BIMLER v POLICE [2023] NZHC 2661

BIMLER v POLICE [2023] NZHC 2661 [22 September 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-137[2023] NZHC 2661BETWEEN CAINE DAMON BIMLERAppellantAND NEW ZEALAND POLICERespondentHearing: 20 September 2023Appearances: A J Greaves for AppellantC E Martyn for RespondentJudgment: 22 September 2023JUDGMENT OF MANDER JThis judgment was delivered by me on 22 September 2023 at 3.30 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Caine Bimler was sentenced to a term of 29 months' imprisonment by JudgeCouch in the Christchurch District Court on 22 charges of predominantly dishonesty-related offending. He appeals that sentence, alleging it was manifestly excessive.[2] The notice of appeal was filed approximately one week late. That was due tocounsel's miscalculation of the period within which the appeal should have beenlodged. However, the respondent has not been prejudiced and an extension to file theappeal out of time is granted.Background[3] Mr Bimler was for sentence on eight charges of theft (under $500),1 twocharges of theft (between $500 to $1,000),2 and six charges of theft (over $1,000).3He was also for sentence on two charges of receiving (over $1,000),4 escaping fromcustody,5 possession of utensils,6 breach of community work,7 and failing to stop.8Thefts[4] This offending occurred over a period of some 14 months, between 22 January2022 and 11 March 2023. The theft largely involved Mr Bimler entering commercialretail premises and taking items ranging in value from $8 to $3,000. Some of thecharges concerned the theft of food or involved stealing fuel, while others involvedthe theft of expensive electrical appliances and equipment. Mr Bimler appears to havebeen primarily motivated by his need to support addictions to both methamphetamineand gambling.1 Crimes Act 1961, ss 219 and 223(d) — maximum penalty of three months' imprisonment.2 Section ss 219 and 223(c) — maximum penalty of one year's imprisonment.3 Section 219 & 223(b) — maximum penalty of seven years' imprisonment.4 Sections 246 and 247(a) — maximum penalty of seven years' imprisonment.5 Section 120 — maximum penalty of five years' imprisonment.6 Misuse of Drugs Act 1975, s 13(1)(a) and (3) — maximum penalty of one year's imprisonment orfine not exceeding $500.7 Sentencing Act 2002, s 71(1)(a) — maximum penalty of three months' imprisonment.8 Land Transport Act 1998, s 35(1)(c) — maximum penalty of three months' imprisonment or finenot exceeding $4,500.Receiving[5] The two receiving charges occurred in September and October last year. Theyinvolved Mr Bimler selling $17,000 worth of kitchen appliances and power tools tovarious pawn shops around Christchurch, and the selling of a hedge trimmer worthsome $1,600 that had been stolen from a tennis club.Failing to stop[6] The failing to stop charge occurred on the morning of 3 October 2022.Mr Bimler was the driver of a vehicle that caused an accident. He failed to stop andwas charged with failing to stop and ascertain whether injury had occurred.Escaping custody[7] Following Mr Bimler's last theft on 11 March this year, the police sought tolocate him. He was sighted by police on 14 March in a suburban street. He attemptedto hide. After police told him he was under arrest, he ran off through busy traffic. Heran some distance before flagging down a passing associate. He got into his friend'scar and drove off. This resulted in the police having to activate their lights and sirensto stop this vehicle.Possession of utensils[8] When police arrested Mr Bimler, they found a methamphetamine pipe in hispossession.Breach of community work sentence[9] The breach of community work related to a sentence that had been imposedback in May 2022, in relation to two earlier charges of theft that had occurred theprevious year. Mr Bimler initially engaged with the sentence but effectively stoppedserving the sentence in September last year. Out of a total of 50 community workhours imposed, Mr Bimler served some 27 hours.District Court sentencing[10] Judge Couch approached the sentencing exercise by adopting a starting pointof two years and eight months' imprisonment for all the dishonesty offending. Thiswas uplifted by nine months' imprisonment for the escaping custody charge. A furthertwo month uplift was applied for the remaining charges of possession of a pipe, failingto stop and ascertain injury, and breach of community work. This resulted in acombined starting point of 43-months' imprisonment. The Judge observed he hadalready taken into account totality when identifying the various starting points anduplifts. Because the offending had occurred whilst Mr Bimler was on bail, a15 per cent increase was applied. For his previous criminal history, a furtherfive per cent uplift was imposed.