Gerbes v The Queen
[2012] NZCA 281
•27 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA59/2012 [2012] NZCA 281 |
| BETWEEN ANTHONY JAMES GERBES |
| AND THE QUEEN |
| Hearing: 13 June 2012 |
| Court: White, Rodney Hansen and Fogarty JJ |
| Counsel: E J Forster and A E M Reid for Appellant |
| Judgment: 27 June 2012 at 3.00pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
Mr Gerbes pleaded guilty to three charges of aggravated burglary and three associated dishonesty offences.[1] He was sentenced by Judge Rea to six years imprisonment with a minimum period of imprisonment of three and a half years.
[1]Two of attempting to use a credit card, in breach of s 228(b) Crimes Act 1961 and one of intentionally destroying telephone cables, contrary to s 269(2)(b) of the Act.
Mr Gerbes appeals against his sentence as it relates to the minimum period of imprisonment. He considers the minimum period is manifestly excessive and should be reduced to three years.
Facts
Mr Gerbes was released from custody in September 2010 after serving a sentence for offences of dishonesty. He was still subject to release conditions when, between 15 and 29 November 2010, he committed three aggravated burglaries of private homes. All offending took place at night with an accomplice. Both wore disguises and were armed.
The first burglary took place in Havelock North. The offenders went to a private house carrying two mallets and a bag containing ropes and masking tape. Outside the house they found an aluminium baseball bat which Mr Gerbes used in an unsuccessful attempt to smash the glass pane in the kitchen door. They then regrouped, cut phone cables to the house and entered through an open window. They took a number of items from the lounge and kitchen areas. As they moved to a hallway, which led to other parts of the house, they were confronted by the occupant, who had been awakened by the noise. He barricaded himself in and phoned the police.[2] Mr Gerbes and his associate then took the keys to both of the victim’s vehicles, loaded the stolen items into one of them and left the property.
[2] Despite some cables having been cut, the phone still worked.
On 28 November, again carrying a mallet and a bag containing rope and masking tape, Mr Gerbes and his associate went to a house in Napier. Outside the house Mr Gerbes found a piece of 2 x 4 timber which he took into the house, his associate having gained entry by climbing through the bathroom window. They stole a number of items from the kitchen and living room area. They found the key to a vehicle that was on the property into which they loaded the stolen items before making off.
The following evening Mr Gerbes and Richard Rameka entered the home of an elderly couple. The property had been selected by Mr Rameka who had previously worked there. Outside the house Mr Gerbes armed himself with a wooden fence baton. His co-offender found an axe, soon discarded in favour of a sledge hammer, which was used to gain entry through a ranch slider. They confronted the victims in their bedroom, Mr Rameka holding the sledge hammer and Mr Gerbes with the fence baton. Mr Rameka demanded food from the male occupant and the keys to his car and garage. They left in the vehicle, which contained a wallet, tools and cell phone. Both attempted to use a credit card to obtain cash.
The occupants of all three houses were traumatised by what happened. Those who actually confronted the burglar were badly affected. The man in the Havelock North house referred in his victim impact statement to the “sudden feeling of dread” he had when initially confronted by a masked man. He needed medication to deal with anxiety and sleeping problems. The elderly couple were worst affected. Their anxieties were exacerbated by the knowledge that their house had been targeted. As pensioners with a limited income, they were also seriously impacted financially. Insurance was insufficient to cover their losses.
Judge Rea’s sentencing
Judge Rea approached sentence by using the most serious of the offences, the third aggravated burglary, to arrive at a starting point of 5½ years imprisonment.[3] He added an uplift of 2½ years for the additional offending to reach a starting point of eight years imprisonment.[4] He gave Mr Gerbes the full 25 per cent discount, to which he was entitled for his guilty plea in terms of R v Hessell,[5] resulting in a sentence of six years imprisonment.[6]
[3] R v Gerbes DC Napier CRI-2010-020-4676, 21 January 2011 at [37]–[38].
[4] At [40].
[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
[6] At [41].
Judge Rea then went on to consider the Crown’s submission that a minimum non-parole period should be imposed in relation to the aggravated burglary offences. He accepted the submission, explaining his reasons in the following passage of his sentencing remarks:
[44] Mr Forster on your behalf opposes that saying that the lead sentence will be sufficient on the facts of this case to sufficiently punish and deter you and to be a deterrent to anyone else who might be involved in this sort of activity or consider that they would want to be.
[45] Section 86(2) provides that the court may impose a minimum period of imprisonment if it is satisfied that the parole period is insufficient for all or any of the following reasons. The first is holding you accountable for the harm done to the victims and the community by the offending. The second is denouncing the conduct in which you were involved. The third is deterring you and other persons from committing the same or a similar offence and the last is protecting the community from you.
[46] This is extremely bad offending. There were planned attacks on private homes of vulnerable people and in one case at least extraordinarily vulnerable people, not that you arrived at by accident but that you arrived at deliberately.
[47] You have clearly shown by the way you have been prepared to behave here when it is married up with your past record and the fact that this has occurred while you were on parole, that nothing is sacred to you. You are prepared to pillage the property of the community as it suits you. A disturbing feature is you seem to have a number of contacts in the Hastings community that are prepared to take the stolen goods from you almost immediately after you have stolen them.
[48] I consider that this case is one that Parliament had in mind when it passed s 86 of the Sentencing Act. I consider for all of those reasons that a non-parole period is essential to bring home to you and to anybody else the folly of this sort of crime.
[49] There will be a minimum non-parole period in relation to each of the aggravated burglary charges of three and a half years’ imprisonment. You will not be eligible for parole until after that period of time has been served.
Grounds of appeal
Mr Forster argued that the minimum period of imprisonment, equivalent to 58.3 per cent of the sentence, was too long when regard is had to the maximum available of two-thirds. He submitted that the combination of the following mitigating factors justifies a lesser minimum non-parole period:
·Early guilty pleas.
·The absence of actual violence.
·The absence of any significant previous record of violent offending.
For completeness we note that a ground of appeal based on the giving of a “first strike” warning for the offending (pursuant to s 86B of the Sentencing Act 2002) was abandoned before us at the hearing.
Discussion
In a proper case, an early guilty plea may militate against the imposition of a minimum period of imprisonment or operate to reduce the length of the minimum period.[7] But when the plea does not impact on the statutory test in s 86(2) of the Sentencing Act, it will be disregarded.[8] This is such a case. The pre-sentence report makes it clear that Mr Gerbes’s guilty pleas were not associated with any real insight into his offending or remorse for his actions. The need for a sentence which achieves the goals of accountability, deterrence and denunciation was unaffected by the pleas of guilty.
[7] R v Taueki [2005] 3 NZLR 372 (CA) at [55].
[8] R v Nguyen [2009] NZCA 239 at [33].
We do not see the absence of actual violence as justifying any reduction in the minimum period of imprisonment. There were threats of violence made against the elderly couple and, in all cases, the carriage of weapons which presented a serious risk of harm had the intruders been obstructed or frustrated. The way in which the burglaries were planned and executed was deserving of emphatic denunciation on sentence.
While Mr Gerbes has no convictions for violent offending since early in his criminal career, he has a ten-year history of repeated offences of dishonesty and is assessed as at high risk of reoffending. The present offending, furthermore, represents an alarming escalation in the seriousness of his offending. Considerations of personal deterrence and the protection of the community strongly favour a substantial minimum period of imprisonment.
We are satisfied that the minimum period of imprisonment imposed by Judge Rea was fully justified.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent