Gardiner v Police

[2015] NZHC 1241

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-14 [2015] NZHC 1241

BETWEEN

CHAD JESSIE GARDINER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 June 2015
Appearances:	M Boyd for Mr Gardiner N Laird for the Respondent
Judgment:	4 June 2015

JUDGMENT OF MALLON J

Introduction

[1]      Mr  Gardiner  was  convicted  on  three  counts  of  burglary,1   one  count  of receiving stolen property,2  one count of failure to report for community work,3  and one count of non-payment of fines.4   He was sentenced in the District Court at New Plymouth to an effective term of two years imprisonment.5    He appeals against his sentence.  He contends that there were errors in the sentencing6 that led to a sentence that was manifestly excessive.7

The offending

[2]      On 15 January 2015 Mr Gardiner was sentenced to 80 hours of community work.  He failed to report within 72 hours of his sentence being imposed.  Despite a

1      Crimes Act 1961, s 231 (maximum penalty of 10 years imprisonment).

2      Sections 246(1) and 247(c) (maximum penalty of three months imprisonment).

3      Sentencing Act 2002, s 71(1)(a) (maximum penalty of three months imprisonment or a fine not exceeding $1,000).

4      Summary Proceedings Act 1957, s 90(b) (maximum penalty of three months imprisonment).

5      Police v Gardiner [2015] NZDC 4158 (Judge C Sygrove).

6      Criminal Procedure Act 2011, s 250.

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

GARDINER v NEW ZEALAND POLICE [2015] NZHC 1241 [4 June 2015]

number of written instructions and warnings to report he failed to do so.  He has not completed any hours of this sentence.

[3]      At  6.25  pm  on  6  February  2015,  Mr  Gardiner  entered  a  lane  in  New Plymouth which services several businesses.   A CCTV camera is installed in the lane.  Mr Gardiner entered the rear of a takeaway shop through a closed gate.  He took some food items from the chiller.  The items were valued at $45.  He returned at

6.44 pm and re-entered the takeaway shop in the same way.   He took a small red bucket with unidentified contents.8   He returned again at 9 pm, this time on a stolen mountain bike.9   He walked into the rear of a café, which was next to the takeaway shop he had earlier entered, and grabbed two containers of food and a bottle of juice. These items were valued at $135.10    The owner of the café noticed the chiller door open and confronted Mr Gardiner, who said that he was hungry.  The owner gave Mr Gardiner some food and escorted him out of the café.

[4]      Mr Gardiner was located and arrested on 12 February 2015.   The charges were brought on 13 February 2015.  Bail was not sought.  Mr Gardiner entered early guilty pleas.

Circumstances of the offender

[5]      At the time of the offending, Mr Gardiner was 20 years old, an alcoholic and of no fixed abode.  He had not applied for a benefit and did not have a bank account or a doctor.   He told the pre-sentence report writer that he had stolen the food because he was  “wasted” and  hungry.    He did  not  report  for community work because he could not be “f*cked”.  He hoped he would not get a long prison sentence but he considered it would give him time to “dry out”.  He acknowledged he needed to take some steps to put his offending behind him.  He had tried counselling before but had not liked it.

[6]      Mr Gardiner has a lengthy list of previous convictions for relatively minor matters consistent with his unstructured lifestyle and alcohol abuse.  They include a

8      These actions led to the first and second counts of burglary.

9      This led to the count of receiving property.

10     This led to the third count of burglary.

number of convictions for breach of community work11  and failure to comply with court orders.12     They also include dishonesty convictions, and one Youth Court admonishment, as follows:

(a)       27 April 2011: burglary (under $500) on 25 December 2010 for which he was admonished.

(b)      28 November 2011: a spate of offending between 19 August 2010 and

29 September 2011 which included four charges of burglary (three under $500 and one between $500 and $5000) and one charge of theft (under $500) for which he was sentenced to 10 months imprisonment.

(c)       24 April 2013: theft (under $500) for which community work was ordered.

(d)11 November 2014: theft (under $500) and unlawfully being in a building, for which he was sentenced to two months imprisonment.

District Court sentence

[7]      The Judge considered that he “had to be guided by” the High Court’s decision in Senior v Police.13    He considered Mr Gardiner to be a recidivist burglar, within category 2 of that case, in respect of which a sentence of around three years imprisonment could be expected.  He said:14

… my starting point for the term of imprisonment is two years.  I take into account the aggravating factors; it was committed while you were on bail, the number of the offences, the nature of the previous convictions and I add because of that, eight months.   So I sentence you to two years and eight months’ imprisonment.

11     Five charges between 2012 and 2014.

12     Two charges of breach of release conditions in 2012 and three charges of failing to answer bail in 2011, 2014, and 2015.

