DUKIE MONTGOMERY AND THE KING

[2024] NZHC 2628

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-169 [2024] NZHC 2628

BETWEEN

DUKIE MONTGOMERY

Appellant

AND

THE KING

Respondent

Hearing:

10 September 2024

Appearances:

K J Gray for Appellant

G L Collett for Respondent

Judgment:

11 September 2024

ORAL JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MONTGOMERY v R [2024] NZHC 2628 [11 September 2024]

Introduction

[1]    Dukie Montgomery was  sentenced  by  Judge  Couch  to  four  years  and  ten months’ imprisonment.1 The sentence comprised of cumulative starting points for the charges of aggravated burglary;2 possession of a firearm;3 and failing to cooperate with a search4 in one tranche and burglary in the other.5 Mr Montgomery appeals his sentence.

Facts

[2]    Mr Montgomery and the victim of the first burglary had known each other for six years prior to the 16 October 2023 offending. Around 9:35 am, Mr Montgomery jumped the victim’s fence and ripped cables from her CCTV unit, disabling it. He then entered the victim’s garage, where she was sleeping with her partner. He woke her by yelling at her before punching her partner in the head multiple times. The female victim fled the garage with Mr Montgomery chasing her into the backyard. She was yelling for her daughter to call the police. Mr Montgomery fled the scene, yelling at the victim that she owed him $13,000. Mr Montgomery’s explanation is that he was actually targeting the male and had been acting on instructions from his gang to collect a drug debt.

[3]    Around 11:45 am on 9 March 2024, Mr Montgomery with two associates entered a Christchurch driveway. All three men had their hoodies adjusted to conceal their identities. Mr Montgomery was unlawfully in possession of a double-barrel shotgun, concealed by his side.

[4]    One of the three offenders asked to see “Reece”. The female occupant at the address replied she did not know a Reece and she repeated that when it was insinuated she did know him. She told the men to leave. A male occupant at the address came  to the door. He told the three men that his family had lived at the address for ten years and there was no one called Reece who lived there. It was then Mr Montgomery and

1      R v Montgomery [2024] NZDC 15665.

2      Crimes Act 1961, s 232(1)(a); maximum penalty 14 years’ imprisonment.

3      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.

4      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

5      Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.

his associates left. The occupants later reviewed their CCTV footage, and it was then they learnt that both Mr Montgomery and one of his associates had been armed with shot guns. Again, Mr Montgomery’s explanation is that he was collecting a drug debt for his gang. He says he was doing what he was told.

[5]    Finally, on 22 March 2024, Mr Montgomery was arrested during a traffic stop. The police seized his phone and made a request under the search and surveillance legislation for his PIN. Mr Montgomery refused to provide it, despite being warned of the consequences.

District Court Decision

[6]    Judge Couch dealt first with the burglary, describing it as “effectively a violent home invasion” involving a prolonged and violent confrontation.6 The Judge observed the victims were asleep when the appellant entered the premises and therefore vulnerable. Further  aggravating  the  offence  was  clear  premeditation.  The  fact Mr Montgomery had been at the property demanding money previously and damage to the CCTV unit. A starting point of two years and four months’ imprisonment was adopted.

[7]    The Judge turned to the aggravated burglary charge, identifying the aggravating factors as including the targeting of a dwelling house, possession of firearms, multiple offenders, premeditation and measures having been taken to conceal identity. Accepting that the offenders did not enter the home and ultimately did leave quietly, having accepted they were at the wrong house, the Judge took a starting point of two years and six months’ imprisonment on the burglary and firearms charges. In setting that starting point the Judge took into account that the appellant had surrendered the firearm to police. The Judge imposed a one-month uplift for the PIN code charge. The Judge did not consider it appropriate to make a totality allowance.

[8]    An uplift of 12 per cent was applied because Mr Montgomery was serving a sentence of intensive supervision when he committed the October 2023 offending and because he was on bail as at the date of the March 2024 offending. Referring to a

6      R v Montgomery, above n 1, at [4].

criminal history that included five burglary and nine violence convictions, the Judge imposed an additional uplift of ten per cent.7

[9]    The Judge allowed a 20 per cent credit for Mr Montgomery’s guilty pleas, observing that not guilty pleas had initially been entered. The Judge said he found the s 27 report to  be  very  helpful.  He  referred  to  a  February  2023  sentencing  of Mr Montgomery before a different Judge, where that Judge had “fully taken into account” the same s 27 report and allowed  a  three  per  cent  credit  deduction. Judge Couch said he agreed with the observation expressed by the Judge at the earlier sentencing that being institutionalised and electing to become a member of a gang “does not necessarily correlate with offending…or put another way, excuse it.”.8 Judge Couch allowed a five per cent deduction to reflect the matters set out in the s 27 report. The end sentence was four years and ten months’ imprisonment.9

Principles on appeal

[10]   Appeals against sentence are allowed by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful of this Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.11 When assessing whether the sentence is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached.12

7      Five convictions for burglary, nine for violence and three convictions for assault with intent to injure in February 2023.

