Gotty v Police HC Napier CRI 2006 082 207
[2006] NZHC 1667
•11 December 2006
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2006 082 207
BETWEEN GLENNARD HIRINI GOTTY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 December 2006
Counsel: K R L Guthrie for the Appellant
R J Collins for the Respondent
Judgment: 11 December 2006
JUDGMENT OF WILD J
[1] This is an appeal against a sentence of five years imprisonment, with a three year non-parole period, imposed by Judge Rea in the District Court at Napier on 13
October.
[2] The grounds of appeal are that the sentence imposed is manifestly excessive and that the imposition of a minimum non-parole period is wrong in principle.
[3] The appellant had pleaded guilty to seven offences, all committed over the six day period between 13 and 18 April 2006.
[4] In their chronological sequence, and summarised fairly briefly, the offences were:
• 13 April 2006, theft: The appellant drove into the BP Service Station in
Waipawa and put $91.80 of petrol and $10.95 of oil into his vehicle
GOTTY V NEW ZEALAND POLICE HC NAP CRI 2006 082 207 11 December 2006
before telling the manager that he would return to pay when WINZ gave him some money. He then left without paying. When spoken to by the Police he offered the explanation “I was going back to pay for the petrol at some time, I’m broke”.
• 14 April 2006, dangerous driving causing injury: While driving at about
180 kph at about 5.15 a.m. on State Highway 2, the appellant lost control of his vehicle while rounding a bend just outside Matawai. The vehicle crossed the centreline, went into a slide and hit the bank on the side of the road. The appellant’s wife received minor injuries but had to be cut out of the vehicle by the Fire Service using cutting tools.
• 15 April 2006, burglary: While travelling from Wairoa to Waipawa with the appellant’s wife and another man called Hubbard, the appellant and Mr Hubbard discussed obtaining some firearms “in order to shoot some niggers at Wairoa”. They were referring to Black Power members. After dropping the appellant’s wife home in Waipawa, the appellant and Hubbard went to the home of a distant relative of the appellant on the Napier Taupo Road. The appellant broke into the house through an insecure front window. After forcing open the firearms cabinet in the house the appellant took two .22 calibre rifles, a 6.5 x 55 Mauser hunting rifle, a .22 air rifle and a double barrelled 12 gauge shotgun. He also took rifle and shotgun ammunition and a spotlight. After arriving back in Wairoa the appellant and Mr Hubbard went directly to the Mongrel Mob’s headquarters in Wairoa and offloaded all the firearms except a .22 calibre rifle which Mr Hubbard took to his home. Although the appellant freely admitted stealing the firearms when the Police spoke to him, none of them has been recovered. The Police have a major concern that a number of firearms have passed into the hands of the Mongrel Mob at Wairoa. Over recent years gang violence in Wairoa, in particular using firearms, has escalated.
• 15 April 2006, theft: The appellant committed a similar theft of petrol, this time from the Shell Shop at Wairoa. Having put $80 of petrol into an
associate’s vehicle, the appellant offered two rings and his empty wallet in payment. He subsequently offered the same explanation to the Police as he had given for the BP petrol theft.
• 17 April 2006, burglary: At about 10.30 p.m. the appellant broke into the Ferry Hotel in Wairoa, by removing louver windows. He stole three bottles of drink before leaving and returning with them to the Mongrel Mob headquarters.
• 18 April 2006, possession of an offensive weapon; unlawful possession of explosives: The appellant was noticed in the Post Shop in Wairoa with a knife tucked into his trousers. The Police were called and the appellant was arrested. He was found to have a steel machete in his trousers and, upon further search, was found also to have shotgun and rifle ammunition (stolen in the earlier burglary).
[5] After reciting these offences, Judge Rea referred to the appellant’s criminal record. It dates back to 1971, and spans 19½ pages of computer printout. Amongst his approximately 50 convictions for dishonesty are six for burglary (committed between 1982 and 2003) and numerous theft convictions (spanning the period 1971-
1999).
