Gaby v Police

[2025] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-000016

[2025] NZHC 1186

BETWEEN

BROOKLYN ANGEL GABY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 May 2025
Appearances:	N P Bourke for Appellant P M Lange for Respondent
Judgment:	15 May 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 15 May 2025 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

GABY v NEW ZEALAND POLICE [2025] NZHC 1186 [15 May 2025]

Introduction

[1]    Brooklyn Gaby, aged 24, pleaded guilty to one charge of breaching prison release conditions1 and one charge of burglary (under $500).2 Judge Harrison sentenced her to four months’ home detention on 12 March 2025.3 Ms Gaby appeals that decision, on the basis the Judge erred by failing to impose a sentence of community detention and supervision, as the least restrictive sentence appropriate in the circumstances.

Facts

Burglary

[2]    On the evening of 25 October 2024, Ms Gaby and an associate drove to the address of the victim, who was known to both  women.  Parking on the driveway,  Ms Gaby and her associate went to the victim’s car and took the victim’s handbag and speaker from it.  The victim came out of her house having heard them arrive, and  Ms Gaby and her associate fled in their vehicle.

[3]    Police spoke to Ms Gaby shortly afterwards. She admitted the offending and facilitated the return of the speaker. The handbag, which was worth $100, was not recovered and contained $300 cash and a $400 smart watch. The victim was unable to recall the worth of the speaker.

Breach of prison release conditions

[4]    Ms Gaby was released from prison on 12 August 2024. On 23 January 2025, she failed to report to her probation officer as directed.

District Court Decision

[5]    The Judge referred to the March 2025 pre-sentence report4 which identified Ms Gaby as posing a medium risk of reoffending and a low risk of harm to others. An

1      Sentencing Act 2002, s 96(1) — maximum penalty 1 year imprisonment or $2,000 fine.

2      Crimes Act 1961, s 231(1)(a) — maximum penalty 10 years’ imprisonment.

3      Police v Gaby [2025] NZDC 5546.

4      Dated 7 March 2025.

earlier report had recommended imprisonment, but the March report identified that Ms Gaby’s compliance with community-based sentences had been extremely poor, but recommended supervision  and  community  detention  in  view  of  “changes  in  [Ms Gaby’s] circumstances and behaviour in completing this report”. The report indicated that a rehabilitation programme was available for Ms Gaby to commence in June of this year.

[6]    At sentencing, counsel for Ms Gaby and the police supported community detention and supervision. However, the Judge rejected the defence submission that the offending was more akin to a minor theft from a vehicle, relying on the decision Gray v Police where a starting point of 12 months’ imprisonment was taken.5 The Judge considered the present case to be similar to Gray v Police except the value of the items taken was significantly lower, and accordingly adopted a starting point of nine months’ imprisonment.

[7]    The Judge adopted a starting point of one month for breaching prison release conditions, and applied this cumulatively to reach a starting point of 10 months. With 25 per cent reduction for guilty plea, the end sentence was seven and a half months’ imprisonment. The Judge declined to reduce that term for Ms Gaby having been on a curfew between 9:00 pm and 6:00 am, as that was not, in the Judge’s view, restrictive enough or onerous enough to warrant any kind of credit being given.

[8]    Turning to what she identified as the issue, whether to impose community detention or home detention, the Judge took the view that community detention did not adequately mark the seriousness of the offending, particularly in light of Gray. She noted this was Ms Gaby’s fourth breach of prison release conditions, against a background of a two-month term of imprisonment for the two previous breaches. Accordingly, the Judge considered she must deter Ms Gaby and denounce her conduct. The end sentence was four months’ home detention.6 Special conditions were included to support Ms Gaby’s rehabilitative needs identified in the pre-sentence report and address underlying causes of the offending.

5      Gray v Police [2018] NZHC 3245.

6      Recorded as to four months’ home detention on the burglary charge, one month home detention concurrent, on the breach of release conditions.

Principles on appeal

[9]    The Court must allow an appeal against sentence if satisfied that there is an error in the sentence imposed and that a different sentence should be imposed.7 Otherwise, the Court must dismiss the appeal.8 Whether the end sentence is ‘manifestly excessive’ is a useful guide in determining whether there is an error.9

[10]   The appeal court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 That approach reflects the idea that the appellate decision focuses on final sentence rather than the process by which it was reached. Assessing whether the sentence is manifestly excessive similarly reflects this focus.

