IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2018-404-333
[2018] NZHC 3245	

BETWEEN	JEREMY EARL SNOW GRAY
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	10 December 2018	
Appearances:	R Slade and N Lim-Kwan for the Appellant M Mortimer for the Respondent	
Judgment:	10 December 2018	

ORAL JUDGMENT OF GORDON J

Solicitors:	Crown Solicitor, Auckland
Public Defence Service, Auckland

GRAY v POLICE [2018] NZHC 3245 [10 December 2018]

Introduction

[1]	The appellant, Jeremy Gray, pleaded guilty to the following charges:

(a)	Burglary;1

(b)	Receiving;2

(c)	Theft;3 and

(d)	Failure to answer bail.4

[2]	On 14 August 2018, Judge Gibson in the District Court at Auckland sentenced Mr Gray to two years and four months’ imprisonment.5

[3]	Mr Gray appeals his sentence on the basis that it is manifestly excessive.

[4]	The Crown opposes the appeal.

[5]	The notice of appeal was filed out of time. Counsel oversight is the explanation. I grant the necessary extension as the delay was not lengthy and there is no opposition by the Crown.

[6]	Mr Gray has been in custody since he was sentenced.

Factual background

[7]	The offending comprises several discrete incidents. I summarise these briefly.

[8]	At about 11:25 am on 16 September 2017, Mr Gray was driving a Nissan motor vehicle in Parnell. He drove into a petrol station and filled his vehicle with $87.13 worth of petrol. He then drove off without paying.

1	Crimes Act 1961, s 231(1)(a).
2	Section 246(1).
3	Section 219(1)(a).
4	Bail Act 2000, s 38(a).
5	New Zealand Police v Gray [2018] NZDC 18201.

[9]	Between 5:30 pm and 9 pm on 30 September 2017, Mr Gray and his associate entered onto the property at 19 Weston Avenue, Papatoetoe. They had squeezed through a gap in the fence from a neighbouring address. The victim was inside the property at the time.

[10]	Mr Gray noticed a work van parked on the driveway. He opened the sliding door of the van and, with the assistance of his associate, stole multiple power tools from inside the van. The tools had a total value of approximately $5,500.

[11]	Between 12 am and 10 am on 25 January 2018, a blue Merida Big Seven 300 mountain bike was stolen from a property in Hillsborough. It was valued at $899. The following day, at about 4 pm, Mr Gray went into a bike shop in Eden Terrace. He sold that same blue Merida Big Seven 300 mountain bike for $250.

District Court decision

[12]	Judge Gibson identified the burglary charge as the lead charge.6 After setting out the facts and Mr Gray’s previous convictions, the Judge then referred to Arahanga v R:7
[8]     … which [is] not a tariff decision but is a decision usually referred to in sentencing of domestic burglaries and which indicates that for a relatively straight forward burglary starting points of between 18 months and two and a half years’ imprisonment ought to be taken.

[13]	The Judge stated that although Mr Gray did not actually enter a dwelling house, he entered the property on which it was situated.8 He adopted a starting point of two years’ imprisonment, also taking into account the value of the tools that were taken.9

[14]	The Judge then uplifted the sentence by six months for the rest of the offending.10 He further uplifted the sentence by two months for Mr Gray’s previous convictions.11

6	New Zealand Police v Gray, above n 5, at [2].
7	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
8	New Zealand Police v Gray, above n 5, at [9].
9	At [9].
10	At [9].
11	At [11].

[15]	Lastly, the Judge discounted the sentence by four months to take into account Mr Gray’s guilty pleas, leading to an end sentence of two years and four months’ imprisonment.12

Approach on appeal

[16]	Section 250(2) of the Criminal Procedure Act 2011 provides:

(2)	The first appeal 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.

[17]	In any other case, the court must dismiss the appeal.13

[18]	A sentence may be set aside where it is manifestly excessive.14 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached.15 The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.16

Submissions

[19]	Mr Slade, on behalf of Mr Gray, submits that the sentence was manifestly excessive. Specifically, he submits that an excessive starting point was adopted on the lead charge of burglary.

