Gibson v Police

[2017] NZHC 1975

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-000021

CRI-2017-425-000022 [2017] NZHC 1975

BETWEEN

REECE MARK POTTINGER GIBSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 August 2017
Appearances:	J A T Ross for Appellant R W Donnelly for Respondent
Judgment:	18 August 2017

JUDGMENT OF DUNNINGHAM J

Introduction

[1]      On 9 May 2017, the appellant was sentenced to 22 months imprisonment, having entered guilty pleas to one charge each of burglary, theft and receiving stolen property.   He now appeals his sentence on the basis that there were errors in the sentence imposed and the end sentence was manifestly excessive.

Background facts

[2]      On 29 August 2016, the appellant and Mr McCormack were at their home address in Invercargill.  The appellant told Mr McCormack that he was aware that an unoccupied house down the road had tools in it and he intended to break in and take them.  He asked Mr McCormack to drive him there so he could put the items in the boot. Mr McCormack did so.  The appellant used a large axe to smash the back door to gain access.  He entered the property and removed tools, valued at around $2,000.

The appellant put these in the trunk of Mr McCormack’s car. The two returned home

GIBSON v NEW ZEALAND POLICE [2017] NZHC 1975 [18 August 2017]

and the stolen property was stored in the appellant’s room.  The next day they sold some of the items.  The rest of the items were recovered on 1 September when the Police executed a search warrant of their house.   The appellant was charged with burglary.

[3]      On  29  January  2017,  whilst  on  bail  for  the  burglary,  the  appellant  and Mr Pascoe drove in Mr Pascoe’s car to a property. Mr Pascoe removed railway sleepers from the garden and loaded them into the vehicle.  The two then drove to a nursery where the appellant helped Mr Pascoe unload the sleepers and sell them. They returned to the property and Mr Pascoe loaded further sleepers which he sold to the nursery too.   The total value of the sleepers was $800.   This led to the receiving charge against the appellant.

[4]      On 30 January, the appellant and Mr Pascoe drove to another property where together they removed two railway sleepers.  These were again sold to the nursery. These sleepers were valued at less than $500. This led to the theft charge.

[5]      The appellant subsequently pleaded guilty to all three charges.

District Court decision

[6]      The Judge noted from the pre-sentence report that the appellant was a heroin addict who said he stole the items to pay for his addiction.  He was assessed as being at a high risk of re-offending but declined an invitation to attend treatment.  Given the  appellant’s  lack  of  motivation  to  address  his  drug  use  and  the  fact  he  had re-offended while on bail, the probation officer recommended imprisonment.

[7]      When looking at the burglary, the Judge referred to the relevant factors set out by the Court of Appeal in R v Nguyen.1    He found that the offence was clearly premeditated.  While the appellant believed the property was vacant, as a residential property there was always a risk that it might not be.  The value of property taken

was quite high and the appellant damaged the door to enter.  The Judge decided to

1      R v Nguyen CA 110/01, 2 July 2001.

take a starting point at the bottom of the range suggested by the Court of Appeal, of

18 months imprisonment.

[8]      The Judge found that the appellant’s culpability for receiving was increased by his knowledge of the goods actually having been stolen.   He noted that the appellant  was  fortunate  not  to  have  been  charged  with  theft.    Looking  at  the offending in totality, he increased the starting point by seven months, bringing it to

25 months.

[9]      Looking at the aggravating and mitigating factors of the appellant, the Judge noted his past history of offending, which included several dishonesty offences.  He held that this, along with committing offences while on bail, warranted an uplift of five months.  He gave the full discount for the guilty pleas and some allowance for the appellant’s drug issues. This reduced the sentence to 22 months imprisonment.

[10]     In considering issues of parity with his co-offender on the burglary charge, the  Judge  said  that  a  sterner  sentence  was  appropriate  for  the  appellant  than Mr McCormack, given that the appellant was the instigator of the burglary offence and had a more recent history of similar offending.

Principles on appeal

[11]     Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2   It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not

justified by the relevant sentencing principles.3

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant’s submissions

[12]     The appellant submits that the sentence was manifestly excessive because:

(a)      The seven month uplift for receiving and theft was too harsh and should have been no more than two and a half months to retain parity with the principal offender;

(b)The five month uplift for previous convictions and offending while on bail was too harsh and should have been no more than three months; and

(c)      The Judge erred by not granting adequate credit for the appellant’s personal mitigating factors such as remorse, time on restrictive bail conditions and employment.  These should have resulted in a discount of at least 3 months.

Respondent’s submissions

[13]     The respondent submits that while the uplifts are “stern”, they were within the range available to the sentencing Judge.   Given the starting point was at the lower end of the available range, the end result, when considered in totality, could not be considered manifestly excessive.

Analysis

Was the uplift for the other offences manifestly excessive?

[14]     The starting point of 18 months is in line with authority, being at the lower end of the range considered appropriate by the Court of Appeal in Arahanga v R for

minor dwelling house burglaries.4  The appellant appropriately accepts this.

4      Arahanga v R [2012] NZCA 480 at [78] where the Court considered that a starting point in between 18 months and 30 months was appropriate for dwelling house burglaries at the minor end of the scale.

