IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2023-404-000249
[2023] NZHC 2065	

BETWEEN	MITCHELL TYLER GREY
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	21 July 2023	
Appearances:	A Ives for Appellant
J L Gibson for Respondent	

Judgment:	
4 August 2023	

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 4 August 2023 at 2.15 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel:
A Ives, Barrister, Auckland Crown Solicitor, Auckland

GREY v NEW ZEALAND POLICE [2023] NZHC 2065 [4 August 2023]

Introduction

[1]	Mitchell Grey (the appellant) pleaded guilty to charges of: burglary;1 theft;2 being found in a motor vehicle without reasonable excuse;3 and two charges of being unlawfully in a building.4 On 5 May 2023, he was sentenced by Judge D J McDonald in the Auckland District Court to 16 months’ imprisonment.5 He appeals his sentence on the grounds that it was manifestly excessive and says that the Judge erred by adopting a starting point that was too high, and by failing to allow for the time he spent on electronically monitored (EM) bail.

[2]	The respondent opposes the appeal and says that the appellant cannot show that the sentence imposed by the Judge was manifestly excessive. The respondent says that the 16 months sentence was within the available range, and the adjustment proposed by the appellant would amount to “tinkering” with the sentence imposed by the Judge.

Offending

[3]	The offending occurred in Hawkes Bay and Auckland over several months during 2022.

[4]	Sometime between 4.00 pm on 11 February and 7.00 am on 14 February 2022, the appellant entered a secure construction site in Hastings. He cut holes in the building wrap on one of the units under construction, reached inside to unlatch a window, and gained entry. He took a laptop charger, an outlet power centre, and a fast charger. The items are collectively valued at approximately $280.

[5]	On the afternoon of 18 February 2022, the appellant entered a Rebel Sport store in Hastings. He picked up a pair of shoes, removed the security tag and put the shoes

1	Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.
2	Crimes Act 1961, ss 219 and 223(d). Maximum penalty of three months’ imprisonment.
3	Summary Offences Act 1981, s 29. Maximum penalty of three months’ imprisonment, or $2,000 fine.
4	Summary Offences Act 1981, s 29. Maximum penalty of three months’ imprisonment, or $2,000 fine.
5	New Zealand Police v Grey [2023] NZDC 9138.

on, leaving his own shoes under a bench in the store. He was stopped by staff while walking around inside the store and was asked to remove the shoes.

[6]	Around 4.00 am on 12 July 2022, the appellant went to a butcher’s business premises Greenlane, Auckland. He cut padlocks and forced open a heavy-duty door to gain entry to the premises. Once inside he attempted to open the door to the chiller but was unsuccessful. He then departed.

[7]	On the afternoon of 26 September 2022, the appellant went to a residential address in Mt Wellington, Auckland. He used a drill to open the lock on a shed at the back of the property. He took four “jerry cans” and two small tins from the shed before leaving the scene.

[8]	On the night of 12 October 2022, a vehicle was stolen from a residential address in Henderson, Auckland. Shortly before midnight on 14 October 2022, police saw the stolen vehicle being driven in East Tamaki, Auckland. Police followed the vehicle and observed the appellant stop the vehicle and flee into an area of scrub where he was later found.

District Court Judge’s sentencing decision

[9]	In his sentencing decision of 5 May 2023 Judge McDonald summarised the appellant’s offending and noted that he would take into account the purposes and principles of sentencing to hold the appellant accountable, to deter and denounce the offending, and would impose the least restrictive starting point.

[10]	Judge McDonald took the burglary as the lead charge for the purposes of the sentencing, and noted there is no guideline judgment for burglary offending. The Judge referred to R v Columbus6 and observed that the Court of Appeal has recently said that any burglary relating to a residential property would attract a starting point of 18 months’ imprisonment, but that each burglary sentencing remains fact specific.