[11] Mr Bimler was afforded a full 25 per cent reduction for his guilty pleas and afurther credit of 15 per cent for personal mitigating factors. The sentence was thenreduced by five and a half months for time spent on electronically monitored bail. Thisresulted in the final sentence of 29 months' imprisonment. Reparation was alsoordered in the sum of $14,432.14.The appeal[12] Three grounds of appeal were argued on behalf of Mr Bimler. It wassubmitted:(a) the combined starting point was too high;(b) the uplift for prior convictions was excessive; and(c) credit for personal mitigating factors was insufficient.Alleged excessive starting point[13] In the absence of any applicable guideline decision regarding dishonestyoffending, Mr Bimler's counsel, Mr Greaves, referred to dicta of the Court of Appealwhich identified the various factors by which an offender's culpability could beassessed.9 These included the type, magnitude and sophistication of the offending;number of victims; the motivation for the offending; the amount of losses; the periodover which the offending occurred; the seriousness of breaches of trust; and the impacton victims. A "composite evaluation" of these types of factors, including the degreeof premeditation, the vulnerability of the victims, and all relevant circumstances isrequired.10[14] Applying these considerations to the circumstances of Mr Bimler's offending,it was submitted the majority of the thefts involved shoplifting with little or no attemptto conceal the offending, and, while there were a number of charges committed over alengthy period of time, the offending was described as unsophisticated and as havingmainly involved Mr Bimler uplifting items without paying for them. It was noted thevictims were mostly commercial retail businesses, although it was accepted there werea large number. Emphasis was placed on Mr Bimler's motivation for the offending,which was to support his gambling and methamphetamine addictions.[15] The value of the goods involved, including for the receiving charges, was some$34,021.80, although it was submitted the total losses the subject of the reparationorder had been the lesser figure of $14,432.14. It was argued the value of the itemsthe subject of the offending ought not to detract from the simple nature of the thefts,and the absence of any great degree of breach of trust, or impact on victims.Mr Bimler's offending was described as being towards the lower end of the scale, andthat, given the nature of his offending, the total starting point adopted by the sentencingJudge was excessive.Analysis[16] When approaching the sentencing task, the District Court Judge eschewed theorthodox approach to sentencing which would normally involve identifying the mostserious charge as the lead offence and applying a starting point. The Judge herepreferred assessing a total starting point for all the dishonesty offending on the basisit was very similar in nature.9 R v Varjan CA97/03, 26 June 2003.10 Rako v R [2015] NZCA 463 at [10].[17] Mr Greaves was critical of that approach. He noted this Court has previouslydisavowed the grouping of charges together to assess culpability.11 It was argued thelead charge should have been identified and a starting point based on Mr Bimler'sculpability for that charge assessed before uplifts imposed for the remaining charges.For its part, the Crown agreed. In seeking to uphold the sentence, it approached theappeal by applying conventional sentencing methodology and reviewed a number ofcases that had approached the sentencing exercise in that way. Because there is aconsensus between the parties regarding the correct approach to be taken, I will followthat approach in a effort to reappraise the appropriate level of sentence for the purposesof the appeal.[18] Both Mr Greaves and the Crown, identified the lead offence as the receivingcharge that involved Mr Bimler pawning some $17,000 worth of kitchen appliancesand power tools. Mr Bimler attended multiple pawn shops across Christchurch in aneffort to sell these stolen items. In support of their respective positions, a number ofauthorities were cited by counsel, which I briefly review:(a) Pahi v Police12 — Mr Pahi was charged with receiving two earringsand a diamond ring with a total value of $14,799, for which he had paid$100 each. The starting point for the receiving of nine months'imprisonment was not disturbed on appeal. This was followed by anuplift of 10 months for offences that included driving whilstdisqualified, possession of various illegal items, and two charges offailing to appear in breach of release conditions.(b) Davies v Police13 — A starting point of eight months' imprisonment ona charge of theft over $1,000 involving power tools was adopted byJargose J on appeal. This was uplifted by two months to reflect theoffence being committed whilst on bail and subject to sentence. Afurther uplift of four months was then imposed to take into accountadditional offending that included theft over $1,000, three charges of11 Henry v Police [2016] NZHC 800 at [25]; Poupouare v Police [2022] NZHC 209 at [25].12 Pahi v Police [2018] NZHC 2629.13 Davies v Police [2019] NZHC 3081.theft between $500 and $1,000, and a breach of community work. Thisresulted in an overall starting point of 14 months' imprisonment.