[15]     The maximum terms of imprisonment for the offences of receiving stolen goods valued between $500 and $1000 and theft of property under $500 is one year and three months respectively.

[16]     The  appellant  submits  that  his  culpability  for  the  receiving  was  limited because his possession of the items was fleeting and he received very little reward. However, the Judge considered that the appellant’s offending was at the higher end of the spectrum because he had actual knowledge that the goods were stolen, having effectively helped in the theft.   This is a more accurate view of the appellant’s offending.

[17]     The  appellant  submits  that  his  uplift  was  manifestly  excessive  when compared to the sentences imposed on his co-offender. Mr Pascoe pleaded guilty to five charges of theft, two of which the appellant was involved in.   The Judge in Mr Pascoe’s sentencing took a starting point of six months imprisonment for all the offending, whereas the appellant received an uplift of seven months for his involvement in two of those offences.  Given the Court must take into account the general desirability of the consistency of sentencing levels in respect of similar offenders  committing  similar  offences  in  similar  circumstances,  the  appellant submits that an uplift of two and a half months would keep his sentence in line with

Mr Pascoe’s.5

[18]     The  Court  of Appeal  has  recognised  that  there  will  often  be  legitimate reasons for disparate sentences between co-offenders:6

Whilst it is vital for a sentencing court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offenders culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

5      Sentencing Act 2002, s 8(e).

6      R v K (2003) 20 CRNZ 62 (CA) at [20].

[19]     However,  in  this  case,  I  consider  the  co-offender’s  offending  was  more serious, given the greater number of thefts.  A seven month uplift was excessive in comparison to the sentence imposed on Mr Pascoe and to other similar cases.  It is not justified by any relevant difference in culpability and I consider an uplift of three months should have been imposed having regard to these issues.

Was the uplift for previous convictions and offending on bail manifestly excessive?

[20]     The respondent submits that an uplift of five months for previous convictions was available given the need to specifically deter the appellant. The Court of Appeal has noted that uplifts for previous convictions are appropriate where there is a need for deterrence, based on an offender’s tendency to commit a certain type of crime.7

[21]     The  appellant  has  an  extensive  criminal  history,  albeit  mostly  minor offending, having regularly offended since first appearing in the Youth Court in

2005.  Furthermore, a number of these previous convictions are for other dishonesty offending such as receiving property, shoplifting and burglary.   He has served sentences of imprisonment for some of these.  These certainly warranted some uplift as did the fact of offending while on bail, although, in my view, three months would have been sufficient given the time since his last previous convictions for burglary.

Should a greater discount be given for the appellant’s mitigating features?

[22]     The appellant submits the he should receive a discount for remorse, time spent on bail and his employment prospects.  The appellant submits he demonstrated remorse by pleading guilty early on, paying reparation and offering to engage in a restorative justice conference.   The Judge gave an eight month discount for guilty plea and personal factors representing a discount of approximately 27 per cent.  The appellant submits that this was insufficient.

[23]     It is not inevitable that a separate discount is given for remorse when there is a guilty plea, as a discount for remorse is in some ways encompassed by the discount

7      Beckham v R [2012] NZCA 290 at [84].

for pleading guilty.8   Only exceptional steps above this warrant a further reduction on the basis of remorse.

[24]     In the present case, most of the justification for a remorse discount is that the appellant admitted his wrongdoing to police and pleaded guilty early on.  While the defendant paid reparation and offered to attend restorative justice, he declined to attend treatment for the addiction which drove his offending.   This demonstrates some, but not unequivocal, remorse.

[25]     The appellant was subject to restrictive bail conditions for about two months, including a night time curfew.   He also has potential employment as a fisherman. The appellant submits a one month discount was available to recognise these factors.

[26]     Although discounts are sometimes given for these sorts of factors, I do not consider that the appellant is entitled to them here. A night-time curfew has not been considered by the case law to be a significant restriction on an individual’s freedom of movement, particularly when it is only for a short time.9    The potential of the appellant for future employment is not a mitigating factor in the facts of this case.

[27]     Therefore the Judge did not err in awarding the level of discount he gave, as I consider the 27 per cent discount is sufficient to take into account all mitigating factors.

Conclusion

[28]     I have found that the uplifts imposed for the additional charges, the offending on bail and the previous convictions were too high, taking into account comparable cases and the principle of parity.  A total uplift of six months, rather than 12, should have been imposed.

[29]   However, the relevant mitigating factors were appropriately recognised. Applying an uplift of three months for the other offending, and three months for

previous convictions and offending while on bail, then taking into account a discount

8      R v Walker [2009] NZCA 56.

9      R v Tamatea [2012] NZCA 443.

of 27 per cent results in an end sentence of 17 and a half months imprisonment.  In my view, this is a sufficiently different sentence to warrant granting the appeal and imposing a different sentence.

[30]     Accordingly, the appeal is allowed.  The sentence of 22 months is substituted with a sentence of 17 months and two weeks imprisonment.

Solicitors:

Jonathon Ross, Barrister, Invercargill

Preston Russell Law, Invercargill