IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2024-404-732
[2025] NZHC 882	

BETWEEN	HOPE MAREE TAYLOR
Appellant	
AND	THE KING
Respondent	

Hearing:	7 April 2025	
Appearances:	S Gray for the Appellant
H Brown for the Respondent	
Judgment:	11 April 2025	

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 11 April 2025 at 3.00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

TAYLOR v R [2025] NZHC 882 [11 April 2025]

[1]	Hope Taylor pleaded guilty  to  use  of  a  document  for  pecuniary  advantage (x 3),1 obtaining by deception,2 theft over $1000 (x 3),3 attempted theft over
$1000,4 theft between $500–$1000 (x 3),5 and theft under $500.6

[2]	On 12 December 2024, Judge D J Sharp in the Auckland District Court sentenced Ms Taylor to 21 months’ imprisonment and declined to convert her sentence to one of home detention.7 Ms Taylor appeals. She says the adopted starting point of 24 months was manifestly excessive and that the sentence is disproportionately severe due to her circumstances.

The offending

[3]	I adopt the summary of this offending from Judge Sharp’s sentencing notes:

[4]	The circumstances of the Crown charges were that on Saturday 6 May 2023 at about 12.53, you entered JB Hi-Fi in Albany, took a coffee machine at $1,049 from a display shelf, approached staff members saying you had purchased the machine, and you wanted a refund. You presented a fraudulent receipt. You received a refund, and you left the store.

[5]	On Saturday 27 May 2023, you entered JB Hi-Fi in Albany. You attempted to leave the store with an espresso coffee machine valued at $1,200 that you were holding. You were stopped by security. You showed the security guard a fraudulent receipt from a previous occasion saying that you had paid for the item. The guard recognised the receipt was fraudulent and recovered the machine.

[6]	On Friday 30 June 2023, you entered Mitre 10 Mega in Nelson Central. You took a waste disposal unit worth $580. You walked out of the store with the waste disposal unit. There was no attempt made to pay for this item.

[7]	On 30 June 2023, you entered RepCo in Motueka, approached the electronics  section,  concealed  an  Escort  Redline  vehicle  radar  valued at
$1,490 under a catalogue and walked out of the store. You made no attempt to pay for the item.

[8]	In explanation, you denied the offending. There is reparation sought. The Crown seek $1,049.

1	Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment.
2	Sections 240(1)(a) and 241(a). Maximum penalty: seven years’ imprisonment.
3	Sections 219(1)(a) and 223(b). Maximum penalty: seven years’ imprisonment.
4	Sections 219(1)(a), 72, and 311(a). Maximum penalty: three and a half years’ imprisonment.
5	Sections 219(1)(a) and 223(c). Maximum penalty: one year imprisonment.
6	Sections 219(1)(a) and 223(d). Maximum penalty: three months’ imprisonment.
7	R v Taylor [2024] NZDC 30755.

[9]	The police matters relate to circumstances on 13 April, entering Kings Plant Barn in Henderson, selecting various items and concealing them in a bag. A staff member approached you and retrieved the plants out of the backseat. The items taken had a value of $212.88. Reparation is sought of
$164.89.

[10]	On Friday 31 May 2024, you entered RepCo in Tauranga and spoke with a staff member. When the staff member was unaware, you took a radar detector valued at $1,599 and held it behind your back in your left hand and walked towards the counter. As you were speaking with staff, you concealed the radar detector and left the store, making no attempt to pay. You were identified on the CCTV system. Reparation of $1,599 is sought.

[11]	On 2 June, you entered the premises King Plant Barn in Botany, took items valued at $729.94, and left the store, making no attempt to pay. Reparation of $729.94 is sought.

[12]	You used a document. You approached a service desk with a request that you return a Karcher water blaster. You presented a receipt. A refund of
$898 was processed and deposited into your bank account. You exited the store and that was Bunnings Warehouse in Mt Roskill.

