Gibbs v Police
[2015] NZHC 2460
•8 October 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000087 [2015] NZHC 2460
BETWEEN JASON GIBBS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 October 2015 Appearances:
R G Glover for Appellant
K B Bell for CrownJudgment:
8 October 2015
JUDGMENT OF DUNNINGHAM J
[1] Mr Gibbs appeals against his sentence of 53 months’ imprisonment, imposed by Judge Neave, on 21 charges.1 The appellant says that the end sentence was “both manifestly excessive and otherwise inappropriate and a lesser sentence of imprisonment should have been imposed”.
Background
[2] The sentence imposed on Mr Gibbs related to the following charges: (a) two charges of unlawfully taking a motor vehicle;2
(b) driving while disqualified (third or subsequent);3
(c) theft;4
1 Police v Gibbs [2015] NZDC 14235.
2 Crimes Act 1961, s 226(1).
3 Land Transport Act 1998, s 32(1)(a) and (4).
4 Crimes Act 1961, ss 219 and 223(b).
GIBBS v NEW ZEALAND POLICE [2015] NZHC 2460 [8 October 2015]
(d) two charges of burglary;5 (e) receiving (laptop bag);6 (f) receiving (wallet);7
(g) seven charges of dishonestly using a document;8
(h) three charges of attempting to dishonestly using a document;9
(i) driving in a dangerous manner;10
(j) failing to stop for red and blue flashing lights;11
(k) failing to comply with a prohibition by an enforcement officer.12
[3] The facts which gave rise to the charges can be summarised as follows:
(a) 25 August 2014 - the appellant stole a motor vehicle in Christchurch.
He subsequently went on to abandon the vehicle in Waimate. This gave rise to the first charge of unlawfully taking a motor vehicle.
(b)10 September 2014 – the appellant was found driving a stolen motor vehicle. He exited the vehicle and attempted to escape on foot but was located a short distance away. This gave rise to a further charge of unlawfully taking and the charge of driving while disqualified, third or subsequent.
(c) 16 October 2014 – while on bail, the appellant stole a mountain bike.
He was charged with theft.
5 Crimes Act 1961, s 231(1)(a).
6 Crimes Act 1961, ss 246 and 247(a).
7 Crimes Act 1961, ss 246 and 247(b).
8 Crimes Act 1961, s 228(b).
9 Crimes Act 1961, ss 228(b) and 72(1).
10 Land Transport Act 1998, s 35(1)(b).
11 Land Transport Act 1998, s 52(1)(c) and (4).
12 Land Transport Act 1998, s 52(1)(c).
(d)18 October 2014 – the appellant broke into a dwelling house in Sheppard Place. He jemmied open a lounge window in order to gain access. This resulted in the burglary charge.
(e) 18 October 2014 – 14 November 2014 – sometime during this period, Mr Gibbs received a wallet containing credit cards, ID cards, cash in Korean and Malaysian currency and a SIM card. The wallet was stolen from a dwelling house located in Sheppard Place, Christchurch. The appellant used the SIM card after receiving it resulting in the complainant receiving a large phone bill.
(f) 26 October 2014 – the appellant broke into a dwelling house located in Vagues Road via a bathroom window. He took cash, shampoo, an ipod, and a Fujifilm camera amongst other things. The property had a combined value of over $500.00.
(g)5 November 2014 – An Ilam Road address was burgled. That same day the appellant received a laptop bag containing cash, an ANZ bank card, an iphone 5, various jewellery and perfume. All the property was from the Ilam Road address. The property had a combined value in excess of $1000. That same day, the appellant used or attempted to use the ANZ bank card at the following locations:
(i) McDonalds, Northlands Mall - $15.00; (ii) Countdown, Northlands Mall - $73.48; (iii) McDonalds, Northlands Mall - $15.40; (iv) Spark, Northlands Mall - $39.99;
(v) Z service station, Carlton Corner - $24.20; (vi) Phone credit for 2 degrees mobile - $40.00;
(vii) BP service station, Bush Inn - $64.90;
(viii) BP service station, Bush Inn - $10.00 (attempt); (ix) BP service station, Bush Inn - $10.00 (attempt);
(x) Phone credit for 2 degrees mobile - $20.00 (attempt).