6	At [9], citing R v Columbus [2008] NZCA 192.

[11]	The remainder of the Judge’s sentencing decision was expressed succinctly. He said:

[10]	The facts I take into account here are that there was some premeditation. You had a drill with you that you could use on a lock to get it open and get inside, the taking of the items. I also take into account in setting the starting point your previous convictions for burglary, in April 2020, July 2020 there were two, four in July and then two in 2021. On the last sentence you got five months’ jail. The sentence before that you were jailed as well but given leave to apply for home detention. Under the old regime, which I still consider has some merit, you can be seen as a recidivist burglar.

[11]	Ms Ives, your learned counsel, says a start point of 12 months for this. I consider that is a bit light. In my view, 16 months is appropriate. The other offending requires another four month uplift making 20 months. For personal matters I have already counted all the previous convictions in setting the start points, so there is no further uplift. In your favour is your plea of guilty. I give you 20 per cent. I give you nothing for your remorse letter. It is self- serving.

[12]	I have read and considered the pre-sentence report. I have two of them, one dated 8 November 2022, the other 23 November 2022, and a further one which recommends home detention. Ms Ives submits that you should be given a chance. You have had no long-term oversight by probation. I disagree with that. With the greatest of respect you have had numerous, intensive supervision, release conditions and the like. You have done nothing about it.

[13]	In my view, one does not go down the sentencing ladder. On the last two you got a jail term for but with leave, and here you are back again committing another burglary and other dishonesty.

[14]	I have regard to s 16 to deter and denounce.

[15]	I deal with this in this way. In relation to the burglary you will be convicted and sentenced to 14 months’ imprisonment. In relation to the failing without reasonable excuse being in a yard you will be convicted and sentenced to two months on top of the 14 months, making an end sentence of 16 months. You will be released on the standard release conditions as contained in the pre- sentence report under the intensive supervision provisions.

[16]	On the other charge you are convicted and sentenced to two months to be served at the same time, so the end sentence is one of 16 months’ imprisonment.

[12]	I consider that the methodology employed by the Judge in calculating the end sentence to be somewhat unclear. Having selected the burglary as the lead charge, the Judge adopted a starting point of 16 months’ imprisonment.7 The Judge then added four months to the starting point for the “other offending” to adjust the starting point

7	At [11].

to 20 months. The “other offending” referred to by the Judge being the offending covered by the other charges, namely: theft; being found in a motor vehicle without reasonable excuse; and two charges of being unlawfully in a building. The Judge then referred to the appellant’s previous convictions saying that, “[f]or personal matters I have already counted all the previous convictions in setting the start points, so there is no further uplift.” The Judge then allowed a 20 per cent discount for the appellant’s guilty pleas, which would result in an end sentence of 16 months’ imprisonment.

[13]	However, later in his decision the Judge said that on the burglary charge the appellant would be convicted and sentenced to 14 months’ imprisonment, and for the “failing without reasonable excuse being in a yard” he would be convicted and sentenced to two months’ imprisonment “on top of the 14 months, making an end sentence of 16 months.”8 The Judge then concluded his sentencing remarks saying: “on the other charge you are convicted and sentenced to two months to be served at the same time, so the end sentence is one of 16 months’ imprisonment.” Judge McDonald did not mention the 20 per cent allowed for the guilty plea in this calculation.

Appellant submissions

[14]	Ms Ives for the appellant commenced her submissions by saying that the appellant does not seek a sentence of home detention.

[15]	Ms Ives for the appellant submits that the sentence imposed is manifestly excessive as a result to two errors made by the Judge. Namely by:

(a)	adopting a starting point that was manifestly excessive; and

(b)	failing to take into account the time spent by the appellant on EM bail.

[16]	Ms Ives submits that a starting point of 12 months for the burglary offence, with an uplift of three months for the remaining charges, and a two-month uplift for previous burglary convictions would be appropriate, and would result in an adjusted

8	At [15].

starting point of 17 months’ imprisonment. Ms Ives submits that a discount amounting to 40 per cent of the 115 days the appellant spent on EM bail with a 24-hour curfew should be allowed, and once combined with the 20 per cent discount given by Judge McDonald for the guilty pleas, would reduce the end sentence to 12 months’ imprisonment. Ms Ives submits that a four month reduction of the sentence imposed would not amount to “tinkering”, given that it represents almost 25 per cent of the sentence imposed by the Judge.

