Bimler v Police

[2023] NZHC 2661

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-137

[2023] NZHC 2661

BETWEEN

CAINE DAMON BIMLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 September 2023
Appearances:	A J Greaves for Appellant C E Martyn for Respondent
Judgment:	22 September 2023

JUDGMENT OF MANDER J

This judgment was delivered by me on 22 September 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

BIMLER v POLICE [2023] NZHC 2661 [22 September 2023]

[1]        Caine Bimler was sentenced to a term of 29 months’ imprisonment by Judge Couch 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 to counsel’s miscalculation of the period within which the appeal should have been lodged. However, the respondent has not been prejudiced and an extension to file the appeal out of time is granted.

Background

[3]        Mr Bimler was for sentence on eight charges of theft (under $500),1 two charges of theft (between $500 to $1,000),2 and six charges of theft (over $1,000).3 He was also for sentence on two charges of receiving (over $1,000),4 escaping from custody,5 possession of utensils,6 breach of community work,7 and failing to stop.8

Thefts

[4]        This offending occurred over a period of some 14 months, between 22 January 2022 and 11 March 2023. The theft largely involved Mr Bimler entering commercial retail premises and taking items ranging in value from $8 to $3,000. Some of the charges concerned the theft of food or involved stealing fuel, while others involved the theft of expensive electrical appliances and equipment. Mr Bimler appears to have been primarily motivated by his need to support addictions to both methamphetamine and 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 or fine 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 fine not exceeding $4,500.

Receiving

[5]        The two receiving charges occurred in September and October last year. They involved Mr Bimler selling $17,000 worth of kitchen appliances and power tools to various pawn shops around Christchurch, and the selling of a hedge trimmer worth some $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 and was 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 to locate him. He was sighted by police on 14 March in a suburban street. He attempted to hide. After police told him he was under arrest, he ran off through busy traffic. He ran some distance before flagging down a passing associate. He got into his friend’s car and drove off. This resulted in the police having to activate their lights and sirens to stop this vehicle.

Possession of utensils

[8]        When police arrested Mr Bimler, they found a methamphetamine pipe in his possession.

Breach of community work sentence

[9]        The breach of community work related to a sentence that had been imposed back in May 2022, in relation to two earlier charges of theft that had occurred the previous year. Mr Bimler initially engaged with the sentence but effectively stopped serving the sentence in September last year. Out of a total of 50 community work hours imposed, Mr Bimler served some 27 hours.

District Court sentencing

[10]      Judge Couch approached the sentencing exercise by adopting a starting point of two years and eight months’ imprisonment for all the dishonesty offending. This was uplifted by nine months’ imprisonment for the escaping custody charge. A further two month uplift was applied for the remaining charges of possession of a pipe, failing to stop and ascertain injury, and breach of community work. This resulted in a combined starting point of 43-months’ imprisonment. The Judge observed he had already taken into account totality when identifying the various starting points and uplifts. Because  the  offending  had  occurred  whilst  Mr Bimler  was  on  bail,  a  15 per cent increase was applied.  For  his  previous  criminal  history,  a  further  five per cent uplift was imposed.

[11]      Mr Bimler was afforded a full 25 per cent reduction for his guilty pleas and a further credit of 15 per cent for personal mitigating factors. The sentence was then reduced by five and a half months for time spent on electronically monitored bail. This resulted in the final sentence of 29 months’ imprisonment. Reparation was also ordered in the sum of $14,432.14.

