Kelly v Police [2013] NZHC 1250 (30 May 2013)

Last Updated: 29 October 2015

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-087-259
CRI-2013-087-590 [2013] NZHC 1250

BETWEEN	JACKIE NGATAI KELLY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 May 2013
Appearances:	RO Gowing for Appellant LL Owen for Respondent
Judgment:	30 May 2013

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 30 May 2013 at 11:30 am

Pursuant to Rule 11.5 High Court Rules

_{Registrar/Deputy Registrar}

KELLY v NEW ZEALAND POLICE [2013] NZHC 1250 [30 May 2013]

[1] Jackie Ngatai Kelly appeals against an effective total end sentence of eight

months’ imprisonment imposed by Judge Rollo in the Whakatane District Court on

19 April 2013 in respect of four charges of theft, one of trespass and one of breach of a community work order. The issues I have to decide are whether:

(a) the Judge made a material error in receiving, and taking into account, a statement signed by the appellant which had been obtained from her by a police officer while the appellant was in custody and had been stood down for a probation report and assessment by a Corrections Department psychologist; and

(b) the sentence imposed by the Judge was, in any event, clearly excessive.

Result

[2] For the reasons given below, I have decided that:

(a) the provision to the Court of the report prepared by the police officer, without the consent of counsel for the defendant, was irregular but a well-intentioned error;

(b) in any event, the sentencing Judge was not materially influenced by the report to impose a sentence he would not have imposed if he had not read it;

(c) the Judge’s approach to determining the appropriate sentence did not follow a conventional path; but

(d) the sentence of eight months’ imprisonment, while stern and at the

upper end of the available range, was not clearly excessive; and

(e) the appeal should be dismissed.

[3] At first blush, a sentence of eight months’ imprisonment for offending which included three charges of theft of items valued at under $500 (for which the maximum penalty was one of three months’ imprisonment on each charge), and one charge of theft of items valued at just over $500, seems inordinately high. To understand why the sentence was considered by an experienced District Court Judge to be justified, it is necessary to appreciate the appellant’s offending history and the dates and circumstances of the offending which led to the sentences which are now challenged.

[4] By 20 November 2012, when she was then aged almost 28 years, the appellant had accumulated 23 previous convictions for shoplifting dating back

10 years. She also had convictions for burglary, receiving stolen property, serious drink-driving offending, minor drug offences and assault. There were convictions for numerous transport-related offences demonstrating a complete disregard by the appellant for regulations related to driving and vehicles. On occasions, the appellant had been prosecuted for breaching Court orders. Some of the more recent offending resulted in short sentences of two or three months’ imprisonment.

[5] On 21 November 2012, the appellant was sentenced on four further shoplifting charges, one charge of breach of bail and one charge of breaching a community work order, to intensive supervision for nine months and ordered to undertake 100 hours community work.

[6] Only two days after receiving what might be regarded as a lenient but constructive sentence, the appellant stole body lotion from a pharmacy. Less than two months later, on 2 January 2013, she shoplifted a perfume gift set. Two months after that, on 6 March 2013, she shoplifted grocery items from a supermarket from which she had been banned from entering by an earlier trespass notice.

[7] On 10 April 2013, the appellant appeared in the District Court for sentence on those three shoplifting charges and a charge under the Trespass Act 1980. She was remanded on bail to the end of this month on the basis of an indication from the Judge that, if she completed the community work which had been ordered in

November and did not reoffend in the meantime, he would consider sentencing her to a short term of imprisonment as a way of clearing up the outstanding charges. That was an indication of a sentence designed to assist the appellant by not requiring her to remain engaged with the Corrections Department over a further, lengthy period.

[8] Nevertheless, the following day, while subject to orders for intensive supervision and community work, and on bail, the appellant reoffended by stealing five perfume products valued at over $500 from a pharmacy. She was arrested a few days later and appeared before Judge Rollo on 17 April 2013 on that charge, the three earlier shoplifting charges and the charge of breaching a trespass notice, and a new charge of breaching the community work order on 6 April 2013.

