Gorgus v Police
[2015] NZHC 3127
•7 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-310
CRI-2015-404-311
CRI-2015-404-312 [2015] NZHC 3127
BETWEEN ASHOR GORGUS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 December 2015 Appearances:
P Heaslip for the Appellant
J Angelson for the RespondentJudgment:
7 December 2015
ORAL JUDGMENT OF MUIR J
Counsel:
P Heaslip, Barrister, Auckland
Solicitors:
Meredith Connell, Auckland
GORGUS v NEW ZEALAND POLICE [2015] NZHC 3127 [7 December 2015]
Introduction
[1] Mr Gorgus pleaded guilty to eleven charges, which can be separated into three sets of offending, comprising:
(a) Possession of utensils for methamphetamine use;1
(b)The “Auckland offending”: unlawfully taking a motor vehicle,2 burglary,3 possession of a utensil for methamphetamine use; theft under $500;4 and offensive behaviour;5 and
(c) The “Huntly offending”:6 wilful damage,7 unlawfully being in an enclosed yard;8 two charges of unlawfully taking a motor vehicle; and burglary.
[2] In the District Court Judge Dawson sentenced Mr Gorgus to a total term of
four years’ and one month’s imprisonment. Mr Gorgus now appeals that sentence.
Background
[3] I set out the relevant background facts chronologically. I note that all but one of the offences were committed by Mr Gorgus while on bail.
The methamphetamine utensils charge
[4] In July 2014 Mr Gorgus was arrested on matters unrelated to the present appeal. He was searched and found in possession of a camera case in which there
was a glass pipe for smoking methamphetamine. He was not on bail at the time.
1 Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3): maximum penalty one year’s imprisonment or
$500 fine.
2 Crimes Act 1961, s 226: maximum penalty seven years’ imprisonment.
3 Section 231: maximum penalty 10 years’ imprisonment.
4 Crimes Act 1961, s 223(d): maximum penalty three months’ imprisonment.
5 Summary Offences Act 1981, s 4: maximum penalty $1000 fine.
6 Referred to in the District Court and in counsel submissions as the “Hamilton offending”
although the offending occurred in Huntly.
7 Summary Offences Act 1981, s 11(1): maximum penalty three months’ imprisonment or $2000
fine.
8 Section 29(1)(b): maximum penalty three months’ imprisonment or $2000 fine.
The Auckland offending
[5] In the early afternoon of 17 October 2014 Mr Gorgus was at John Jennings Drive, Oteha. He noticed a Toyota Hylux vehicle parked in a shared driveway with the keys in the ignition. The vehicle belonged to the first victim, who was working nearby. Mr Gorgus got into the vehicle and drove off. Approximately 2 km away he dumped the vehicle on the side of the road. From the car he took a cellphone, a wallet with $500 in cash and the keys. The vehicle was worth $5,000, and the cellphone $39. The wallet and cash were never recovered.
[6] Later that day, at approximately 5pm, Mr Gorgus was at an address in Torbay that belongs to the second victim. He smashed a window to gain entry into the property and searched through the house, including the owner’s bedroom. He stole a laptop, worth $1,500 and jewellery, said to have considerable sentimental value but with a replacement cost of approximately $800. He exited the property through the front door carrying a backpack, where he was seen by a neighbour, the third victim. The neighbour confronted Mr Gorgus wanting to know what he was doing, in response to which Mr Gorgus said he would “do” the neighbour “over” if the police were called. The police located Mr Gorgus nearby and searched his backpack in which they found a glass pipe for smoking methamphetamine.
[7] On 8 May 2015 a Nissan vehicle was stolen by Mr Gorgus from an address in
Birkdale, Auckland. The owner of the vehicle is the fourth victim.
The Huntly offending
[8] At approximately 9 am on 9 May 2015 Mr Gorgus was at a residential address in Huntly. That property belonged to the fifth victim. Mr Gorgus forced the back door open to facilitate entry to the house, triggering a security alarm. The owner of the property received a notification on his cellphone and returned home. He located Mr Gorgus in the Nissan vehicle stolen from Auckland and in his driveway. Mr Gorgus ran away when confronted.