[20]	Mr Slade also submits that there was an excessive uplift for both Mr Gray’s additional offending and his previous convictions. Lastly, he submits that there was insufficient credit given for Mr Gray’s guilty pleas.

12	At [11].
13	Criminal Procedure Act 2011, s 250(3).
14	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
15	Kumar v R [2015] NZCA 460 at [81].
16	Tutakangahau v R, above n 14, at [30].

[21]	Mr Mortimer, on behalf of the Crown, first submits that while the starting point was at the upper end of the available  range,  it  was  nevertheless  available  to  Judge Gibson. He further  submits  that  the  uplifts  and  discounts  applied  by Judge Gibson were appropriate, although I comment further in relation to the discount for Mr Gray’s guilty pleas when I get to that point in the judgment.

Starting point

[22]	Judge Gibson was correct to adopt the burglary charge as the lead charge and accordingly to set a starting point for that charge and then to uplift the starting point to reflect the remaining offending.17

[23]	Burglary carries a maximum penalty of 10 years’ imprisonment.18 There is no tariff case for burglary sentences because the range of circumstances in which the offence can be committed is so varied.19 In Arahanga v R, however, the Court of Appeal stated:

[78] … burglary of a domestic residence is  a  significant  aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. 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.

(Citations omitted)

[24]	After identifying the decision in Arahanga, Judge Gibson stated:20

[9] In this case you did not actually enter a dwelling house, you simply entered the property on which the dwelling house was situated and so taking that matter into account the overall starting point would seem to me to be one, considering the value of the tools that were taken, of two years’ imprisonment
…

[25]	Mr Slade submits that the present case can be distinguished from the “dwelling house burglary” category of Arahanga because it is of lesser gravity. Mr Gray did not actually enter the dwelling house. Mr Slade cites two cases in support of that submission.

17	Sentencing Act 2002, s 84(2).
18	Crimes Act, s 231(1).
19	Arahanga v R, above n 7, at [78].
20	New Zealand Police v Gray, above n 5.

[26]	The first decision is R v Columbus.21 In that case, the defendant had pleaded guilty to one charge of burglary, two charges of theft, one charge of possession of cannabis and one charge of possession of a pipe. He had forced open the vehicle access door of a garage at a residential property, causing damage. He then stole a mountain bike, gardening tools and a tool box.

[27]	The District Court Judge treated the burglary charge as the lead offence. Although acknowledging it was at the minor end of the scale, he fixed a global starting point of three years and six months’ imprisonment (taking into account the totality of the defendant’s offending and his history of dishonesty offending).

[28]	On appeal, the Court of Appeal agreed that the burglary was “at the minor end of the scale”.22 It classified the offending as opportunistic or spontaneous because the defendant wanted money.23 Although the owner suffered “a natural sense of emotional violation and distress and limited financial loss”, the Court held the offending did not justify a starting point of more than one year’s imprisonment.24

[29]	The second decision is Blissett v Police.25 In that case, the defendant had been convicted of charges of burglary, receiving and possession of a glass pipe for the purpose of consuming methamphetamine. He entered the outside area of a domestic dwelling during the daytime and attempted to force open a window. When the window broke, he left the scene. A few weeks later, again during the daytime, the defendant and an associate had broken into a domestic residence and took personal property, including a camera and items of jewellery, with a total value of $2,000.

[30]	The District Court Judge had adopted a starting point of three years' imprisonment for the burglaries. On appeal, Duffy J treated the second burglary as the lead offence.26 Duffy J then stated:

21	R v Columbus [2008] NZCA 192.
22	At [16].
23	At [16].
24	At [16].
25	Blissett v Police [2013] NZHC 156.
26	At [36].

[37] The timing of the burglary (during the day) and the relatively  low  value of the items taken ($2,000) place the burglary at the lower end of the scale. The fact it was carried out with an accomplice raises the seriousness of the offending. Some planning was involved, as the summary of facts states that the offenders jemmied upon a garage door, which suggests that the offenders went to the property prepared to break into it. Once inside the garage, they smashed an internal door, thereby gaining access to the house. The stolen property was not recovered.

