GRAY v POLICE [2018] NZHC 3245

GRAY v POLICE [2018] NZHC 3245 [10 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-333[2018] NZHC 3245BETWEEN JEREMY EARL SNOW GRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 10 December 2018Appearances: R Slade and N Lim-Kwan for the AppellantM Mortimer for the RespondentJudgment: 10 December 2018ORAL JUDGMENT OF GORDON JSolicitors: Crown Solicitor, AucklandPublic Defence Service, AucklandIntroduction[1] The appellant, Jeremy Gray, pleaded guilty to the following charges:(a) Burglary;1(b) Receiving;2(c) Theft;3 and(d) Failure to answer bail.4[2] On 14 August 2018, Judge Gibson in the District Court at Auckland sentencedMr Gray to two years and four months' imprisonment.5[3] Mr Gray appeals his sentence on the basis that it is manifestly excessive.[4] The Crown opposes the appeal.[5] The notice of appeal was filed out of time. Counsel oversight is theexplanation. I grant the necessary extension as the delay was not lengthy and there isno opposition by the Crown.[6] Mr Gray has been in custody since he was sentenced.Factual background[7] The offending comprises several discrete incidents. I summarise these briefly.[8] At about 11:25 am on 16 September 2017, Mr Gray was driving a Nissan motorvehicle in Parnell. He drove into a petrol station and filled his vehicle with $87.13worth of petrol. He then drove off without paying.1 Crimes Act 1961, s 231(1)(a).2 Section 246(1).3 Section 219(1)(a).4 Bail Act 2000, s 38(a).5 New Zealand Police v Gray [2018] NZDC 18201.[9] Between 5:30 pm and 9 pm on 30 September 2017, Mr Gray and his associateentered onto the property at 19 Weston Avenue, Papatoetoe. They had squeezedthrough a gap in the fence from a neighbouring address. The victim was inside theproperty at the time.[10] Mr Gray noticed a work van parked on the driveway. He opened the slidingdoor of the van and, with the assistance of his associate, stole multiple power toolsfrom inside the van. The tools had a total value of approximately $5,500.[11] Between 12 am and 10 am on 25 January 2018, a blue Merida Big Seven 300mountain bike was stolen from a property in Hillsborough. It was valued at $899. Thefollowing day, at about 4 pm, Mr Gray went into a bike shop in Eden Terrace. He soldthat same blue Merida Big Seven 300 mountain bike for $250.District Court decision[12] Judge Gibson identified the burglary charge as the lead charge.6 After settingout the facts and Mr Gray's previous convictions, the Judge then referred toArahanga v R:7[8] which [is] not a tariff decision but is a decision usually referred toin sentencing of domestic burglaries and which indicates that for a relativelystraight forward burglary starting points of between 18 months and two and ahalf years' imprisonment ought to be taken.[13] The Judge stated that although Mr Gray did not actually enter a dwelling house,he entered the property on which it was situated.8 He adopted a starting point of twoyears' imprisonment, also taking into account the value of the tools that were taken.9[14] The Judge then uplifted the sentence by six months for the rest of theoffending.10 He further uplifted the sentence by two months for Mr Gray's previousconvictions.116 New Zealand Police v Gray, above n 5, at [2].7 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.8 New Zealand Police v Gray, above n 5, at [9].9 At [9].10 At [9].11 At [11].[15] Lastly, the Judge discounted the sentence by four months to take into accountMr Gray's guilty pleas, leading to an end sentence of two years and four months'imprisonment.12Approach on appeal[16] Section 250(2) of the Criminal Procedure Act 2011 provides:(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.[17] In any other case, the court must dismiss the appeal.13[18] A sentence may be set aside where it is manifestly excessive.14 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached.15 The court will not intervene where the sentence iswithin range. But, if the court determines the sentence is manifestly excessive, it willform its own view of the appropriate sentence.16Submissions[19] Mr Slade, on behalf of Mr Gray, submits that the sentence was manifestlyexcessive. Specifically, he submits that an excessive starting point was adopted on thelead charge of burglary.[20] Mr Slade also submits that there was an excessive uplift for both Mr Gray'sadditional offending and his previous convictions. Lastly, he submits that there wasinsufficient credit given for Mr Gray's guilty pleas.12 At [11].13 Criminal Procedure Act 2011, s 250(3).14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].15 Kumar v R [2015] NZCA 460 at [81].16 Tutakangahau v R, above n 14, at [30].