GREY v NEW ZEALAND POLICE [2023] NZHC 2065

GREY v NEW ZEALAND POLICE [2023] NZHC 2065 [4 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000249[2023] NZHC 2065BETWEEN MITCHELL TYLER GREYAppellantAND NEW ZEALAND POLICERespondentHearing: 21 July 2023Appearances: A Ives for AppellantJ L Gibson for RespondentJudgment: 4 August 2023JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 4 August 2023 at 2.15 pm.Registrar/ Deputy RegistrarSolicitors/Counsel:A Ives, Barrister, AucklandCrown Solicitor, AucklandIntroduction[1] Mitchell Grey (the appellant) pleaded guilty to charges of: burglary;1 theft;2being found in a motor vehicle without reasonable excuse;3 and two charges of beingunlawfully in a building.4 On 5 May 2023, he was sentenced by Judge D J McDonaldin the Auckland District Court to 16 months' imprisonment.5 He appeals his sentenceon the grounds that it was manifestly excessive and says that the Judge erred byadopting a starting point that was too high, and by failing to allow for the time he spenton electronically monitored (EM) bail.[2] The respondent opposes the appeal and says that the appellant cannot showthat the sentence imposed by the Judge was manifestly excessive. The respondentsays that the 16 months sentence was within the available range, and the adjustmentproposed by the appellant would amount to "tinkering" with the sentence imposed bythe Judge.Offending[3] The offending occurred in Hawkes Bay and Auckland over several monthsduring 2022.[4] Sometime between 4.00 pm on 11 February and 7.00 am on 14 February 2022,the appellant entered a secure construction site in Hastings. He cut holes in thebuilding wrap on one of the units under construction, reached inside to unlatch awindow, and gained entry. He took a laptop charger, an outlet power centre, and a fastcharger. The items are collectively valued at approximately $280.[5] On the afternoon of 18 February 2022, the appellant entered a Rebel Sport storein Hastings. He picked up a pair of shoes, removed the security tag and put the shoes1 Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years' imprisonment.2 Crimes Act 1961, ss 219 and 223(d). Maximum penalty of three months' imprisonment.3 Summary Offences Act 1981, s 29. Maximum penalty of three months' imprisonment, or $2,000fine.4 Summary Offences Act 1981, s 29. Maximum penalty of three months' imprisonment, or $2,000fine.5 New Zealand Police v Grey [2023] NZDC 9138.on, leaving his own shoes under a bench in the store. He was stopped by staff whilewalking around inside the store and was asked to remove the shoes.[6] Around 4.00 am on 12 July 2022, the appellant went to a butcher's businesspremises Greenlane, Auckland. He cut padlocks and forced open a heavy-duty doorto gain entry to the premises. Once inside he attempted to open the door to the chillerbut was unsuccessful. He then departed.[7] On the afternoon of 26 September 2022, the appellant went to a residentialaddress in Mt Wellington, Auckland. He used a drill to open the lock on a shed at theback of the property. He took four "jerry cans" and two small tins from the shed beforeleaving the scene.[8] On the night of 12 October 2022, a vehicle was stolen from a residentialaddress in Henderson, Auckland. Shortly before midnight on 14 October 2022, policesaw the stolen vehicle being driven in East Tamaki, Auckland. Police followed thevehicle and observed the appellant stop the vehicle and flee into an area of scrub wherehe was later found.District Court Judge's sentencing decision[9] In his sentencing decision of 5 May 2023 Judge McDonald summarised theappellant's offending and noted that he would take into account the purposes andprinciples of sentencing to hold the appellant accountable, to deter and denounce theoffending, and would impose the least restrictive starting point.[10] Judge McDonald took the burglary as the lead charge for the purposes of thesentencing, and noted there is no guideline judgment for burglary offending. TheJudge referred to R v Columbus6 and observed that the Court of Appeal has recentlysaid that any burglary relating to a residential property would attract a starting pointof 18 months' imprisonment, but that each burglary sentencing remains fact specific.6 At [9], citing R v Columbus [2008] NZCA 192.[11] The remainder of the Judge's sentencing decision was expressed succinctly.He said:[10] The facts I take into account here are that there was somepremeditation. You had a drill with you that you could use on a lock to get itopen and get inside, the taking of the items. I also take into account in settingthe starting point your previous convictions for burglary, in April 2020, July2020 there were two, four in July and then two in 2021. On the last sentenceyou got five months' jail. The sentence before that you were jailed as well butgiven leave to apply for home detention. Under the old regime, which I stillconsider has some merit, you can be seen as a recidivist burglar.