Submissions

Appellant

[11]   Applying these principles in Ms Gaby’s case, the focus of the appeal essentially turns on two issues: the Judge’s application of Gray, and the treatment of the mitigating factor of Ms Gaby’s adherence to a nightly curfew, the combination of which are said to have lead to a sentence which was manifestly excessive.

[12]   Mr Bourke’s submissions challenge whether the Judge has had sufficient regard to the holistic assessment of Ms Gaby’s situation at sentencing.

[13]Mr Bourke asserts that the Judge made three errors, by:

(a)Adopting a starting point that was too high, in reliance on Gray v Police;

7      Criminal Procedure Act 2011, s 250(2).

8      Section 250(3).

9      Matthew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAB5.01].

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]. See also Te Aho v R [2013] NZCA 47 at [30].

(b)Not applying a discount for Ms Gaby’s curfew between 9:00 pm and 6:00 am; and

(c)Declining to grant community detention and supervision, which error counsel submits also wrongly relied on the Gray decision.

[14]   As to starting point, Mr Bourke submits that the Judge’s reliance on Gray v Police was an error because the offending in that case was more serious. He argues, as he did in the District Court, that where burglary offending is at the lower end of the scale, a sentence of community detention will not be unusual, citing Arbuckle-

McCreath v Police,11 Bracey v Police,12 Hickman v R,13 and Paul v Police.14

[15]   Mr Bourke also tells the Court that Ms Gaby’s mother has recently been diagnosed with cancer, and Ms Gaby wishes to be able to travel with her to New Plymouth hospital as support while she receives treatment. While he does not suggest this factor is determinative, Mr Bourke submits that this demonstrated that Ms Gaby has a legitimate  basis  for  seeking  community  detention.  In  oral  submissions,  Mr Bourke also emphasised Ms Gaby’s chaotic personal circumstances and the poor influence of associates upon her, features which he submits were central, for example, to the further breach of release conditions in this case, as Ms Gaby was living in the isolated and small town of Waverley at some distance from New Plymouth.

Respondent

[16]   With reference to the decision of this Court in Bryan v Police,15 Ms Lange for the respondent submits that the starting point was within range for this type of burglary.

11     Arbuckle-McCreath v Police [2020] NZHC 2893.

12     Bracey v Police [2022] NZHC 476.

13     Hickman v R [2019] NZHC 3251.

14     Paul v Police HC Gisborne, CRI-2008-416-000018, 24 February 2009.

15     Bryan v Police [2021] NZHC 1147.

[17]   Ms Lange submits that the Judge was correct not to apply a discount for the curfew, and says that restrictive bail conditions prior to sentencing typically attract discounts only where a defendant is subject to a 24-hour curfew or a lengthy daily curfew. That is not the case here.

[18]   Ms Lange submits that in concluding home detention was the appropriate sentence, the Judge clearly took into account the sentencing principles of accountability, denunciation and deterrence.

Analysis

Starting point

[19]   I am not persuaded that Bryan assists in the present analysis, given the added element in that case of entry by the appellant and his associate into the garage of a residential property by night, where they searched the vehicle parked inside.16

[20]   However, was the Judge wrong to be guided by Gray v Police when assessing the appropriate starting point on the burglary charge?17 In Gray, the appellant had pleaded guilty to charges of burglary, receiving, theft and failure to answer bail. The offending spanned four months and involved a drive-off from a petrol station and the theft of a mountain bike valued at $899, in addition to the lead charge of burglary. The facts of the burglary charge were that the appellant and an associate entered a property by squeezing through a gap in the fence, opened the door of a work van parked in the driveway, and stole multiple power tools from inside the van. The total value of the tools was $5,500. On appeal, Gordon J held that the appropriate starting point was  12 months’ imprisonment, as the offending appeared opportunistic and there was no evidence of premeditation or planning. The starting point still recognised that the burglary took place with an associate and the total value of the property was $5,500. A mitigating factor was that the appellant did not enter the domestic dwelling house on the property, only the van in the driveway.

16     Bryan v Police, above n 15. No items were taken during the burglary. The starting point of 15 months’ imprisonment, although observed to be “stern”, was not disturbed on appeal: at [36].