The pre-sentence report

[9] Unsurprisingly, in the light of the appellant’s flagrant disregard of Court orders and her determined, repeated shoplifting, Judge Rollo expressed concern about the existence of underlying psychological problems and remanded the appellant in custody for two days so that a probation officer could make further inquiries.

[10] The probation officer interviewed the appellant on 18 April 2013, and spoke to a departmental psychologist. She prepared a sympathetic report which identified an extremely unhappy childhood, including abusive sexual offending by family members which the probation officer assessed as being a major contributor to her recidivist offending. The appellant was reported as saying to the probation officer that she stole because it helped her to block things out and made her happy.

[11] The probation officer focused her recommendations on providing assistance to the appellant which might rehabilitate her by addressing comprehensively her past traumatic experiences. She recommended ACC counselling and assistance from Tuhoe Hauora and a departmental psychologist. The report recorded that the appellant had expressed what the probation officer described as “a level of motivation to address her offending behaviour, and a willingness to attend any rehabilitative programme necessary to steer her away from her habits.” Realistically,

however, the probation officer noted that the appellant’s history of breaching community-based sentences was a poor indicator for the future and did not recommend community detention as it would not be seen by the appellant as an appropriate deterrent. Intensive supervision, with possible judicial monitoring, was recommended as the most appropriate means of addressing the appellant’s offending, although home detention was seen as a possibility.

[12] Reporting on the appellant’s current personal circumstances, the probation officer noted that she was living in a supportive de facto relationship with her partner and her two children aged five and eight. The family’s sole source of income is from social welfare benefits; the appellant left school at 13 and has never worked and holds no real prospect of doing so. Considering her proclivity for stealing things from shops, it is disturbing to read in the report that the appellant has no plans to do anything worthwhile with her time while her children are at school.

[13] The pre-sentence report was comprehensive and insightful. Reading it, the District Court Judge could have been in no doubt that a disturbed, if not traumatic, childhood and the failure of the education system to engage with her had left the appellant without the resources to make anything of her life, other than to care for her children when they are with her. In itself, that is no bad thing, but in the appellant’s case it appears that her self-esteem and any sense of achievement come almost entirely from stealing successfully on behalf of other people.

[14] Several sentences of supervision and very short periods in prison have been of no assistance to the appellant in breaking out of a constant cycle of offending, appearing before the Court, and serving sentences.

The report from a police officer

[15] Unusually, the sentencing Judge was also provided with a document headed “Conversation with Jackie Kelly 18/4/13”. It had been prepared by a police constable who had been in court at the time of the appellant’s appearance before Judge Rollo on 17 April 2013, following a conversation with the appellant while she was remanded in custody pending the provision of the pre-sentence report and psychologist’s views to the sentencing Judge.

[16] It appears that the document was prepared at the request of the police prosecutor who later explained to the appellant’s counsel, Mr Gowing, that he understood the Judge to have asked for further information. That is somewhat surprising, given that the Judge had requested a report from the probation officer, but in the course of a busy day it is quite possible that the prosecutor misunderstood the Judge’s intentions.

[17] Mr Gowing was critical of the preparation of the report and, particularly, of the way in which it got onto the Court file and was taken into account by the Judge. It appears that the appellant’s sentencing had been set down for 2:15 pm on Friday,

19 April 2013. During the morning session, the prosecutor handed a copy of the document to Mr Gowing without comment. It had been signed by the appellant. The prosecutor did not explain the basis on which it had been prepared and did not tell Mr Gowing that it would be provided to the Judge.

[18] Mr Gowing read it and discussed it with his client but did not know that a copy had been given to the Judge until it was referred to in the course of the Judge’s sentencing remarks.

[19] Although Mr Gowing articulated a number of concerns about the provision of the police officer’s report in his written submissions, he was content in his oral argument to rest his criticism on the prospect that references by the appellant to having stolen all the time without getting caught may have influenced the Judge into inadvertently taking into account offending with which his client had never been charged.