[31]	The Judge stated that this was more serious offending than in Columbus.27 After citing several comparable cases, she stated that the offending would “attract a range of starting point of somewhere between 16 and 18 months’ imprisonment”.28 She adopted a starting point of 17 months’ imprisonment.29

[32]	Mr Mortimer, on the other hand, notes that a range of lower-level domestic burglary cases were summarised by Palmer J in Tafengatoto v Police.30 In that case, the defendant had pleaded guilty to one charge of burglary. He had entered a residential property early in the morning by pulling out slats in a secured window. While the victim was asleep, the defendant searched the home and removed electronic items, jewellery and a wallet to the value of $12,500.

[33]	The District Court Judge had adopted a starting point of two years and six months’ imprisonment. On appeal, Palmer J adopted a starting point of two years’ imprisonment.31

Discussion

[34]	Mr Slade submits that the present case is similar to Columbus in that it involved entry into a domestic property, but not into a domestic dwelling house. He says the entry into a garage in Columbus is arguably more serious. He further submits that the present case is less serious than Blissett as that case involved two burglaries, including

27	At [38].
28	At [45].
29	At [45].
30 Tafengatoto v Police [2018] NZHC 2452. The cases summarised by Palmer J were Bates v R  [2016] NZCA 456; Stepanicic v R [2015] NZCA 211; Toala v Police [2013] NZHC 3270; Wilkinson v Police [2016] NZHC 1845; Rigby v R [2018] NZHC 478.
31	At [9].

the entry into a domestic dwelling house. He submits the appropriate starting point is 12 months’ imprisonment.

[35]	Mr Mortimer, on the other hand, submits the fact that Mr Gray did not enter the house is only of limited mitigation. He submits that the entry onto residential premises and the taking of tools from a work van attracts the same concerns as those that apply to entry into dwelling houses, namely a sense of intrusion on the part of the victim and the risk of confrontation with a victim. As the offending occurred at a time in the evening when the occupants were likely to be home, this made the risk of confrontation high.

[36]	Furthermore, Mr Mortimer submits that the sentencing methodology used in Columbus has been replaced, so it is safer to put that decision to one side. In any event, he notes that the offending in that case was spontaneous and the value of the items was not recorded.

[37]	In my view, the appropriate starting point for this charge is 12 months’ imprisonment. The offending appears opportunistic. There is no evidence of premeditation or planning. This starting point still recognises, however, that the burglary took place with an associate, the total value of the property taken was $5,500, and that it has not been recovered. The starting point also recognises, on the other hand, that Mr Gray did not enter the domestic dwelling house on the property. He only entered the van on the driveway. The risk of confrontation is significantly less in that situation.

[38]	I consider that the offending in this case is less serious than all of the cases I have referred to. The cases of Blissett, Tafengatoto, Stepanicic v R, Toala v Police, Wilkinson v Police and Rigby v R are all instances of more serious offending.32 They all involved entry into a domestic dwelling house, where there was theft of items of a similar, if not greater, value. There is a greater risk of confrontation in those circumstances, which is a significant aggravating feature lacking in this offending.33

32	Stepanicic v R, above n 30; Toala v Police, above n 30; Wilkinson v Police, above n 30; Rigby v R, above n 30.
33	Arahanga v R, above n 7, at [78].

[39]	I have also considered the cases of Zimmerman v Police34 and Reihana v Police.35

[40]	In Zimmerman v Police, the defendant pleaded guilty to one charge of burglary and four charges of breaching release conditions. Along with an associate, the defendant entered a residential property by smashing a rear window. They stole property, including a necklace valued at around $18,000 (which was not recovered). The defendant knew the victims (they were wider family members) – so he knew they were away at the time.

