BRANDON TILBY AND NEW ZEALAND POLICE
[2022] NZHC 3343
•8 December 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2022-483-000025
[2022] NZHC 3343
BETWEEN BRANDON TILBY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 December 2022 via VMR Counsel:
S J Fraser for the Appellant
J C H Liu for the Respondent New Zealand Police
Judgment:
8 December 2022
ORAL JUDGMENT OF GENDALL J
Introduction
[1] On 9 September 2022, the appellant Mr Brandon Tilby was sentenced by Judge Matheson in the Whanganui District Court to 25-and-a-half months’ imprisonment on the lead charges. These were included in a range of accompanying charges. All the charges for which he was sentenced were:1
(a)burglary;2
(b)attempted unlawful taking of a motor vehicle (x 2);3
1 Police v Tilby [2022] NZDC 22165 [the sentencing decision].
2 Crimes Act 1961, s 231(1)(a) — maximum penalty 10 years’ imprisonment.
3 Section 226(2) — maximum penalty two years’ imprisonment.
TILBY v NEW ZEALAND POLICE [2022] NZHC 3343 [8 December 2022]
(c)unlawful taking of a motor vehicle;4
(d)driving with excess breath alcohol — third or subsequent;5
(e)driving while disqualified;6 and
(f)possession of cannabis plant.7
[2] He was also sentenced respectively to 12 and 18 months’ imprisonment concurrent on each of the unlawful taking of motor vehicles charges. In relation to the driving charges he was sentenced respectively to 12 months and two months’ imprisonment, also concurrent.
[3] The appellant was also ordered to pay $2,620 in reparation, he was disqualified from driving for one year and one day, and required to apply for a zero-alcohol licence.
[4] The sentencing followed a guilty plea entered on 16 August 2022 after a sentence indication the Judge gave on 26 July 2022 was accepted. That sentence indication indicated a sentence end point in the region of 29 months, with room for adjustment for further personal circumstances noted.
[5] The appellant appeals the sentence imposed. He says the end sentence was manifestly excessive and a new sentence should be imposed. The appellant essentially seeks here a sentence of 24 months’ imprisonment or less.
[6] The respondent opposes the appeal, and submits there was no error in the sentence.
[7] This appeal was filed one month out of time. The respondent does not oppose the granting of leave to appeal out of time. In the circumstances, and accepting that
4 Section 227(1) — maximum penalty seven years’ imprisonment.
5 Land Transport Act 1998, ss 56(1) and (4) — maximum penalty two years’ imprisonment, or
$6,000 fine, and minimum one year disqualification from driving.
6 Section 32(1)(a) and (3) — maximum penalty three months’ imprisonment or $4,500 fine, and six months’ disqualification from driving.
7 Misuse of Drugs Act 1975, s 7(1)(a) and (2) — maximum penalty three months’ imprisonment and $500 fine.
no real prejudice has been caused to the respondent, here I grant leave to appeal out of time.
Factual background to the offending
[8] The charges relate to offending that occurred in two incidents, the first on 13 January 2022 and then the second one week later on 20 January 2022.
[9] At about 1.53am on 13 January 2022, the appellant climbed over a six-foot wire fence surrounding a secured construction yard in Whanganui. He looked into different buildings and then gained access to an outbuilding through a window. After rummaging through the building for a short time, the appellant located a glue gun valued at $120, which he took before leaving the yard.
[10] On the same night, the appellant approached a Fuso truck and smashed the front passenger window, cutting himself in the process. He entered the vehicle, rummaged through the glove box, removed plastic moulding around the steering wheel and removed the ignition cover and attempted to start the vehicle. He was unsuccessful and left the vehicle, leaving blood drips throughout the cab.
[11] That same night the appellant also smashed the rear window of a Volkswagen van, again cutting himself. He searched through the car, stealing a number of tools, smashing an internal window, and climbing through to the front cab, again leaving blood through the interior of the van. The appellant tried to start the car, interfering with the ignition barrel in an unsuccessful attempt to steal the vehicle.
[12] A week later, on 20 January 2022, the appellant gained entry to an unsecured Mazda ute, which was carrying a KTM motorcycle, and drove off. When the appellant was later stopped by police, he gave a breath alcohol reading of 600 micrograms of alcohol per litre of breath. He was also found with a small amount of cannabis in his possession. The appellant was disqualified from driving at the time.
