Tilby v Police - [2019] NZHC 1552

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-169

[2019] NZHC 1552

BETWEEN
JAMIE TILBY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 June 2019

Appearances:

M J English and C M Allington for the appellant T H Stuart for the respondent

Judgment:

3 July 2019 at 11:30am

JUDGMENT OF PALMER J

Solicitors:
Public Defence Service, Auckland Crown Solicitor, Auckland

TILBY v NEW ZEALAND POLICE [2019] NZHC 1552 [3 July 2019]

What happened?

[1] Mr Jamie Tilby, now aged 24, was charged with, and pleaded guilty to nine offences:

(a)On 26 March 2018, he drove a stolen Honda Civic to Pakiri Beach.

(b)On 20 April 2018, he intercepted a letter and took someone else’s credit card. He gave it to an associate, claimed it was his and falsely gave them permission to use it.

(c)On 10 September 2018, Mr Tilby was sentenced in the District Court to five months’ community detention for prior offending. The sentence included a condition of a night-time curfew which he breached in more offending.

(d)Two days later, around 5 am on 12 September 2018, Mr Tilby and three other men entered the grounds of Bruce McLaren Intermediate School in Henderson, Auckland. He removed four CCTV cameras, foolishly allowing one of the cameras to capture his face as he was removing it.

(e)The next evening, on 13 September 2018, with another man, he removed another CCTV camera from Waitakere College in Henderson.

(f)On the evening of 19 September 2018, he and another man removed two CCTV cameras from the Ranui Public Library.

(g)On 23 September 2018, Mr Tilby and an associate filled a car up with petrol but, when his associate’s card was declined, he drove away (leaving his associate at the petrol station).

(h)On 24 September 2018, around 4.30am, he and another man returned to Waitakere College. The other man removed three CCTV cameras. Mr Tilby left with them.

(i)Later on 24 September 2018, Mr Tilby returned to Bruce McLaren Intermediate and took three more CCTV cameras.

[2] Mr Tilby was charged with five counts of burglary for the CCTV thefts, each of which carries a maximum sentence of 10 years’ imprisonment. He was also charged with: unlawfully getting into a motor vehicle; breach of community detention; and two counts of theft under $500. They carry maximum penalties of two years’, six months’ and three months’ imprisonment respectively. He pleaded guilty. Corrections assessed him as at high risk of re-offending which is related to his associates, drug-use and attitudes. Corrections noted Mr Tilby shows a pattern of complete disregard and lack of remorse for his offending and for court-imposed sanctions and assesses his ability to comply with further community-based sentences as low.

[3] On 2 May 2019, in the Waitakere District Court, Judge B R Pidwell sentenced him to two years and three months’ imprisonment.1 She identified aggravating features of the offending as: offending while subject to sentence; targeting schools and a library within a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tilby v Police

Details

AGLC: Tilby v Police [2019] NZHC 1552
Case: [2019] NZHC 1552
Decision Date: 3 July 2019 at 11:30am

CaseChat Overview and Summary

Tilby v Police is an appeal by Jamie Tilby against his sentence for nine criminal offences. The appeal is to the High Court of New Zealand, Auckland Registry. Tilby was found guilty of five counts of burglary, unlawfully getting into a motor vehicle, breach of community detention, and two counts of theft under $500. He was sentenced to two years and three months’ imprisonment by Judge B R Pidwell in the Waitakere District Court. Tilby appeals on the grounds that the starting point for the burglaries was too high, and the reparation order should take into account his inability to pay in the immediate future.

The court was required to determine whether the starting point for the burglaries was appropriate, and if the reparation order should be reconsidered. The court considered the nature of the premises entered, the kind and value of property stolen, the impact and potential impact on occupants or owners, and the extent of the offending. The court also considered whether the reparation order should be quashed to give Tilby a better chance of making a fresh start on emerging from prison.

The court found that the starting point for the burglaries was on the high side, but not manifestly unjust. The court noted that there were five separate burglaries of three different targeted vulnerable educational institutions, of CCTV cameras designed to protect schools. The court found that the end sentence was within the range available to the Judge. The court did, however, uphold the appeal of the reparation order, and quashed it to give Tilby a better chance of making a fresh start on emerging from prison.

In conclusion, the High Court of New Zealand, Auckland Registry, upheld Tilby's appeal of the reparation order, but found that the end sentence was within the range available to the Judge. The reparation order was quashed to give Tilby a better chance of making a fresh start on emerging from prison.

Orders