[20] Although the provision of the document to the Judge without the knowledge of counsel might suggest underhand dealing and a sinister motive, I think that is unlikely to have been the case here. I have accepted that the police prosecutor may have thought he had been asked assist the Court to have a better understanding of the appellant. And I accept that the prosecutor may have assumed from the provision of a copy of the report to Mr Gowing that counsel understood it would be given to the Judge; otherwise there would not have been much point in preparing it.

[21] While somewhat irregular, I am not prepared to find that the provision of the report to the Court without defence counsel having been expressly notified was improper.

[22] More importantly, I am not persuaded that the police officer’s report materially altered the tenor of the information provided to the Court in the probation officer’s report. The conclusion reached by the Judge that the appellant would continue to reoffend until she reached a point where she understood that choosing to steal would be met by significant adverse consequences was open to the Judge on the probation report alone. In Judge Rollo’s view, the considerable leniency extended by the courts in the past, no doubt because of the appellant’s appalling background, had failed to assist her to bring her offending to an end. The conclusion that more than further supervision was required, not only to assist the appellant but to protect the community from her, was obvious from the nature and circumstances of all of her offending and her background as described in the pre-sentence report.

[23] In the end, I am quite satisfied that the Judge was not improperly influenced by the information he had received from the police. As the Judge observed, the document, which he described as “very helpful”, is mirrored in its relevant parts by the observations in the pre-sentence report.

[24] The police officer’s report was illuminating, even poignant in parts, but not unhelpful to the appellant. While there are, arguably, some comments in the police officer’s report which were picked up by the Judge in the context of criticism of the appellant’s behaviour, there cannot be any reasonable suggestion that the sentencing outcome would have been any different had the police officer’s report not been provided.

Was the sentence of eight months’ imprisonment clearly excessive?

[25] I turn, therefore, to consider the second ground of appeal which was that in constructing a sentence producing an effective period of imprisonment of eight months, the Judge erred by imposing cumulative penalties in some cases which resulted in a clearly excessive sentence.

[26] The Court of Appeal has made it clear on many occasions that an appellate court should pay less attention to the way in which an effective end sentence for multiple offending is made up than to whether the end sentence is an appropriate reflection of the totality of the offending.¹

[27] The District Court Judge adopted a rather unorthodox route to reach the effective end sentence, which included nominal sentences of the maximum of three months’ imprisonment on the less serious theft charges and imposing a mixture of cumulative and concurrent sentences before applying a discount for personal factors.

[28] The Judge said that had intended to discount the sentence by five months to allow for the appellant’s distressing background and her guilty pleas but there his maths failed him. A discount of five months from a nominal 14 months’ sentence would have resulted in an end sentence of nine months’ imprisonment. The discount was in fact six months, or 43 percent.

[29] Among the reasons why contemporary sentencing practice requires a structured approach are that it assists the courts to achieve consistency of sentencing as required by the Act. It also enables offenders to understand the basis upon which they have been sentenced, so they can be satisfied that the task has been undertaken analytically, rather than by the exercise of a broad discretion by the sentencer.

[30] The staged approach was summarised by the Court of Appeal in R v Clifford

in this way:²

[60] ... Adapting the guidance given in R v Taueki, in light of this Court’s judgment in Hessell (CA) and the correction of that judgment in the Supreme Court’s judgment in Hessell (SC), the appropriate staged approach to sentencing is:

(a) Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.

(b) Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is

¹ _{R v MacCulloch [2004] NZCA 221; [2005] 2 NZLR 665 (CA) at [50].}

² R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

appropriate to give credit separately from any discount given for a guilty plea.

(c) Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 per cent prescribed by the Supreme Court in that judgment.

(Footnotes omitted)

[31] The cases most commonly before the Higher Courts are those which are sufficiently serious to justify a presumption that the starting point will be a term of imprisonment for more than two years. In those circumstances, the three-step approach is one which poses no particular difficulty for a sentencing Judge. Such an approach is also instructive and a useful tool for sentencing on lesser charges where imprisonment is at least in contemplation.