(c) Hohaia v R14 — This case involved the burglary of a residentialproperty and commercial business from which property had been takenand some pawned. A search of the appellant's home located multipleitems from the two burglaries to a total value of some $8,859. Nation J,on appeal, did not disturb the starting point of two years' imprisonmentfor the two charges of receiving, noting that, while stern, he was notpersuaded it was manifestly excessive.(d) Ellis v R15 — $5,000 worth of property was stolen in a residentialburglary. A few hours later, the appellant was found in possession ofthese items. A starting point of 18 month's imprisonment, while notedas being stern, was found by the Court of Appeal as being within range.Of particular note, it was observed the sentencing Judge had beenentitled to take into account that the appellant had come into possessionof the stolen goods very shortly after the burglary — "within hours, ifnot minutes". This suggested some connection between the burglar andthe receiver.16[19] The cases cited involve starting points ranging from 9 to 24 months'imprisonment and largely reflect the wide spectrum of approaches that can be taken todishonesty offending depending on the individual circumstances of the particular case.However, some of the authorities are more helpful than others. In Pahi the issue beforethe Court was whether a sentence of home detention should have been imposed. Theterm of imprisonment adopted as a starting point was not in issue, so the case provideslittle assistance. In Davies the lead theft charge which attracted the eight monthstarting point involved a power tool stolen from a retailer with a value of only $1,388.The offending was considerably less serious.14 Hohaia v R [2020] NZHC 1795.15 Ellis v R [2012] NZCA 513.16 At [9].[20] The two year starting point adopted in Hohaia involved two receiving chargesthat were taken together as the lead charges. In the present case there is also a secondreceiving that involved the selling of a hedge trimmer previously stolen from a tennisclub. It is notable in respect of that charge that the stolen item was sold the same dayas it was stolen, indicating a close connection between the burglary and the receivingfor which Mr Bimler was convicted. As was stressed by Mr Brand, the value of thegoods the subject of the lead receiving charge in the present case were greater than inany of the other cited authorities. Examining the matter afresh, I consider a startingpoint of not less than 20 month's imprisonment would, in the circumstances, have beenappropriate for the two receiving charges.[21] In relation to the 16 other shoplifting charges that involved thefts of items witha combined value of $15,421.20, a significant uplift would have to be imposed.Mr Greaves submitted a 12-month uplift, which it was suggested could also includerecognition of the drugs utensil charge and the breach of community work. However,the Crown pointed to a number of cases involving serial shoplifting which, it wassubmitted, supported a greater uplift. These included:(a) Torbarina v Police17 — A starting point of 18 months' imprisonmentwas held to be in the range on three charges of theft of goods valued ata total of $3,174.50, although that included recognition of theappellant's 50 previous convictions.(b) Colman v Police18 — A starting point of 14 months' imprisonment wasadopted for theft of perfumes from a department store totalling$1,580.60.(c) Cooper v Police19 — A starting point of 15 months' imprisonment wasupheld for the shoplifting of items from chain stores and supermarkets,with a total value of $6,300.17 Torbarina v Police [2014] NZHC 3221.18 Colman v Police [2014] NZHC 3215.19 Cooper v Police [2015] NZHC 2955.[22] Based on the indicated guidance of these cases, the frequency of the thefts, thevalue of some of the individual items, and the total loss, I consider an uplift in theregion of at least 18 months' imprisonment would have been required.[23] In relation to the escaping from police custody charge, Mr Greaves submittedthat a lesser uplift should have been imposed. Counsel sought to draw comparisonswith the following cases:(a) Pihema v Police20 — The appellant had been pulled over by police asa result of driving off from a service station without paying for petrol.After being allowed to retrieve belongings from his car, he re-enteredthe vehicle and sped off. Police initially gave chase but abandoned thepursuit because of the speed at which the appellant was driving hisvehicle. He was effectively resentenced on the appeal. On charges thatalso included theft of petrol, dangerous driving and other relatedcharges, a starting point of seven months' imprisonment was adopted.(b) Brady v Police21 — The appellant was stopped by police and refused toconfirm his details when requested. After being informed he was underarrest, the appellant drove off for a distance of 16 km before the policemanaged to stop him. A sentence of 120 hours' community work forescaping custody was not disturbed on appeal.