Newton v Police [2014] NZHC 2805 (12 November 2014)

Last Updated: 25 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000322
CRI-2014-404-000323

CRI-2014-404-000324 [2014] NZHC 2805

TE-RANEI YVONNE NEWTON Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	10 November 2014
Appearances:	Jacinda Bragg for the Appellant Harriet Dymond-Cate for the Respondent
Judgment:	12 November 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 12 November 2014 at 12:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

NEWTON v NEW ZEALAND POLICE [2014] NZHC 2805 [12 November 2014]

[1] Between 17 December 2013 and 20 July 2014 Ms Newton shoplifted or otherwise stole various items from retail premises mostly around Auckland. The items were not significant or expensive. They included cosmetics, clothing, toys, food and, on two occasions, petrol. The value of these items ranged from $10 to $319. Most had a value of less than $100.

[2] During this time Ms Newton also failed to answer bail on three occasions.

[3] Also within the same period, in January 2014, having been served a trespass notice from Auckland Airport she was detected in breach of that order only three weeks after it was made. When arrested by the Police Ms Newton became extremely aggressive, verbally abusive and physical towards the officers. In the course of her arrest she deliberately turned her head towards one of the Police officers and spat directly into their face. Her saliva went over the officer’s face including in the officer’s mouth.

[4] A week later she was found driving in Mangere. When the Police attempted to stop her using sirens and red and blue flashing lights she failed to stop and sped away. At an intersection she turned across a red light and accelerated away reaching speeds of up to 140 kmph in a 60 km area before turning into a no exit street. She stopped her car outside her family address and attempted to run away but was caught by the Police and charged with resisting, failing to stop and reckless driving.

District Court decision

[5] Following pleas of guilty to all charges, Judge Treston took a starting point of 13

months’ imprisonment which he reduced to 10 months, noting:

... in giving you such credit as I can I reduce that to 10 months and I have done that by adding four months’ imprisonment to a six month term that I have already indicated.

[6] His Honour established individual sentences for each charge and imposed them concurrently for all but two which were imposed cumulatively. While the individual sentences would have totalled 38 months’ imprisonment if imposed cumulatively the end sentence of 10 months’ imprisonment appears to have been reached by imposing cumulative sentences of four months on the assault and six months for the failure to

answer District Court bail on 28 January 2014. The balance of the sentences were imposed on a concurrent basis.

Approach on appeal

[7] Appeals against sentence to the High Court are governed by s 250 of the Criminal Procedure Act 2011. In order to succeed on appeal, an appellant must demonstrate:

(a) there is an error in the sentence imposed on the convictions; and

(b) a different sentence should have been imposed.

[8] In any other case the Court must dismiss the appeal (s 250(3)). This section confirms the approach formally taken by the Courts under the Summary Proceedings Act

1957.

[9] In Yorston v Police the Court set out the approach to be adopted by this Court under s 250, namely:¹

(a) there must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle” basis;

(b) to establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court;

(c) it is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[10] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[11] In the present case the appellant relies on two grounds of appeal, namely that the

Judge erred in:

(a) imposing a final sentence that was manifestly excessive;

(b) the sentence on the resisting Police charge exceeded the maximum

penalty of three months’ imprisonment.

Appellant’s submissions

[12] Ms Bragg, in helpful and comprehensive submissions, submits that the starting point of 13 months’ imprisonment and the final sentence of 10 months’ imprisonment were manifestly excessive.

[13] Ms Bragg submits that each individual charge can be characterised as low level offending and the compressed period within which the offending took place could best be characterised as a “spree”. She submits that the seven charges of shoplifting/theft are all minor and at the least serious end of the scale. The charges carry a maximum penalty of three months’ imprisonment and the total value of all of the items was $781.10.

[14] She submits that the charge of assault on a Police officer could be considered the lead charge and if that was the case the appropriate starting point should have been in the order of two months’ imprisonment.²

[15] Ms Bragg accepted that it was an aggravating factor that the majority of the offending was committed whilst Ms Newton was on bail and subject to a sentence of supervision. She also accepted that Ms Newton had relevant previous convictions including five for shoplifting.

[16] She submits that from a starting point of two months’ imprisonment uplifts could be applied to reflect the additional charges and aggravating features, submitting that an overall starting point in the order of six to nine months’ imprisonment would have been appropriate to reflect totality.

[17] More particularly, Ms Bragg submits that in imposing successively greater periods of imprisonment on the three charges of failing to answer bail the individual sentences were too high particularly having regard to the fact that the appellant has no previous convictions of this sort.

[18] In relation to the assault, a sentence of four months’ imprisonment was too high suggesting a starting point of close to the maximum, an approach which was not justified given that the offending was not the most serious of its kind.

[19] On the resisting Police charge a discrepancy appears to have intruded. The sentence of six months’ imprisonment recorded on Ms Newton’s criminal history does not reflect the three months’ imprisonment imposed by the Judge and appears to have been a transpositional error. It was agreed by both counsel that this Court should quash the sentence of six months’ imprisonment and substitute it for three months’ imprisonment which I now do.

[20] Finally, Ms Bragg submits the sentence of three months’ imprisonment imposed for the reckless driving was the maximum penalty for the charge and, in the circumstances of the offending, was not appropriate as it was not the worst of its kind and discounts were available which should have been applied.