[21] Mr Mortimer, on behalf of the Crown, first submits that while the starting pointwas at the upper end of the available range, it was nevertheless available toJudge Gibson. He further submits that the uplifts and discounts applied byJudge Gibson were appropriate, although I comment further in relation to the discountfor Mr Gray's guilty pleas when I get to that point in the judgment.Starting point[22] Judge Gibson was correct to adopt the burglary charge as the lead charge andaccordingly to set a starting point for that charge and then to uplift the starting pointto reflect the remaining offending.17[23] Burglary carries a maximum penalty of 10 years' imprisonment.18 There is notariff case for burglary sentences because the range of circumstances in which theoffence can be committed is so varied.19 In Arahanga v R, however, the Court ofAppeal stated:[78] burglary of a domestic residence is a significant aggravatingfeature at sentencing due to the heightened risk of confrontation with theoccupants. Dwelling house burglaries at the relatively minor end of the scaletend to attract a starting point of approximately 18 months' to two years andsix months' imprisonment.(Citations omitted)[24] After identifying the decision in Arahanga, Judge Gibson stated:20[9] In this case you did not actually enter a dwelling house, you simplyentered the property on which the dwelling house was situated and so takingthat matter into account the overall starting point would seem to me to be one,considering the value of the tools that were taken, of two years' imprisonment[25] Mr Slade submits that the present case can be distinguished from the "dwellinghouse burglary" category of Arahanga because it is of lesser gravity. Mr Gray did notactually enter the dwelling house. Mr Slade cites two cases in support of thatsubmission.17 Sentencing Act 2002, s 84(2).18 Crimes Act, s 231(1).19 Arahanga v R, above n 7, at [78].20 New Zealand Police v Gray, above n 5.[26] The first decision is R v Columbus.21 In that case, the defendant had pleadedguilty to one charge of burglary, two charges of theft, one charge of possession ofcannabis and one charge of possession of a pipe. He had forced open the vehicleaccess door of a garage at a residential property, causing damage. He then stole amountain bike, gardening tools and a tool box.[27] The District Court Judge treated the burglary charge as the lead offence.Although acknowledging it was at the minor end of the scale, he fixed a global startingpoint of three years and six months' imprisonment (taking into account the totality ofthe defendant's offending and his history of dishonesty offending).[28] On appeal, the Court of Appeal agreed that the burglary was "at the minor endof the scale".22 It classified the offending as opportunistic or spontaneous because thedefendant wanted money.23 Although the owner suffered "a natural sense of emotionalviolation and distress and limited financial loss", the Court held the offending did notjustify a starting point of more than one year's imprisonment.24[29] The second decision is Blissett v Police.25 In that case, the defendant had beenconvicted of charges of burglary, receiving and possession of a glass pipe for thepurpose of consuming methamphetamine. He entered the outside area of a domesticdwelling during the daytime and attempted to force open a window. When the windowbroke, he left the scene. A few weeks later, again during the daytime, the defendantand an associate had broken into a domestic residence and took personal property,including a camera and items of jewellery, with a total value of $2,000.[30] The District Court Judge had adopted a starting point of three years'imprisonment for the burglaries. On appeal, Duffy J treated the second burglary as thelead offence.26 Duffy J then stated:21 R v Columbus [2008] NZCA 192.22 At [16].23 At [16].24 At [16].25 Blissett v Police [2013] NZHC 156.26 At [36].[37] The timing of the burglary (during the day) and the relatively lowvalue of the items taken ($2,000) place the burglary at the lower end of thescale. The fact it was carried out with an accomplice raises the seriousness ofthe offending. Some planning was involved, as the summary of facts statesthat the offenders jemmied upon a garage door, which suggests that theoffenders went to the property prepared to break into it. Once inside thegarage, they smashed an internal door, thereby gaining access to the house.The stolen property was not recovered.