Respondent submissions

[17]	Mr Gibson for the respondent opposes the appeal and says that the appellant cannot demonstrate that the end sentence was manifestly excessive. He submits that the end sentence of 16 months imposed by the Judge was within range and the adjustment proposed Ms Ives for the appellant would amount to “tinkering”. The respondent further submits that the uplifts applied for the other charges, and for the appellant’s previous burglary convictions, of four months in each instance, are appropriate.

[18]	Although the respondent acknowledges that the Judge erred by not accounting for the time the appellant spent on EM bail, Mr Gibson submits that having regard to the appellant’s non-compliance any discount for that factor should be minimal if not nil. Mr Gibson acknowledges that the Crown had initially understood that the appellant’s history included 11 breaches of EM bail, and while that number is incorrect, he notes that the appellant committed a number of his sentenced charges while he was on bail. He submits that the effect of the offending while on bail effectively cancels out any allowance that might otherwise have been appropriate to recognise the time spent by the appellant on EM bail.

[19]	Crown takes no issue with the 20 per cent guilty plea discount.

Approach on appeal

[20]	To succeed in his appeal, the appellant must show that there was a material error in the sentence imposed, and that a different sentence should be imposed.9 The imposition of a manifestly excessive sentence is a material error that justifies allowing an appeal.10 A sentence will be manifestly excessive if it is significantly more severe than it should have been, having regard to the overall criminality of the offending and the offender.11 The focus is on the end sentence imposed rather than the process by which it was reached.12 However, appeal courts should not “tinker” with an end sentence that is within the available range and which can be justified by application of accepted sentencing principles.13 The correction of errors is permitted.

Discussion

[21]	Both the appellant and the respondent apprehend that the Judge’s 16-month starting point for the lead charge of burglary also took into account of the appellant’s previous burglary offending, and was reached by taking a 12-month starting point for the index burglary offending and adding a four-month uplift for his previous burglary convictions. The Judge’s methodology then proceeded by the addition of a four-month uplift to take account of the “other offending” (being the other charges currently faced by the appellant) and then deducting a 20 per cent discount for guilty pleas. Both parties have made their submissions on this being the basis on which the sentence was constructed. I agree.

Starting point

[22]	The appellant and respondent both accept that although it was open to the Judge to take the appellant’s previous burglary convictions into account at his first stage when he selected the 16 month starting point, but submit that it would have been preferable for this to be done at the second stage in the context of considering the offender’s personal aggravating and mitigating factors.

9	Criminal Procedure Act 2011, s 250.
10	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
11	Leather v R [2011] NZCA 59 at [32].
12	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13	A (CA244/2017) v R [2018] NZCA 225 at [34].

[23]	Ms Ives refers to Herewini v Police in support of a submission that although there are divergent approaches to sentencing recidivist burglary offending, the approach to be preferred is to set a starting point and then uplift for previous burglary offending at the second stage as a personal aggravating factor.14 The Crown also acknowledges that the approach to sentencing recidivist burglary offenders sits within a distinct category and has been approached in different ways.15 While it was open to Judge McDonald to construct the appellant’s sentence in this way, the Crown accepts that this is no longer the preferred approach.16

[24]	Both the appellant and respondent submit that an appropriate starting point for the present burglary charge is 12 months’ imprisonment.

[25]	The following factors have been held relevant to assessing the severity of burglary offending:17

(a)	Actual or potential impact on occupants or owners of the property. This factor will almost always be present in burglaries of dwellings, particularly at night, and is worsened if the occupants are elderly or otherwise vulnerable.

(b)	Conduct which is likely to make the victim feel targeted, for example, repeated burglaries of the same property and theft of personal items.

(c)	Property damage and vandalism.

(d)	Kind and value of property taken, for example, theft of items which are of high monetary or sentimental value.