[9] At approximately 3 pm the following day, again in Huntly, Mr Gorgus unlawfully entered a Toyota Hilux vehicle parked at a business property. A passerby,
the sixth victim, noticed Mr Gorgus. He was aware that Mr Gorgus was not the owner of the vehicle and therefore parked his own vehicle in front of the Toyota so as to prevent Mr Gorgus’ exit from the driveway. Mr Gorgus drove across the parking area directly at the sixth victim’s vehicle and collided with the right front corner. By this time the owner of the Toyota, the seventh victim, became aware of what was happening. Together he and the sixth victim tried to apprehend Mr Gorgus but were unsuccessful. Mr Gorgus was eventually apprehended by the police.
Guilty pleas
[10] In March 2015 Mr Gorgus sought a sentence indication in respect of the Auckland offending. That was given but after some extensions of time to accept or reject the indication, Mr Gorgus took no steps and it lapsed. He pleaded guilty to the Auckland burglary charge on 9 June 2015. On 12 June he pleaded guilty to the Huntly offending. On 3 July 2015 he pleaded guilty to the remainder of the charges associated with the Auckland offending.
Previous criminal history
[11] Mr Gorgus is 31 years old. He has an alarming history of convictions, numbering 124, which include convictions for drug offences, driving offences, violence and property related offences. He has 25 convictions for dishonesty offences, including 11 offences for burglary; the remainder being for theft and car theft. He has received 55 sentences of imprisonment.
Personal circumstances
[12] I make brief mention of matters discussed in the pre-sentence reports to provide some context for Mr Gorgus’ offending. Mr Gorgus reported that he offended to support a methamphetamine habit and living expenses.
[13] Mr Gorgus is an Iraqi Christian of Assyrian ethnicity. His family suffered persecution and harassment in Iraq. He witnessed murders of members of his family which I accept must have had an indelible effect on him. He arrived in New Zealand
when he was nine years old. Due to the trauma he suffered in Iraq, he had trouble settling and his persistent behavioural difficulties led to him being placed into foster care. He continually tried to escape from his foster homes and this eventually led to his early appearances before the Youth Court. He has since received a formal apology from the Director of Social Welfare for the abuse he suffered in foster care. The report writer was of the view that there is a strong likelihood Mr Gorgus suffers from post-traumatic stress disorder (PTSD), although there is no psychiatric confirmation of that.
The District Court’s decision
[14] The experienced District Court Judge approached the sentence in the following way. He considered the three sets of charges to be distinct and warranting cumulative sentences, with concurrent sentences imposed on charges within each group of offending. The overall outcome of four years’ and one months’ imprisonment was achieved in the following way:
(a) Possession of utensils, one month’s imprisonment to be served
cumulatively on the Auckland offending.
(b)Auckland offending: the Judge identified the burglary as the lead charge and adopted a starting point of two years’ imprisonment. He uplifted by 18 months for the lesser charges and applied a discount of
15 per cent for the guilty plea. The end sentence for the burglary charge was three years’ imprisonment. The Judge then imposed the following concurrent sentences:
(i)one year’s imprisonment for unlawfully taking a motor vehicle;
(ii) six months’ imprisonment for theft; and
(iii) three months’ imprisonment for possession of utensils.
(c) Huntly offending: the Judge observed the need to consider the totality of the offending before setting a starting point for this set of offences. The Judge again took the burglary as the lead offence but he did not identify a starting point. His Honour imposed a sentence of one year’s imprisonment to be served cumulatively on the other two sets of offending. He also imposed the following concurrent sentences arising out of the Huntly offending:
(i) two months’ imprisonment for being in an enclosed yard;
(ii)one year’s imprisonment on each charge of taking a motor vehicle (I note in relation to the Nissan motor vehicle it was taken from Auckland, not Huntly); and
(iii) one month’s imprisonment for wilful damage.
[15] The Judge considered unlawful entry into the two dwelling houses to be an aggravating feature of the offending and he considered that the burglaries were characterised by a medium level of premeditation. He observed that the offending was ongoing, persistent and indicated a pattern of behaviour.
Grounds of appeal
[16] Mr Gorgus’ appeal proceeds on a number of grounds:
(a) the starting point for the Auckland burglary was too high;
(b)the Judge erred in how s 84 of the Sentencing Act 2002 was to be applied;
(c) the Judge erred in the way uplifts for past offending were applied; (d) the uplift for the Auckland offending was excessive;
(e) there was no principled consideration of the aggravating factors;
(f) there was an inadequate consideration of the mitigating factors;
(g) the Judge gave insufficient consideration of totality principles; and
(h) the end sentence is manifestly excessive.
