Geros v Police
[2013] NZHC 1535
•24 June 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-95 [2013] NZHC 1535
BETWEEN LEO GEROS Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 24 June 2013
Appearances: P T Eastwood for Appellant
R Thomson for Respondent
Judgment: 24 June 2013
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
LEO GEROS v NEW ZEALAND POLICE [2013] NZHC 1535 [24 June 2013]
[1] Mr Geros pleaded guilty in the District Court to three charges of burglary, two charges of attempted burglary and a charge of theft. On 22 February 2013, Judge Harvey sentenced him to concurrent terms of two years eight months imprisonment on each of the charges of burglary and attempted burglary. He sentenced Mr Geros to a concurrent term of three months imprisonment on the
charge of theft. [1]
[1] New Zealand Police v Geros DC Auckland, CRI-2013-004-001713, 22 February 2013.
[2] Mr Geros now appeals to this Court against the sentence the Judge imposed on the basis that it is manifestly excessive. He contends the Judge adopted a starting point that was too high, and that he applied too great an uplift to reflect previous convictions for similar offending. He also gave Mr Geros insufficient credit for his guilty pleas.
The facts
[3] The charges encompass six separate events that occurred between 21 July
2011 and 29 August 2012. Five of the charges, however, relate to incidents between
21 July 2011 and 21 October 2011 when Mr Geros burgled or attempted to burgle residential addresses in suburban areas. His preferred method of gaining entry to these addresses was by kicking the door in, or by forcing the door open. On some occasions he would back a vehicle up to the address. In the case of the three burglary charges, he then loaded property from the address into the waiting vehicle. The two charges of attempted burglary relate to incidents where Mr Geros attempted, unsuccessfully, to gain entry to the properties in question.
[4] The theft charge arises out of an incident on 9 August 2012, when Mr Geros and an associate went to a residential address in Mount Albert. Mr Geros walked to the carport and removed a mini chopper motorbike. He took the bike to his parked vehicle and placed it on the back seat. The occupant of the address then saw what was occurring and ran outside shouting at Mr Geros. This caused him to remove the bike from the vehicle and drop it on the ground. He then left the scene. Unfortunately, the summaries of fact do not disclose the value of the property stolen
in the burglaries. The mini chopper bike was valued at $400.
The structure of the sentence
[5] The Judge took the view that the six charges warranted an overall starting point of two years six months imprisonment. He then imposed an uplift of six months to reflect the fact that Mr Geros has no fewer than eight previous burglaries, together with numerous other convictions for offending involving dishonesty.
[6] The Judge allowed a discount of just ten per cent to reflect Mr Geros’ guilty pleas. These came nearly a year after first appearance and on the day of the defended hearing.
[7] This produced an end sentence of two years eight months imprisonment on the burglary and attempted burglary charges.
Was the starting point too high?
[8] Counsel for Mr Geros contends that a lower starting point was warranted. Against that, however, recent decisions of the Court of Appeal need to be taken into account. Counsel for the respondent has referred me to the judgment of the Court of Appeal in Arahanga v R.[2] In that case the Court had this to say:
[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months imprisonment.
[2] Arahanga v R [2012] NZCA 480.
[9] In addition, I referred counsel to the very recent judgment of the Court of Appeal in Makene v R.[3] In that case, the appellant had adopted a very similar modus operandi to that adopted by Mr Geros. He had pleaded guilty to eight charges of burglary involving property to a total value of approximately $33,000. The Court of Appeal held that in relation to each of the two lead charges, in which property valued at $4,000 and $6,000 respectively were taken, a starting point of approximately 18
months imprisonment was within the available range. The Court held that a starting
point of three years six months imprisonment was appropriate to reflect all of the offending.
[3] Makene v R, [2013] NZCA 178.
[10] In the present case, having regard to the observation of the Court of Appeal in Arahanga, a starting point of around 18 months imprisonment was appropriate on each of the burglary charges. I do not consider that an uplift of just 12 months to reflect all of the remaining charges could possibly be said to be outside the available range. It follows that the starting point the Judge adopted was not too high.
Was the uplift for previous convictions too high?
[11] Counsel for Mr Geros argues that an uplift of six months imprisonment to reflect previous convictions was too high in all the circumstances. That submission must be measured against the fact that, by my account, Mr Geros has no fewer than eight previous convictions for burglary. He also has 11 previous convictions for charges such as theft and unlawfully taking motor vehicles. He also has two convictions for being unlawfully in a yard, and one conviction for receiving.
[12] In Tioke v Police,[4] an offender who had three previous convictions for burglary received an uplift of six months from a starting point of 15 months imprisonment. I note also that in Makene the Court of Appeal said that an uplift of six months imprisonment was appropriate from a starting point of three years six months imprisonment for an offender who had seven previous convictions for burglary. When Mr Geros’ convictions are taken into account, it can readily be seen that the level of uplift that the Judge applied was modest indeed.
[4] Tioke v Police HC Rotorua CRI-2009-463-100, 9 December 2009.
[13] Finally, Mr Geros was sentenced to 12 months imprisonment on 6 December
2010 on several charges that appear to have arisen out of a driving escapade on
16 October 2010. This suggests that he would have been in custody until April or May 2011. If that is the case, he began committing the present offences virtually immediately after his release from prison. This underlines the fact that previous
prison sentences have not acted as a deterrent to him. I do not consider an uplift of
six months imprisonment to be disproportionate or inappropriate to reflect Mr Geros’
previous convictions.
Was the discount for guilty pleas too low?
[14] As I have already noted, Mr Geros pleaded guilty to the charges on the day they were due to be the subject of a defended hearing. The record reveals that each of the charges had been adjourned on numerous occasions after Mr Geros was arrested on 26 October 2011. The prosecution had also presumably arranged for witnesses to come to Court to give evidence at the hearing.
[15] Given the lateness of the plea, Mr Geros was only entitled to a limited discount. He was certainly not entitled to a discount in the order of 20 or 25 per cent as his counsel submits. That would be manifestly unfair to offenders who plead guilty at a very early stage, thereby saving the state the cost of preparing a file for trial. Offenders in those cases receive a discount of around 20 to 25 per cent. They would justifiably feel hard done by if Mr Geros was to receive the same discount where he delayed the entry of his pleas until the eleventh hour.
[16] I therefore conclude that the Judge was entitled to apply a discount of just ten per cent to reflect the guilty pleas.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:P T Eastwood, Auckland
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