(e)	Degree of planning and sophistication.

14	Herewini v Police [2015] NZHC 2807 at [12], see also [26]–[27].
15	R v Lowe CA62/05, 4 July 2005 at [31].
16	Herewini v Police, above n 14, at [12]; and R v Taueki [2005] 3 NZLR 372 (CA).
17	Senior v Police (2000) 18 CRNZ 340 (HC) at [19]; and R v Nguyen CA110/01, 2 July 2001 at [17].

(f)	Offending while on bail, parole or in close proximity to court appearances on other charges, particularly burglary.

(g)	Nature of the premises entered.

(h)	Extent of the offending where multiple burglaries are involved.

[26]	Ms Ives submits that the appellant’s offending occurred in the early afternoon on a weekday when it was unlikely anyone would be present and no other aggravating factors are present. Counsel notes that it is not known whether the ‘jerry cans’ contained anything, and says that if they didn’t contain anything the cans themselves are of low value.

[27]	The Crown accepts that the appellant’s burglary offence falls at the lower end of the spectrum for burglary. As evident from the appellant’s having and using a drill to gain access to the shed, the offending involved some premeditation, but it otherwise involved the theft of low value items and caused minimal damage to property. And I note that although the appellant entered residential premises he did not enter the house itself.

[28]	The Crown submits that burglaries of dwellings at the lower end of the spectrum tend to attract starting points between 18 months to two-and-a-half years’ imprisonment.18

[29]	Both counsel refer to R v Columbus.19 In that case Mr Columbus forced open the garage door at a residential property. He did this in the afternoon. Mr Columbus took a mountain bike, gardening tools and a toolbox. The bike was later recovered. The cost of repairing the forced entry was $672. On appeal, the Court held that a starting point of no more than 12 months was appropriate as the offending was opportunistic, spontaneous and at the lower level of offending.20 Ms Ives submits that the offending in the present case involved a similar breach of privacy and kind of goods taken, however the value of items taken by the appellant was significantly lower.

18	R v Nguyen CA110/01, 2 July 2001 at [78].
19	R v Columbus, above n 6.
20	At [16].

The Crown accepts that the appellant’s offending is similar to Mr Columbus’s, however, point out that Mr Columbus’s offending was spontaneous rather than being premeditated, as the appellant’s was.

[30]	Both counsel also refer to Newton v Police.21 Mr Newton was out driving with a friend one morning when he entered a house and took a television and jewellery. Kós J compared the offending to that in Columbus, finding that although they both occurred during the day, Mr Newton’s offending was higher risk because it involved entering the dwelling rather than a garage, and the items taken by Mr Newton were more valuable. In adopting a 15-month starting point, Kós J noted that the offending was opportunistic, occurred during the day, Mr Newton was alone, and no occupants were home so the risk to them was limited.22 In comparison, Ms Ives submits that the appellant did not enter a dwelling and the value of items taken is significantly lower. Further, jerry cans are easily replaced and do not compare to the sentimental value of jewellery.

[31]	In this context Ms Ives again refers to Herewini v Police.23 Mr Herewini forced open a garage door which enabled him to enter the dwelling. He was wearing gardening gloves and carrying a backpack and screwdriver. He commenced searching the house but was seen by an off-duty police officer before taking anything. Duffy J considered the burglary itself was at the very low end of the scale of residential burglaries, occurring during the day when no one was home, no damage was caused, and no items were taken. The offending was more serious than in Columbus in respect of the fact that Mr Herewini entered the house, but less serious in respect of the fact that he had not taken nor damaged anything. The offending was less serious than cases in which an offender is interrupted by an occupant, that having greater impact on the occupant. Because Mr Herewini had a screwdriver and gloves the offending was considered premeditated rather than spontaneous. Duffy J adopted a starting point of 15 months’ imprisonment.24 Ms Ives submits that the level of premeditation by the appellant is similar (having a tool but no gloves), but points out that the appellant did not enter the dwelling house