[11] Ms Ives, your learned counsel, says a start point of 12 months for this.I consider that is a bit light. In my view, 16 months is appropriate. The otheroffending requires another four month uplift making 20 months. For personalmatters I have already counted all the previous convictions in setting the startpoints, so there is no further uplift. In your favour is your plea of guilty. Igive you 20 per cent. I give you nothing for your remorse letter. It is self-serving.[12] I have read and considered the pre-sentence report. I have two ofthem, one dated 8 November 2022, the other 23 November 2022, and a furtherone which recommends home detention. Ms Ives submits that you should begiven a chance. You have had no long-term oversight by probation. I disagreewith that. With the greatest of respect you have had numerous, intensivesupervision, release conditions and the like. You have done nothing about it.[13] In my view, one does not go down the sentencing ladder. On the lasttwo you got a jail term for but with leave, and here you are back againcommitting another burglary and other dishonesty.[14] I have regard to s 16 to deter and denounce.[15] I deal with this in this way. In relation to the burglary you will beconvicted and sentenced to 14 months' imprisonment. In relation to the failingwithout reasonable excuse being in a yard you will be convicted and sentencedto two months on top of the 14 months, making an end sentence of 16 months.You will be released on the standard release conditions as contained in the pre-sentence report under the intensive supervision provisions.[16] On the other charge you are convicted and sentenced to two monthsto be served at the same time, so the end sentence is one of 16 months'imprisonment.[12] I consider that the methodology employed by the Judge in calculating the endsentence to be somewhat unclear. Having selected the burglary as the lead charge, theJudge adopted a starting point of 16 months' imprisonment.7 The Judge then addedfour months to the starting point for the "other offending" to adjust the starting point7 At [11].to 20 months. The "other offending" referred to by the Judge being the offendingcovered by the other charges, namely: theft; being found in a motor vehicle withoutreasonable excuse; and two charges of being unlawfully in a building. The Judge thenreferred to the appellant's previous convictions saying that, "[f]or personal matters Ihave already counted all the previous convictions in setting the start points, so there isno further uplift." The Judge then allowed a 20 per cent discount for the appellant'sguilty pleas, which would result in an end sentence of 16 months' imprisonment.[13] However, later in his decision the Judge said that on the burglary charge theappellant would be convicted and sentenced to 14 months' imprisonment, and for the"failing without reasonable excuse being in a yard" he would be convicted andsentenced to two months' imprisonment "on top of the 14 months, making an endsentence of 16 months."8 The Judge then concluded his sentencing remarks saying:"on the other charge you are convicted and sentenced to two months to be served atthe same time, so the end sentence is one of 16 months' imprisonment." JudgeMcDonald did not mention the 20 per cent allowed for the guilty plea in thiscalculation.Appellant submissions[14] Ms Ives for the appellant commenced her submissions by saying that theappellant does not seek a sentence of home detention.[15] Ms Ives for the appellant submits that the sentence imposed is manifestlyexcessive as a result to two errors made by the Judge. Namely by:(a) adopting a starting point that was manifestly excessive; and(b) failing to take into account the time spent by the appellant on EM bail.