The appeal

[12]      Three grounds of appeal were argued on behalf of Mr Bimler. It was submitted:

(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 dishonesty offending, Mr Bimler’s counsel, Mr Greaves, referred to dicta of the Court of Appeal which identified the various factors by which an offender’s culpability could be

assessed.9 These included the type, magnitude and sophistication of the offending; number of victims; the motivation for the offending; the amount of losses; the period over which the offending occurred; the seriousness of breaches of trust; and the impact on victims. A “composite evaluation” of these types of factors, including the degree of premeditation, the vulnerability of the victims, and all relevant circumstances is required.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 attempt to conceal the offending, and, while there were a number of charges committed over a lengthy period of time, the offending was described as unsophisticated and as having mainly involved Mr Bimler uplifting items without paying for them. It was noted the victims were mostly commercial retail businesses, although it was accepted there were a 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 reparation order had been the lesser figure of $14,432.14. It was argued the value of the items the 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, and that, given the nature of his offending, the total starting point adopted by the sentencing Judge was excessive.

Analysis

[16]      When approaching the sentencing task, the District Court Judge eschewed the orthodox approach to sentencing which would normally involve identifying the most serious charge as the lead offence and applying a starting point. The Judge here preferred assessing a total starting point for all the dishonesty offending on the basis it 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 previously disavowed the grouping of charges together to assess culpability.11 It was argued the lead charge should have been identified and a starting point based on Mr Bimler’s culpability 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 the appeal by applying conventional sentencing methodology and reviewed a number of cases that had approached the sentencing exercise in that way. Because there is a consensus between the parties regarding the correct approach to be taken, I will follow that approach in a effort to reappraise the appropriate level of sentence for the purposes of the appeal.

[18]      Both Mr Greaves and the Crown, identified the lead offence as the receiving charge that involved Mr Bimler pawning some $17,000 worth of kitchen appliances and power tools. Mr Bimler attended multiple pawn shops across Christchurch in an effort to sell these stolen items. In support of their respective positions, a number of authorities were cited by counsel, which I briefly review:

(a)Pahi v Police12 — Mr Pahi was charged with receiving two earrings and 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 an uplift of 10 months for offences that included driving whilst disqualified, possession of various illegal items, and two charges of failing to appear in breach of release conditions.

(b)Davies v Police13 — A starting point of eight months’ imprisonment on a charge of theft over $1,000 involving power tools was adopted by Jargose J on appeal. This was uplifted by two months to reflect the offence being committed whilst on bail and subject to sentence. A further uplift of four months was then imposed to take into account additional offending that included theft over $1,000, three charges of

11     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. This resulted in an overall starting point of 14 months’ imprisonment.

(c)Hohaia v R14 — This case involved the burglary of a residential property and commercial business from which property had been taken and some pawned. A search of the appellant’s home located multiple items 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’ imprisonment for the two charges of receiving, noting that, while stern, he was not persuaded it was manifestly excessive.

(d)Ellis v R15 — $5,000 worth of property was stolen in a residential burglary. A few hours later, the appellant was found in possession of these items. A starting point of 18 month's imprisonment, while noted as being stern, was found by the Court of Appeal as being within range. Of particular note, it was observed the sentencing Judge had been entitled to take into account that the appellant had come into possession of the stolen goods very shortly after the burglary — “within hours, if not minutes”. This suggested some connection between the burglar and the 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 to dishonesty offending depending on the individual circumstances of the particular case. However, some of the authorities are more helpful than others. In Pahi the issue before the Court was whether a sentence of home detention should have been imposed. The term of imprisonment adopted as a starting point was not in issue, so the case provides little assistance. In Davies the lead theft charge which attracted the eight month starting 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 charges that were taken together as the lead charges. In the present case there is also a second receiving that involved the selling of a hedge trimmer previously stolen from a tennis club. It is notable in respect of that charge that the stolen item was sold the same day as it was stolen, indicating a close connection between the burglary and the receiving for which Mr Bimler was convicted. As was stressed by Mr Brand, the value of the goods the subject of the lead receiving charge in the present case were greater than in any of the other cited authorities. Examining the matter afresh, I consider a starting point of not less than 20 month's imprisonment would, in the circumstances, have been appropriate for the two receiving charges.