21	Newton v Police [2012] NZHC 2829.
22	At [18].
23	Herewini v Police, above n 14.
24	At [37].

[32]	The Crown refer to Sherlock v Police.25 Mr Sherlock broke into a padlocked container using a grinder he had brought with him. He then stole an Xbox game console controller, a glass vase and some scrap metal. A starting point of 12 months’ imprisonment was upheld on appeal.26

[33]	The Crown also refer to Patangata v Police.27 Mr Patangata entered a residential premises and forced entry to a garden shed. He took a petrol can and weed eater. A starting point of 12 months’ imprisonment was upheld on appeal.28

[34]	Assessing the gravity the appellant’s burglary offending with reference to and compared to the offending in the cases cited, I consider that the appropriate starting point for the appellant’s burglary offending is 12 months’ imprisonment.

Uplift for other charges

[35]	In respect of the appropriate uplift for the appellant’s other offending, as I have noted Ms Ives submits that the four-month uplift applied by Judge McDonald was too high and that the uplift should have been three months. Ms Ives notes that these four offences each carry a maximum penalty of three months’ imprisonment, and that the total value of items taken was only around $280.

[36]	The Crown submits that the four-month uplift adopted by the Judge for the appellant’s other offending is appropriate considering totality, having regard to the lenient 12-month starting point for the burglary charge, and notes that in Menefy v Police29 Muir J upheld an eight-month uplift of the 18 month starting point for burglary, for a charge of theft relating to the theft of a trailer and generator valued at
$11,800 commenting that it was “stern” but finding that it was not excessive.30

[37]	The $280 value of the items taken by the appellant is markedly less than the
$11,800 value of the trailer and generator in Menefy which attracted an eight month

25	Sherlock v Police [2021] NZHC 110.
26	At [27].
27	Patangata v Police [2020] NZHC 407.
28	At [32].
29	Menefy v Police [2020] NZHC 162.
30	At [30].

uplift. I consider that an uplift of three months would appropriately reflect the criminality of the other offences committed by the appellant. While the value of the items taken was not significant, the appellant’s other offending involved him entering onto premises, theft and getting into a vehicle, which are nevertheless quite serious offences and were obviously undertaken with the intention of taking anything of value.

Uplift for previous burglary convictions

[38]	In respect of the appropriate uplift for the appellant’s previous burglary convictions, Ms Ives submits that the four-month uplift applied by Judge McDonald (via its inclusion in the 16-month starting point) was too high, and she submits that two months’ is appropriate.

[39]	The Crown submits that the four-month uplift applied by Judge McDonald was within range, if not generous, in the circumstances.

[40]	Ms Ives refers to Tepania v Police31 where a four-month uplift was imposed to reflect Mr Tepania’s 11 previous burglary convictions, not including other dishonesty convictions. Ms Ives also refers to Herewini v Police,32 where a four-month uplift was left undisturbed to reflect Mr Herewini’s approximately 11 previous burglary convictions spanning from 1999 to 2011. Ms Ives submits that the appellant’s seven previous burglary convictions occurred between April 2020 and July 2021. He has no previous relevant convictions before then. Counsel submits that compared to Tepania and Herewini, the appellant’s previous burglary convictions are fewer and more concentrated in time, so as to justify a lower uplift of two months.

[41]	The Crown submits that the appellant’s criminal history reveals a persistent pattern of burglary and dishonesty offending, including seven previous burglary convictions since April 2020, and a sentence of five months’ imprisonment imposed for the most recent offending. The Crown submits that prior burglary and dishonesty convictions generally attract uplifts in the vicinity of 40 to 60 per cent. The Crown refer to the following three cases in support of this submission.

31	Tepania v Police [2013] NZHC 2327.
32	Herewini v Police, above n 14.

[42]	In R v Columbus33 an uplift of 12 months’ imprisonment (65 per cent of the global starting point) was applied to account for Mr Columbus’s 13 previous burglary and dishonesty offences.34 The Court of Appeal reasoned that prior sentences of imprisonment had not deterred the appellant and there was a risk of reoffending at the same minor end of the scale that had characterised his most recent burglary conviction.

