Urlich v Police
[2025] NZHC 897
•16 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000590
[2025] NZHC 897
BETWEEN SCHILO KEITH URLICH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 April 2025 Appearances:
E Mahoney for Appellant
M McKenzie and W Fotherby for Respondent
Judgment:
16 April 2025
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 16 April 2025 at 12.00 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
URLICH v POLICE [2025] NZHC 897 [16 April 2025]
Introduction
[1] Schilo Keith Urlich pleaded guilty to 11 charges, almost all of which were for dishonesty offending.
[2] On 25 September 2024, Mr Urlich was sentenced by Judge Dawson to 25 months and two weeks’ imprisonment.1 Mr Urlich appeals on the basis this was manifestly excessive while the Crown counters that this sentence was within the available range.2
[3]The charges Mr Urlich was sentenced upon are as follows:
(a)One charge of burglary;3
(b)Two charges of theft over $1,000;4
(c)Two charges of theft between $500 and $1,000;5
(d)Five charges of theft under $500;6 and
(e)One charge of breach conditions of intensive supervision.7
Offending
Burglary
[4] On 29 August 2023, between 10 am and 11 am, Mr Urlich entered a Shamrock Park home and searched various rooms. The victim came home and a short confrontation ensued. The next day, about 7.30 am, Mr Urlich and an associate returned to the same address and used a crowbar to pry open a window, breaking the
1 New Zealand Police v Urlich [2024] NZDC 23573 [Judgment under appeal].
2 Mr Urlich does not pursue seeking a commutation of his sentence to an electronically monitored sentence.
3 Crimes Act 1961, s 231. Maximum penalty of 10 years’ imprisonment.
4 Sections 219 and 223(b). Maximum penalty of seven years’ imprisonment.
5 Sections 219 and 223(c). Maximum penalty of one year of imprisonment.
6 Sections 219 and 223(d). Maximum penalty of three months’ imprisonment.
7 Sentencing Act 2002, s 70A. Maximum penalty six months’ imprisonment or a fine not exceeding
$1500.
lock, and entered the dwelling. Mr Urlich went through several rooms and took a diamond ring (estimated value $500), a credit card, and two silver medallions (with an estimated value of $200 each). The property was found on him during arrest.
Thefts
[5] On 27 November 2022, Mr Urlich went to Rebel Sport in Wairau Park. He left the store wearing a hat and a jacket that he had selected from within but had not paid for.
[6] On 26 February 2023, Mr Urlich went to a Life Pharmacy in Takapuna. He picked up a fragrance and concealed it in his jacket before leaving the store without paying.
[7] On 9 March 2023, Mr Urlich went to Lacklands in Penrose with an associate. The pair took nine items of value including binoculars, thermal binoculars, and a tripod mount. Mr Urlich concealed these items before leaving the store without paying. The items had a combined value of $3,701.75. He returned to the same store a fortnight later and again took binoculars without paying.
[8] On 5 April 2023, Mr Urlich went to Briscoes in Mount Roskill. He took a small black bag, which he concealed in the front of his pants, before leaving the store without paying. Three days later, Mr Urlich went to Briscoes in Sandringham with an associate. He took a black duffel bag and a coffee machine and attempted to conceal the items. He left the store without paying.
[9] On 29 May 2023, Mr Urlich went to the Chemist Warehouse in Wairau Valley. He took a stabilising support brace and a bottle of vitamins and concealed them on his person before leaving the store without paying.
[10] On 7 August 2023, Mr Urlich took $1500 of tools from Carters Glenfield without paying. He also took a router worth $500, without paying, from the same store on 25 August 2023. The facts of this offending from Carters Glenfield were not included in the Judge’s summary in his sentencing notes, but the Court record confirms that the sentence included sentencing for these matters.
District Court Decision
[11] Judge Dawson considered the starting point for the lead offence of burglary was 22 months’ imprisonment.8 The other thefts attracted an eight-month uplift. Mr Urlich’s criminal history attracted a further uplift of four months’ imprisonment. This took the overall starting point for the offending to 34 months’ imprisonment.
[12] The Judge then applied a reduction of 20 per cent for guilty pleas and five per cent for addiction and cultural issues to reach an end sentence of 25.5 months (25 months and two weeks).9
Issues on appeal
[13] Counsel for Mr Urlich, Ms Mahoney, submits that the starting point for the lead offence was too high and, likewise, the uplift applied for the other dishonesty offences was also too severe. She further submits that Mr Urlich was not given a sufficient discount for his addiction to methamphetamine which was causative of the offending. Counsel do not take issue with the discount given for guilty pleas or uplift for Mr Urlich’s previous offending.
Approach on appeal
[14] The Court must allow an appeal if it is satisfied that there was an error in the initial sentence and that a different sentence should be imposed.10 The Court’s focus is on the end sentence. The overall question on appeal is whether the sentence was manifestly excessive or is wrong in principle.11 If the process by which a sentencing judge arrives at the end sentence was flawed, but the sentence nonetheless can be properly justified by accepted sentencing principles, then the appeal Court will not intervene.12
8 Judgment under appeal, above n 1, at [21].
9 At [22].
10 Criminal Procedure Act 2011, s 250(2).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[35], in particular citing
Te Aho v R [2013] NZCA 47 at [30].
12 At [33] and [36].
Starting point
[15] There is no guideline judgment for dishonesty offending because of the wide range of circumstances in which it can occur.13 However, in R v Nguyen the Court of Appeal provided factors that are relevant to assessing culpability for burglaries.14 This included: degree and sophistication of planning, nature of premises entered, kind and value of property stolen, damage done, the impact and potential impact upon victims, and the extent of the offending where multiple burglaries are involved.