8      R v Montgomery, above n 1, at [13], the Judge referring to the quoted observation in R v Montgomery [2023] NZDC 1952 at [24].

9      The Judge imposed a sentence of four years and ten months on the aggravated burglary charge, two years and three months on the burglary charge, 12 months on the unlawful possession of a firearm charge and one month on the failing to cooperate charge, those sentences being concurrent.

10 Criminal Procedure Act 2011, s 250(2) and (3).

11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].

12 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].

Analysis

[11]   Ms Gray advances the appeal for Mr Montgomery on the grounds that insufficient credit was allowed for totality, remorse and personal factors, as well as what is submitted to be an overly stern uplift for prior offending and offending on sentence and while subject to bail.

Totality

[12]   The Judge did not allow a totality deduction. In explanation, the Judge acknowledged there was an “obvious similarity in the two main offences”, both having been motivated by gang involvement and featuring the character of gang enforcement. The Judge then recorded his agreement with the submission of defence counsel (not Ms Gray) that cumulative sentences were appropriate.

[13]   Section 84 of the Sentencing Act 2002 (the Act) gives guidance to a sentencing Court on the use of cumulative and concurrent sentences of imprisonment. It provides in s 84(1) that cumulative sentences of imprisonment are generally appropriate if the offences for which the offender is being sentenced are different in kind, whether or not they are a connected series of offences. Subsection (3) provides that the Court may consider the timing, overall nature and any other relationship between the offences.

[14]   For Mr Montgomery’s offending it was accepted that it was appropriate for the Court to impose cumulative sentences in relation to the October 2023 and the March 2024 offending.

[15]   A different consideration arises under s 85 of the Act. Section 85(1) provides that if a Court is considering imposing sentences of imprisonment for two or more offences, the individual sentences must reflect the seriousness of each offence and, in s 85(2), that if cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[16]   The Judge was therefore obliged, under s 85(2), in imposing cumulative sentences of imprisonment, to stand back and consider whether the total starting point

of four years and 11 months’ imprisonment was wholly out of proportion to the gravity of all of Mr Montgomery’s offending. I agree with Ms Gray that the Judge did not undertake that exercise. I will now do so.

[17]   The appellant does not challenge the discrete starting points adopted by the Judge. Ms Collett for the Crown submits that for both sets of offending, higher starting points were available.

[18]   The burglary was not a typical residential burglary. The Judge correctly described the offending as more akin to a violent home invasion. It was an example of gang debt collection featuring unlawful entry, violence and intimidation. The offending has its genesis in the gang’s drug offending, an activity that is a scourge on the community. In my view, a starting point of 28 months’ imprisonment was well within range.

[19]   The aggravated burglary committed about five months later bears the hallmarks of the earlier offending. Again, Mr Montgomery says, and it is accepted, he was acting on behalf of the gang to recover a drug debt. On this occasion he was accompanied by two others from the same gang. Two of the three men were armed with shotguns. Although the weapons were not revealed to the occupants of the address, there can be little doubt that the appellant and his co-offenders were willing to engage in highly intimidatory, threatening and violent conduct in order to collect a drug debt. That the offenders considered it necessary that two of the three were armed with shotguns speaks volumes.

[20]   Those who engage in armed debt collection for a gang must expect the courts to impose condign sentences. The potential for serious injury or death when shotguns are used by those embedded within a criminal enterprise is very real.

[21]   Mr Montgomery was entitled to a deduction to reflect that he subsequently surrendered one of the firearms. The Judge acknowledged but did not quantify that deduction.13 In my view a discrete credit was preferable to mark assistance of that nature. To do so more effectively recognises the reduction in overall culpability and

13     R v Montgomery, above n 1, at [6].

incentivises co-operation with the authorities.14 Applying a 10 per cent deduction would mean the Judge had taken a 33-month starting point for the aggravated burglary and unlawful possession of the shotgun offending. In my view that starting point was again well within range.

[22]   A totality deduction does not automatically apply. A sentencing Judge must stand back and assess the overall gravity of the offending. I am satisfied, standing back, this was very serious, violent and deliberately intimidatory gang related offending carried out for the purpose of protecting the gang’s highly illicit and harmful criminal enterprise. Acknowledging that the shotguns were not brandished and the innocent victims were not threatened, I agree with Ms Gray that the overall starting point adopted was stern, however I am not satisfied it was wholly out of proportion to the gravity of the overall offending. In my view, the Judge did not err in declining to allow a totality deduction.