[31] The Judge stated that this was more serious offending than in Columbus.27After citing several comparable cases, she stated that the offending would "attract arange of starting point of somewhere between 16 and 18 months' imprisonment".28She adopted a starting point of 17 months' imprisonment.29[32] Mr Mortimer, on the other hand, notes that a range of lower-level domesticburglary cases were summarised by Palmer J in Tafengatoto v Police.30 In that case,the defendant had pleaded guilty to one charge of burglary. He had entered aresidential property early in the morning by pulling out slats in a secured window.While the victim was asleep, the defendant searched the home and removed electronicitems, jewellery and a wallet to the value of $12,500.[33] The District Court Judge had adopted a starting point of two years and sixmonths' imprisonment. On appeal, Palmer J adopted a starting point of two years'imprisonment.31Discussion[34] Mr Slade submits that the present case is similar to Columbus in that it involvedentry into a domestic property, but not into a domestic dwelling house. He says theentry into a garage in Columbus is arguably more serious. He further submits that thepresent case is less serious than Blissett as that case involved two burglaries, including27 At [38].28 At [45].29 At [45].30 Tafengatoto v Police [2018] NZHC 2452. The cases summarised by Palmer J were Bates v R[2016] NZCA 456; Stepanicic v R [2015] NZCA 211; Toala v Police [2013] NZHC 3270;Wilkinson v Police [2016] NZHC 1845; Rigby v R [2018] NZHC 478.31 At [9].the entry into a domestic dwelling house. He submits the appropriate starting point is12 months' imprisonment.[35] Mr Mortimer, on the other hand, submits the fact that Mr Gray did not enterthe house is only of limited mitigation. He submits that the entry onto residentialpremises and the taking of tools from a work van attracts the same concerns as thosethat apply to entry into dwelling houses, namely a sense of intrusion on the part of thevictim and the risk of confrontation with a victim. As the offending occurred at a timein the evening when the occupants were likely to be home, this made the risk ofconfrontation high.[36] Furthermore, Mr Mortimer submits that the sentencing methodology used inColumbus has been replaced, so it is safer to put that decision to one side. In anyevent, he notes that the offending in that case was spontaneous and the value of theitems was not recorded.[37] In my view, the appropriate starting point for this charge is 12 months'imprisonment. The offending appears opportunistic. There is no evidence ofpremeditation or planning. This starting point still recognises, however, that theburglary took place with an associate, the total value of the property taken was $5,500,and that it has not been recovered. The starting point also recognises, on the otherhand, that Mr Gray did not enter the domestic dwelling house on the property. Heonly entered the van on the driveway. The risk of confrontation is significantly less inthat situation.[38] I consider that the offending in this case is less serious than all of the cases Ihave referred to. The cases of Blissett, Tafengatoto, Stepanicic v R, Toala v Police,Wilkinson v Police and Rigby v R are all instances of more serious offending.32 Theyall involved entry into a domestic dwelling house, where there was theft of items of asimilar, if not greater, value. There is a greater risk of confrontation in thosecircumstances, which is a significant aggravating feature lacking in this offending.3332 Stepanicic v R, above n 30; Toala v Police, above n 30; Wilkinson v Police, above n 30; Rigby vR, above n 30.33 Arahanga v R, above n 7, at [78].[39] I have also considered the cases of Zimmerman v Police34 and Reihana vPolice.35[40] In Zimmerman v Police, the defendant pleaded guilty to one charge of burglaryand four charges of breaching release conditions. Along with an associate, thedefendant entered a residential property by smashing a rear window. They stoleproperty, including a necklace valued at around $18,000 (which was not recovered).The defendant knew the victims (they were wider family members) – so he knew theywere away at the time.