(c) Tawhai v Police22 — Police attended the appellant's address for thepurpose of arresting him for breach of bail. When given the opportunityto say goodbye to his girlfriend and locate some shoes to wear, he fledfrom the rear of the address. Police spent considerable time attemptingto locate him but failed to find him. A starting point of nine months'imprisonment on a charge of escaping police custody was not disturbedby this Court on appeal.20 Pihema v Police [2017] NZHC 1672.21 Brady v Police [2019] NZHC 1040.22 Tawhai v Police HC Wellington CRI-2011-485-47, 27 July 2011.[24] Mr Greaves submitted the conduct of Mr Bimler was less serious than the useof vehicles that had resulted in police pursuits and, at least in Pihema, with theappellant driving dangerously, which he submitted should have only attracted astarting point of no more than five months' imprisonment. The Crown, on the otherhand, placed reliance on the outcome in Tawhai. Mr Bimler running through busytraffic and entering a motor vehicle to evade capture was described as presenting adanger to others in his attempt to evade police. However, the appellant in Tawhai hadbeen successful in escaping from police and was not apprehended for some period oftime after his escape. As a result, it could possibly be viewed as a more serious case.On balance, I consider Mr Bimler's conduct should only have attracted a six-monthuplift.23Other charges[25] There remains the other charges that include possession of utensils, failing tostop to ascertain injury, and the breach of community work. I consider the nominaluplift of two months' imprisonment adopted by the Judge was unremarkable.Other factors[26] This recalibration results in an overall starting point of 46 months'imprisonment. However, much of Mr Bimler's offending occurred while he was onbail. No issue has been taken with the 15 per cent uplift imposed for this aggravatingfeature. This results in an overall starting point of four years and five months'imprisonment. This, in turn, is required to be adjusted to give effect to the totalityprinciple in order to ensure the total period of imprisonment is not wholly out ofproportion to the gravity of the overall offending. A deduction of six months isnecessary to ensure the total starting point does not result in a disproportionatesentence.Uplift for criminal history[27] The Judge increased the starting point by some two months in recognition ofMr Bimler's prior convictions. This represents an uplift of five per cent, which it was23 See Awatere v Police [2015] NZHC 1374.submitted was not necessary because of the vintage of Mr Bimler's relevant priorconvictions. It was suggested, if there was to be any uplift, it should not exceed onemonth. The appellant has 20 previous convictions for offences of dishonesty thatinclude a spree of burglaries in 2010 and 2011, which is now well over 10 years ago.However, he did engage in similar offending in 2021 that resulted in two convictionsfor theft, albeit involving property valued at less than $500.[28] As noted by the Court of Appeal, it is important that uplifts for priorconvictions reflect a considered response to specific aspects of an offender's previouscriminal history.24 A sentence should not be increased because of an offender's pasthistory if to do so would effectively increase the sentence imposed on that previousoccasion or occasions.25 The need for deterrence and the protection of the communityare sentencing purposes that ordinarily need to be considered when assessing thenumber, seriousness and nature of past convictions and their relevance to theobjectives of sentencing in respect of the offender's latest offending.[29] Mr Bimler has two theft convictions as recent as 2021. However, as noted, itwas as far back as 2010 and early 2011 when he committed these earlier dishonestyoffences. These appear to have ranged in seriousness from more minor to reasonablysubstantial burglaries, shoplifting, and receiving offences. He has further and morehistoric dishonesty offending again. The sentencing Judge was cognisant of the ageof the bulk of Mr Bimler's previous convictions and took that into account whenimposing a minimum uplift which largely denotes his previous convictions entered in2021. On balance, I do not consider the nominal two-month uplift was outside thatavailable.Appropriate discounts for personal mitigating factors[30] Mr Greaves submitted that greater credit should have been afforded toMr Bimler in recognition of his personal circumstances and, in particular, his addition-related issues, family and personal background, and prospects for rehabilitation. Thereports that were made available to the sentencing Court outlined both serious24 O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302.25 Wipa v R [2018] NZCA 219 at [25]–[28].gambling and methamphetamine addictions, and also described traumatic eventswhich, whilst not excusing Mr Bimler's behaviour, were said to provide context as towhy he had committed these offences.