TILBY v NEW ZEALAND POLICE [2022] NZHC 3343

TILBY v NEW ZEALAND POLICE [2022] NZHC 3343 [8 December 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2022-483-000025[2022] NZHC 3343BETWEEN BRANDON TILBYAppellantAND NEW ZEALAND POLICERespondentHearing: 8 December 2022 via VMRCounsel: S J Fraser for the AppellantJ C H Liu for the Respondent New Zealand PoliceJudgment: 8 December 2022ORAL JUDGMENT OF GENDALL JIntroduction[1] On 9 September 2022, the appellant Mr Brandon Tilby was sentenced by JudgeMatheson in the Whanganui District Court to 25-and-a-half months' imprisonment onthe lead charges. These were included in a range of accompanying charges. All thecharges for which he was sentenced were:1(a) burglary;2(b) attempted unlawful taking of a motor vehicle (x 2);31 Police v Tilby [2022] NZDC 22165 [the sentencing decision].2 Crimes Act 1961, s 231(1)(a) — maximum penalty 10 years' imprisonment.3 Section 226(2) — maximum penalty two years' imprisonment.(c) unlawful taking of a motor vehicle;4(d) driving with excess breath alcohol — third or subsequent;5(e) driving while disqualified;6 and(f) possession of cannabis plant.7[2] He was also sentenced respectively to 12 and 18 months' imprisonmentconcurrent on each of the unlawful taking of motor vehicles charges. In relation to thedriving charges he was sentenced respectively to 12 months and two months'imprisonment, also concurrent.[3] The appellant was also ordered to pay $2,620 in reparation, he was disqualifiedfrom driving for one year and one day, and required to apply for a zero-alcohol licence.[4] The sentencing followed a guilty plea entered on 16 August 2022 after asentence indication the Judge gave on 26 July 2022 was accepted. That sentenceindication indicated a sentence end point in the region of 29 months, with room foradjustment for further personal circumstances noted.[5] The appellant appeals the sentence imposed. He says the end sentence wasmanifestly excessive and a new sentence should be imposed. The appellant essentiallyseeks here a sentence of 24 months' imprisonment or less.[6] The respondent opposes the appeal, and submits there was no error in thesentence.[7] This appeal was filed one month out of time. The respondent does not opposethe granting of leave to appeal out of time. In the circumstances, and accepting that4 Section 227(1) — maximum penalty seven years' imprisonment.5 Land Transport Act 1998, ss 56(1) and (4) — maximum penalty two years' imprisonment, or$6,000 fine, and minimum one year disqualification from driving.6 Section 32(1)(a) and (3) — maximum penalty three months' imprisonment or $4,500 fine, and sixmonths' disqualification from driving.7 Misuse of Drugs Act 1975, s 7(1)(a) and (2) — maximum penalty three months' imprisonmentand $500 fine.no real prejudice has been caused to the respondent, here I grant leave to appeal out oftime.Factual background to the offending[8] The charges relate to offending that occurred in two incidents, the first on13 January 2022 and then the second one week later on 20 January 2022.[9] At about 1.53am on 13 January 2022, the appellant climbed over a six-footwire fence surrounding a secured construction yard in Whanganui. He looked intodifferent buildings and then gained access to an outbuilding through a window. Afterrummaging through the building for a short time, the appellant located a glue gunvalued at $120, which he took before leaving the yard.[10] On the same night, the appellant approached a Fuso truck and smashed thefront passenger window, cutting himself in the process. He entered the vehicle,rummaged through the glove box, removed plastic moulding around the steering wheeland removed the ignition cover and attempted to start the vehicle. He wasunsuccessful and left the vehicle, leaving blood drips throughout the cab.[11] That same night the appellant also smashed the rear window of a Volkswagenvan, again cutting himself. He searched through the car, stealing a number of tools,smashing an internal window, and climbing through to the front cab, again leavingblood through the interior of the van. The appellant tried to start the car, interferingwith the ignition barrel in an unsuccessful attempt to steal the vehicle.[12] A week later, on 20 January 2022, the appellant gained entry to an unsecuredMazda ute, which was carrying a KTM motorcycle, and drove off. When the appellantwas later stopped by police, he gave a breath alcohol reading of 600 micrograms ofalcohol per litre of breath. He was also found with a small amount of cannabis in hispossession. The appellant was disqualified from driving at the time.Sentencing[13] As I have noted, the Judge provided a sentence indication on 26 July 2022.8[14] In relation to the burglary conviction, the Judge considered the relevant caselaw and determined a 16-month starting point was appropriate.9 He considered anuplift of "a couple of months" was appropriate to account for the "significantinconvenience" to the victims caused by the interference with the vehicles, andadopted a starting point for the 13 January 2022 offending of 18 months' imprisonmentin the round.10[15] In relation to the other 20 January 2022 offending, namely the unlawful takingof the motor vehicle and driving with excess breath alcohol (third or subsequent), theJudge considered by itself a three-year starting point would be available, but wasinclined to impose a cumulative term of 18 months' imprisonment,11 to result in anend point of three years' imprisonment.12 Standing back and looking at this overallend sentence starting point on a totality basis the Judge considered a slight deductionof three months would be appropriate to the cumulative sentence,13 resulting in an endpoint of 33 months' imprisonment.14[16] The Judge considered a 10 per cent uplift was appropriate for the appellant'sprevious history of "significant dishonesty",15 