Approach to appeal
[17] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed. In any other case, the Court must dismiss the appeal.9
[18] The Court of Appeal in Tutakangahau v R has recently confirmed that
s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.10 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.11
[19] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:12
(a) There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal proceeds on an “error principle.”
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
11 At [33], [35].
12 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[20] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Significantly in this case whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the particular process by which the sentence is reached.13
Appellant’s submissions
[21] Counsel challenges the sentencing approach adopted by Judge Dawson and submits that, rather than separating the offending into three distinct sets for which cumulative sentences were imposed, the Court should instead have adopted a concurrent approach to all charges. Counsel submits that this flows from the similar nature of the offending and the fact that it was animated by the same issues of drug dependency. Mr Heaslip proposes the following sentencing structure:
(a) The Auckland burglary to be considered the lead charge; (b) A starting point of 15 months’ imprisonment;
(c) An uplift of three months for previous burglary convictions; (d) An uplift of six months for the remaining Auckland offending; (e) An uplift of six months for the Huntly offending;
(f) An uplift of three months for previous non-burglary convictions; (g) A five per cent discount for remorse; and
(h) A 25 per cent discount for guilty pleas.
[22] The end sentence therefore advocated by Mr Heaslip is a sentence of 23½
months’ imprisonment.
[23] Mr Heaslip submits that the Auckland burglary is at the lower end of the scale as there was no premeditation, nor any evidence that it was motivated by anything other than theft of the modestly valued items.
[24] In respect of uplift for the Auckland offending, Counsel submits that the 18 month uplift imposed by the District Court is excessive, as theft of the vehicle was opportunistic and it was recovered only a short distance away; and the cash taken from the wallet was “an inconvenience and annoyance”.
[25] In respect of the uplift for previous offending, Counsel submits that 11 prior burglaries do not make Mr Grogus a recidivist burglar in terms of the authorities, citing Clifford J’s comments in Wilson v Police,14 and the High Court’s observation in Senior v Police15 that a recidivist burglar is likely to have 20 or more convictions.
[26] In respect of totality, Counsel submits that while the Judge appeared to acknowledge the need for totality to be reflected in the sentence, there is no clear evidence that it was indeed taken into account.
[27] Counsel also makes a strongly humanitarian appeal based on the expressed desire of his client to overcome his methamphetamine addiction, to attend counselling and to put his problems in the past. That submission is in part supported by correspondence from the appellant and his former partner which was provided to me shortly in advance of the appeal hearing. I accept Mr Angelson’s submission, however, that this material is not admissible on the principles established in the
relevant authorities.16 There is, however, other material suggestive of a desire on Mr
Grogus’ part to reform his previous behaviour. Regrettably his inability to complete several drug addiction programmes does not augur well in that respect. It is hoped
14 Wilson v Police [2015] NZHC 1830.
15 Senior v Police (2000) 18 CRNZ 340 (HC).
16 See for example Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
that now he is the father of a child some greater commitment to freeing himself from drug dependency might be demonstrated.
Respondent’s submissions
[28] The Crown emphasises that my jurisdiction is error based and says that there are no errors in the District Court’s sentence and therefore no fresh sentencing exercise is required. It submits that the starting point adopted by the District Court Judge in relation to the Auckland burglary was well within the appropriate range of
18 to 30 months, as established in Arahanga v R.17 The Crown submits that the
Judge’s reference to Mr Gorgus’ “appalling history” was appropriate because it was relevant to assessing culpability, and any emphasis on previous convictions was part of the principal inquiry into the relationship between Mr Gorgus’ continuing offending and the charges in question.
[29] The Crown submits that the Auckland burglary displayed a medium level of premeditation and professionalism as Mr Gorgus wore gloves and took items which he could easily dispose of. Additionally, the timing of the burglary was consistent with an effort to avoid detection.
[30] It emphasises the potential conflict with occupants or, as in this case, neighbours or passers-by which can so readily arise in the context of a domestic burglary and that this is why the courts have consistently considered such burglaries as more serious than those in relation to other types of premises. Mr Angelson emphasises that in respect of the Auckland burglary, the neighbour who observed Mr Grogus exiting the victim’s house was in fact traumatised by the events as reflected in the victim impact report.