[4] At all relevant times of the offending, the appellant was either a disqualified driver or was forbidden from driving a motor vehicle.
District Court sentencing
[5] When sentencing Mr Gibbs, Judge Neave took the burglary offending as the lead offence. In respect of those offences he decided that four years was an appropriate starting point. He then imposed an additional penalty of 18 months’ imprisonment for the associated dishonesty offences, saying “if it could be said that I am too high on the burglary I am probably too low on the dishonesty so I think the net effect is about the same”.
[6] The Judge then added a further year’s imprisonment to reflect Mr Gibbs’ previous convictions, which took the total sentence up to six years, six months. He then noted that the maximum penalty for the driving was only three months, but determined, given the previous convictions, that it warranted a further three months to take the total sentence to six years, nine months.
[7] His Honour then gave a credit for time spent on electronically monitored bail with a 24 hour curfew. It appears that this is a seven month credit, which he said also includes credit for Mr Gibbs’ willingness to attend restorative justice. Finally, he gave a credit of 22 and a half per cent for Mr Gibbs’ plea of guilty, which he said was a 15 month credit. However, as the respondent agrees, this would result in an end sentence of 59 months’ imprisonment, whereas Judge Neave appears to have miscalculated and brought it down to a total of 53 months’ imprisonment.
Principles on appeal
[8] Mr Gibbs may appeal his sentence as of right.13 This Court must only allow the appeal if satisfied that:14
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[9] The Court of Appeal has recently confirmed that where a sentence is “manifestly excessive” that is an error which justifies setting the sentence aside on appeal.15 Importantly, as was noted in Larkin v Ministry of Social Development,16 “whether a sentence is manifestly excessive is to be examined in terms of the sentence given rather than by the process by which the sentence is reached”.
Discussion
The burglary charges
[10] Judge Neave took the burglaries as the lead charges. This was appropriate given that they are most serious of the charges, and there is little to distinguish the two events. However, the two burglaries are separate events so should be treated as such.
[11] Counsel for the appellant correctly submits that there is no tariff case for burglary given the wide range of circumstances in which they can be committed.17
In the past the Courts have taken two different approaches to sentencing. The first approach, as taken in Senior v Police, is to consider previous convictions when setting the starting point.18 The second approach is to set the starting point and then
to have regard to recidivism when uplifting for personal aggravating circumstances.
13 Criminal Procedure Act 2011, s 244.
14 Section 250.
15 Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.
16 Larkin v Ministry of Social Development [2015] NZHC 680 at [25].
17 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
18 Senior v Police (2000) 18 CRNZ 340 (HC).
It is the latter approach which is preferred, as it avoids the risk of double counting for previous offending.
[12] The Court of Appeal in R v Nguyen explained why no tariff has been set:19
[18] The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.
[13] The Court was willing, however, to identify factors which are relevant to the sentence:
(a) the degree of planning and sophistication in the offending; (b) the nature of the premises entered;
(c) the kind and value of the property stolen; (d) damage done;
(e) the impact and potential impact upon occupants or owners of the property; and
(f) the extent of the offending where multiple burglaries are involved.
[14] A particularly significant factor is the nature of the premises. In this case, it was a dwelling house. This has been held by the Court of Appeal in Arahanga v R to be significantly aggravating:20
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.
[15] However, the starting point of four years adopted in Arahanga for two burglaries appears high when compared with other burglary sentencing decisions.
[16] In Rota v R the Court of Appeal allowed an appeal against a sentence of three years on the ground that it was manifestly excessive.21 In that case, the offender had four associates, a door was broken down and $4,000 worth of goods were taken and an imitation pistol was found in the vehicle along with masking tape (although there was no evidence that Mr Rota knew of their presence). The sentencing Judge took a starting point of 30 months imprisonment. However, the Court of Appeal considered
that an appropriate starting point was 20 months.
