BAKER v POLICE [2023] NZHC 3386

BAKER v POLICE [2023] NZHC 3386 [27 November 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-0089[2023] NZHC 3386BETWEEN JOSHUA RUATEKAUMATAHIJOHNDALAH BAKERAppellantAND NEW ZEALAND POLICERespondentHearing: 23 November 2023 (by VMR)Appearances: E L Reilly for AppellantA A Maino for RespondentJudgment: 27 November 2023JUDGMENT OF PETERS JThis judgment was delivered by Justice Peterson 27 November 2023 at 3.30 pmRegistrar/Deputy RegistrarDate: ...................................Solicitors: Lance Lawson Ltd, RotoruaGordon Pilditch, RotoruaIntroduction[1] The appellant, Mr Baker, appeals against his sentence of three years andeight months' imprisonment imposed by Judge Collin on 20 charges of burglary andtwo of unlawful possession of a firearm.1[2] Mr Baker contends the sentence is manifestly excessive. In particular,Ms Reilly, counsel for Mr Baker on appeal, submits that the Judge's starting point ofseven years' imprisonment on the burglary charges was too high and should not haveexceeded six years.BackgroundBurglary offending[3] Between April and September 2022, Mr Baker and his co-offender,Mr Pomare, committed 20 well planned burglaries throughout New Zealand. Theytargeted retail outlets such as Four Square supermarkets and petrol stations, and often,if not always, travelled in rental cars.[4] Mr Baker and Mr Pomare used the same modus operandi for each burglary.They dressed in black and wore gloves, and used a crowbar to smash into premisesand to force open cigarette cabinets and cash registers. They would then depart withcigarettes and cash and other items, leaving much physical damage in their wake. Thetotal loss caused by their offending was $185,129, comprising $127,407 in stolenproperty and $57,720 in damage.[5] Numerous victim impact statements were filed. Proprietors would arrive attheir premises to find considerable damage, necessitating repairs and/or replacementhardware, and suffered loss they could ill-afford to suffer. Such offending has adispiriting effect on shopkeepers, and in this case many of those affected were servingsmall, local communities.1 Police v Baker [2023] NZDC 15839.Unlawful possession of a firearm offending[6] Mr Baker committed the firearms offending on 15 September 2022.[7] Mr Baker hired a rental car in Tauranga, drove to his home in Rotorua and thenplaced several items, including a double-barrel sawn-off shotgun and eight rounds of12-gauge ammunition, into the car. Later that day, Mr Baker drove to an address inLower Hutt.[8] On 16 September 2022, the police executed search warrants on the vehicle andthe address in Lower Hutt. The police located the sawn-off shotgun and ammunitionin the boot of the vehicle, the shotgun then being loaded with two rounds ofammunition.Sentencing[9] As stated above, the Judge adopted a starting point of seven years'imprisonment for the burglaries. The Judge then uplifted that by six months for thefirearms offending, resulting in an overall starting point of seven years and six months'imprisonment, or 90 months.[10] The Judge allowed discounts of 25 per cent for Mr Baker's guilty pleas; fiveper cent for remorse; and 15 per cent for matters in Mr Baker's background which theJudge was satisfied had contributed to his offending. The Judge allowed a furtherthree-month reduction for time spent on EM bail. Ultimately the Judge calculated thatthis resulted in an end sentence of three years and eight months' imprisonment,although my calculation (which I double checked with counsel) is three years,10 months and two weeks' imprisonment.[11] As I have said, Ms Reilly contends that the starting point on the burglarycharges should be reduced to six years. She takes no issue with the uplift or reductionsallowed for mitigating factors. The effect of the proposed reduction would be toreduce Mr Baker's end sentence to three years and four months' imprisonment.[12] In her submissions, Ms Reilly acknowledged that the sheer number ofburglaries and the total loss caused make the offending serious, but not so serious asto warrant a starting point of seven years' imprisonment. In support of this submission,Ms Reilly referred me to Peters v R, R v Bidois, Paku v R, Sullivan v R, andR v Andrian.2 Paku is not particularly relevant but in all of the others the offender hadcommitted numerous burglaries, sometimes with related offending such as receiving,unlawful use of a motor vehicle, and firearms charges. In Bidois and Sullivan, theoffenders had targeted commercial premises, and residential premises in Peters andAndrian. In each, losses of similar quantum to the present were caused by theoffending.[13] Crown counsel, Ms Maino, submits that the Judge's starting point was withinthe available range. Ms Maino referred me to Gorgus v Police and R v Nguyen asidentifying the aggravating features of burglary offending.3 Burglary of residentialproperties is usually considered a significant aggravating feature but obviously thenumber of offences, the value of the goods taken, and the damage caused are materialas is the degree of planning and premeditation.[14] In support of her submission that the starting point was within range, Ms Mainoreferred me to Nguyen. In that case, the District Court Judge had adopted a startingpoint of nine years' imprisonment which the Court of Appeal reduced to eight years.That is a more serious case than the present, as the offender was the ringleader of amajor burglary enterprise and the value of the goods taken vastly exceeded the presentcase.[15] In Pompey v Police, the offender committed six burglaries targeting retailoutlets at night, and stealing items to a total value of approximately $185,000.4 TheCourt of Appeal reduced the starting point from eight years to six years' imprisonment.[16] Ms Maino contends that the offending is more serious than in Pompey andSullivan (referred to above), given the sheer number of burglaries and therefore the2 Peters v R [2014] NZHC 1158; R v Bidois DC Christchurch CRI-2011-009-5380, 8 November2011, Paku v R [2011] NZCA 269; and Sullivan v R [2016] NZCA 100.3 Gorgus v Police [2015] NZHC 3127; and R v Nguyen CA110/01, 2 July 2011.4 Pompey v Police [2023] NZHC 2378.number of victims, the degree of premeditation and planning, and the geographicalambit of the offending which literally was the length and breadth of New Zealand.Conclusion[17] Having regard to the authorities to which counsel referred me, there is anargument that the Judge's seven year starting point was slightly too high. This isbecause Mr Baker and Mr Pomare targeted commercial, not residential, premises.Otherwise, their offending has all the aggravating features to which Ms Maino refers.[18] However, even if the starting point could be said to be slightly too high, I wouldagree with Ms Maino that the case falls somewhere between Pompey and Nguyen,calling for a starting point of, say, six years and six months' imprisonment, but not lessthan that.[19] If a starting point of six years and six months' imprisonment was adopted onthe burglary offending, but the uplift and reductions retained, Mr Baker's end sentencewould be three years and seven months' imprisonment. That would mean a reductionof one month to the overall end sentence actually imposed which plainly would betinkering, which the Court will not do.5Result[20] I dismiss this appeal.Peters J5 R v Boyd (2004) 21 CRNZ 169 at [38].