[16] Ms Ives submits that a starting point of 12 months for the burglary offence,with an uplift of three months for the remaining charges, and a two-month uplift forprevious burglary convictions would be appropriate, and would result in an adjusted8 At [15].starting point of 17 months' imprisonment. Ms Ives submits that a discount amountingto 40 per cent of the 115 days the appellant spent on EM bail with a 24-hour curfewshould be allowed, and once combined with the 20 per cent discount given by JudgeMcDonald for the guilty pleas, would reduce the end sentence to 12 months'imprisonment. Ms Ives submits that a four month reduction of the sentence imposedwould not amount to "tinkering", given that it represents almost 25 per cent of thesentence imposed by the Judge.Respondent submissions[17] Mr Gibson for the respondent opposes the appeal and says that the appellantcannot demonstrate that the end sentence was manifestly excessive. He submits thatthe end sentence of 16 months imposed by the Judge was within range and theadjustment proposed Ms Ives for the appellant would amount to "tinkering". Therespondent further submits that the uplifts applied for the other charges, and for theappellant's previous burglary convictions, of four months in each instance, areappropriate.[18] Although the respondent acknowledges that the Judge erred by not accountingfor the time the appellant spent on EM bail, Mr Gibson submits that having regard tothe appellant's non-compliance any discount for that factor should be minimal if notnil. Mr Gibson acknowledges that the Crown had initially understood that theappellant's history included 11 breaches of EM bail, and while that number isincorrect, he notes that the appellant committed a number of his sentenced chargeswhile he was on bail. He submits that the effect of the offending while on baileffectively cancels out any allowance that might otherwise have been appropriate torecognise the time spent by the appellant on EM bail.[19] Crown takes no issue with the 20 per cent guilty plea discount.Approach on appeal[20] To succeed in his appeal, the appellant must show that there was a materialerror in the sentence imposed, and that a different sentence should be imposed.9 Theimposition of a manifestly excessive sentence is a material error that justifies allowingan appeal.10 A sentence will be manifestly excessive if it is significantly more severethan it should have been, having regard to the overall criminality of the offending andthe offender.11 The focus is on the end sentence imposed rather than the process bywhich it was reached.12 However, appeal courts should not "tinker" with an endsentence that is within the available range and which can be justified by application ofaccepted sentencing principles.13 The correction of errors is permitted.Discussion[21] Both the appellant and the respondent apprehend that the Judge's 16-monthstarting point for the lead charge of burglary also took into account of the appellant'sprevious burglary offending, and was reached by taking a 12-month starting point forthe index burglary offending and adding a four-month uplift for his previous burglaryconvictions. The Judge's methodology then proceeded by the addition of a four-monthuplift to take account of the "other offending" (being the other charges currently facedby the appellant) and then deducting a 20 per cent discount for guilty pleas. Bothparties have made their submissions on this being the basis on which the sentence wasconstructed. I agree.Starting point[22] The appellant and respondent both accept that although it was open to theJudge to take the appellant's previous burglary convictions into account at his firststage when he selected the 16 month starting point, but submit that it would have beenpreferable for this to be done at the second stage in the context of considering theoffender's personal aggravating and mitigating factors.9 Criminal Procedure Act 2011, s 250.10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].11 Leather v R [2011] NZCA 59 at [32].12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 A (CA244/2017) v R [2018] NZCA 225 at [34].[23] Ms Ives refers to Herewini v Police in support of a submission that althoughthere are divergent approaches to sentencing recidivist burglary offending, theapproach to be preferred is to set a starting point and then uplift for previous burglaryoffending at the second stage as a personal aggravating factor.14 The Crown alsoacknowledges that the approach to sentencing recidivist burglary offenders sits withina distinct category and has been approached in different ways.15 While it was open toJudge McDonald to construct the appellant's sentence in this way, the Crown acceptsthat this is no longer the preferred approach.16[24] Both the appellant and respondent submit that an appropriate starting point forthe present burglary charge is 12 months' imprisonment.[25] The following factors have been held relevant to assessing the severity ofburglary offending:17(a) Actual or potential impact on occupants or owners of the property. Thisfactor will almost always be present in burglaries of dwellings,particularly at night, and is worsened if the occupants are elderly orotherwise vulnerable.