and a discount of 22.5 per cent wasappropriate to recognise the appellant's guilty plea, the Judge stating it was "not reallyan indication given at first opportunity. There have been a number of appearances andnot guilty pleas."16 This produced a net discount of 12.5 per cent or four months inthe round, which resulted in an end point of 29 months' imprisonment.17 The Judge8 Police v Tilby DC Whanganui CRI-2022-083-84, 26 Hurae | July 2022 [the sentencing indication].9 At [15], citing Elers v R [2018] NZHC 497.10 At [16].11 At [22], citing Taki v Police HC Rotorua CRI-2010-470-25, 2 Hurae | July 2010.12 At [23].13 At [23].14 At [24].15 At [25].16 At [26].17 At [27].stated in his sentence indication that there "may be room for further personalcircumstances deduction."18[17] The appellant subsequently accepted the sentence indication, pleaded guilty tothe charges he faced, and he was sentenced on 9 September 2022.19 In sentencing him,the Judge adopted his earlier indication, noting again that there might be room forsome further deductions for personal circumstances.20[18] A pre-sentence report had been received. This identified a high risk ofre-offending was present, with influences noted to include the appellant's associates,substance abuse and an unstructured lifestyle.21 As the Judge said, neither punitivenor rehabilitative sentences had curbed the appellant's offending here.22 The Judgealso referred to a cultural report prepared for the appellant in 2020 Ultimately heconsidered a 10 per cent discount would be appropriate,23 given too this incorporatedan offer from the appellant of reparation.24 Overall, therefore, the starting point of 33months' imprisonment was to be increased by 10 per cent and decreased by 32.5 percent.25 The net discount of 22.5 per cent produced a reduction in the sentence ofseven-and-a-half months, which resulted in the end point of 25-and-a-half months'imprisonment.26Approach to appeal[19] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must only be allowed ifthe court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.27 The court must dismiss theappeal in any other case.2818 At [28].19 The sentencing decision, above n 1.20 At [22].21 At [23].22 At [24].23 At [26].24 At [27].25 At [27].26 At [28].27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].28 Criminal Procedure Act 2011, s 250(3).[20] In an appeal against sentence, the focus is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.29An appellate court must therefore exercise an appropriate degree of restraint and willintervene only where the sentence imposed is "manifestly excessive" on the basis ofsome material error so that a different sentence should be imposed.30 An appellatecourt will not intervene unless a sentence is outside the range available to thesentencing Judge.31AnalysisStarting point too high[21] The appellant submits that a starting point of 12 months' imprisonment wouldhave been appropriate for the burglary charge, rather than the 16 months'imprisonment which the Judge adopted. In response the Crown maintains the16-month starting point was within range in light of the 2018 decision in this Court ofElers v R, cited in the Judge's sentencing decision.[22] In Elers, the appellant and two associates climbed over the fence of a yard andattempted to steal 15 batteries of different sizes. In sentencing the appellant in thatcase, the Judge in the District Court adopted a starting point of 16 months'imprisonment, which on appeal Grice J, referring to authorities cited by the Crown,held to be within range.32[23] Counsel for the appellant, however, has directed me to several Court of Appealdecisions. In R v Columbus the burglary offending involved forcing open a garageand stealing a bicycle and some tools.33 The Court of Appeal considered thecircumstances of the burglary there "would not themselves justify a starting point ofmore than one years imprisonment."34 In Craigie v R, the appellant had broken into29 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 27, at [36].30 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 27, at [32].31 Tutakangahau, above n 27, at [36].32 Elers v R, above n 9.33 R v Columbus [2008] NZCA 192.34 At [16].an industrial premises and stolen $600 worth of items.35 The Court of Appeal againheld that the 12-month starting point was "well within range".36[24] There is of course no tariff case for burglary, given the range of circumstancesin which the offence can be committed are so varied.37 Nevertheless, I consider thecases I have just outlined are helpful authorities in considering an appropriate startingpoint for the lead burglary offending here.[25] In this respect, the authorities have set out several principles relevant to settingthe starting point for burglary cases. These include the level of premeditation, thevalue of the items stolen, the degree of intrusion, the nature of the premises entered,the damage done, the impact and potential impact upon occupants or owners of theproperty, and the extent of the offending where multiple burglaries are involved.38[26] I accept the appellant's submission here that the decision in Elers v R is notone which is directly on point. Unlike in that case, here the appellant had noaccomplices or associates with him. Arguably too the offending in that case mightalso be considered as a little more serious than here with regard to the property thatwas stolen. In the present case, the burglary was of an industrial commercial premisesand the property stolen was a glue gun valued at $120. I accept it is potentiallyarguable, along the lines of authorities such as Columbus and Craigie, that a 12-monthstarting point here as suggested by the appellant might have been appropriate.