[41] On appeal, Thomas J identified the aggravating features of the offending asthe fact that there were two burglars, the significant breach of trust involved, thedamage to the property (in smashing a window to get in), the taking of high-valueitems from the house, the fact that the jewellery had not been recovered and thefinancial loss to the victims.36 The Judge upheld a starting point of 18 months'imprisonment.37[42] In Reihana v Police, the defendant pleaded guilty to one charge of burglary.38He had stolen items with a combined value in excess of $5,000 from the home of hisaunt. He had entered the house through an unsecured window. There was no challengeto the starting point of 12 months' imprisonment. After reviewing several cases,Woolford J stated that the starting point "could have been a little more".39 AlthoughWoolford J accepted both sets of offending were similarly opportunistic, hedistinguished the case from Zimmerman as there was property damage in that case andthe jewellery stolen was significantly more valuable.40[43] I consider that this offending is similarly less serious than Zimmerman. Asnoted, in that case, the defendant entered a residential property and stole property34 Zimmerman v Police [2014] NZHC 3233.35 Reihana v Police [2015] NZHC 360.36 Zimmerman v Police, above n 34, at [31].37 At [34].38 Reihana v Police, above n 35.39 At [32].40 At [29].valued at $18,000 which was not recovered. There were also the additionalaggravating features of a breach of trust and damage to property.[44] In my view, this offending is most analogous to the cases of Columbus andReihana. The property stolen in Reihana had a similar value. Although the defendantin that case entered a residential property, and thereby increased the risk ofconfrontation, there were two offenders in the instant case, and Woolford Jacknowledged in Reihana that the starting point "could have been a little more".41 Asto Columbus, I accept that the entry into a garage is slightly more serious. But therewas only one offender.[45] I am satisfied therefore that Judge Gibson has erred in adopting an excessivestarting point which has produced an end sentence which is outside the range available.[46] As I have identified an error, I must approach the sentencing afresh byreference to the starting point I have found to be appropriate for the lead charge. I willneed to assess the appropriateness of the uplifts and discounts applied by JudgeGibson.Uplift – remaining offending[47] As noted, Judge Gibson uplifted his starting point by six months' imprisonmentto reflect the three remaining charges.42[48] Given the maximum penalties for each of the remaining offences,43 I considerthat an uplift of three months' imprisonment is appropriate in the context of a startingpoint of 12 months' imprisonment. An uplift of six months would be excessive. Thisresults in a sentence of 15 months' imprisonment.41 Reihana v Police, above n 35, at [32].42 New Zealand Police v Gray, above n 5, at [9].43 Receiving (between $500 and $1,000) – imprisonment for one year; theft (under $500) –imprisonment for three months; failure to answer District Court bail – imprisonment for one yearor a $2,000 fine.Uplift – previous convictions[49] Judge Gibson applied a two-month uplift to reflect Mr Gray's previousconvictions.44[50] As Woolford J explained in Reihana v Police:45[34] Deterrence and protection of the public play a role in uplifting astarting point for previous convictions. In the case of recidivist burglars, thisis noted as a particular factor in sentencing (Citations omitted)[51] Mr Gray has three previous convictions for burglary from 2008, 2009 and2011. He also has numerous other convictions for dishonesty-related offending,including charges of receiving, unlawfully interfering with or taking a motor vehicle,and unlawfully being in an enclosed yard or area.[52] Furthermore, Mr Gray has several previous convictions for failing to answerDistrict Court bail and breaching other court-imposed orders. This is significant givenhe was for sentence on a charge of failing to answer bail.[53] I am satisfied that a two-month uplift is appropriate in the circumstances. Thisresults in a sentence of 17 months' imprisonment.Guilty plea[54] Lastly, Judge Gibson applied a discount of four months to take into accountMr Gray's guilty pleas.46 That was a discount of 12.5 per cent.[55] Mr Gray entered a guilty plea to the theft charge at his first appearance inrelation to that matter. He subsequently entered guilty pleas to the remaining chargesafter receipt of full disclosure and legal advice.44 At [11].45 Reihana v Police, above n 35.46 New Zealand Police v Gray, above n 5, at [11].[56] Mr Mortimer accepts that the guilty plea discount could have been higher buthe submits this is not a case for the full 25 per cent discount.