17     Above n 5.

[21]   In reliance on Gray, the Judge rejected Mr Bourke’s submission at sentencing that the theft was minor. The Judge adopted a starting point of nine months’ imprisonment to reflect the lower value of property taken in this case.

[22]   While not on all fours with the present case, I am not persuaded that the Judge erred by setting the starting point in reference to Gray. Its significance lies in its discussion of the seriousness of burglary from a car parked at a residence, which, although less serious than theft from the house itself, is still considered serious. I consider that the Judge appropriately reduced the starting point in this case to nine months, having regard to the lower value of the items. Relevantly, there are aggravating factors present in this case that were not present in Gray. The offending in Gray was considered to be opportunistic and premeditated. In this case, while there is no evidence before me of planning, Ms Gaby and her associate knew the victim and it appears the offending was motivated by her previous history with the victim, although she later disclaimed this. In that sense, this was not opportunistic or random offending but did as the Judge identified, involve a breach of trust in that sense.

Discount for curfew

[23]I consider that the Judge was correct not to make a reduction for curfew.

[24]   Ms Gaby was arrested on 26 October 2024 and remanded in custody for five nights. Following this, she was subject to a nightly 9:00 pm to 6:00 am curfew from 31 October 2024 until her sentencing on 12 March 2025.

[25]   The Court of Appeal has noted that it will “often be appropriate to reflect a significant period spent on 24-hour curfew”.18 I agree that in this case the limited nighttime curfew was not sufficiently restrictive to warrant such a reduction.

Community detention or home detention?

[26]   Mr Bourke submits that the Judge wrongly relied on Gray also as “some sort of authority that community detention was unavailable”, a conclusion he argues was misplaced. The Judge said this:

18     Bennett v R [2012] NZCA 173.

In short, the issue for me is, is it community detention or home detention? I acknowledge the address is suitable. In my view, community detention does not adequately mark the seriousness of this offending, particularly in light of the Gray decision from the High Court. It is an intrusion of privacy on somebody’s residential property and in your case, it is someone who was known to you, so a breach of trust and confidence.

This is your fourth breach of prison release conditions set against a background of a two-month term of imprisonment for your previous two breaches. I must deter you, I must denounce your offending and your conduct…

[27]   Speaking to the rehabilitative component of the sentence determined appropriate, of home detention with special release conditions, the Judge later addressed Ms Gaby:19

I hope you can sort things out, [your co-offender] is known to this court, you have told probation you are not hanging with her anymore, I say that can only be a good thing for you. I hope that this programme serves you well and that you take the opportunity and you give it your best shot. You do not want to keep coming back here for this kind of offending. I really want to wish you the best, I hope you can turn things around.

[28]   I do not agree this passage, or reading the sentencing remarks as a whole, suggests the Judge relied upon Gray as counsel submits, wrongly to determine that community detention was unavailable. Rather, in considering whether home detention or community detention was the least restrictive sentence adequate to mark the seriousness of the offending—being both the burglary and Ms Gaby’s relevant history of repeated breaches of release conditions over the previous year—the Judge considered the principles of denunciation and deterrence were prominent. These were not insignificant considerations as identified in the reports and given Ms Gaby’s relevant prior history. Nor did the sentence imposed ignore the rehabilitative purpose of sentencing, as the passage at [26] indicates. This is important as I acknowledge at 24 years old and with limited history although including an offence of violence in 2022, Ms Gaby has much to gain and should be assisted to benefit from, rehabilitative support.

19  In oral submissions Mr Bourke advised his understanding that Police have subsequently reduced the charge against Ms Gaby’s co-offender to theft from a vehicle, but which is pending sentence, both matters which this Court is unable to make any comment on in the circumstances.

[29]   Standing back, while Mr Bourke may be correct in his submission that community detention is routinely imposed for burglaries of this nature, that does not mean the Judge erred in considering that the offending here, given Ms Gaby’s history, required a sterner response in the form of four months’ home detention with special release conditions.

[30]   As to the compassionate aspect of Ms Gaby’s mother’s condition and the wish to support her in treatments (the nature and number of which are unspecified), I record the discussion and indication from Ms Lange for the respondent at court that that is a matter which may properly be raised with the probation officer in the first instance.

Result

[31]The appeal is dismissed.

………………………………………

Preston J

Solicitors:

Crown Solicitor, New Plymouth

Copy to:

N P Bourke, Barrister, New Plymouth