Gorrie v Police

[2015] NZHC 359

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000015 [2015] NZHC 359

BETWEEN

TONY ASHLEY GORRIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 March 2015
Appearances:	H Roose for the Appellant A Hill for the Respondent
Judgment:	5 March 2015

JUDGMENT OF WOOLFORD J

Counsel/Solicitors:

Crown Solicitor, Rotorua

Herman Roose, Barrister, Rotorua

TONY ASHLEY GORRIE v NEW ZEALAND POLICE [2015] NZHC 359 [5 March 2015]

Summary

[1]      Tony Ashley  Gorrie  was  convicted  following  a  Judge  alone  trial  in  the Rotorua District  Court  on  19 August  2014  of  two  charges  of  burglary and  two charges of dishonestly using a document, namely a credit card, to obtain a pecuniary advantage.1

[2]      On 14 October 2014, he was sentenced by another Judge to three years and six months imprisonment.   He now appeals against sentence on the basis that it is manifestly excessive.

Factual background

[3]      The charges related to two separate sets of offending.  In the first, Mr Gorrie unlawfully entered backpackers’ accommodation in Rotorua.  He stole the wallet of a Japanese tourist, and used a bank card from it to make purchases.  In the second, he unlawfully entered backpackers’ accommodation in Taupo, stole cash and a bank card from an Australian tourist’s wallet, and used the bank card to make purchases. On one of these occasions, in order to get inside the backpackers’ accommodation, Mr Gorrie followed guests who had security cards and entered before the door closed behind them.  The value of the goods obtained by use of the credit cards was less than $1000, but the inconvenience caused to these tourists was significant.

[4]      Mr Gorrie’s criminal history is significant.   It includes over 180 previous convictions for dishonesty and 10 for burglary.   Of the burglary convictions, only two are from the last 12 years, dating from 2011 and 2013.

District Court judgment

[5]      The sentencing Judge took a starting point of two years imprisonment.  He uplifted that sentence by six months because of the totality of the offending (i.e. the use of the bank cards).  Then he imposed a further uplift of one year’s imprisonment because of Mr Gorrie’s previous convictions to reach a final sentence of three and a

half years imprisonment.

1      Crimes Act 1961, s 228 and Crimes Act 1961, s 231.

Appellant’s submissions

[6]      Mr Gorrie’s counsel accepts that the starting point of two years imprisonment is appropriate even though the sentencing Judge referred to Mr Gorrie’s targeting of tourist accommodation in relation both to the seriousness of the offending and to the disproportionate impact it had on the victims as foreigners to New Zealand.  This emphasis, he says, amounted to placing undue weight on this aggravating feature of the offending.

[7]      Additionally, counsel submits that the uplifts imposed were excessive in two respects:

(a)      The use of the credit cards was part and parcel of the burglaries, and so the sentences should have been imposed concurrently under the totality principle; and

(b)      The 12-month uplift for previous convictions was excessive.

Respondent’s submissions

[8]      The Crown submits that the sentencing Judge’s decision on the length of imprisonment imposed was within the range available to him.  In particular, they cite previous case law that supports the proposition that significant uplifts for previous offending are available in the case of recidivist burglars.

Law

Approach to appeal

[9]      An appeal against sentence is an appeal against the exercise of a discretion. As such there must be some error in the original sentencing decision in order for this Court to interfere on appeal.   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.

[10]     If the sentence is manifestly excessive, that will constitute such an error.  The Court of Appeal confirmed in Tutakangahau v R that s 250(2) did not change the previous approach taken by the courts under the Summary Proceedings Act 1957.2

The High Court will not intervene where the sentence is within a range that is justifiable according to accepted sentencing principles.

[11]     Whether a sentence is manifestly excessive must be examined in terms of the sentence given, rather than the process by which the sentence is reached.3

Analysis

[12]     There is no disagreement that the starting point of two years imprisonment is in  line with authority,  including the leading judgments  of  Senior  v Police,  R  v Southon, and R v Columbus.4

[13]     With regard to the allegations that the sentencing Judge placed excess weight on the fact that the offending involved tourist establishments, the Judge did indeed consider it at two stages of the process.  He focused first on the fact that that tourists are vulnerable because they are away from their home country, and then on the fact that the burglaries involved tourist establishments, stating:

…persons who target tourist accommodation in this area can expect to be dealt with firmly by the Court, because of the fact that reputation of this area and  its  prosperity and employment  depends very  much  on tourism,  and offending against tourists is something which can easily erode the reputation of these areas.

[14]     The fact that targeting tourists and targeting tourist accommodation were considered separate aggravating factors is not unreasonable.  In doing so however, a sentencing Judge must bear in mind the fact that he or she is, indeed, addressing

what is, in essence, one feature twice, which carries an inherent risk of placing undue

2      Tutakangahau v R [2014] NZCA 279 at [26]-[27].

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

4      Senior v Police (2000) 18 CRNZ 340; R v Southon (2003) 20 CRNZ 104, R v Columbus [2008] NZCA 192.

weight on it.   It is possible that one feature of the offending can have multiple effects.