(b) Conduct which is likely to make the victim feel targeted, for example,repeated burglaries of the same property and theft of personal items.(c) Property damage and vandalism.(d) Kind and value of property taken, for example, theft of items which areof high monetary or sentimental value.(e) Degree of planning and sophistication.14 Herewini v Police [2015] NZHC 2807 at [12], see also [26]–[27].15 R v Lowe CA62/05, 4 July 2005 at [31].16 Herewini v Police, above n 14, at [12]; and R v Taueki [2005] 3 NZLR 372 (CA).17 Senior v Police (2000) 18 CRNZ 340 (HC) at [19]; and R v Nguyen CA110/01, 2 July 2001 at[17].(f) Offending while on bail, parole or in close proximity to courtappearances on other charges, particularly burglary.(g) Nature of the premises entered.(h) Extent of the offending where multiple burglaries are involved.[26] Ms Ives submits that the appellant's offending occurred in the early afternoonon a weekday when it was unlikely anyone would be present and no other aggravatingfactors are present. Counsel notes that it is not known whether the 'jerry cans'contained anything, and says that if they didn't contain anything the cans themselvesare of low value.[27] The Crown accepts that the appellant's burglary offence falls at the lower endof the spectrum for burglary. As evident from the appellant's having and using a drillto gain access to the shed, the offending involved some premeditation, but it otherwiseinvolved the theft of low value items and caused minimal damage to property. And Inote that although the appellant entered residential premises he did not enter the houseitself.[28] The Crown submits that burglaries of dwellings at the lower end of thespectrum tend to attract starting points between 18 months to two-and-a-half years'imprisonment.18[29] Both counsel refer to R v Columbus.19 In that case Mr Columbus forced openthe garage door at a residential property. He did this in the afternoon. Mr Columbustook a mountain bike, gardening tools and a toolbox. The bike was later recovered.The cost of repairing the forced entry was $672. On appeal, the Court held that astarting point of no more than 12 months was appropriate as the offending wasopportunistic, spontaneous and at the lower level of offending.20 Ms Ives submits thatthe offending in the present case involved a similar breach of privacy and kind ofgoods taken, however the value of items taken by the appellant was significantly lower.18 R v Nguyen CA110/01, 2 July 2001 at [78].19 R v Columbus, above n 6.20 At [16].The Crown accepts that the appellant's offending is similar to Mr Columbus's,however, point out that Mr Columbus's offending was spontaneous rather than beingpremeditated, as the appellant's was.[30] Both counsel also refer to Newton v Police.21 Mr Newton was out driving witha friend one morning when he entered a house and took a television and jewellery.Kós J compared the offending to that in Columbus, finding that although they bothoccurred during the day, Mr Newton's offending was higher risk because it involvedentering the dwelling rather than a garage, and the items taken by Mr Newton weremore valuable. In adopting a 15-month starting point, Kós J noted that the offendingwas opportunistic, occurred during the day, Mr Newton was alone, and no occupantswere home so the risk to them was limited.22 In comparison, Ms Ives submits that theappellant did not enter a dwelling and the value of items taken is significantly lower.Further, jerry cans are easily replaced and do not compare to the sentimental value ofjewellery.[31] In this context Ms Ives again refers to Herewini v Police.23 Mr Herewini forcedopen a garage door which enabled him to enter the dwelling. He was wearinggardening gloves and carrying a backpack and screwdriver. He commenced searchingthe house but was seen by an off-duty police officer before taking anything. Duffy Jconsidered the burglary itself was at the very low end of the scale of residentialburglaries, occurring during the day when no one was home, no damage was caused,and no items were taken. The offending was more serious than in Columbus in respectof the fact that Mr Herewini entered the house, but less serious in respect of the factthat he had not taken nor damaged anything. The offending was less serious than casesin which an offender is interrupted by an occupant, that having greater impact on theoccupant. Because Mr Herewini had a screwdriver and gloves the offending wasconsidered premeditated rather than spontaneous. Duffy J adopted a starting point of15 months' imprisonment.24 Ms Ives submits that the level of premeditation by theappellant is similar (having a tool but no gloves), but points out that the appellant didnot enter the dwelling house21 Newton v Police [2012] NZHC 2829.22 At [18].23 Herewini v Police, above n 14.24 At [37].