[6] The appellant also has eight driving convictions, including for careless use in
1992, 1994 and 1998, disqualified driving in 1993, 1994, 1998 and 1999 and dangerous speed (in 1997).
[7] Judge Rea commented that every available sentence had been tried on the appellant. He pointed out that the appellant had some $5,000 outstanding in fines. The probation officer made the same comment, though adding that the appellant had generally complied with non-custodial sentences.
[8] Judge Rea also referred to the appellant’s health difficulties. He remarked:
[21] … The health difficulties are not such that you are affected in such a way that mental health issues prevent you being tried or sentenced and in fact, the mental health issues do not seem to prevent you from carrying out
serious criminal offences on a regular basis over the space of four decades almost.
[9] Judge Rea had the benefit of a psychiatric report dated 10 October 2006 from Dr Anne Walsh. That report records that the appellant has had periodic contact with the Mental Health Services over the past 28 years (the appellant is now 55 years old). It seems that the appellant suffers from bi-polar disorder, seemingly triggered by marijuana abuse and exacerbated over the years by a combination of continuing substance abuse and failure to take prescribed medicine.
[10] In her report Dr Walsh states:
While it has not been possible to determine Mr Gotty’s exact mental state at the time of the above offences, the bizarre nature of his actions, their confinement to a short period of time, his subsequently insight into his behaviour along with suggested medication non compliance all point to his being similarly affected at the time …
… it appears highly probable that they occurred within the complex of manic type symptoms on a background of likely non compliance with prescribed medication and/or abuse of cannabis, alcohol and/or other substances.
[11] Judge Rea indicated to the appellant that he did not intend imposing cumulative sentences on the appellant for the various discrete offences. Rather, he indicated an intention to take the indictable burglary and impose on that a lead sentence reflecting “the overall criminality and culpability” of all the appellant’s offending – a sentence aimed at both deterring the appellant and protecting the public. The Judge remarked:
[20] Getting involved in burglaries of firearms to fuel gang related warfare is a new high for you, however, Mr Gotty and there will be a sentence imposed upon you taking in to account all of the circumstances of that offending and all of the other offences that you are here for sentence on to reflect the fact that society is not prepared to put up with that any longer, certainly not from you.
[12] Judge Rea indicated that he would impose concurrent sentences for the other offences.
[13] The Judge recorded that counsel had referred him to a number of Court of Appeal authorities. He mentioned particularly Southon and Rohloff in relation to repeat burglary.
[14] From a 7 year start point, the Judge allowed a 2 year discount for the appellant’s guilty pleas, and imposed a 5 year sentence of imprisonment on the lead burglary charge. The concurrent sentences he imposed on the other charges are not under appeal, and therefore I need not detail them.
[15] As to the non-parole period he imposed, the Judge commented:
[31] I believe that this is a case where a minimum non-parole period is required in relation to the burglary of the firearms. The court is authorised to impose such a minimum non-parole period to hold the offender accountable for the harm done to both any victim and the community, to denounce the conduct in which the offender was involved, to deter the offender or any other persons from committing the same or similar offences and for protecting the community from the offender generally.
[16] In relation to the lead 5 year sentence of imprisonment, Ms Guthrie founded her argument largely on the Full High Court’s judgment in Senior v Police (2000) 18
CRNZ 340. She submitted that the appellant should have been treated like a “first- time burglar” or as falling at the very bottom end of category 2 in Senior. The Senior Court observed that prison sentences for first-time burglars, whilst permissible, were infrequent. For category 2 offenders – recidivist burglars – the Court, after a review of authorities, concluded that a sentence of imprisonment exceeding 3 years was unlikely.
[17] The other thrust of Ms Guthrie’s argument was based on observations of the Court of Appeal in [14] of its judgment in R v Southon (2003) 20 CRNZ 104. Delivering the Court’s judgment, Anderson J stated:
[14] In our view, the most significant sentencing purposes in relation to this habitual burglar are deterrence and community protection. We need not repeat his regrettable record, but we place particular emphasis on the inadequate deterrence of previous terms of imprisonment and the severely aggravating feature of offending whilst on bail for a like crime. The circumstances called for a firm sentence and that is what the appellant received. We do not find it manifestly excessive.
