breaching community work. Mr Thornicroft had a disadvantaged upbringing and was encouraged to shoplift from the age of 10. This appears to be normalised behaviour for him. He has not had any recent employment and has addiction issues with synthetic cannabis and methamphetamine.
Pre-sentence report
[11] The pre-sentence report assessed his likelihood of reoffending as high because of the numerous convictions he has amassed in an eight-year period. The report recommended a sentence of imprisonment because of Mr Thornicroft’s re-offending whilst serving an existing sentence, the similar type of offences being committed and his repeated inability to comply with sentence conditions. The report identified that time in prison would allow Corrections to work alongside Mr Thornicroft for a more robust plan for release and recommended release conditions to assist him in the community and allow oversight of him. The report recommended two special conditions: attendance at a drug and alcohol programme and a psychological assessment and treatment programme, as recommended. The report writer noted, however, that Mr Thornicroft is not eligible for any department programmes, and specifically requested that Mr Thornicroft undergo a psychological assessment to address his offending needs.
[12] Mr Thornicroft has been in custody since 28 July 2018. The report identified that Mr Thornicroft would need to serve an imprisonment sentence of more than nine months to be able to complete any rehabilitation programmes.
[13] Although Mr Thornicroft has had difficulty finding housing in the past, his sister has recently offered for him to stay with her following his release from prison. He began living at this address two weeks prior to his arrest. Although the house was not considered suitable for a home detention sentence, the pre-sentence report observed this is a pro-social environment for Mr Thornicroft and he recognises the importance of stable accommodation in establishing an offence-free lifestyle.
District Court decision
[14] The Judge identified Mr Thornicroft’s lengthy criminal history and that he had only recently been released from prison when he began offending again. The Judge observed “apparently the message that accumulating offending will have accumulating consequences, has not been adequately conveyed to Mr Thornicroft.”6
[15] The Judge considered that because “of the way prison is organised”, unless Mr Thornicroft is sentenced to a period in excess of a certain term, he will not receive counselling and drug treatment “which he desperately needs and which lies at the root of his ongoing and apparently incorrigible offending.”7 This term was identified in the pre-sentence report as nine months’ imprisonment.
[16] Without identifying a starting point or assessing the culpability of Mr Thornicroft’s offending, the Judge “accordingly” imposed sentences of one month imprisonment for each of the 11 offences, to be served cumulative upon each other.8 This resulted in an effective sentence of 11 months’ imprisonment.
6 Thornicroft, above n 1, at [2].
7 At [3].
8 At [4].
Approach to appeal
[17] This appeal is brought under s 250 of the Criminal Procedure Act 2011 as an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10
Grounds of appeal
[18]Mr Thornicroft appeals his sentence on the following grounds:
(a)there was an insufficient adjustment for the totality of the offending; and
(b)the Judge failed to impose a discount for Mr Thornicroft’s guilty plea.
Parties’ positions
[19] Mr Thornicroft submits the Judge erred in failing to consider the totality of the offending when imposing cumulative sentences. Mr Thornicroft submits this resulted in a manifestly excessive sentence. As four of the theft charges were committed at the same time as the wilful trespass charges, Mr Thornicroft submits these charges should have been sentenced concurrently.
[20] Mr Thornicroft further submits the Judge erred in failing to impose a discount for his early guilty pleas. The full 25 per cent discount should have been imposed.11 Ms Grant, counsel for Mr Thornicroft, submits that as the Judge did not impose a starting point, it is difficult to see whether or not a guilty plea discount was in fact apportioned to the end sentence.
9 As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
10 Ripia v R [2011] NZCA 101 at [15].
11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[21] The Crown argues the focus must be on whether the end sentence was manifestly excessive in the circumstances and submits this sentence was not.12 The Crown submits that several factors distinguish Mr Thornicroft’s case from those relied on by Ms Grant, including the number of charges he faces, his numerous previous convictions and that he was still subject to release conditions when he committed the present offending. The Crown further submits the Judge adequately took into account Mr Thornicroft’s rehabilitative needs and was correct to prioritise deterrence, denunciation and punishment in his sentence considering Mr Thornicroft has failed to engage with support offered following his previous and last release from prison. Although the Judge did not explicitly identify a discount for Mr Thornicroft’s guilty plea, the Crown submits this ground has no merit as the sentence was within the available range.