[41]	On appeal, Thomas J identified the aggravating features of the offending as the fact that there were two burglars, the significant breach of trust involved, the damage to the property (in smashing a window to get in), the taking of high-value items from the house, the fact that the jewellery had not been recovered and the financial loss to the victims.36 The Judge upheld a starting point of 18 months’ imprisonment.37

[42]	In Reihana v Police, the defendant pleaded guilty to one charge of burglary.38 He had stolen items with a combined value in excess of $5,000 from the home of his aunt. He had entered the house through an unsecured window. There was no challenge to the starting point of 12 months’ imprisonment. After reviewing several cases, Woolford J stated that the starting point “could have been a little more”.39 Although Woolford J accepted both sets of offending were similarly opportunistic, he distinguished the case from Zimmerman as there was property damage in that case and the jewellery stolen was significantly more valuable.40

[43]	I consider that this offending is similarly less serious than Zimmerman. As noted, in that case, the defendant entered a residential property and stole property

34	Zimmerman v Police [2014] NZHC 3233.
35	Reihana v Police [2015] NZHC 360.
36	Zimmerman v Police, above n 34, at [31].
37	At [34].
38	Reihana v Police, above n 35.
39	At [32].
40	At [29].

valued at $18,000 which was not recovered. There were also the additional aggravating features of a breach of trust and damage to property.

[44]	In my view, this offending is most analogous to the cases of Columbus and Reihana. The property stolen in Reihana had a similar value. Although the defendant in that case entered a residential property, and thereby increased the risk of confrontation, there were two offenders in the instant case, and Woolford J acknowledged in Reihana that the starting point “could have been a little more”.41 As to Columbus, I accept that the entry into a garage is slightly more serious. But there was only one offender.

[45]	I am satisfied therefore that Judge Gibson has erred in adopting an excessive starting point which has produced an end sentence which is outside the range available.

[46]	As I have identified an error, I must approach the sentencing afresh by reference to the starting point I have found to be appropriate for the lead charge. I will need to assess the appropriateness of the uplifts and discounts applied by Judge Gibson.

Uplift – remaining offending

[47]	As noted, Judge Gibson uplifted his starting point by six months’ imprisonment to reflect the three remaining charges.42

[48]	Given the maximum penalties for each of the remaining offences,43 I consider that an uplift of three months’ imprisonment is appropriate in the context of a starting point of 12 months’ imprisonment. An uplift of six months would be excessive. This results in a sentence of 15 months’ imprisonment.

41	Reihana v Police, above n 35, at [32].
42	New Zealand Police v Gray, above n 5, at [9].
43 Receiving (between $500 and $1,000) – imprisonment for one year; theft (under $500) – imprisonment for three months; failure to answer District Court bail – imprisonment for one year or a $2,000 fine.

Uplift – previous convictions

[49]	Judge Gibson applied a two-month uplift to reflect Mr Gray’s previous convictions.44

[50]	As Woolford J explained in Reihana v Police:45

[34] Deterrence and protection of the public play a role in uplifting a  starting point for previous convictions. In the case of recidivist burglars, this is noted as a particular factor in sentencing …

(Citations omitted)

[51]	Mr Gray has three previous convictions for burglary from 2008, 2009 and 2011. He also has numerous other convictions for dishonesty-related offending, including charges of receiving, unlawfully interfering with or taking a motor vehicle, and unlawfully being in an enclosed yard or area.

[52]	Furthermore, Mr Gray has several previous convictions for failing to answer District Court bail and breaching other court-imposed orders. This is significant given he was for sentence on a charge of failing to answer bail.

[53]	I am satisfied that a two-month uplift is appropriate in the circumstances. This results in a sentence of 17 months’ imprisonment.

Guilty plea

[54]	Lastly, Judge Gibson applied a discount of four months to take into account Mr Gray’s guilty pleas.46 That was a discount of 12.5 per cent.

[55]	Mr Gray entered a guilty plea to the theft charge at his first appearance in relation to that matter. He subsequently entered guilty pleas to the remaining charges after receipt of full disclosure and legal advice.

44	At [11].
45	Reihana v Police, above n 35.
46	New Zealand Police v Gray, above n 5, at [11].

[56]	Mr Mortimer accepts that the guilty plea discount could have been higher but he submits this is not a case for the full 25 per cent discount.