[27] However, this by itself may not be enough in my view to justify departure fromthe District Court sentencing decision here. In this respect I do note that in a recentdecision in this Court, Nelson v Police, Hinton J suggested that "a more realisticrange" of starting points for burglaries might be between one year and two-and-a-halfyears' imprisonment.39 A 12-month starting point would therefore clearly have beenat the very lowest end. I conclude in all the circumstances here, a 16-month startingpoint was not clearly outside the range available in this case.35 Craigie v R [2012] NZCA 67.36 At [30].37 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (CA) at [78].38 R v Nguyen CA110/01, 2 Hurae | July 2001 at [17].39 Nelson v Police [2019] NZHC 2434 at [33].[28] In addition to the 16-month starting point for the burglary, the Judge thenapplied only a light uplift of two months for the two charges of attempted unlawfultaking of a motor vehicle, which occurred on that same night, 13 January 2022. Iaccept this caused harm, loss, and no doubt some trauma to the victims, who had theircar windows smashed and items taken.[29] Thus although the starting point arguably might have been at the high end forthe offending in question here, it was not outside the range available to the sentencingJudge. Further, I am satisfied this did not necessarily result in a sentence that wasitself manifestly excessive.Imposition of cumulative sentences and totality[30] The next issue on this appeal I address is whether the Judge erred in imposinga cumulative sentence of 15 months' imprisonment in relation to the later 20 January2022 offending. Counsel for the appellant notes these events took place only a weekafter the first offending and, as they involved offending of a similar nature, thereforethe Judge should have dealt with all the offending together. I disagree, however.[31] Section 84 of the Sentencing Act provides guidance on when the use ofcumulative and concurrent sentences of imprisonment is "generally appropriate". Itdoes not set out mandatory requirements, however, and a Judge retains a discretion asto what form the sentences are to take. Section 84(2) provides that concurrentsentences of imprisonment are generally appropriate where offences are of a similarkind and are a connected series of events or offences. In the present case, althoughthe events in question were close in time, I consider the Judge was entitled to adoptthe approach he ultimately took in treating the two sets of offending separately, giventhe offending occurred at different times and places, and it involved different types ofproperties and different victims. They were not a connected series of events. I amsatisfied the Judge was entitled to address the burglary and other sentences in acumulative manner, as he did. The key consideration is of course whether in any eventthe end sentence imposed was manifestly excessive.Totality[32] I turn then to this next head of argument. This is to address the question ofwhether the Judge here failed to make appropriate reductions in terms of the totalityof the offending.[33] Section 85 of the Sentencing Act requires the Court to consider the totality ofoffending. Where cumulative sentences of imprisonment are imposed, pursuant tos 85(2) they "must not result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending." In this case the Judge adopted a starting pointof 33 months' imprisonment for the offending as a whole after applying a three-monthreduction for totality.[34] Having regard to all the circumstances of the offending here, I am satisfied thiswas an acceptable deduction. The uplift applied for the 20 January 2022 offendingwas itself only 18 months, whereas the Judge had said, based on the case law, athree-year starting point would have been warranted. In explicitly referencing thetotality principle, and making a deduction to the sentence accordingly, I am satisfiedthe Judge had firmly in mind the importance of ensuring the total period ofimprisonment was not wholly out of proportion to the gravity of that overall offending.I agree, too, with his conclusion that a three-month totality deduction in recognitionof this was sufficient.Guilty plea discount[35] The final substantive matter to be considered concerns whether the Judge erredin only providing the appellant a 22.5 per cent discount for his guilty plea, rather thanthe full 25 per cent contended for.[36] As the Supreme Court has confirmed, a discount of up to 25 per cent isgenerally available for a guilty plea entered at the first opportunity.40 Nevertheless,any discount is necessarily at the discretion of the sentencing Judge, and discountsmay range anywhere up to that amount depending on the circumstances.40 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[37] The respondent here points out that, despite strong evidence linking theappellant to the offending, guilty pleas were not entered until 16 August 2022, sevenmonths after the charges were initially laid. Indeed, at the first appearance not guiltypleas were entered and the matter proceeded to a case review hearing. I accept that inall the circumstances here, the Judge was acting within his discretion in reducing thefull guilty plea discount by 2.5 per cent to a final discount of 22.5 per cent.[38] In terms of the impact this might have had on the sentence as a whole, I notethat the Judge also provided a discount to the appellant of 10 per cent for his personalcircumstances. I do not think the Judge was ungenerous in doing so.Conclusion[39] As will be apparent, I am satisfied that in sentencing the appellant overall to25-and-a-half months' imprisonment, the Judge made no error. I am not satisfied theend sentence imposed here was in the circumstances manifestly excessive or that anydifferent sentence should have been imposed[40] Accordingly, the appeal is dismissed.Gendall JSolicitors:S Fraser Barrister for the AppellantJ C H Liu for the Respondent New Zealand Police