[32] There is no guideline judgment for sentencing for shoplifting, no doubt because the circumstances of such offending are infinitely various, as is demonstrated by the staggered approach to sentencing for theft which is required by s 223 of the Crimes Act 1961. Furthermore, such cases are most commonly dealt with in District Courts by Judges dealing with lengthy lists of cases where there are often no sentencing notes, so it is not easy without comprehensive research to identify a pattern of sentencing which might provide assistance in endeavouring to achieve the consistency which is one of the sentencing considerations required by s 8.

[33] A more conventional approach to the sentencing in this case might have been to take the most recent offence on 11 April 2013, where the value of the goods exceeded $500, as the lead offence; it carries a maximum sentence of 12 months’ imprisonment. It is important not to lose sight of the value of the property taken on each of the four occasions of theft in this case, but that is not the only measure of the appropriate sentence. Bearing in mind the blatant nature of the 11 April theft, only a day after appearing in Court for similar offending and having been told that the Court intended to take a lenient approach if the appellant behaved herself, a term of four to five months’ imprisonment for that offending alone would not have been unreasonable.

[34] To that, it would have been necessary to add uplifts as follows:

(a) two months for the aggravating circumstances of the appellant’s

previous record, in recognition of the extra need for deterrence;

(b) two months for offending while on bail and offending while serving sentences of intensive supervision and community work;

(c) three months for the less serious theft charges which included one committed only two days after the appellant received the sentences of supervision and community work; and

(d) one month for the separate offending involved in breaching the community work order (which was essentially a representative charge given that the appellant had failed to attend as directed on almost half of the appointed occasions),

bringing the total to 12-13 months’ imprisonment.

[35] Reducing that revised starting point of 12-13 months’ imprisonment by two to three months on account of the appellant’s background circumstances and to reflect appropriately the totality of the offending would produce an end sentence of around nine to ten months’ imprisonment. Discounting the sentence further by 25 percent on account of the appellant’s guilty pleas would produce an effective sentence of between six years nine months’ and seven and a half months’ imprisonment.

[36] Ms Owen has provided some references to cases which, in her submission, provide some assistance in establishing that the sentence of eight months’ imprisonment imposed in this case was not entirely out of kilter with the seriousness of the overall offending.³ Mr Gowing disputes their relativity to this case. Reference to those cases confirms my view that not a great deal of assistance can be

_{obtained from comparing recidivist shoplifting cases because the circumstances are}

3. Pou-Thompson v Police HC Invercargill CRI-2007-425-16, 2 July 2007; Rochford v Police HC Nelson CRI-2007-442-025, 20 February 2008; Winikerei v Police HC Hamilton CRI-2010-419-

32, 5 May 2010.

infinitely various. As I have said, this is at least one reason why there is no guideline judgment for such offending.⁴

[37] A sentence of eight months’ imprisonment for petty theft is a stern one, but it is only two weeks longer than the top of the range reached by the approach I have described at [33] - [35]. Reducing the sentence imposed in the District Court by two weeks would be to tinker with the view taken by an experienced Judge who, it seems to me, sought to impose a sentence which would provide the appellant with the best opportunity to end her relentless pattern of offending.

[38] In addition to taking account of the sentencing purposes of accountability, denunciation and deterrence, Judge Rollo turned his mind to the rehabilitation of the appellant by imposing detailed standard and special release conditions to apply for six months after the expiry of the appellant’s sentence.

[39] I hope, as no doubt the District Court Judge hoped, that a period of imprisonment from which the appellant will be released after serving four months, coupled with the release conditions, will provide the Corrections Department with an opportunity to engage with the appellant in a manner which might not previously have been available. That engagement may awaken the appellant to the reality that she must alter her approach to her life unless she wishes to spend increasingly longer periods in custody away from her children. The appellant’s future is entirely in her hands; if she is truly motivated to change, she can count on help from others who are concerned about her.

[40] I dismiss the appeal.

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

_{Toogood J}

⁴ At [32].