[21]      In relation to the 16 other shoplifting charges that involved thefts of items with a 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 include recognition 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 was submitted, supported a greater uplift. These included:

(a)Torbarina v Police17 — A starting point of 18 months’ imprisonment was held to be in the range on three charges of theft of goods valued at a total of $3,174.50, although that included recognition of the appellant’s 50 previous convictions.

(b)Colman v Police18 — A starting point of 14 months’ imprisonment was adopted for theft of perfumes from a department store totalling

$1,580.60.

(c)Cooper v Police19 — A starting point of 15 months’ imprisonment was upheld 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, the value of some of the individual items, and the total loss, I consider an uplift in the region of at least 18 months’ imprisonment would have been required.

[23]      In relation to the escaping from police custody charge, Mr Greaves submitted that a lesser uplift should have been imposed. Counsel sought to draw comparisons with the following cases:

(a)Pihema v Police20 — The appellant had been pulled over by police as a result of driving off from a service station without paying for petrol. After being allowed to retrieve belongings from his car, he re-entered the vehicle and sped off. Police initially gave chase but abandoned the pursuit because of the speed at which the appellant was driving his vehicle. He was effectively resentenced on the appeal. On charges that also included theft of petrol, dangerous driving and other related charges, a starting point of seven months’ imprisonment was adopted.

(b)Brady v Police21 — The appellant was stopped by police and refused to confirm his details when requested. After being informed he was under arrest, the appellant drove off for a distance of 16 km before the police managed to stop him. A sentence of 120 hours’ community work for escaping custody was not disturbed on appeal.

(c)Tawhai v Police22 — Police attended the appellant’s address for the purpose of arresting him for breach of bail. When given the opportunity to say goodbye to his girlfriend and locate some shoes to wear, he fled from the rear of the address. Police spent considerable time attempting to locate him but failed to find him. A starting point of nine months’ imprisonment on a charge of escaping police custody was not disturbed by 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 use of vehicles that had resulted in police pursuits and, at least in Pihema, with the appellant driving dangerously, which he submitted should have only attracted a starting point of no more than five months’ imprisonment. The Crown, on the other hand, placed reliance on the outcome in Tawhai. Mr Bimler running through busy traffic and entering a motor vehicle to evade capture was described as presenting a danger to others in his attempt to evade police. However, the appellant in Tawhai had been successful in escaping from police and was not apprehended for some period of time 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-month uplift.23

Other charges

[25]      There remains the other charges that include possession of utensils, failing to stop to ascertain injury, and the breach of community work. I consider the nominal uplift 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 on bail. No issue has been taken with the 15 per cent uplift imposed for this aggravating feature. 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 totality principle in order to ensure the total period of imprisonment is not wholly out of proportion to the gravity of the overall offending. A deduction of six months is necessary to ensure the total starting point does not result in a disproportionate sentence.

Uplift for criminal history

[27]      The Judge increased the starting point by some two months in recognition of Mr Bimler’s prior convictions. This represents an uplift of five per cent, which it was

23     See Awatere v Police [2015] NZHC 1374.

submitted was not necessary because of the vintage of Mr Bimler’s relevant prior convictions. It was suggested, if there was to be any uplift, it should not exceed one month. The appellant has 20 previous convictions for offences of dishonesty that include 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 convictions for theft, albeit involving property valued at less than $500.

[28]      As noted by the Court of Appeal, it is important that uplifts for prior convictions reflect a considered response to specific aspects of an offender’s previous criminal history.24 A sentence should not be increased because of an offender’s past history if to do so would effectively increase the sentence imposed on that previous occasion or occasions.25 The need for deterrence and the protection of the community are sentencing purposes that ordinarily need to be considered when assessing the number, seriousness and nature of past convictions and their relevance to the objectives of sentencing in respect of the offender’s latest offending.