Uplifts

[23]   The Judge applied a total uplift of 22 per cent for offending on bail and while subject to sentence (12 per cent) and for previous offending (10 per cent) which, in effect, neutralised the deductions that were allowed for mitigating factors. Ms Gray says those uplifts were too high. Ms Collett supports the uplift for prior offending acknowledging that the further appropriate uplift could have been higher.

[24]   The 16 October 2023 burglary was committed while Mr Montgomery was serving a sentence of intensive supervision. At that point, he had served eight months of the 12-month sentence. That sentence has since been completed without further issue and it had ended when the aggravated burglary was committed. The aggravated burglary was committed on 9 March 2024. At that time Mr Montgomery was on bail for the October 2023 burglary.

14 In Banaba v R [2016] NZCA 122 at [42]–[43], while the Court of Appeal noted that offenders who surrender illegal weapons should not “expect generous treatment” a ten per cent credit was upheld. to reflect cooperation with the police and the removal of a potential theat to community safety.

[25]   In my view the Judge fell into error in applying a wholesale uplift for offending on  bail  and  while  subject  to   sentence.   A   similar   issue   arose   in  Hiroki-Kaka v New Zealand Police. I adopt the observations I then made:15

I accept it is not uncommon for a quantified uplift to reflect a breach of bail to be applied across all offending and not only to the offending committed on bail. That approach would, in my view, remain appropriate if the offending on bail is clearly more serious than the original offending, or if there are multiple discrete offences committed on bail. That approach might also be appropriate if an offender has an established history of serious offending on bail. But in a case where there are two discrete offences charged, and the Judge has seen fit to treat the offences as discrete yet not warranting a totality deduction, I prefer the approach taken by the Court of Appeal in Whiunui and consider the uplift should only be applied to the second offence, in this case the driving offence.

[26]   Although I consider a higher uplift may well have been justified for committing a very serious offence on bail than that imposed for lesser offending towards the end of an intensive supervision offence, I will proceed on the basis the Judge considered that uplifts of around six per cent were appropriate for offending on bail and for offending on sentence.

[27]   Applying a 12 per cent uplift, as the Judge did, to the overall starting point of 59 months’ imprisonment equates to a little over seven months’ imprisonment. In my view that uplift should have been applied as six per cent of the 28 months adopted for the burglary (approximately 1.7 months) and six per cent of the 30 months adopted for the aggravated burglary (approximately 1.8 months). That would equate to a total uplift of around 3.5 months. The  same result is achieved by applying an uplift  of  six per cent to the global starting point.

[28]   I am satisfied the uplift of ten per cent to reflect the applicant’s criminal history was available although I accept that in combination with the other uplifts, it was very much at the upper end of the available range. I do not accept Ms Gray’s submission that because Mr Montgomery has no relevant prior convictions for aggravated burglary that an uplift was not justified. The appellant’s current offending involved the unlawful entry onto property and violence. He has five prior convictions for burglary and nine convictions for violence. For most of that offending he has been sentenced to terms of imprisonment.

15     Hiroki-Kaka v New Zealand Police [2023] NZHC 3774 at [39].

[29]   Previous convictions are relevant as “an indicator of character and culpability, or because they show a need for a greater deterrent response, or as an indicator of risk of reoffending”.16 Mr Montgomery’s history and his continuous offending associated with the gang justifies an uplift on each of those bases. The Judge did nor err in fixing a ten per cent uplift.

Remorse

[30]   Ms Gray submits that Mr Montgomery’s regret was expressed not only in his plea, but also in his offer to engage in restorative justice, and in the comments he made to the probation officer where he expressed regret and remorse, reporting that on both occasions he was acting under instructions, inferentially, from his gang. Ms Gray further highlights Mr Montgomery’s willingness to surrender the firearm.

[31]   I am satisfied the surrender of the firearm has been factored into the sentencing process. I am not satisfied the expression of remorse and an offer to participate in restorative justice warrant a discrete deduction for remorse beyond the deduction allowed for guilty pleas. The seriousness of Mr Montgomery’s offending has been escalating of late. Notwithstanding what he says, he has shown no inclination to change his lifestyle, to take advantage of rehabilitation offered to him or, crucially, to sever ties with the gang. The Judge did not err in declining a discrete discount for remorse.