13     Senior v Police (2000) 18 CRNZ 340 (HC).

14     Police v Gardiner, above n 5, at [10].

[8]      The Judge considered that the mitigating factors were Mr Gardiner’s age, remorse and early guilty plea.   He reduced the end sentence to two years imprisonment.15

Assessment of appeal

[9]      I accept the submission for Mr Gardiner that there were errors in the Judge’s sentencing.  Specifically, the Judge appeared to approach Senior v Police as though it was a tariff case, when it is not.16    The term “recidivist” is not determinative.17  In sentencing  for  burglary,  as  with  other  offences,  it  is  the  circumstances  of  the offending that predominate.18

[10]     Additionally, and as is accepted by the respondent, the uplift of eight months imprisonment could not be justified.  The number of offences did not warrant any additional uplift if the starting point was set with reference to an overall assessment of the offending as appears to be the case here.  Counsel are agreed that Mr Gardiner was not on bail at the time of this offending and so that did not warrant any uplift.19

Mr Gardiner’s burglary and dishonesty history also did not warrant such an uplift.  It

was relatively limited and most of it was part of a spree over several months for which he was sentenced to 10 months imprisonment.   An uplift of eight months imprisonment  because of those  convictions  was  disproportionate both  to  the 10 months imprisonment he received on that occasion and the gravity of the offending

on this occasion.20

15     The Judge allocated this sentence as follows: a concurrent sentence of two years imprisonment on the three charges of burglary; a concurrent sentence of one month imprisonment for the receiving  charge;  a  concurrent  sentence  of  one  month  imprisonment  for  the  breach  of community work; and a concurrent sentence of two months imprisonment for the non-payment of fines. His Honour cancelled the prior sentence of community work which had been breached.

16     R v Southon (2003) 20 CRNZ 104 (CA) at [13]; Arahanga v R [2012] NZCA 480, [2013] 1

NZLR 189 at [78]; R v Lowe CA62/05, 4 July 2005 at [31].

17     R v Columbus [2008] NZCA 192 at [15].

18     R v Lowe, above n 16, at [31]; R v Columbus, above n 17, at [13].

19     There is some confusion about this because the police grounds for opposing bail referred to an active trespass charge.  Be that as it may, a minor charge of that kind could not warrant a large

uplift.

20     By way of comparison, in Craigie v R [2012] NZCA 67, an uplift of four months imprisonment was regarded as “stern” in respect of an offender with considerably more burglary offences. In the event the sentence in that case was not manifestly excessive because the starting point was regarded as well within range.

[11]     These errors led to a manifestly excessive sentence.  The aggravating features did not warrant a starting point anywhere approaching two years imprisonment.  The burglary in this case was of business premises.  It was a spree over a short period of time motivated by hunger.  There was no forced entry.  The level of pre-meditation was low.  The value of items taken was small.  The entry to the rear of the premises and  the  short  time  that  Mr Gardiner  was  on  the  premises  reduced  the  risks  of confrontation.  While he was seen by the café owner, he appears not to have been startled by Mr Gardiner’s presence (and was kind to him).

[12]     In Arahanga v R the Court of Appeal noted that dwelling house burglaries at the relatively minor end of the scale tend to attract starting points of around 18 months to two years and six months imprisonment.21   The offending in this case was less serious than a burglary of a house in this category.  A starting point less than 18 months imprisonment was warranted in this case.

[13]     The offending was more comparable to that which occurred in Charlett v Police.22     In that case the offender, an alcoholic, had stolen some wine and food items of small value from a dairy and a supermarket on three occasions over a period of  a  few  weeks.    In  that  case  a  starting  point  of  no  more  than  six  months imprisonment was considered appropriate.   The offending here was slightly more serious than that because it occurred in the early evening and the nature of the premises was a little different.

[14]   In these circumstances I consider that a starting point of eight months imprisonment was appropriate.   An uplift of no more than two months was appropriate for Mr Gardiner’s previous offending and the other offending on which he was being sentenced.  At 20 years of age a discount for youth was discretionary. Reducing the sentence to seven months imprisonment provides a full discount for the early guilty plea and a small allowance for Mr Gardiner’s age and circumstances.

[15]     As Mr Gardiner has been in prison since his arrest, I understand that this sentence will mean that he will be released shortly.   The District Court did not

21     Arahanga v R, above n 16, at [78].

22     Charlett v Police [2014] NZHC 3002.

impose release conditions.  Counsel for Mr Gardiner submits that release conditions are not necessary because Mr Gardiner has some insight and motivation to address his alcohol issues and Mr Gardiner has a negative history with probation.   I note, however, that Mr Gardiner told the pre-sentence report writer that he did not know how to action the changes he needed to make.  I consider that release conditions are appropriate.  If he is unable to comply with the release conditions (as he has been in the past) that might be dealt with by way of an application to vary or discharge the conditions if that is appropriate in the circumstances.

[16]     The following special conditions as proposed by counsel are appropriate and are to apply for six months:

(a)       to attend an assessment for alcohol use and if required, complete any counselling or treatment;

(b)to attend any other programme as required by probation (for example, the Short Rehabilitative Programme run by probation).

Result

[17]     The appeal is allowed.  The sentences on the burglary charges are quashed. Concurrent sentences of seven months imprisonment are substituted.  The conditions set out in [16] above apply.   The existing sentences on the charges of receiving, breach of community work, and non-payment of fines remain in place.  The order cancelling the community work sentence also remains in place.

Mallon J