[16] Planned and repeated dishonesty for financial gain typically constitutes serious offending, warranting a clear element of denunciation.15 Burglary of a domestic residence is a significantly aggravating factor because of the risk of confrontation and, at the minor end of the scale, tends to create a starting point of between 18-30 months.16 Here, there was not only a “risk of confrontation” when Mr Urlich first went to the property, but a confrontation occurred, yet the Mr Urlich returned to the property the next day to commit the burglary.
[17] Ms Mahoney relied upon Gascoigne v New Zealand Police (Gascoigne) to contend that 22 months’ imprisonment as a starting point for Mr Urlich’s burglary offending was too high.17 In Gascoigne, the offender had targeted two neighbouring homes, breaking a window of each to steal and sell items from within that together totalled more than $14,000. The breach of trust involved resulted in both victims moving away.18 The starting point in that case was 28 months’ imprisonment.19 Ms Mahoney emphasises that Mr Urlich’s offending was less serious in respect of both the financial harm caused and the impact on the victims involved.
[18] Although the Gascoigne case involved two (connected) burglaries to a greater value, I disagree with the characterisation of Mr Urlich’s offending as materially less serious. The fact that Mr Urlich entered a private residence and engaged in a confrontation and yet chose to return the next day to carry out the burglary is a
13 Arahanga v R [2012] NZCA 480 at [78]; R v Nguyen CA110/01, 2 July 2001 at [18].
14 R v Nguyen, above n 13, at [17].
15 Arnott v R [2015] NZCA 236 at [8], citing R v Rose (1990) 5 CRNZ 638 (CA) at 642.
16 Arahanga v R [2012], above n 13, at [78].
17 Gascoigne v Police [2024] NZHC 2761.
18 At [8].
19 At [9].
significant aggravating factor here. A victim impact statement (dated 2 April 2025) states the victim no longer feels safe in his own home. That is not surprising. As has been noted:20
Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar.
[19] Mr Urlich’s offending relative to Gascoigne is also aggravated by the fact that Mr Urlich was the principal offender acting in tandem with another.
[20] I agree with the Crown that Connell-McDowell v Police21 and Powell-Collins v Police22 are helpful comparative cases. In the former the offender returned to the scene to after committing a burglary. On the second visit, he was discovered (with tools capable of committing burglary) by Police. A starting point of 26 months’ imprisonment was upheld on appeal.23 In the latter, the offender entered a residential property through a window and took items (including two firearms) to stow in his nearby car before returning to take more items.24 While he was in the house, one of the occupants arrived home. She saw the appellant climbing out of a window with a laptop. A starting point of 24 months’ imprisonment was upheld on appeal.25
[21]I conclude that the starting point was within the available range.
Uplift
[22] Ms Mahoney contends that an eight-month uplift in respect of the nine remaining dishonesty charges was too harsh. She relies upon Fletcher v R.26 In that case the offender had been convicted of eight theft charges, varying in amount but
20 R v Brewster [1998] 1 Cr App R 200 at 225 per Lord Bingham CJ, as cited in Senior v Police
(2000) 18 CRNZ 340 (HC) at [18].
21 Connell-McDowell v Police [2019] NZHC 3370.
22 Powell-Collins v Police [2017] NZHC 1644.
23 Connell-McDowell v Police, above n 21, at [8], [23]–[25] and [27].
24 Powell-Collins v Police, above n 22, at [2].
25 At [15]-[18].
26 Fletcher v R [2024] NZHC 1931.
totalling just over $17,000.27 An uplift of six months’ imprisonment was imposed. Ms Mahoney accepts the thefts committed by Mr Urlich were more numerous but emphasised his offending totalled $8,206.
[23] In my view, although stern, there is no error in the Judge’s assessment of the uplift for the remaining offending. In Hamlin v New Zealand Police28 the High Court upheld an uplift of eight months’ imprisonment in respect of nine theft charges (all of which involved less than $1,000). That supports that the uplift was appropriate.
Personal mitigating factors
[24] Ms Mahoney submits that Mr Urlich’s methamphetamine addiction was the primary driver for his offending and deserved to attract a greater discount than five per cent. The defence position is that up to 15 per cent would have been appropriate. To this point, an analogy to Clark v R was made.29 In that case, the Court accepted Mr Clark’s capacity to make rational decisions was somewhat impaired by addiction.30 Ms Mahoney submits that a pre-sentence report recognised Mr Urlich had addiction issues. His offending is reported to have occurred amid a relapse that transpired after he was discharged from the Wings Trust.
[25] In the PAC Report Mr Urlich is reported to say that: “It’s not that bad. I thought it would have been more.” Ms Mahoney says that these comments were not intended to be dismissive of the offending but reflected genuine surprise at the low value of what he had taken given that he was suffering a relapse of his addiction at the time. She says this comment seems to be the only basis for the Judge’s conclusion that Mr Urlich lacked remorse and that his offending resulted from a lack of consideration for others rather than a causal connection with his addiction.
[26] I accept that the five per cent discount was somewhat on the low side. However, for the reasons below I do not consider the overall sentence is manifestly excessive.
27 At [1] and [3].
28 Hamlin v New Zealand Police [2024] NZHC 767.
29 Clark v R [2020] NZCA 641.
30 At [21]–[22].
Overall Assessment
[27] I do not consider there is any error in the Judge’s assessment of starting point and the uplift.
[28] While a five per cent reduction for Mr Urlich’s addiction could be viewed as light, in my view the end sentence was within range. Significantly, Mr Urlich’s sentence did not include any uplift for offending while subject to a sentence, which could readily have been imposed. Standing back, the overall sentence is not manifestly excessive.
Result
[29]The appeal is dismissed.
Anderson J
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