NEIL THOMAS GASCOIGNE AND NEW ZEALAND POLICE

[2024] NZHC 2761

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000390

[2024] NZHC 2761

BETWEEN

NEIL THOMAS GASCOIGNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 September 2024
Counsel:	O M Salt and M T C Fuamatu for Appellant R N T Thompson for Respondent
Judgment:	24 September 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 September 2024 at 3.30 pm

Registrar/Deputy Registrar

Solicitors:

Public Defence Service (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

GASCOIGNE v POLICE [2024] NZHC 2761 [24 September 2024]

Introduction

[1]                 Mr Gascoigne appeals his sentence of two years and one month’s imprisonment imposed by Judge K Maxwell on 9 July 2024.1 His ground of appeal is that the Judge erred in setting an adjusted starting point which is too high, and so the end sentence is manifestly excessive.

[2]                 I must allow Mr Gascoigne’s appeal if I am satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed.2 A manifestly excessive sentence would be such an error.

Discussion

[3]                 I have concluded that the sentence is not manifestly excessive. In my view it is at the lower end of the range available to the Judge. I will dismiss the appeal. I can give my reasons briefly.

[4]                 Mr Gascoigne pleaded guilty to two charges of burglary. He burgled the homes of two of his neighbours, both were known to him.

[5]                 One of the neighbours was overseas. Mr Gascoigne broke a window to gain entry and then removed and sold virtually the whole of the unit’s contents. The reparation sum is $11,520.81. Mr Gascoigne has no means of paying it.

[6]                 The second victim, who occupied another unit in the street, was also away. Mr Gascoigne smashed a window to gain entry and stole a number of items. The reparation figure is $2,926.99.

[7]Mr Gascoigne’s fingerprints were found in both homes.

[8]                 Burglaries can have a profound effect on victims. In this case both victims felt unable to remain in their  homes  and  moved  away. The first victim came to New Zealand as a refugee. This was her first home here. Among her few possessions

1      Police v Gascoigne [2024] NZDC 16048.

2      Criminal Procedure Act 2011, s 250.

was her deceased father’s watch, a treasured memento of him. It was among the items stolen.

[9]                 The Judge adopted an adjusted starting point of two years and four months’ imprisonment for both burglaries. This was reduced by 20 per cent to give credit for the guilty pleas. An uplift of three months for Mr Gascoigne’s relevant criminal history was applied.

[10]             It is submitted on behalf of Mr Gascoigne that when caselaw is considered the appropriate adjusted starting point should have been 24 to 26 months’ imprisonment and the appropriate end sentence should have been in the range of 22 to 24 months’ imprisonment.

[11]             Counsel recognises that asking an  appeal  court  to  reduce  a  sentence  of  25 months by perhaps one month would normally be regarded as asking the court to tinker impermissibly. But what Mr Gascoigne seeks is access to the short-sentence parole regime (automatic release after serving one-half of the sentence) rather than remain subject to the alternative regime of applying for parole after serving one-third of the sentence.3 Counsel advises that the Parole Board has already declined to release Mr Gascoigne on his first appearance.

[12]             If I accepted Mr Gascoigne’s submission that the sentence of 25 months’ imprisonment was manifestly excessive by one or two months, I would decline to reduce it. He is 43 years old with an extensive criminal record. He has served a number of terms of imprisonment. He shows no remorse or signs of reform. For the safety of the community, it is better to leave his release in the hands of the Parole Board.

[13]             But it is not an issue I have to decide. In my view, the adjusted starting point of two years and four months was well within the range available to the Judge. These were serious burglaries of residential units and the effects on the victims were

3      Mr Gascoigne relies on the decision of this Court in Kadir v Police [2020] NZHC 1108.

profound. The maximum sentence for burglary is 10 years. The Court of Appeal in

Arahanga v R commented:4

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.

[14]             In my view, Judge Maxwell would not have erred had the adjusted starting point been several months longer than the two years and four months she adopted.

[15]             Further, I consider that the uplift of three months for previous offending was light. Mr Gascoigne has 11 previous convictions for burglary spanning the period 1998 to 2020. He has other relevant convictions for dishonesty and two convictions in 2000 and 2004 for being unlawfully in a yard/building. As I said, he has served sentences of imprisonment in respect of such offending. An uplift of up to six months was available.

[16]             For these reasons, I conclude that the end sentence is not manifestly excessive but is at the lower end of the range available to the Judge. There is no reason to reduce it.

Decision

[17]The appeal is dismissed.

Brewer J

4      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].