[43]	In R v Stevens,35 a 12-month uplift (50 per cent of the starting point) was applied to account for Mr Stevens’ prior dishonesty convictions.36 The Court emphasised that the appellant was not a recidivist burglar and had only three prior convictions for burglary, the most recent of which was more than a decade ago.

[44]	In King v Police,37 a 12-month uplift (40 per cent of the starting point) was applied to account for Mr King’s previous burglary convictions. The Court noted most of the convictions were historic, the most recent occurring six years prior.

[45]	The Crown submits that an uplift of four months in Mr Grey’s case, which amounts to approximately 33 per cent of the 12-month starting point, is well within range.

[46]	I agree with the Crown submission that a four month uplift for appellant’s previous burglary offending is well within the available range.

Time spent on EM bail

[47]	Ms Ives submits Judge McDonald erred in not applying a discount for the 115 days Mr Grey spent on EM bail.

[48]	The Crown accepts that time spent on EM bail is a mandatory consideration under s 9(2)(h) of the Sentencing Act 2002 and that Judge McDonald erred by not expressly referring to it and consequently apparently not taking it into account.

33	R v Columbus, above n 6.
34	At [19].
35	R v Stevens [2009] NZCA 190.
36	At [15].
37	King v Police [2014] NZHC 2946.

[49]	Section 9(3A) of the Sentencing Act provides that a court must consider the following when taking into account the fact that an offender spent time on EM bail:

(a)	the period of time that the offender spent on bail with an EM condition;

(b)	the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address;

(c)	the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d)	any other relevant matter.

[50]	Ms Ives refers to R v Walker-Haturini where Powell J said:38

[24] While I am conscious that New Zealand courts have not typically seen restrictive EM bail as valuable if it occurs before sentence as afterwards, I cannot see the basis for any such distinction where it involves the same restrictions on the liberty of the defendant. In the absence of any principled basis for concluding that the same type of detention magically becomes four times more valuable if it occurs after conviction than while awaiting trial, it should be appropriately credited in terms of the nature of the detention that has been imposed. It is important as the courts embrace Te Ao Mārama that we are fully transparent, consistent and fair in the application of credits for this type of detention.39 In my view, this means crediting pre-conviction detention for restrictive or EM bail in the same way as an electronically monitored community-based sentence unless good reasons exist for not doing so. …

[51]	Ms Ives also refers to C v R where the Court of Appeal said:40

[41]	Discounts for time spent on EM bail are generally in the 30 to 50 per cent range, although there is no upper limit. The extent of the discount

38 R v Walker-Haturini [2021] NZHC 1208.
39 Time spent on EM bail is a mandatory consideration under the Sentencing Act 2002; it is not uncommon for Courts to give an allowance of up to 50% of the time on bail: Hall v R [2020] NZCA 183 at [37]. In Parata v R [2017] NZCA 48, the Court rejected that a one-for-one credit could be given for time on EM bail (as for home detention), though noted at [14] that there was “considerable similarity between the conditions of home detention and those experienced when subject to the most restrictive form of EM bail”. The primary rationale for that statement appeared to be a concern where the bail restrictions were not otherwise equivalent to detention. In light of those similarities, and as I have expressed, I see no principled reason for treating time on restrictive EM bail differently to detention where the conditions are otherwise identical.
40 C (CA388/2022) v R [2023] NZCA 99 (footnotes omitted).

depends on the time spent on EM bail, the restrictiveness of the EM bail conditions and an offender's compliance. Where curfew exemptions are granted, the discount for time spent on EM bail can be reduced. Any discount for time spent on EM bail is a mitigating factor personal to the offender. They should be allowed for when adjusting the starting point sentence and not deducted from the sentence after other discounts have been applied.

[52]	Although the appellant has had instances of non-compliance with EM bail, he was on a 24-hour curfew. Ms Ives submits that in the circumstances  a discount of  40 per cent of the 115 days he spent on EM bail is appropriate which would amount to a discount of 46 days.