Relevant law
[22]Sections 84 and 85 of the Sentencing Act 2002 are relevant here. They provide:
84Guidance on use of cumulative and concurrent sentences of imprisonment
(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
…
12 Relying on the following authorities: Kelly v New Zealand Police [2013] NZHC 1250; and
Kennedy v New Zealand Police [2013] NZHC 714.
85Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[23] The Judge made several errors in his sentencing decision. The Judge did not consider either ss 84 or 85 in imposing his sentence. I accept Ms Grant’s submission that the four charges of wilful trespass and four of the charges of theft occurred on the same days and are not different in kind. They were a connected series of events and should have been considered as concurrent sentences, not cumulative sentences, as the legislation predicates in s 84(2) of the Sentencing Act. Further, the Judge failed to consider the totality of the offending contrary to s 85, in assessing whether the 11 month sentence was appropriate.
[24] However, as the Crown submits, the key issue is whether the final sentence of 11 months’ imprisonment was manifestly excessive. The authorities relied on by counsel are discussed below to assist with determining whether the sentence was manifestly excessive.
Case Facts
Appeal
Final sentence
McKenzie v New Zealand
Police13
Mr McKenzie pleaded guilty
to eight charges (four charges of theft under
$500, two charges of failing to
answer bail and two charges of breaching
conditions).
Brown J allowed an appeal against a
sentence of 12 months’ imprisonment.
Starting point: Brown J imposed six months’ imprisonment for
theft charges.
There was an uplift of two months for the four non-compliance charges.
There was an
additional uplift of one and a half months imposed for previous convictions (39
convictions since 2007). The final
starting point of nine and a half months was reduced to six months’
imprisonment, to reflect the appellant’s mental health issues and early guilty plea.
New Zealand Police v
McMurtrie14
Mr McMurtrie pleaded guilty
to six charges of theft (five
charges for goods under
$500 and one
charge for goods between $500 to$1,000) and one charge of possessing
cannabis.
Clifford J allowed an appeal against a
sentence of 12 months’ imprisonment.
Starting point:
Clifford J adopted a starting point of six months’ imprisonment for the lead charge of theft. An uplift of one month imprisonment was imposed as the offending occurred while on bail.
A further uplift of one month was imposedto reflect the charge of possessing
cannabis. After a 25 per cent discount for his guilty plea, a final sentence of six months’
imprisonment was imposed.
13 McKenzie v New Zealand Police [2015] NZHC 2742.
14 New Zealand Police v McMurtrie [2015] NZHC 1031.
Case Facts Appeal Final sentence Howard v New Zealand
Police15
Ms Howard pleaded guilty to six counts of theft (four
charges for goods under
$500 and two charges for goods between
$500 to $1,000).
Thomas J allowed an appeal against six months’ imprisonment
and six months’ release conditions.
Thomas J imposed a sentence of 250 hours’ community work and 12 months’ supervision on
appeal, with
conditions to attend appropriate
rehabilitation.
Kelly v New Zealand
Police16
Ms Kelly pleaded guilty to four charges of theft (three charges under
$500 and one
just over $500), one charge oftrespass and one charge of
breaching a community work order.
Toogood J dismissed an appeal against a
sentence of eight months’ imprisonment for the offending. On appeal, Toogood J observed that a starting point of four to five months’ imprisonment would have been
appropriate for the lead charge of theft. He would have uplifted the sentence by a further
eight months: two months’ imprisonment for the appellant’s previous convictions;
two months for the fact the offending occurred while on bail and serving a community based sentence; three months for the other theft charges; and one month for the charge of breaching the
community work order. The Judge considered a discount of two to three months was appropriate to reflect the totality of the offending. A further discount of 25 per cent
Toogood J held the sentence of eight months’
imprisonment was stern but within the available range.
15 Howard v New Zealand Police [2015] NZHC 150.
16 Kelly, above n 12.
for the appellant’s guilty pleas produced a sentence of six years nine months to seven and a half months’
imprisonment.