[31] In respect of the sentencing structure adopted by the Judge, the Crown submits that the Auckland and Huntly offending are ten months apart, which is too long a period for the offending to be viewed as a continuous course of conduct and that accordingly cumulative sentences were appropriate.
[32] In respect of totality, the Crown acknowledges that in the District Court it sought an uplift of six months only on a totality basis for the Auckland offending. However, it states that it also sought an uplift of two years’ imprisonment for previous convictions which was not adopted by the Judge. On appeal, the Crown submits that an uplift of 18 months for the Auckland offending reflects the overall criminality of the offending and the offender. The Crown adds that the present set of
charges will be Mr Gorgus’ 124th to 134th convictions.
[33] In respect of the guilty plea discount, the Crown submits that a modest discount only was appropriate due to the time elapsed from Mr Gorgus being charged and the guilty pleas entered.
Relevant law
Relevant law in relation to starting points for burglaries
[34] There is no tariff decision which governs sentencing for burglary offending. In Senior v Police, which predates the sentencing methodology laid down in Hessell v R18 and R v Taueki,19 the Full Bench of the High Court identified factors which had historically been regarded as aggravating in burglary offending, including behaviour which involves actual danger of confrontation with occupiers, behaviour which makes a victim feel targeted, wanton destruction of property, theft of high value or sentimental items, sophisticated planning, and offending while on bail, parole, or in close proximity to other burglary charges.20
[35] In R v Nguyen the Court of Appeal drew on the factors identified in R v Mako21 (the aggravated robbery tariff case) in assessing the seriousness of burglary charges.22 It considered that the factors which were relevant to the criminality of the offending included the degree of planning and sophistication in the offending, the
nature of the premises entered, the nature and value of property stolen, damage done,
18 Hessell v R [2010] NZSC 135.
19 R v Taueki [2005] 3 NZLR 372 (CA), (2005) 21 CRNZ 769.
20 Senior v Police, above n 15, at [19].
21 R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272.
22 R v Nguyen CA110/01, 2 July 2001 at [17].
the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries were involved.23
[36] In Arahanga v R, the Court of Appeal stated that burglary of a domestic residence is a significantly aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.24 The Court also stated that dwelling house burglaries at the relatively minor end of the scale tend to attract starting points of between 18 months' to two and a half years’ imprisonment.
[37] The High Court in Senior v Police identified three categories of burglary being: a first time burglar; a recidivist burglar; and a spree burglar. In respect of the recidivist burglar category, the Court found that a typical case may involve an offender with 20 or 30 previous burglary convictions, and who is probably a professional, in the sense that the offender burgles and steals to support a drug addiction.25 Regrettably Mr Gorgus, if not a recidivist burglar within this definition, is well on the way to being one.
[38] In R v Southon, the Court of Appeal noted that the categorisation in Senior should not be regarded as more than a helpful analysis of historic sentencing patterns for burglary offending.26
[39] In Blisset v Police Duffy J identified a recent trend toward using the Taueki
approach in sentencing for burglary. She said:27
[30] The appeal of Senior for the sentencing Judge is that it permits the adoption of a starting point that includes an assessment of the character of the burglar. The starting point adopted for a recidivist burglar who while out for a weekend stroll happens to carry out a low level opportunistic burglary (when walking by an unlocked motor vehicle the attraction of taking a camera seen lying on the front passenger's seat proves irresistible) will, therefore, be different from that applied to a young teenager who yields to similar temptation. In this way, Senior reflects the recognition in Nguyen of the variable circumstances in which burglaries are committed.
23 At [17].
24 Arahanga v R, above n 17, at [78].
25 Senior v Police, above n 15, at [30].
26 R v Southon (2003) 20 CRNZ 104 (HC) at [13].
27 Blissett v Police [2013] NZHC 156.
[31] However, since Senior was delivered, there has been a general change in sentencing that has been brought about by the Sentencing Act and the Court of Appeal's decision in Taueki. The result of this development is that the choice of a starting point is determined by the circumstances of the offending, with the circumstances and characteristics of the offender forming part of any adjustment up or down depending on whether they are seen to be aggravating or mitigating features.