[17] This decision appears hard to reconcile with Arahanga in that there were elements present in the burglary which would, at the very least, place it at the more serious end of burglaries that could be classified as “relatively minor”. However, the Court of Appeal adopted a starting point which would suggest that it was classified at the lower end of the scale for a relatively minor dwelling house burglary.
[18] In R v Povey the same issue arises.22 The Court of Appeal held that the seriousness of the offending in that case was accentuated by there being entry by night into a woman’s apartment, the presence of two offenders, the element of premeditation evidenced by gloves and a scarf for concealment, and the carrying of a spear gun which injected a very real risk of injury to the occupant. The sentencing Judge took a starting point of 24 months imprisonment which was uplifted by a further 12 months to reflect the offender’s 22 previous convictions for burglary. Although the starting point and uplift were ultimately upheld, there was no suggestion by the Court of Appeal that the sentence was a particularly lenient one given the circumstances.
[19] In Mita v R, the offender was involved in two burglaries with property of more than $5,000 being taken in one of the burglaries.23 There was little taken in the second burglary, although there had been an attempt to remove a flat screen
television from the wall. The Court of Appeal considered that, even having regard to
21 Rota v R [2012] NZCA 49.
22 R v Povey [2009] NZCA 362.
23 Mita v R [2012] NZCA 137.
the offender’s previous dishonesty offences, a starting point of 24 months was too high for the two incidents. The Court held that a starting point of no more than
18 months’ imprisonment could be justified.
[20] Tairi v Police was a High Court appeal to Duffy J.24 The burglary element of the offending consisted of the offender gaining entry to a dwelling house by breaking a window and taking a television valued at $370. After a thorough analysis of the case law Duffy J determined that an appropriate starting point was between 12 to 18 months. She went on to find that the 16 month starting point taken by the sentencing Judge was appropriate. The offender’s 22 previous burglary convictions warranted an uplift of only four months, however, 21 of those occurred during a three month spree.
[21] Finally, R v Columbus is a Court of Appeal authority, predating the Arahanga. The offender broke into a garage of a residential property through a vehicle access door. Damage of $672 was caused. A mountain bike, gardening tools and a tool box were stolen. The Court of Appeal held that the circumstances of the
burglary themselves did not justify a starting point of more than one year.25 The
Court held that an uplift was appropriate to reflect the offender’s criminal history
which comprised 89 previous convictions, 13 of which were for burglary and another
34 property related offences. This justified an increase of 12 months.
[22] Bearing those decisions in mind, I turn to Mr Gibbs’ circumstances. Taking the first burglary, although it must be considered as being at the minor end of the scale, it was a dwelling house burglary and the sentence should reflect that. Therefore, on the facts of the burglary alone, I consider a starting point of 18 months is justified. This needs to then be uplifted to take account of the second burglary. Although the second burglary was an entirely separate event, imposing a further sentence of 18 months would create issues with totality. Therefore, applying a more global approach, I consider it appropriate to uplift the sentence by 10 months taking it to 28 months’ imprisonment.
[23] Then there are the aggravating factors which are personal to the offender. Firstly, the offence was committed while the appellant was on bail.26 There are also the appellant’s previous convictions relevant to the offending. At the age of 27 he has already amassed 19 convictions for burglary along with a whole raft of other dishonesty offending. The number, seriousness, date, relevance and nature of these convictions are all seriously aggravating factors here.27
[24] Taking those two factors into account, I consider the sentence should be uplifted by a further 12 months. This takes the end sentence to 40 months before consideration of the other offending and applying guilty plea discounts.