[57] However, I am satisfied, given the matters I have mentioned regarding thetiming of the first guilty plea and the pleas after full disclosure and legal advice on theremaining charges, a discount of four months, or just under 25 percent, is appropriate.This results in an end sentence of 13 months' imprisonment.Home detention[58] I am satisfied that the sentence imposed by Judge Gibson was manifestlyexcessive. As the end sentence was above two years' imprisonment, the Judge wasnot able to consider whether a sentence of home detention was appropriate. I am ableto do so.[59] Mr Slade submits that such a sentence is appropriate. Mr Mortimer acceptsthat home detention is an option if this Court were to allow the appeal and reach theappropriate range.[60] There is a pre-sentence report dated 9 August 2018 which addressed thepossibility of the sentence being served at Grace Foundation's supported livingaccommodation, at 22 Station Road, Takanini, Auckland. Accommodation had beenarranged for him to stay there. The address, occupants and Mr Gray were all assessedas suitable. A letter from the Grace Foundation, dated 10 December 2018, has beenprovided to the Court today. That letter records that accommodation at that address isavailable for Mr Gray as from Monday 17 December 2018.[61] Returning to the pre-sentence report, on the one hand, the report writer assessedMr Gray's ability to comply with sentences of community detention or communitywork as very poor due to his history of breaching community-based sentences.However, and on the other hand, she stated that a sentence of home detention wouldoffer close oversight of Mr Gray's rehabilitation and provide him with support.[62] I consider that a sentence of home detention is appropriate. I agree with thereport writer that the particular residence will allow for oversight of Mr Gray'srehabilitation and will give him support. Occupants sign an agreement to abide byhouse rules which include: no visitors without prior approval; no overnight visitors;no drugs or alcohol; compulsory attendance at church; and a daily rehabilitativeprogramme.Conclusion[63] The appeal is allowed. The sentence of two years and four months'imprisonment is quashed. The appropriate sentence is 13 months' imprisonment,which can be commuted to a sentence of six months and two weeks' home detention.As Mr Gray has spent nearly four months in custody (the equivalent of almost twomonths' home detention), the period of home detention would be four months and twoweeks.[64] The nominal sentences ordered to be served concurrently on the remainingthree charges are also quashed. The appropriate sentences on those charges aresentences of home detention as follows:(a) Receiving – two months' imprisonment, commuted to one month'shome detention;(b) Theft – one month's imprisonment, commuted to two weeks' homedetention; and(c) Failure to answer bail – two months' imprisonment, commuted to onemonth's home detention.[65] These sentences are to be served concurrently with each other and concurrentlywith the sentence on the burglary charge. The end sentence is, therefore, four monthsand two weeks' home detention.[66] All sentences of home detention are subject to the following special conditions:(a) On 17 December 2018, to travel directly to the home detention addressof 22 Station Road, Takanini, Auckland, and to remain at the address tobe met by a Field Officer;(b) To reside at 22 Station Road, Takanini, Auckland, and not to moveaddress without the prior written approval of the Probation Officer;(c) Not to consume or possess alcohol or illicit drugs for the duration ofhome detention;(d) To undertake and complete appropriate treatment/counselling to thesatisfaction of the Probation Officer and treatment provider. The detailsof the treatment or counselling to be determined by the ProbationOfficer; and(e) Undertake and complete an appropriate departmental or culturalprogramme, to the satisfaction of the Probation Officer and programmefacilitator, if a suitable programme is available. The details of theprogramme and suitability to be determined by the Probation Officer.[67] To those conditions, I add two further conditions proposed by GraceFoundation, as follows:(a) To take part in all programmes and activities of the Grace Foundationat the approval of the EM bail team and/or the assigned probationofficer; and(b) A curfew exception, if taking part in all programmes and activities ofthe Grace Foundation or other rehabilitative programmes and activitiesas long as Mr Gray is accompanied by a staff member of the GraceFoundation.___________________________________Gordon J