[31] These factors include him having been exposed to substance abuse from ayoung age, being placed into the care of his grandparents when very young, and hisitinerant upbringing. The failure of a longstanding relationship in 2020 and his parentspassing away the following year were more recent events that were said to haveimpacted on Mr Bimler. It was submitted that when regard is had to his willingnessto be involved in rehabilitative interventions, a credit in the region of 20 per centwould have more appropriately recognised these mitigating personal factors.[32] There are two notable factors of Mr Bimler's personal situation. The first ishis demonstrated ability to remain offence-free for a long period of time. Leavingaside two family violence related convictions in 2017, Mr Bimler curbed his propertyrelated dishonesty offending in 2011. He did not reoffend in that way for some10 years. During that period he undertook a building apprenticeship and achieved anumber of positive milestones, including the birth of a child and purchasing a home.He successfully completed a drug treatment programme in 2011 and, it is reported,this caused him to abstain from drug use until after the COVID lockdown whenmatters are said to have spiralled downward for him.[33] The second notable aspect is the alcohol and drug assessment and treatmentreport which confirms that Mr Bimler's drug use increased around the time of hisrelationship breakup and when his parents passed away. The report documents areferral that has been made on behalf of Mr Bimler to be admitted to a residentialrehabilitation programme that lasts between eight and 15 weeks.[34] There is an obvious nexus between Mr Bimler's dependencies and his recentoffending which appear to be at the root of his criminal conduct. This was recognisedby the sentencing Judge, who observed that his offending was motivated by hisaddictions to gambling and methamphetamine. Addictions, particularly incombination with factors such as deteriorating mental health, are to be recognised asdiminishing an offender's capacity to make rational choices and therefore as reducingculpability. They are to be recognised as a substantive mitigating feature where acausative link is demonstrated.26 However, I do not consider the 15 per cent discountthe Judge was prepared to extend to Mr Bimler for this factor can be said to give riseto any error.[35] As noted by the Crown, the sentencing Judge provided a credit of five and halfmonths for time spent on electronically monitored bail (EM bail) notwithstandingMr Bimler cutting off his monitoring bracelet and absconding in April 2023. I acceptthat any reservations regarding the sufficiency of the credit afforded for Mr Bimler'spersonal circumstances are to some degree offset by that reduction in his sentence towhich he may not otherwise have been entitled given his failure to abide with therequirements of EM bail.Conclusion[36] In summary, therefore, a starting point of 47 months' imprisonment, followedby applying a 40 per cent discount for guilty pleas and personal mitigatingcircumstances, and then a five-month deduction for time spent on EM bail, leads to anend sentence of 23 months' imprisonment. That outcome results in the conclusion thatthe original 29-month sentence of imprisonment was manifestly excessive.Leave to apply for home detention[37] Because the sentence reduces to one of a short term of imprisonment,Mr Bimler is eligible to be considered for a non-custodial sentence. At the time hewas sentenced in the District Court there was no approved address for an electronicallymonitored sentence. However, he had been referred to and accepted for admissioninto the St Marks Residential Rehabilitation Programme based in Blenheim, although"without a bed date".[38] I have been advised there currently is still no fixed bed date available. In thecircumstances, and particularly in light of how previous rehabilitative interventions toaddress Mr Bimler's addictions appear to have been successful, I am prepared to grant26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.Mr Bimler leave to apply for home detention should a place become available to himto attend this residential rehabilitation programme. Because of Mr Bimler's addictionissues, Mr Greaves responsibly accepted that a home detention sentence, other than toa residential rehabilitation facility, would not otherwise be appropriate.Result[39] The appeal is allowed. The sentence of 29 months' imprisonment is set aside.In its place a sentence of 23 months' imprisonment is imposed. The reparation orderremains in place, as does the suspension of his sentence of community work.[40] Leave is granted to Mr Bimler to apply for home detention should a placebecome available to him at the St Marks Residential Rehabilitation Facility.Solicitors:Crown Solicitor, Christchurch