Analysis

[21] The Court of Appeal has reiterated that in assessing whether a sentence is manifestly excessive it is not the manner in which the sentence is structured which is important but whether the end sentence is manifestly excessive having regard to the circumstances of the offending and of the offender.³

[22] The same principle was acknowledge in Tutakangahau v R where it was recorded that even where a Judge has not structured a sentence purely in terms of accepted sentencing methodology, the High Court will not intervene on appeal unless the sentence is outside the range that can properly be justified by accepted sentencing

principles.⁴ Furthermore, this Court should not interfere with the legitimate exercise of the judicial discretion⁵ or indulge in merely tinkering with the sentence.⁶

[23] For that reason, and in the context of a sentencing involving numerous charges and separately offending it is unnecessary to consider the individual sentences imposed but rather than focus on whether the ends sentence was manifestly excessive.⁷

[24] While his Honour did not expressly refer to the totality principle it is clear from his sentencing notes that he considered the appellant’s offending as a whole and had regard to the appropriate total sentence necessary to meet the purposes and principles of the Sentencing Act 2002.

[25] In the similar case of Kelly v Police Toogood J considered an appeal against eight months’ imprisonment in respect of four charges of theft, one of trespass and one of breach of a community work order. ⁸ Three of the charges of theft were for items valued at under $500 and one was for items just over $500. All related to items stolen from a pharmacy or supermarket and included products such as perfume. The appellant had a history of shoplifting and some of the offending occurred immediately after sentencing for similar offending. The breach of trespass charge related to the appellant going into a supermarket from which she was banned. In many respects, the present case shares some strong similarities to the facts which confronted Toogood J in Kelly. Furthermore, in Kelly, Toogood J noted that the District Court Judge had adopted a rather unorthodox route via which to reach the effective end sentence including a mixture of cumulative and concurrent sentences before applying a discount for personal factors. Toogood J noted that a more appropriate approach might have been to have taken the theft over $500 as the lead offence and provide appropriate uplifts. He noted that an appropriate starting point would have been in the order of 12 to 13 months’ imprisonment. Overall however, he concluded that although the sentence was a stern

_{one it was not excessive.}

⁴ _{Tutakangahau v R [2014] NZCA 279 at [36]; [2014] NZCA 279; [2014] 3 NZLR 482.}

⁵ _{K v B [2010] NZSC 112; [2011] 2 NZLR 1 at [32].}

⁶ _{R v Shipton [2007] 2 NZLR 218 (CA).}

⁷ _{R v Dodd [2013] NZCA 270 at [32].}

⁸ Kelly v Police [2013] NZHC 1250.

[26] Wirihana v Police⁹ involved an appeal against a sentence of nine months’ imprisonment for six shoplifting charges (four committed whilst on bail), driving whilst disqualified, providing false information to the Police and four breaches of bail. Kós J determined that a 12 months’ starting point was not manifestly excessive having regard to the totality of offending and, in particular, the fact that some of it occurred whilst on bail and the appellant had relevant previous convictions. Overall, his Honour was not satisfied the sentence was manifestly excessive.

[27] Viewed against these authorities I am of the view that a starting point of 13 months is consistent with the above cases. I am fortified in this view given the fact that the appellant was being sentenced on 15 separate charges. I do not ignore Ms Bragg’s submission that almost all the theft offending occurred within a short space of time and that it was at the low end of the scale having regard to the total value of the goods stolen. Despite this, I am of the opinion that a 13 month starting point was within the Judge’s sentencing discretion.

[28] From this starting point the Judge reduced the sentence by three months, taking it to 10 months having regard to the guilty plea and the other personal circumstances specifically “the condition you found yourself in”. Although his Honour did not specify what he was referring to it seems likely that this was a reference to Ms Newton’s difficult upbringing and her methamphetamine addiction.

[29] It is agreed that this discount equates to a 23 per cent discount for the guilty plea and personal circumstances. Ms Bragg submits that Ms Newton was entitled to the full

25 per cent discount because the pleas of guilty were entered at either the first appearance with counsel or at the case review hearing. However, against this, it cannot be ignored that the prosecution case was very strong given that Ms Newton was either apprehended at the scene of the offending or was identified through CCTV. Conviction was all but inevitable. A reduction of this order was open to the sentencing Judge.

[30] While I agree with Ms Bragg that a three month discount is at the lower end of the discount range available to the Judge I am concerned that to give a higher discount would offend the principle against tinkering.

⁹ Wirihana v Police [2012] NZHC 2838.

[31] One further factor relating to Ms Newton’s personal circumstances is that she is pregnant. Although I understood from Ms Bragg that this matter was raised at sentencing, his Honour did not refer to it in his sentencing notes. Ms Newton is due to deliver her child in March 2015 and it thus seems unlikely that she will have the child while in custody.

[32] I accept that there is authority for the proposition that the fact of pregnancy is a matter which may be taken into account in mitigation given that the sentence may be disproportionately severe¹⁰ and may be treated as a mitigating factor.¹¹

[33] However, there is no information before me on which I could conclude that in Ms Newton’s case the sentence imposed is disproportionately severe. This is not a case where an alternative, non-custodial sentence was available to the Judge. The only issue before this Court on appeal was whether the sentence of 10 months’ imprisonment is manifestly excessive.

Result

[34] The appeal against sentence is dismissed. The sentence of six months’ imprisonment imposed on the assault charge which appears on Ms Newton’s criminal history appears to have been transpositional administrative error. It was not a judicial error and as such does not require correction on appeal. Note comments at [19] of this

_decision.

Moore J

Solicitors:

Public Defence Service, Auckland

Crown Solicitor, Auckland

¹⁰ _{Sentencing Act 2002, s 8(h).}

¹¹ Sentencing Act 2002, s 9(4).