[57]	However, I am satisfied, given the matters I have mentioned regarding the timing of the first guilty plea and the pleas after full disclosure and legal advice on the remaining charges, a discount of four months, or just under 25 percent, is appropriate. This results in an end sentence of 13 months’ imprisonment.

Home detention

[58]	I am satisfied that the sentence imposed by Judge Gibson was manifestly excessive. As the end sentence was above two years’ imprisonment, the Judge was not able to consider whether a sentence of home detention was appropriate. I am able to do so.

[59]	Mr Slade submits that such a sentence is appropriate. Mr Mortimer accepts that home detention is an option if this Court were to allow the appeal and reach the appropriate range.

[60]	There is a pre-sentence report dated 9 August 2018 which addressed the possibility of the sentence being served at Grace Foundation’s supported living accommodation, at 22 Station Road, Takanini, Auckland. Accommodation had been arranged for him to stay there. The address, occupants and Mr Gray were all assessed as suitable. A letter from the Grace Foundation, dated 10 December 2018, has been provided to the Court today. That letter records that accommodation at that address is available for Mr Gray as from Monday 17 December 2018.

[61]	Returning to the pre-sentence report, on the one hand, the report writer assessed Mr Gray’s ability to comply with sentences of community detention or community work as very poor due to his history of breaching community-based sentences. However, and on the other hand, she stated that a sentence of home detention would offer close oversight of Mr Gray’s rehabilitation and provide him with support.

[62]	I consider that a sentence of home detention is appropriate. I agree with the report writer that the particular residence will allow for oversight of Mr Gray’s

rehabilitation and will give him support. Occupants sign an agreement to abide by house rules which include: no visitors without prior approval; no overnight visitors; no drugs or alcohol; compulsory attendance at church; and a daily rehabilitative programme.

Conclusion

[63]	The appeal is allowed. The sentence of two years and four months’ imprisonment is quashed. The appropriate sentence is 13 months’ imprisonment, which can be commuted to a sentence of six months and two weeks’ home detention. As Mr Gray has spent nearly four months in custody (the equivalent of almost two months’ home detention), the period of home detention would be four months and two weeks.

[64]	The nominal sentences ordered to be served concurrently on the remaining three charges are also quashed. The appropriate sentences on those charges are sentences of home detention as follows:

(a)	Receiving – two months’ imprisonment, commuted to one month’s home detention;

(b)	Theft – one month’s imprisonment, commuted to two weeks’ home detention; and

(c)	Failure to answer bail – two months’ imprisonment, commuted to one month’s home detention.

[65]	These sentences are to be served concurrently with each other and concurrently with the sentence on the burglary charge. The end sentence is, therefore, four months and two weeks’ home detention.

[66]	All sentences of home detention are subject to the following special conditions:

(a)	On 17 December 2018, to travel directly to the home detention address of 22 Station Road, Takanini, Auckland, and to remain at the address to be met by a Field Officer;

(b)	To reside at 22 Station Road, Takanini, Auckland, and not to move address without the prior written approval of the Probation Officer;

(c)	Not to consume or possess alcohol or illicit drugs for the duration of home detention;

(d)	To undertake and complete appropriate treatment/counselling to the satisfaction of the Probation Officer and treatment provider. The details of the treatment or counselling to be determined by the Probation Officer; and

(e)	Undertake and complete an appropriate departmental or cultural programme, to the satisfaction of the Probation Officer and programme facilitator, if a suitable programme is available. The details of the programme and suitability to be determined by the Probation Officer.

[67]	To those conditions, I add two further conditions proposed by Grace Foundation, as follows:

(a)	To take part in all programmes and activities of the Grace Foundation at the approval of the EM bail team and/or the assigned probation officer; and

(b)	A curfew exception, if taking part in all programmes and activities of the Grace Foundation or other rehabilitative programmes and activities

as long as Mr Gray is accompanied by a staff member of the Grace Foundation.

Gordon J