Case Facts Appeal Final sentence Kennedy v New Zealand
Police17
Mr Kennedy pleaded guilty
to six charges of theft.
Miller J allowed the
appeal as the Judge had made an arithmetical
error in calculating the sentence (should have been eight months), however, the appeal was allowed only on
this basis.
Eight months’ imprisonment.
Analysis
[25] In light of the authorities, I find the sentence of 11 months’ imprisonment was manifestly excessive. The value of the goods Mr Thornicroft stole was minimal, and on several occasions he stole items of food or clothing to “survive”, as he described.
[26] In addition, the Judge made several errors in imposing a sentence of 11 months’ imprisonment:
(a)the Judge erred in imposing a sentence that was long enough to ensure Mr Thornicroft accessed rehabilitation programmes in prison, especially when post-release conditions were recommended in the pre- sentence report to achieve the rehabilitation he needs;
(b)the Judge placed undue weight on denunciation and deterrence;
(c)the Judge failed to consider whether the sentence should be imposed cumulatively or concurrently, based on whether the incidents were a
17 Kennedy, above n 1212.
connected series of events, in accordance with the legislative guidance under s 84 of the Sentencing Act;
(d)the Judge failed to consider the totality of the offending in light of the sentence imposed, contrary to s 85 of the Sentencing Act; and
(e)the Judge failed to give Mr Thornicroft a full 25 per cent for his guilty pleas, entered at the first available opportunity.18
[27] From his sentencing notes and the comments in the pre-sentence report, it appears the Judge considered that imprisonment of over nine months was the best and only way for Mr Thornicroft to access rehabilitative measures in prison. The pre- sentence report, however, expressly recommended special release conditions requiring drug and alcohol treatment and psychological assessment in the community.
[28] Although Mr Thornicroft does have an extensive criminal history, it is clear his offending is motivated by deprivation and his drug dependency. While that does not excuse his offending, these factors should be considered in assessing the circumstances of his offending and the appropriate sentence to impose. Further, Mr Thornicroft now has relatively stable accommodation available to him, at his sister’s address. Provided that he is able to access rehabilitative support and treatment on release from prison, there is no reason for a prolonged sentence for theft of small-value items and nuisance offending, albeit repetitive. That is why the special release conditions are appropriate, to give Mr Thornicroft support and an opportunity to change his lifestyle in the community.
[29] The Court must impose the least restrictive outcome that is appropriate in the circumstances.19 I accept Ms Grant’s submission that a more appropriate sentence is six months’ imprisonment, in light of the above authorities:20
(a)a starting point of six months’ imprisonment;
18 This discount should be given after the culpability of the offending has been assessed: see Hessell, above n 11, at [72].
19 Sentencing Act 2002, s 8(g).
20 McKenzie, above n 13; McMurtrie, above n 14; and Howard, above n 15.
(b)one month uplift for Mr Thornicroft’s previous relevant offending;
(c)one month uplift for Mr Thornicroft’s offending while on post-release conditions;
(d)five per cent discount for Mr Thornicroft’s personal circumstances and remorse (including his prospects of rehabilitation in finally having a residential address); and
(e)a discount of 25 per cent for his early guilty pleas.
[30]This produces a final sentence of six months’ imprisonment.
Result
[31] I am allowing this appeal. The sentence of 11 months’ imprisonment is quashed. In substitution, one month’s imprisonment is imposed on each of the six theft charges to be served cumulatively on each other, together with five concurrent sentences of one month on the remaining charges, totalling six months’ imprisonment. I also impose two special release conditions, attaching for a period of six months after the sentence expiry date, namely:
(a)Mr Thornicroft is to attend and complete an appropriate alcohol and drug counselling, programme or treatment including residential rehabilitation to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by his probation officer.
(b)Mr Thornicroft is to attend an assessment for a departmental psychologist as directed by a probation officer. He is to attend and complete any counselling, treatment or programme as recommended by
the assessment as directed by and to the satisfaction of his probation officer.
Cull J
Solicitors:
Elvidge & Partners, Napier for Crown
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