…
[40] There is a tension therefore between the approach adopted in Senior and the modern sentencing approach, in which the circumstances relating to the offender form the basis of the Court’s analysis when setting the starting point, as opposed to the Court focussing on circumstances relating to the offender’s previous criminal history. The Court of Appeal’s comments in R v Columbus are helpful:28
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender's culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[41] In his submissions in respect of the Auckland burglary, Mr Heaslip referred me to a number of cases where a lower starting point was adopted. However, the majority of those cases involved burglaries of commercial properties and are therefore of limited relevance to this case, as it is well accepted that burglaries of dwellings are regarded as in a more serious category of offending.29
[42] In relation to burglaries of domestic properties, Mr Heaslip referred to the following cases:
(a) Wilson v Police:30 there the defendant had six previous convictions for burglary. The defendant was intoxicated and smashed a window to get inside a residential property. He stole a gaming console, food, cameras and a cellphone. The majority of the items were recovered. The victims in that case had felt targeted because they had been burgled five times previously. Justice Clifford did not consider the defendant to be a recidivist burglar within the meaning given in Senior. His Honour adopted a starting point of 18 months and uplifted by two months for previous offending, the last of which occurred seven years prior.
(b)Johnstone v Police:31 the defendant was charged with two burglaries and a number of driving offences. The first burglary was of a dwelling house; expensive and sentimental items were taken, including valuable data stored on computers that may have indeed been permanently lost. The Judge imposed a starting point of two years’ imprisonment and an uplift of one year for the defendant’s previous 26 burglary convictions.
[43] I have also considered the following:
(a) R v Columbus: there the defendant forced open the garage of a residential property, causing damage to the value of $672. The appellant stole a mountain bike, gardening tools and a tool box. The Court of Appeal considered the burglary to have been opportunistic and at the lower end of the scale of offending, which did not justify a starting point of more than one year. To recognise the appellant’s previous dishonesty offences, of which 13 were for burglary and
another 34 were for property-related offences, the Court saw fit to uplift the starting point by a further one year.
(b)In Tairi v Police, the offender broke into a locked residential property by smashing a glass window pane and forcing open a bedroom window at the side of the property. He searched through drawers and cupboards in the house, before leaving with a television valued at
$370. Damage of $150 was caused to the window. On appeal, Duffy J upheld a starting point of 16 months’ imprisonment, with an uplift of four months for offending on bail, and another four months for the offender’s previous criminal history of 22 burglaries (of which, however, 21 were committed during a spree of offending as a 21 year old).
(c) Snowden v Police:32 the defendant faced a number of charges, including one for burglary of a residential property, in which goods worth over $10,000 was stolen. The defendant had five previous convictions for burglary and numerous dishonesty offences. The High Court upheld a starting point of two years’ imprisonment and an uplift of six months for previous convictions and offending while on bail.
(d)Tepania v Police:33 the defendant had six previous convictions for burglary. He entered a residential property in the early hours of the morning and ended up disturbing the victim in one of the rooms. The victim was in his 60s and a war veteran. No property was stolen but a struggle ensued in which the victim received some injuries. On appeal, the Court accepted that the burglary was a relapse into old ways by a defendant who had made considerable progress to leave his criminal past behind him and who showed genuine remorse. The Court considered a starting point of 22 to 24 months’ imprisonment was justified and imposed an uplift of four months for the previous offending.
Sections 84 and 85 of the Sentencing Act 2002
[44] Section 84 of the Sentencing Act provides:
84Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.
[45] Concurrent sentences are appropriate where the separate criminal acts form a connected series of events or a continuing course of conduct. This is to be evaluated based on the context and circumstances in which the offences were committed. The authors of Adams on Criminal Law give the example of offending “sprees” over a short period of time (such as a series of burglaries committed over a few weeks) as
being an appropriate case for concurrent sentencing.34
[46] By contrast in Awatere v Police Brown J observed that, while s 84 is silent on the issue, commentators agree that cumulative sentences are generally appropriate if the offences cannot reasonably be described as one continuing course of conduct.35
[47] Relevant also is s 85 of the Sentencing Act which concerns the principle of totality:
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.
[48] Importantly, the Court of Appeal held in R v Xie that where a combination of cumulative and concurrent sentences are imposed, how the sentence is arrived at is less important than the proper assessment of the totality of the offending:36
[16] The fundamental tenet of the totality principle is that the final sentence must reflect “the totality of the offending”. How the total sentence is made up has never been important. We cite what this court said in R v Williams CA91/00 31 May 2000:
[11] We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment. Sometimes there is advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed.”