Sentencing
[13]As I have noted, the Judge provided a sentence indication on 26 July 2022.8
[14] In relation to the burglary conviction, the Judge considered the relevant case law and determined a 16-month starting point was appropriate.9 He considered an uplift of “a couple of months” was appropriate to account for the “significant inconvenience” to the victims caused by the interference with the vehicles, and adopted a starting point for the 13 January 2022 offending of 18 months’ imprisonment in the round.10
[15] In relation to the other 20 January 2022 offending, namely the unlawful taking of the motor vehicle and driving with excess breath alcohol (third or subsequent), the Judge considered by itself a three-year starting point would be available, but was inclined to impose a cumulative term of 18 months’ imprisonment,11 to result in an end point of three years’ imprisonment.12 Standing back and looking at this overall end sentence starting point on a totality basis the Judge considered a slight deduction of three months would be appropriate to the cumulative sentence,13 resulting in an end point of 33 months’ imprisonment.14
[16] The Judge considered a 10 per cent uplift was appropriate for the appellant’s previous history of “significant dishonesty”,15 and a discount of 22.5 per cent was appropriate to recognise the appellant’s guilty plea, the Judge stating it was “not really an indication given at first opportunity. There have been a number of appearances and not guilty pleas.”16 This produced a net discount of 12.5 per cent or four months in the round, which resulted in an end point of 29 months’ imprisonment.17 The Judge
8 Police v Tilby DC Whanganui CRI-2022-083-84, 26 Hurae | July 2022 [the sentencing indication].
9 At [15], citing Elers v R [2018] NZHC 497.
10 At [16].
11 At [22], citing Taki v Police HC Rotorua CRI-2010-470-25, 2 Hurae | July 2010.
12 At [23].
13 At [23].
14 At [24].
15 At [25].
16 At [26].
17 At [27].
stated in his sentence indication that there “may be room for further personal circumstances deduction.”18
[17] The appellant subsequently accepted the sentence indication, pleaded guilty to the charges he faced, and he was sentenced on 9 September 2022.19 In sentencing him, the Judge adopted his earlier indication, noting again that there might be room for some further deductions for personal circumstances.20
[18] A pre-sentence report had been received. This identified a high risk of re-offending was present, with influences noted to include the appellant’s associates, substance abuse and an unstructured lifestyle.21 As the Judge said, neither punitive nor rehabilitative sentences had curbed the appellant’s offending here.22 The Judge also referred to a cultural report prepared for the appellant in 2020 Ultimately he considered a 10 per cent discount would be appropriate,23 given too this incorporated an offer from the appellant of reparation.24 Overall, therefore, the starting point of 33 months’ imprisonment was to be increased by 10 per cent and decreased by 32.5 per cent.25 The net discount of 22.5 per cent produced a reduction in the sentence of seven-and-a-half months, which resulted in the end point of 25-and-a-half months’ imprisonment.26
Approach to appeal
[19] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.27 The court must dismiss the appeal in any other case.28
18 At [28].
19 The sentencing decision, above n 1.
20 At [22].
21 At [23].
22 At [24].
23 At [26].
24 At [27].
25 At [27].
26 At [28].
27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
28 Criminal Procedure Act 2011, s 250(3).
[20] In an appeal against sentence, the focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.29 An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.30 An appellate court will not intervene unless a sentence is outside the range available to the sentencing Judge.31
Analysis
Starting point too high
[21] The appellant submits that a starting point of 12 months’ imprisonment would have been appropriate for the burglary charge, rather than the 16 months’ imprisonment which the Judge adopted. In response the Crown maintains the 16-month starting point was within range in light of the 2018 decision in this Court of Elers v R, cited in the Judge’s sentencing decision.
[22] In Elers, the appellant and two associates climbed over the fence of a yard and attempted to steal 15 batteries of different sizes. In sentencing the appellant in that case, the Judge in the District Court adopted a starting point of 16 months’ imprisonment, which on appeal Grice J, referring to authorities cited by the Crown, held to be within range.32
[23] Counsel for the appellant, however, has directed me to several Court of Appeal decisions. In R v Columbus the burglary offending involved forcing open a garage and stealing a bicycle and some tools.33 The Court of Appeal considered the circumstances of the burglary there “would not themselves justify a starting point of more than one years imprisonment.”34 In Craigie v R, the appellant had broken into
29 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 27, at [36].
30 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 27, at [32].
31 Tutakangahau, above n 27, at [36].
32 Elers v R, above n 9.
33 R v Columbus [2008] NZCA 192.
34 At [16].
an industrial premises and stolen $600 worth of items.35 The Court of Appeal again held that the 12-month starting point was “well within range”.36
[24] There is of course no tariff case for burglary, given the range of circumstances in which the offence can be committed are so varied.37 Nevertheless, I consider the cases I have just outlined are helpful authorities in considering an appropriate starting point for the lead burglary offending here.
[25] In this respect, the authorities have set out several principles relevant to setting the starting point for burglary cases. These include the level of premeditation, the value of the items stolen, the degree of intrusion, the nature of the premises entered, the damage done, the impact and potential impact upon occupants or owners of the property, and the extent of the offending where multiple burglaries are involved.38
[26] I accept the appellant’s submission here that the decision in Elers v R is not one which is directly on point. Unlike in that case, here the appellant had no accomplices or associates with him. Arguably too the offending in that case might also be considered as a little more serious than here with regard to the property that was stolen. In the present case, the burglary was of an industrial commercial premises and the property stolen was a glue gun valued at $120. I accept it is potentially arguable, along the lines of authorities such as Columbus and Craigie, that a 12-month starting point here as suggested by the appellant might have been appropriate.