[13]	Again, in Bunnings Warehouse Manukau, you got a Ryobi stick vacuum cleaner and exited the store, making no attempt to pay. You placed the item into your vehicle, a silver Toyota Prius, and drove to the next Bunnings. $699 is sought for the item taken.

[14]	Using a document, you entered Bunnings Warehouse on 17 July, approached the service desk, attempted to gain a refund for the Ryobi stick vacuum cleaner. You presented a fraudulently obtained receipt on your phone to a staff member and successfully obtained a refund of $699.

[15]	There is a further Bunnings Warehouse Takanini matter, where items were taken: a MaxRanger Swann 4 camera kit valued at $1,899 taken from a cabinet. You went back to a staff member assisting, walked away, collected the item from where it had been left, and the loss of $2,598.98 arose.

District Court decision

[4]	The Judge adopted a global starting point of 24 months’ imprisonment, given the considerable span of the offending over time, the range of premises at which the offending took place, and the seven-year maximum penalty applicable in a significant number of the charges.

[5]	Judge Sharp provided a discount of four months for guilty plea, before uplifting by two months on the basis the offending took place while on bail and in the course of a sentence.

[6]	The Judge said he would uplift the sentence by six months for Ms Taylor’s extensive criminal history.8 He then reduced it by three months for factors detailed in Ms Taylor’s s 27 report. The Judge also allowed further reductions of one month each for the time spent on electronically monitored bail and for Ms Taylor’s offer of reparation.

[7]	The Judge sentenced Ms Taylor to 21 months’ imprisonment for the theft over
$1000 charges, 10 months’ imprisonment for the attempted theft charge, 21 months’ imprisonment for the misuse of documents charges, and one month imprisonment for the other dishonesty charges.  The  sentences  were  to  be  served  concurrently  as 21 months’ imprisonment.

[8]	Due to a calculation error, the Judge uplifted the starting point by only four months for Ms Taylor’s previous criminal history, rather than the six months intended, leading to a sentence that is two months less than the Judge intended.

Approach on appeal

[9]	This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.9 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.10 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The focus is on the end result, rather than the process by which the sentence was reached.11 In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).12

Submissions for Ms Taylor

[10]	Ms Gray, on behalf of  Ms Taylor,  submits that the global starting point of  24 months’ imprisonment was outside the available range, having regard to similar

8	See below at [8].
9	Criminal Procedure Act 2011, s 250(2).
10	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
11	At [36].
12	At [36].

authorities and the principle of totality, together with particular hardship due to     Ms Taylor’s circumstances.

[11]	Ms Gray says the Judge erred in finding that there were significant differences between Ms Taylor’s offending and that of the defendant in Jones v Police that justified a higher starting point here.13 This case was referred to at some length in the sentencing notes and analysed closely in the submissions on appeal.

[12]	Ms Gray also submits that, pursuant to s 8(h) of the Sentencing Act 2002, the Court is required to take into account any circumstances of the offender that would render any particular sentence disproportionately severe. Three factors are relied upon, of which only the first was before the Judge at the time of his decision:

(a)	Ms Taylor is 66 years old. She has a heart condition, which has required a number of hospital admissions. She struggles with breathlessness and fatigue.

(b)	Ms Taylor has been evicted from her Kainga Ora property as a result of her incarceration. This is an outcome which is devastating to her, having waited for an available property for a lengthy period.

(c)	Since her incarceration, Ms Taylor has had to leave her dogs in the care of some elderly friends who are experiencing strain from this responsibility.

[13]	In support of these three matters, Ms Gray adduced (unopposed) further documents on appeal and, to some extent, gave additional evidence from the Bar.

Starting point

[14]	There is no guideline judgment for dishonesty offending, given the wide range of circumstances in which it can occur.14     In the District Court and on appeal,       Ms Taylor relies on her case as being comparable with Jones v Police, in which a

13	Jones v Police [2013] NZHC 1732.
14	R v Varjan CA97/03, 26 June 2003.

starting point of 18 months, including an uplift for previous offending, was upheld on appeal as stern but within the available range.15

[15]	The facts of Jones were succinctly put by Lang J:

[2]	All of the charges that Mr Jones faced arose out of a method he devised to defraud the Bunnings hardware chain. Each of the charges resulted from Mr Jones going into a Bunnings store and picking up a product off the shelf. He would then approach the counter, and explain that he had purchased the product earlier and was not happy with it. On each occasion Bunnings agreed to refund Mr Jones the purchase price of the product he had taken from the shelf. It did so by applying a credit to a credit card Mr Jones provided.