[18] Ms Guthrie relied on this passage to support a submission that Judge Rea had made an impermissible quantum leap to 5 years from the previous much lower sentences imposed on the appellant when he had previously been convicted of
burglary. In short, Ms Guthrie was contending that sentences should be increased incrementally, and not by a large margin as here.
[19] I consider that argument overlooks that the 5 year lead sentence was to reflect the totality of the appellant’s offending. Judge Rea was at pains to make that clear. As Mr Collins submitted, the Judge could have arrived at the same result by imposing cumulative sentences. For example, and as Mr Collins submitted, the Judge could have imposed the following cumulative sentences:
• 3 years for the burglary of the firearms.
• 2 years for the dangerous driving causing injury.
• 1 year for the Ferry Hotel burglary.
[20] I agree with that submission. Had discrete sentences of those terms been imposed, none of them could have been challenged as manifestly excessive. A 3 year sentence for the firearms burglary and a discrete one year sentence for the Ferry Hotel burglary are supported by the sentences upheld by the Court of Appeal in cases such as Southon; R v Brusey CA137/01 23 July 2001 and R v James CA353/03 24
March 2004.
[21] A 2 year sentence for the dangerous driving would have the support of the
Court of Appeal’s judgment in R v Fallowfield CA181/96 22 August 1996.
[22] That analysis does not make any allowance for the three other discrete offences: the possession of an offensive weapon and explosives (ammunition) and the two thefts of petrol.
[23] I am quite unable to regard the 5 year sentence under appeal as manifestly excessive. Indeed, I regard it as wholly appropriate and justified for this rash of offending, some of it serious offending.
[24] The other limb of the appeal was a challenge to Judge Rea’s imposition of a 3 year non-parole period, as wrong in principle. The Judge was entitled to impose
such a minimum non-parole period if he considered that eligibility for parole after one-third of the 5 year sentence was insufficient for any of the following purposes (and I quote here from s84(1)):
(a)holding the offender accountable for the harm done to the victim and the community by the offending;
(b) denouncing the conduct in which the offender was involved;
(c)deterring the offender or other persons from committing the same or a similar offence;
(d) protecting the community from the offender.
[25] In his sentencing remarks Judge Rea made it clear that he was imposing the 3 years minimum non-parole for all of those reasons. Ms Guthrie submitted that the Judge had already factored in each of those reasons in imposing his lead 5 year sentence, and that to impose a minimum non-parole period was effectively to double-count, or punish twice over.
[26] Ms Guthrie also submitted that this was a case in which the Judge could, and should, have left the assessment of whether and when to grant parole to the Parole Board. She accepted that imposition of minimum non-parole might be appropriate if there were no prospects of rehabilitation. She said that this was not such a case.
[27] I am not persuaded by Ms Guthrie’s submissions. The Judge correctly identified the purposes for which a minimum non-parole period could be imposed, and considered that all of them applied to the appellant. Given the nature and seriousness of his offending, particularly the firearms burglary and the subsequent handing over of the stolen firearms to the Mongrel Mob, I agree with the Judge’s assessment.
[28] Ms Guthrie’s “double-counting” submission is not correct. If it were, it is difficult to conceive of any situation in which s84 could properly be applied. A minimum non-parole period does not increase the sentence. It is a judicial determination, in the circumstances of the case, that consideration of parole is inappropriate until a minimum period has been served. I reiterate that I agree with
Judge Rea that this was a proper case to impose such a minimum period of imprisonment.
[29] Neither limb of the appeal has succeeded. The appeal is accordingly dismissed. The sentences, and the minimum non-parole period imposed are all confirmed.
Solicitors:
Crown Solicitor, Napier for the Respondent
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