Baker v Police

[2023] NZHC 3386

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-0089

[2023] NZHC 3386

BETWEEN

JOSHUA RUATEKAUMATAHI JOHNDALAH BAKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

23 November 2023 (by VMR)

Appearances:

E L Reilly for Appellant

A A Maino for Respondent

Judgment:

27 November 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 27 November 2023 at 3.30 pm

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Lance Lawson Ltd, Rotorua

Gordon Pilditch, Rotorua

BAKER v POLICE [2023] NZHC 3386 [27 November 2023]

Introduction

[1]                 The appellant, Mr Baker, appeals against his sentence of three years and  eight months’ imprisonment imposed by Judge Collin on 20 charges of burglary and two 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 of seven years’ imprisonment on the burglary charges was too high and should not have exceeded six years.

Background

Burglary offending

[3]                 Between  April  and  September  2022,  Mr  Baker   and   his   co-offender, Mr Pomare, committed 20 well planned burglaries throughout New Zealand. They targeted 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 premises and to force open cigarette cabinets and cash registers. They would then depart with cigarettes and cash and other items, leaving much physical damage in their wake. The total loss caused by their offending was $185,129, comprising $127,407 in stolen property and $57,720 in damage.

[5]                 Numerous victim impact statements were filed. Proprietors would arrive at their premises to find considerable damage, necessitating repairs and/or replacement hardware, and suffered loss they could ill-afford to suffer. Such offending has a dispiriting effect on shopkeepers, and in this case many of those affected were serving small, 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 then placed several items, including a double-barrel sawn-off shotgun and eight rounds of 12-gauge ammunition, into the car. Later that day, Mr Baker drove to an address in Lower Hutt.

[8]                 On 16 September 2022, the police executed search warrants on the vehicle and the address in Lower Hutt. The police located the sawn-off shotgun and ammunition in the boot of the vehicle, the shotgun then being loaded with two rounds of ammunition.

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 the firearms 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; five per cent for remorse; and 15 per cent for matters in Mr Baker’s background which the Judge was satisfied had contributed to his offending. The Judge allowed a further three-month reduction for time spent on EM bail. Ultimately the Judge calculated that this 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 burglary charges should be reduced to six years. She takes no issue with the uplift or reductions allowed for mitigating factors. The effect of the proposed reduction would be to reduce Mr Baker’s end sentence to three years and four months’ imprisonment.

[12]            In her submissions, Ms Reilly acknowledged that the sheer number of burglaries and the total loss caused make the offending serious, but not so serious as to 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, and            R v Andrian.2 Paku is not particularly relevant but in all of the others the offender had committed numerous burglaries, sometimes with related offending such as receiving, unlawful use of a motor vehicle, and firearms charges. In Bidois and Sullivan, the offenders had targeted commercial premises, and residential premises in Peters and Andrian. In each, losses of similar quantum to the present were caused by the offending.

[13]            Crown counsel, Ms Maino, submits that the Judge’s starting point was within the available range. Ms Maino referred me to Gorgus v Police and R v Nguyen as identifying the aggravating features of burglary offending.3 Burglary of residential properties is usually considered a significant aggravating feature but obviously the number of offences, the value of the goods taken, and the damage caused are material as is the degree of planning and premeditation.

[14]            In support of her submission that the starting point was within range, Ms Maino referred me to Nguyen. In that case, the District Court Judge had adopted a starting point 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 a major burglary enterprise and the value of the goods taken vastly exceeded the present case.

[15]            In Pompey v Police, the offender committed six burglaries targeting retail outlets at night, and stealing items to a total value of approximately $185,000.4 The Court 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 and

Sullivan (referred to above), given the sheer number of burglaries and therefore the

2      Peters v R [2014] NZHC 1158; R v Bidois DC Christchurch CRI-2011-009-5380, 8 November 2011, 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 geographical ambit 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 an argument that the Judge’s seven year starting point was slightly too high. This is because 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 would agree 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 less than that.

[19]            If a starting point of six years and six months’ imprisonment was adopted on the burglary offending, but the uplift and reductions retained, Mr Baker’s end sentence would be three years and seven months’ imprisonment. That would mean a reduction of one month to the overall end sentence actually imposed which plainly would be tinkering, which the Court will not do.5

Result

[20]I dismiss this appeal.

Peters J

5      R v Boyd (2004) 21 CRNZ 169 at [38].