[32] The Crown refer to Sherlock v Police.25 Mr Sherlock broke into a padlockedcontainer using a grinder he had brought with him. He then stole an Xbox gameconsole controller, a glass vase and some scrap metal. A starting point of 12 months'imprisonment was upheld on appeal.26[33] The Crown also refer to Patangata v Police.27 Mr Patangata entered aresidential premises and forced entry to a garden shed. He took a petrol can and weedeater. A starting point of 12 months' imprisonment was upheld on appeal.28[34] Assessing the gravity the appellant's burglary offending with reference to andcompared to the offending in the cases cited, I consider that the appropriate startingpoint for the appellant's burglary offending is 12 months' imprisonment.Uplift for other charges[35] In respect of the appropriate uplift for the appellant's other offending, as I havenoted Ms Ives submits that the four-month uplift applied by Judge McDonald was toohigh and that the uplift should have been three months. Ms Ives notes that these fouroffences each carry a maximum penalty of three months' imprisonment, and that thetotal value of items taken was only around $280.[36] The Crown submits that the four-month uplift adopted by the Judge for theappellant's other offending is appropriate considering totality, having regard to thelenient 12-month starting point for the burglary charge, and notes that in Menefy vPolice29 Muir J upheld an eight-month uplift of the 18 month starting point forburglary, for a charge of theft relating to the theft of a trailer and generator valued at$11,800 commenting that it was "stern" but finding that it was not excessive.30[37] The $280 value of the items taken by the appellant is markedly less than the$11,800 value of the trailer and generator in Menefy which attracted an eight month25 Sherlock v Police [2021] NZHC 110.26 At [27].27 Patangata v Police [2020] NZHC 407.28 At [32].29 Menefy v Police [2020] NZHC 162.30 At [30].uplift. I consider that an uplift of three months would appropriately reflect thecriminality of the other offences committed by the appellant. While the value of theitems taken was not significant, the appellant's other offending involved him enteringonto premises, theft and getting into a vehicle, which are nevertheless quite seriousoffences and were obviously undertaken with the intention of taking anything of value.Uplift for previous burglary convictions[38] In respect of the appropriate uplift for the appellant's previous burglaryconvictions, Ms Ives submits that the four-month uplift applied by Judge McDonald(via its inclusion in the 16-month starting point) was too high, and she submits thattwo months' is appropriate.[39] The Crown submits that the four-month uplift applied by Judge McDonald waswithin range, if not generous, in the circumstances.[40] Ms Ives refers to Tepania v Police31 where a four-month uplift was imposed toreflect Mr Tepania's 11 previous burglary convictions, not including other dishonestyconvictions. Ms Ives also refers to Herewini v Police,32 where a four-month uplift wasleft undisturbed to reflect Mr Herewini's approximately 11 previous burglaryconvictions spanning from 1999 to 2011. Ms Ives submits that the appellant's sevenprevious burglary convictions occurred between April 2020 and July 2021. He has noprevious relevant convictions before then. Counsel submits that compared to Tepaniaand Herewini, the appellant's previous burglary convictions are fewer and moreconcentrated in time, so as to justify a lower uplift of two months.[41] The Crown submits that the appellant's criminal history reveals a persistentpattern of burglary and dishonesty offending, including seven previous burglaryconvictions since April 2020, and a sentence of five months' imprisonment imposedfor the most recent offending. The Crown submits that prior burglary and dishonestyconvictions generally attract uplifts in the vicinity of 40 to 60 per cent. The Crownrefer to the following three cases in support of this submission.31 Tepania v Police [2013] NZHC 2327.32 Herewini v Police, above n 14.[42] In R v Columbus33 an uplift of 12 months' imprisonment (65 per cent of theglobal starting point) was applied to account for Mr Columbus's 13 previous burglaryand dishonesty offences.34 The Court of Appeal reasoned that prior sentences ofimprisonment had not deterred the appellant and there was a risk of reoffending at thesame minor end of the scale that had characterised his most recent burglary conviction.