Further dishonesty offending
[25] The other dishonesty offending includes the seven charges of dishonestly using a document, three charges of attempting to dishonestly use a document, two charges of unlawfully taking a motor vehicle, theft of property with a value exceeding $1,000, receiving goods valued over $1,000, and receiving goods valued between $500 and $1,000. Having already calculated a sentence on Mr Gibbs’s lead charges of burglary, these charges will be considered as uplifts as part of the global sentencing exercise.
[26] Other than the one charge of receiving goods valued between $500 and
$1,000 which is punishable by up to one year imprisonment, all 14 other charges are punishable by up to seven years imprisonment. There is, of course, the consideration that some of the charges, such as one of the receiving and all of the dishonestly using a document charges, make up the same event. However, many of the other charges make up entirely separate events such as the two charges of unlawfully taking a motor vehicle, the theft and one of the receiving charges. The offending is therefore significant in itself, and if it was to be sentenced independently, would be punishable by a correspondingly significant sentence.
[27] However, in this case, taking a global approach, uplifting the current sentence by a further 16 months does not appear excessive in light of number of charges and
26 Sentencing Act 2002, s 9(c).
the independence and seriousness of many of them. This takes the total to 56 months before applying discounts.
Driving offences
[28] The final aspect of the offending that needs to be dealt with is the driving offences. This involves the driving while disqualified (third or subsequent), driving in a dangerous manner, failing to stop for red and blue flashing lights and failing to comply with a prohibition by an enforcement officer.
[29] The driving while disqualified charge is the aggravated form of third and subsequent, punishable by up to two years imprisonment. This makes it inherently more serious than the other driving charges. Driving in a dangerous manner is imprisonable by up to three months and the other two charges are punishable by a fine of up to $10,000. Judge Neave appears to have overlooked the third and subsequent offence when he uplifted by a further three months for the driving offending as he stated, “the maximum penalty for the driving is only three
months”.28
[30] Given the seriousness of the third and subsequent charge, and the facts of the failing to stop offending, a further uplift of six months is justified. This takes the final sentence, before discounts, to 62 months’ imprisonment.
Discounts
[31] Judge Neave took the view that there were very few mitigating factors. On the basis of the information available, this appears to be the case. Although counsel for the appellant submitted that Mr Gibbs has been offence free since September 2013 and that should be considered mitigating, he appears to have overlooked that Mr Gibbs was sentenced to 13 months’ imprisonment on
16 October 2013.29 In fact, it appears that his current offending took place while he
was on parole for the 2013 offending.
[32] While I accept that the passing of Mr Gibbs’ grandfather was an unfortunate event, it does not strike me as warranting any additional discount. I think it fair to say that the discount of seven months for time spent on electronically monitored bail and for Mr Gibbs willingness to attend restorative justice, is adequate to also reflect the matters raised by Mr Glover, including the recent improvement in Mr Gibbs’ behaviour and attitude.
[33] I would not interfere with the discount of 22 and a half per cent given for the guilty plea either. Taking the seven months off for time spent on electronically monitored bail and Mr Gibbs’ rehabilitative prospects, the sentence is reduced to
55 months. Applying the discount for the guilty pleas would reduce the sentence by
12 months to a total of 43 months or three years and seven months’ imprisonment.
[34] Having accepted there was an error in the starting point for the burglary offences, and revisiting the balance of the sentencing exercise in light of that, I am satisfied that the end sentence of 53 months was manifestly excessive and that a different sentence should be imposed.
[35] For that reason, the appeal is allowed. The sentence of 53 months’
imprisonment is quashed and a sentence of 43 months imprisonment is substituted.
[36] In terms of the way the sentences are to be imposed on the various offending, the decisions of Judge Neave set out at paragraphs [23]-[28] of his judgment are changed only to the following extent:
(a) on the burglary charges, the sentence is reduced to three years, four
months’ imprisonment; and
(b) on the driving while disqualified charge, the sentence is increased to
three months’ imprisonment cumulative on burglary charge 3749.
[37] In all other respects the sentences and other penalties imposed by
Judge Neave remain unaltered.
Solicitors:
R G Glover, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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