[27] However, this by itself may not be enough in my view to justify departure from the District Court sentencing decision here. In this respect I do note that in a recent decision in this Court, Nelson v Police, Hinton J suggested that “a more realistic range” of starting points for burglaries might be between one year and two-and-a-half years’ imprisonment.39 A 12-month starting point would therefore clearly have been at the very lowest end. I conclude in all the circumstances here, a 16-month starting point was not clearly outside the range available in this case.
35 Craigie v R [2012] NZCA 67.
36 At [30].
37 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (CA) at [78].
38 R v Nguyen CA110/01, 2 Hurae | July 2001 at [17].
39 Nelson v Police [2019] NZHC 2434 at [33].
[28] In addition to the 16-month starting point for the burglary, the Judge then applied only a light uplift of two months for the two charges of attempted unlawful taking of a motor vehicle, which occurred on that same night, 13 January 2022. I accept this caused harm, loss, and no doubt some trauma to the victims, who had their car windows smashed and items taken.
[29] Thus although the starting point arguably might have been at the high end for the offending in question here, it was not outside the range available to the sentencing Judge. Further, I am satisfied this did not necessarily result in a sentence that was itself manifestly excessive.
Imposition of cumulative sentences and totality
[30] The next issue on this appeal I address is whether the Judge erred in imposing a cumulative sentence of 15 months’ imprisonment in relation to the later 20 January 2022 offending. Counsel for the appellant notes these events took place only a week after the first offending and, as they involved offending of a similar nature, therefore the Judge should have dealt with all the offending together. I disagree, however.
[31] Section 84 of the Sentencing Act provides guidance on when the use of cumulative and concurrent sentences of imprisonment is “generally appropriate”. It does not set out mandatory requirements, however, and a Judge retains a discretion as to what form the sentences are to take. Section 84(2) provides that concurrent sentences of imprisonment are generally appropriate where offences are of a similar kind and are a connected series of events or offences. In the present case, although the events in question were close in time, I consider the Judge was entitled to adopt the approach he ultimately took in treating the two sets of offending separately, given the offending occurred at different times and places, and it involved different types of properties and different victims. They were not a connected series of events. I am satisfied the Judge was entitled to address the burglary and other sentences in a cumulative manner, as he did. The key consideration is of course whether in any event the end sentence imposed was manifestly excessive.
Totality
[32] I turn then to this next head of argument. This is to address the question of whether the Judge here failed to make appropriate reductions in terms of the totality of the offending.
[33] Section 85 of the Sentencing Act requires the Court to consider the totality of offending. Where cumulative sentences of imprisonment are imposed, pursuant to s 85(2) they “must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.” In this case the Judge adopted a starting point of 33 months’ imprisonment for the offending as a whole after applying a three-month reduction for totality.
[34] Having regard to all the circumstances of the offending here, I am satisfied this was an acceptable deduction. The uplift applied for the 20 January 2022 offending was itself only 18 months, whereas the Judge had said, based on the case law, a three-year starting point would have been warranted. In explicitly referencing the totality principle, and making a deduction to the sentence accordingly, I am satisfied the Judge had firmly in mind the importance of ensuring the total period of imprisonment was not wholly out of proportion to the gravity of that overall offending. I agree, too, with his conclusion that a three-month totality deduction in recognition of this was sufficient.
Guilty plea discount
[35] The final substantive matter to be considered concerns whether the Judge erred in only providing the appellant a 22.5 per cent discount for his guilty plea, rather than the full 25 per cent contended for.
[36] As the Supreme Court has confirmed, a discount of up to 25 per cent is generally available for a guilty plea entered at the first opportunity.40 Nevertheless, any discount is necessarily at the discretion of the sentencing Judge, and discounts may range anywhere up to that amount depending on the circumstances.
40 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[37] The respondent here points out that, despite strong evidence linking the appellant to the offending, guilty pleas were not entered until 16 August 2022, seven months after the charges were initially laid. Indeed, at the first appearance not guilty pleas were entered and the matter proceeded to a case review hearing. I accept that in all the circumstances here, the Judge was acting within his discretion in reducing the full guilty plea discount by 2.5 per cent to a final discount of 22.5 per cent.
[38] In terms of the impact this might have had on the sentence as a whole, I note that the Judge also provided a discount to the appellant of 10 per cent for his personal circumstances. I do not think the Judge was ungenerous in doing so.
Conclusion
[39] As will be apparent, I am satisfied that in sentencing the appellant overall to 25-and-a-half months’ imprisonment, the Judge made no error. I am not satisfied the end sentence imposed here was in the circumstances manifestly excessive or that any different sentence should have been imposed
[40]Accordingly, the appeal is dismissed.
Gendall J
Solicitors:
S Fraser Barrister for the Appellant
J C H Liu for the Respondent New Zealand Police
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