[43] In R v Stevens,35 a 12-month uplift (50 per cent of the starting point) wasapplied to account for Mr Stevens' prior dishonesty convictions.36 The Courtemphasised that the appellant was not a recidivist burglar and had only three priorconvictions for burglary, the most recent of which was more than a decade ago.[44] In King v Police,37 a 12-month uplift (40 per cent of the starting point) wasapplied to account for Mr King's previous burglary convictions. The Court noted mostof the convictions were historic, the most recent occurring six years prior.[45] The Crown submits that an uplift of four months in Mr Grey's case, whichamounts to approximately 33 per cent of the 12-month starting point, is well withinrange.[46] I agree with the Crown submission that a four month uplift for appellant'sprevious burglary offending is well within the available range.Time spent on EM bail[47] Ms Ives submits Judge McDonald erred in not applying a discount for the 115days Mr Grey spent on EM bail.[48] The Crown accepts that time spent on EM bail is a mandatory considerationunder s 9(2)(h) of the Sentencing Act 2002 and that Judge McDonald erred by notexpressly referring to it and consequently apparently not taking it into account.33 R v Columbus, above n 6.34 At [19].35 R v Stevens [2009] NZCA 190.36 At [15].37 King v Police [2014] NZHC 2946.[49] Section 9(3A) of the Sentencing Act provides that a court must consider thefollowing when taking into account the fact that an offender spent time on EM bail:(a) the period of time that the offender spent on bail with an EM condition;(b) the relative restrictiveness of the EM condition, particularly thefrequency and duration of the offender's authorised absences from theelectronic monitoring address;(c) the offender's compliance with the bail conditions during the period ofbail with an EM condition; and(d) any other relevant matter.[50] Ms Ives refers to R v Walker-Haturini where Powell J said:38[24] While I am conscious that New Zealand courts have not typically seenrestrictive EM bail as valuable if it occurs before sentence as afterwards, Icannot see the basis for any such distinction where it involves the samerestrictions on the liberty of the defendant. In the absence of any principledbasis for concluding that the same type of detention magically becomes fourtimes more valuable if it occurs after conviction than while awaiting trial, itshould be appropriately credited in terms of the nature of the detention thathas been imposed. It is important as the courts embrace Te Ao Mārama thatwe are fully transparent, consistent and fair in the application of credits forthis type of detention.39 In my view, this means crediting pre-convictiondetention for restrictive or EM bail in the same way as an electronicallymonitored community-based sentence unless good reasons exist for not doingso. [51] Ms Ives also refers to C v R where the Court of Appeal said:40[41] Discounts for time spent on EM bail are generally in the 30 to 50 percent range, although there is no upper limit. The extent of the discount38 R v Walker-Haturini [2021] NZHC 1208.39 Time spent on EM bail is a mandatory consideration under the Sentencing Act 2002; it is notuncommon for Courts to give an allowance of up to 50% of the time on bail: Hall v R [2020]NZCA 183 at [37]. In Parata v R [2017] NZCA 48, the Court rejected that a one-for-one creditcould be given for time on EM bail (as for home detention), though noted at [14] that there was"considerable similarity between the conditions of home detention and those experienced whensubject to the most restrictive form of EM bail". The primary rationale for that statement appearedto be a concern where the bail restrictions were not otherwise equivalent to detention. In light ofthose similarities, and as I have expressed, I see no principled reason for treating time on restrictiveEM bail differently to detention where the conditions are otherwise identical.40 C (CA388/2022) v R [2023] NZCA 99 (footnotes omitted).depends on the time spent on EM bail, the restrictiveness of the EM bailconditions and an offender's compliance. Where curfew exemptions aregranted, the discount for time spent on EM bail can be reduced. Any discountfor time spent on EM bail is a mitigating factor personal to the offender. Theyshould be allowed for when adjusting the starting point sentence and notdeducted from the sentence after other discounts have been applied.