[15]     I turn now to previous case law.  In R v Columbus, a starting point of three years six months imprisonment on one charge of burglary, two charges of theft, one charge of possession of cannabis and one charge of possession of a pipe was considered excessive, even allowing for the defendant’s significant criminal history, including 13 burglary convictions.   The Court of Appeal was of the view that a starting point of one year’s imprisonment on the charge of burglary reflected the culpability of the offending, which was then uplifted by six months imprisonment to reflect totality, and by a further one year’s imprisonment to reflect previous convictions. But for his guilty plea, which is not a relevant factor in the present case, the defendant would have received a final sentence of two years six months imprisonment.

[16]     In Martin v Police, the defendant had been sentenced to two years and three months imprisonment on one charge of burglary, theft of a wallet, and five charges of dishonest use of a document through using credit cards obtained in that wallet.5   He also faced another four charges of theft for stealing a range of items worth no more than $200 from shops.   The High Court said a starting point of 15 months imprisonment,  with  an  uplift  of  18  months  imprisonment  for  prior  convictions

(which included 28 previous burglary convictions) was appropriate.

[17]     In Guest v Police, the defendant gained access to a private home by claiming she was a cleaner, and then stole a range of small items totalling about $1250.6   She was a habitual offender, with 145 dishonesty offences.  The High Court identified the burglary as at the lower range, but involving “subterfuge on the part of Ms Guest to enable her associate to gain entry to a private home, some damage to property, the removal of goods (most of which were recovered) and unrecovered goods (albeit of relatively low value), but no accompanying violence”.7   The Court was of the view

that a starting point of two years and six months imprisonment was appropriate with

5      Martin v Police HC Auckland CRI-2010-404-495, 31 May 2011.

6      Guest v Police HC Gisborne CRI-2010-488-0063, 24 March 2011.

7      Guest v Police, above n 7, at [22].

a four month uplift to reflect the totality of her offending, which involved a second burglary charge and another eight month uplift for her previous convictions.

[18]     Considering these cases, I see the offending here as moderate in seriousness. I take into account that there was not an insignificant impact on the victims, and that there  was  deliberate  targeting  of  tourists  who  were  foreign  to  this  country. Compared to Guest, however, the offending involved no damage to property and minimal  subterfuge,  as  access  to  the  backpacker’s  accommodation  was  gained through following behind someone as they entered using a swipe card.  However, the fact that Mr Gorrie deliberately sought out tourist accommodation in both sets of offending must be considered as an aggravating factor.

[19]     Given the range of starting points adopted in Martin and Guest, I consider a two year starting point as appropriate for this offending.

[20]     For  the  two  recent  burglaries  in  2011  and  2013,  Mr  Gorrie  respectively received one year’s imprisonment and four months imprisonment, which was cumulative on the sentence of five months imprisonment for unlawfully taking a motor vehicle.  The two year starting point for the two current burglaries is therefore a step up for him.

[21]     Under s 85 of the Sentencing Act 2002, if concurrent sentences are to be imposed for the burglary and using a document charges, the most serious charges (i.e. burglary) must receive the penalty that is appropriate for the totality of this offending.   In  considering the starting point  of two  years imprisonment for the burglary  charges,  I  must  consider  whether  this  accurately  takes  the  whole  of Mr Gorrie’s offending into account.

[22]     Although the use of the credit cards was “part and parcel” of the offending to the extent that it could be expected that he would steal credit cards for the purpose of using them, they also constitute separate offences and separate charges.   It caused separate and additional harm to the robbed tourists in question.

[23]     However, with respect to the sentencing Judge, I am of the view that the starting point of two years imprisonment is appropriate for the scale of Mr Gorrie’s crimes.  The using a document charges arose when Mr Gorrie used one credit card to purchase two packets of tobacco from a service station.  He used another to purchase more tobacco from Pak’n’Save and also made two attempts to purchase a jacket, but the transaction was declined.   In my view, the scale of these transactions is not significant.

[24]     However, having regard to previous case law, a significant uplift for previous convictions is eminently justifiable.   Mr Gorrie’s history of offending is very extensive, and although there are only two recent convictions for burglary, there are a significant number of similar dishonesty offences, such as taking a motor vehicle, obtaining by deception, and dishonestly using a document to obtain a pecuniary advantage.

[25]     I agree with the sentencing Judge that an uplift of one year’s imprisonment is appropriate in all the circumstances.  I consider that this is in line with cases such as R v Columbus, for example, where an offender with 34 property related convictions and 12 for burglary received an uplift of one year’s imprisonment.8

[26]     This calculation leads to a final sentence of three years imprisonment.   As Mr Gorrie did not plead guilty, no further discount is available to him.  However, this is six months less than the sentence imposed at first instance.  As such, I consider, with  respect,  that  the  sentence  imposed  in  the  District  Court  was  manifestly

excessive.

8      Above n 3; see also Guest v Police, above n 7; Cooper v Police [2012] NZHC 1699.

Conclusion

[27]     I allow the appeal and substitute a sentence of three years imprisonment instead.  I impose concurrent sentences of three years imprisonment on each burglary charge and of 6 months imprisonment on the charges of using a document to obtain a pecuniary advantage.

……………………………….

Woolford J