[29]      Mr Bimler has two theft convictions as recent as 2021. However, as noted, it was as far back as 2010 and early 2011 when he committed these earlier dishonesty offences. These appear to have ranged in seriousness from more minor to reasonably substantial burglaries, shoplifting, and receiving offences. He has further and more historic dishonesty offending again. The sentencing Judge was cognisant of the age of the bulk of Mr Bimler’s previous convictions and took that into account when imposing a minimum uplift which largely denotes his previous convictions entered in 2021. On balance, I do not consider the nominal two-month uplift was outside that available.

Appropriate discounts for personal mitigating factors

[30]      Mr Greaves submitted that greater  credit  should  have  been  afforded  to  Mr Bimler in recognition of his personal circumstances and, in particular, his addition- related issues, family and personal background, and prospects for rehabilitation. The reports that were made available to the sentencing Court outlined both serious

24     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 events which, whilst not excusing Mr Bimler’s behaviour, were said to provide context as to why he had committed these offences.

[31]      These factors include him having been exposed to substance abuse from a young age, being placed into the care of his grandparents when very young, and his itinerant upbringing. The failure of a longstanding relationship in 2020 and his parents passing away the following year were more recent events that were said to have impacted on Mr Bimler. It was submitted that when regard is had to his willingness to be involved in rehabilitative interventions, a credit in the region of 20 per cent would have more appropriately recognised these mitigating personal factors.

[32]      There are two notable factors of Mr Bimler’s personal situation. The first is his demonstrated ability to remain offence-free for a long period of time. Leaving aside two family violence related convictions in 2017, Mr Bimler curbed his property related dishonesty offending in 2011.   He did not reoffend in that way for some     10 years. During that period he undertook a building apprenticeship and achieved a number 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 when matters are said to have spiralled downward for him.

[33]      The second notable aspect is the alcohol and drug assessment and treatment report which confirms that Mr Bimler’s drug use increased around the time of his relationship breakup and when his parents passed away. The report documents a referral that has been made on behalf of Mr Bimler to be admitted to a residential rehabilitation programme that lasts between eight and 15 weeks.

[34]      There is an obvious nexus between Mr Bimler’s dependencies and his recent offending which appear to be at the root of his criminal conduct. This was recognised by the sentencing Judge, who observed that his offending was motivated by his addictions to gambling and methamphetamine. Addictions, particularly in combination with factors such as deteriorating mental health, are to be recognised as diminishing an offender’s capacity to make rational choices and therefore as reducing

culpability. They are to be recognised as a substantive mitigating feature where a causative link is demonstrated.26 However, I do not consider the 15 per cent discount the Judge was prepared to extend to Mr Bimler for this factor can be said to give rise to any error.

[35]      As noted by the Crown, the sentencing Judge provided a credit of five and half months for time spent on electronically monitored bail (EM bail) notwithstanding  Mr Bimler cutting off his monitoring bracelet and absconding in April 2023. I accept that any reservations regarding the sufficiency of the credit afforded for Mr Bimler’s personal circumstances are to some degree offset by that reduction in his sentence to which he may not otherwise have been entitled given his failure to abide with the requirements of EM bail.

Conclusion

[36]      In summary, therefore, a starting point of 47 months’ imprisonment, followed by applying a 40 per cent discount for guilty pleas and personal mitigating circumstances, and then a five-month deduction for time spent on EM bail, leads to an end sentence of 23 months’ imprisonment. That outcome results in the conclusion that the 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 he was sentenced in the District Court there was no approved address for an electronically monitored sentence. However, he had been referred to and accepted for admission into 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 the circumstances, and particularly in light of how previous rehabilitative interventions to address Mr Bimler’s addictions appear to have been successful, I am prepared to grant

26     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Mr Bimler leave to apply for home detention should a place become available to him to attend this residential rehabilitation programme. Because of Mr Bimler’s addiction issues, Mr Greaves responsibly accepted that a home detention sentence, other than to a 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 order remains 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 place become available to him at the St Marks Residential Rehabilitation Facility.

Solicitors:
Crown Solicitor, Christchurch