[52] Although the appellant has had instances of non-compliance with EM bail, hewas on a 24-hour curfew. Ms Ives submits that in the circumstances a discount of40 per cent of the 115 days he spent on EM bail is appropriate which would amountto a discount of 46 days.[53] While the Crown accepts that time spent on EM bail is a mandatoryconsideration and that Judge McDonald erred by seemingly not considering that in theappellant's case, the Crown submits that he is not thereby entitled to a discount. TheCrown submits that discounts for time spent on EM bail are a matter of judicialdiscretion in the circumstances, and there is no prescribed formula for what, if any,discount should be given.41 The Crown submits that as the underlying premise of adiscount for time spent on EM bail is of compliance with EM bail conditions, anybreaches will generally be a highly relevant consideration.42[54] The Crown say they have been advised by police that the appellant'scompliance with his EM and 24-hour curfew conditions was poor. He committed anumber of offences while on EM bail and breached his conditions on at least sevenoccasions:(a) On 11 July 2022, he breached his curfew and travelled to a residentialaddress in Greenlane where he was observed on CCTV unlawfully in abuilding.(b) On 26 September 2022, he breached his curfew and committed burglaryat a residential property in Mt Wellington.41 See R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; Keown v R [2010]NZCA 492 at [12]; and A (CA90/2017) v R [2017] NZCA 278 at [90].42 Murray-MacGregor v R [2011] NZCA 66 at [19].(c) On 8 October 2022, he breached his curfew condition and was locatedby police in a stolen vehicle.(d) On 15 October 2022, he breached his curfew by leaving his bailaddress.(e) On 10 February 2023, his EM tracking device was disabled. Whenpolice arrived at his address the occupants said that the appellant hadleft and had gone to Auckland CBD.(f) On 28 February 2023, the appellant left his bail address twice. He wasseen travelling through Manurewa before returning home. Later in theday he was observed travelling through Greenlane.(g) On 22 March 2023, he breached his curfew, his tracking device wasdetected moving around the Mt Wellington area.[55] The Crown acknowledge that the breaches on 10 February, 28 February and 22March 2023 are not listed on the appellant's bail history, but say there is confirmationfrom police that these breaches occurred.[56] The Crown submits that the Court of Appeal has repeatedly declined torecognise time spent on EM bail where an offender has breached bail or committedfurther offending while on bail. In R v Bidios,43 the Court held that the appellant haddisqualified himself from receiving any discount for nine months spent on 24-hourcurfew because he left his bail address on multiple occasions. In Gage v R,44 nodiscount was provided for five months spent on EM bail because there was furtheroffending and six recorded breaches of the bail bond.[57] The Crown acknowledges that while the appellant's breaches on 10 February,28 February and 22 March 2023 could be considered minor, the breaches on 11 July,26 September, 8 October and 15 October 2022 in each case involve further offending43 R v Bidios [2009] NZCA 426 at [12]–[15].44 Gage v R [2014] NZCA 140 at [26].while on EM bail. Therefore, no discount, or only a very small discount, should beapplied.[58] Having regard to the appellant's non-compliance and offending committedwhile on EM bail, I decline to allow any reduction or discount on account of the115 days he spent on EM bail.Guilty plea discountNeither party has taken issue with the 20 per cent discount given by Judge McDonaldfor Mr Grey's guilty pleas. It is seemingly an appropriate discount and willaccordingly stay as is.End sentence[59] Accordingly I find that the appropriate sentence is composed as follows: a 12month starting point for the lead burglary offending; an uplift of three months for theappellant's other offending for which he was sentenced; an uplift of a further fourmonths for the appellant's previous burglary offending; and a discount of 20 per centfor his guilty pleas, to arrive at a final sentence of 15 months' imprisonment. Asentence of 15 months' imprisonment is of course very close to the 16 month'simprisonment imposed by the Judge, and I consider that it shows that the sentence of16 months' imprisonment imposed by Judge McDonald was not manifestly excessive.I find that reducing the appellant's sentence by one month would amount to 'tinkering'with the sentence imposed, and accordingly, I find that the appellant has failed to showthat the sentence of 16 months' imprisonment imposed by Judge McDonald ismanifestly excessive.Result[60] The appeal is dismissed.______________Davison J