Section 27 report

[32]   Mr Montgomery called into aid a s 27 report prepared when he was sentenced by a different Judge for three charges of assault with intent to injure in February 2023. On that occasion the appellant’s personal background factors were recognised by a three per cent deduction. Judge Couch increased that to a five per cent deduction.

[33]   Generally, it would be unusual for a defendant to secure a greater deduction for background matters outlined in a s 27 report when relying on the very same report for subsequent and more serious offending.  The three per  cent deduction allowed in

16     Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].

the earlier sentencing was applied to a starting point of one year and nine months’ imprisonment. That equates to a little over two weeks’ reduction of the term of imprisonment. No doubt Judge Couch felt constrained by the level of deduction previously allowed.

[34]I adopt Judge Couch’s summary of the s 27 report:17

[11]     …I have read the s 27 report which describes a seriously inadequate and inappropriate upbringing where drugs and family violence were common. This led you to an early introduction to alcohol, drugs and dishonesty. You also began your gang association at an early age. Your education was distinctly limited.

[12]     As an adult, you were first sentenced to imprisonment at the age of 20 and you have been in and out of prison ever since. The report writer suggests this has led to you being institutionalised and ill equipped to cope with everyday life in the community. It is also clear that you have been motivated in many of the things you have done by your sense of obligation to the gang.

[35]   In fixing the credit for personal background factors, Judge Couch agreed with the observation of the Judge who, in sentencing Mr Montgomery in February 2023, said in response to the matters raised in the s 27 report that, “being institutionalised and electing to become a member of a gang does not necessarily correlate with serious offending or excuse it”.18 That observation is no doubt true, but cultural reports are not relied upon to excuse offending—their purpose is to help explain offending with references to an offender’s background, and the way in which that background may have related to the offending. The proper focus when reviewing a s 27 report is, as confirmed by the Supreme Court in Berkland v R19 on background factors that have causatively contributed to the offending. The Court observed:20

Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender's limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely.

17     R v Montgomery, above n 1.

18 At [13].

19     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[112].

20 At [109].

[36]   As regards the level of deduction, the Court in Berkland allowed a ten per cent credit to reflect the role of the appellant’s deprived background and addiction in his offending, citing the “multiple criminogenic risk factors” present in his upbringing.21

[37]   Ms Collett points to Lee v R, where the Court of Appeal upheld a five per cent credit, noting that the offending was primarily driven by methamphetamine use and jealousy, as well as the fact the appellant was “firmly entrenched in the gang environment and there is no suggestion this is likely to change in the future”.22 The Court also observed that the District Court Judge did not accept Mr Lee to be genuinely remorseful.23

[38]   Ms Gray relies on the observations of the Court of Appeal in Carr v R24 and of Williams J in R v Rakuraku.25 In Carr the Court said:26

…where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing.

[39]   The assessment of the appropriate allowance to recognise matters raised in a  s 27 report is a very fact specific exercise in each case. Mr Montgomery presents with a broadly similar background to that of the appellant in Carr.27 In Carr a 15 per cent allowance was given.

[40]   I am satisfied the appellant’s s 27 report does provide a credible account of matters which might have impaired his choices and diminished his moral culpability so as to establish a causative contribution to his offending. His offending appears to be closely linked to his status as a gang member and the report identifies the link between his gang affiliation and his deprived upbringing. The jealousy and methamphetamine factors that led to a reduced deduction in Lee v R are not relevant here. I assess the appropriate credit for personal background factors to be ten per cent.

21     Berkland v R, above n 19, at [156] and [162].

22     Lee v R [2019] NZCA 539 at [61].

23 At [60].

24     Carr v R [2020] NCCA 507.

25     R v Rakuraku [2014] NZHC 3270.

26     Carr v R, above n 23, at [60].

27 At [63].

In my view the Judge fell into error in both his approach to s 27 and in the quantification of the credit.

Summary

[41]   I am satisfied the sentence of four years and 10 months imprisonment was manifestly excessive. I accept the 59-month global starting point adopted by the Judge was within range. An uplift of 10 per cent for previous convictions and an overall uplift of six per cent for offending on bail and while subject to sentence, offset against a 20 per cent deduction for guilty pleas and a 10 per cent deduction for personal background factors, gives rise to a net deduction of 14 per cent or about eight months. That leads to an end sentence of four years and three months’ imprisonment.

Result

[42]   Mr  Montgomery’s  appeal  is  allowed.  The  sentence  of  four  years  and  10 months’ imprisonment imposed on the charge of aggravated burglary is quashed and replaced by a sentence of four years and three months’ imprisonment. All other sentences remain the same.

...................................................

Eaton J

Solicitors:
Crown Solicitors, Christchurch

Counsel:
K J Gray, Barrister, Christchurch