36 R v Xie [2007] 2 NZLR 240 (CA).
Discussion
[49] I first address Mr Heaslip’s argument regarding the sentencing structure adopted by the Judge. I reject his submission that offending of a similar kind committed because of the same or similar motivation but almost a year apart can be considered on a concurrent basis. In the time that elapsed between the Auckland and Huntly offending Mr Gorgus sought a sentence indication for the Auckland offending, he sought treatment for a month in Odyssey House, a programme which he subsequently abandoned, and allowed the sentence indication to lapse. It would, in my view, be artificial to consider the two sets of offending as a continuing series of events. I therefore agree with the District Court’s approach in terms of sentencing structure namely to consider the Auckland and Huntly offending on a cumulative basis.
[50] In respect of the starting point adopted by the Judge for the Auckland burglary, R v Columbus recognises that previous dishonesty offending may still be taken into account in setting the starting point.37 However, recent cases in the burglary context indicate an increasing deference to the Taueki sentencing approach whereby the circumstances of the offending are viewed in relative isolation, and an uplift for previous offending is then imposed.
[51] Having considered the relevant case law, I conclude that the starting point for the Auckland burglary taken by the Judge was within the Arahanga range. I agree with Counsel for the appellant that Mr Gorgus is not a recidivist burglar within the second category of Senior, but he is demonstrably a repeat offender whose offending is fuelled by his drug addiction. Significant aggravating factors are that the offending involved a domestic residence and that it was committed by Mr Gorgus while he was on bail.
[52] I also consider that there was no error in terms of the 18 month uplift imposed by the Judge on the lesser charges. The unlawful taking of a motor vehicle
would on its own attract a starting point of about a year’s imprisonment.38 There
37 R v Columbus, above n 28, at [14].
38 O’Sullivan v Police [2015] NZHC 2032; Ratahi v Police [2014] NZHC 2394; Gideon v Police
[2014] NZHC 1065.
were additional charges and the presence of aggravating factors such as the fact that the offending was while Mr Grogus was on bail.
[53] Nor do I identify any error in respect of the sentence for possession of the utensils charge.
[54] In respect of the Huntly offending, I consider that the Judge erred in not identifying a starting point for the Huntly burglary and then uplifting for the lesser charges and previous convictions. If I were to re-sentence Mr Gorgus, I would take a starting point of between 18 months’ and two years imprisonment for the Huntly burglary charge allowing for the fact that this was a burglary of a domestic residence, committed while on bail, was not opportunistic, and that a confrontation with the home owner occurred. The fact that nothing was taken was a consequence of intervention on the part of the home owner and does not appear to me to be a significantly mitigating feature of the offending.
[55] In respect of the discount for the guilty plea, I agree with the 15 per cent discount given by the Judge for the Auckland offending. Mr Gorgus cannot be described as having pleaded at the earliest opportunity due to the significant length of time between the charges being filed and the plea of guilty being entered. As such, I reject Mr Heaslip’s submission that the Judge gave insufficient consideration to that factor.
[56] The sentencing Judge did not address a guilty plea discount in respect of the Huntly offending but his Honour seemingly took into account this and other factors at the outset of the sentencing for that set of charges. Although the approach is not orthodox, any discount Mr Gorgus would have received for pleading guilty to the Huntly charges has in my view been subsumed in the District Court Judge’s approach to totality.
[57] In respect of totality, I reject Mr Heaslip’s submission that there is no clear evidence the Judge took that principle into account. He said that in setting a starting point for the Huntly offences:
I also need to consider the totality of your sentence today. For the charge of burglary you are therefore sentenced to one year’s imprisonment to be served cumulatively.
[58] Consideration of totality is, in my assessment, the reason for what I consider to be the low sentence the Judge imposed in respect of the Huntly offending – about half of what the sentence would have been had the Hessell approach been followed before any consideration of totality.
[59] His Honour did not approach this issue in a traditional way but that is ultimately of secondary importance to whether the end sentence reflects the totality of the offending, or as Mr Angelson says, whether the sentence “matches the overall criminality”. I consider that it does and that it properly meets the need for Mr Grogus to be held accountable for his actions and for the community to be protected from him.
Result
[60] Accordingly I do not identify any error in the Judge’s approach to the
sentencing and dismiss the appeal.
Muir J
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