[3]	The offending occurred between 1 July 2012 and 10 February 2013. Mr Jones obtained refunds totalling $6,181.24 as a result of his offending.

[16]	Five of the charges carried a maximum sentence of 12 months’ imprisonment. The remainder carried maximums of three months’ imprisonment, as the credit obtained was less than $500. A starting point of nine months’ imprisonment was adopted for one of the five charges, with a nine-month uplift applied for the remaining charges, bringing the overall starting point to 18 months.

[17]	The Crown says the Judge was correct to distinguish Jones. I agree.  While the number of charges was the same, the period of time over which the offending took place was similar, and the nature of the shops targeted was also similar (albeit of less range in Jones), the similarities end there.

[18]	The offending in Jones involved little guile. The defendant used one methodology of taking an item from the shelf up to the counter for a refund. Here, Ms Taylor used a range of more sophisticated methods. In some instances, she used falsified receipts to “return” items she had taken from the shelf. On one occasion, she feigned interest in a high-value item in a locked cabinet, then hid the item when the staff member, who had removed the item from the cabinet, was distracted. In another instance, she called a Bunnings Warehouse store posing as a Bunnings Warehouse co-ordinator to obtain a purchase receipt for a water blaster which she then used to “return” the item to the store later that day. In my view, the offending has an extra

15	Jones v Police, above n 13.

dimension to that in Jones.16 Moreover, Ms Taylor targeted a wider range of businesses in her offending, whereas Mr Jones targeted only one Bunnings Warehouse store.

[19]	Ms Gray was critical that the Judge distinguished the present offending from Jones on the basis that a number of the charges against Ms Taylor involved shoplifting for amounts over $1,000, whereas Mr Jones’ offending involved thefts under $1,000. Ms Gray describes this as a “minor distinction” that should not have had a significant impact on the end sentence. I disagree that there is any error shown. Ms Taylor seems to have been targeting high value items on a number of instances. Two exceeded
$1000 by over $500. As noted by Hinton J in Poupouare v Police, “the difference in maximum penalty reflects the inherent difference in seriousness between these types of offences.”17 I do not consider the Judge placed undue emphasis on the maximum penalties of Ms Taylor’s offending.

[20]	Although Ms Gray placed significant emphasis on the Jones decision, I accept the Crown’s submission that other comparator cases are consistent with the starting point adopted by the Judge in any event.18

[21]	For example, in Torbarina v Police,19 a starting point of 18 months’ imprisonment was held to be in range on three charges of theft of goods valued at a total of $3,174.50, although that included recognition of the appellant’s 50 previous convictions. Mr Torbarina stole items on only three occasions. On the first occasion the items were worth $1,399, the second $730, and the third $1,045. The starting point was upheld on appeal.

[22]	Ms Brown, for the Crown, emphasises that, in Torbarina and a number of other recidivist shoplifting offending cases, an uplift for the defendant’s previous dishonesty

16	Pyper v Police [2021] NZHC 1448 provides another data point similar to Jones but dissimilar to Ms Taylor’s offending.   It, too, involved an 18-month starting point for offending relating to
$2,400 of shoplifted items across four occasions. The offending was unsophisticated and involved no deception in the form of receipts or similar.
17	Poupouare v Police [2022] NZHC 209 at [23].
18	Torbarina v Police [2014] NZHC 3221. The Crown also referred me to Bimler v Police [2023] NZHC 2661 and Pyper v Police [2021] NZHC 1448
19	Torbarina v Police, above n 18.

offending was factored in when setting a starting point. That means an “apples with apples” approach to comparing starting points would require the starting point for Ms Taylor’s sentence to be significantly higher than it was, as the 24-months adopted by Judge Sharp did not include any uplift for her previous offending. That is a fair submission and confirms that, compared with Torbarina, Ms Taylor’s starting point is within range.

[23]	Further, and as noted earlier, in his overall sentence, the Judge adopted only a four month uplift due to Ms Taylor’s previous history, instead of the six months intended. Ms Taylor has an extremely lengthy previous criminal history of over 480 previous convictions. Around 470 of these relate to dishonesty offending. The six-month uplift intended was plainly justified. That the end sentence could readily have been two-months higher detracts from the submission that the starting point should be reduced on appeal.20 In any event, the overall sentence is appropriate.

[24]	Finally on starting point, there is some logic in the Crown’s submission that the starting point adopted by the Judge can be benchmarked against the 25-month starting point Ellen France J adopted in 2003 when substituting a sentence on appeal for Ms Taylor for somewhat similar offending before much of Ms Taylor’s further offending was committed.21

[25]	In this case, the offending was serious and extensive. In my view, the 24-month starting point was within the available range.

Disproportionate severity in light of personal circumstances

[26]	Ms Gray submitted that there were aspects of Ms Taylor’s circumstances which justify a reduction in the sentence imposed. I referred to the three factors relied upon earlier at [12] above.

20 The Judge also gave a one-month discount for Ms Taylor’s intention to make reparations. At the time of writing this Judgment, these had not been paid.
21 Taylor v New Zealand Police AP 5/03, HC Palmerston North, 20 February 2003, Ellen France J. The starting point stated here is a derived figure because it encompasses discounts of 29 per cent that were not challenged.

[27]	Ms Taylor provided email communications showing she had been evicted from her Kainga Ora home as a result of her imprisonment. Ms Gray told me from the Bar how distraught Ms Taylor is at this consequence. Her distress is understandable as I am advised that Ms Taylor had finally been placed in a house after being homeless for a long time. She was very house proud and had done work on the garden. Ms Gray submits that every day of the sentence will feel longer for Ms Taylor because of the fact that it is her imprisonment that has caused her to lose her home. This consequence of the offending is apparently also now a major incentive for Ms Taylor not to reoffend. One cannot help but feel moved by Ms Taylor’s situation. However, I do not consider that it is a matter that supports a reduction in sentence. It is the type of consequence that will affect many in Ms Taylor’s position. How Ms Taylor feels about her term of imprisonment as a result is not something I accept is legally relevant.

[28]	As to Ms Taylor’s ill health, Mr Gray provided hospital notes for Ms Taylor for January through March 2025. On my understanding of these, she has had recurrent episodes of heart palpitations (atrial fibrillations), for which she is medicated. The notes also provide that she has attended hospital a number of times. Accordingly (and in contrast to the position the Judge was in) there is some evidence before the Court of Ms Taylor’s health issues in this respect. However, Ms Brown is correct that the Judge took Ms Taylor’s alleged ill health into account and was satisfied that the custodial services would be adequate to look after Ms Taylor’s health while in custody. I do not consider there is any error in that view or that a different sentence is appropriate as a result.

[29]	I turn to the fact that, while Ms Taylor is imprisoned, someone else is needing to care for her two dogs, which are precious to her. Again, I have sympathy for how Ms Taylor feels about this reality and the difficulties this creates for the custodians. Ms Taylor may need to find alternative custodians. But this is not a circumstance that leads to the sentence being disproportionately severe.

[30]	I record that Ms Gray also emphasised Ms Taylor’s very difficult background including abuse in state care as relevant on appeal, albeit this did not form part of her written submissions. The Judge deducted three months (12.5 per cent) for this. I do not consider intervention on appeal is called for.

Overall assessment

[31]	I do not find any error in the starting point adopted by Judge Sharp, nor do the matters raised lead to a conclusion that the sentence is disproportionately severe in light of Ms Taylor’s personal circumstances.

Result

[32]	I dismiss the appeal.

Anderson J