[53]	While the Crown accepts that time spent on EM bail is a mandatory consideration and that Judge McDonald erred by seemingly not considering that in the appellant’s case, the Crown submits that he is not thereby entitled to a discount. The Crown submits that discounts for time spent on EM bail are a matter of judicial discretion in the circumstances, and there is no prescribed formula for what, if any, discount should be given.41 The Crown submits that as the underlying premise of a discount for time spent on EM bail is of compliance with EM bail conditions, any breaches will generally be a highly relevant consideration.42

[54]	The Crown say they have been advised by police that the appellant’s compliance with his EM and 24-hour curfew conditions was poor. He committed a number of offences while on EM bail and breached his conditions on at least seven occasions:

(a)	On 11 July 2022, he breached his curfew and travelled to a residential address in Greenlane where he was observed on CCTV unlawfully in a building.

(b)	On 26 September 2022, he breached his curfew and committed burglary at a residential property in Mt Wellington.

41	See R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; Keown v R [2010] NZCA 492 at [12]; and A (CA90/2017) v R [2017] NZCA 278 at [90].
42	Murray-MacGregor v R [2011] NZCA 66 at [19].

(c)	On 8 October 2022, he breached his curfew condition and was located by police in a stolen vehicle.

(d)	On 15 October 2022, he breached his curfew by leaving his bail address.

(e)	On 10 February 2023, his EM tracking device was disabled. When police arrived at his address the occupants said that the appellant had left and had gone to Auckland CBD.

(f)	On 28 February 2023, the appellant left his bail address twice. He was seen travelling through Manurewa before returning home. Later in the day he was observed travelling through Greenlane.

(g)	On 22 March 2023, he breached his curfew, his tracking device was detected moving around the Mt Wellington area.

[55]	The Crown acknowledge that the breaches on 10 February, 28 February and 22 March 2023 are not listed on the appellant’s bail history, but say there is confirmation from police that these breaches occurred.

[56]	The Crown submits that the Court of Appeal has repeatedly declined to recognise time spent on EM bail where an offender has breached bail or committed further offending while on bail. In R v Bidios,43 the Court held that the appellant had disqualified himself from receiving any discount for nine months spent on 24-hour curfew because he left his bail address on multiple occasions. In Gage v R,44 no discount was provided for five months spent on EM bail because there was further offending and six recorded breaches of the bail bond.

[57]	The Crown acknowledges that while the appellant’s breaches on 10 February, 28 February and 22 March 2023 could be considered minor, the breaches on 11 July, 26 September, 8 October and 15 October 2022 in each case involve further offending

43	R v Bidios [2009] NZCA 426 at [12]–[15].
44	Gage v R [2014] NZCA 140 at [26].

while on EM bail. Therefore, no discount, or only a very small discount, should be applied.

[58]	Having regard to the appellant’s non-compliance and offending committed while on EM bail, I decline to allow any reduction or discount on account of the   115 days he spent on EM bail.

Guilty plea discount

Neither party has taken issue with the 20 per cent discount given by Judge McDonald for Mr Grey’s guilty pleas. It is seemingly an appropriate discount and will accordingly stay as is.

End sentence

[59]	Accordingly I find that the appropriate sentence is composed as follows: a 12 month starting point for the lead burglary offending; an uplift of three months for the appellant’s other offending for which he was sentenced; an uplift of a further four months for the appellant’s previous burglary offending; and a discount of 20 per cent for his guilty pleas, to arrive at a final sentence of 15 months’ imprisonment. A sentence of 15 months’ imprisonment is of course very close to the 16 month’s imprisonment imposed by the Judge, and I consider that it shows that the sentence of 16 months’ imprisonment imposed by Judge McDonald was not manifestly excessive. I find that reducing the appellant’s sentence by one month would amount to ‘tinkering’ with the sentence imposed, and accordingly, I find that the appellant has failed to show that the sentence of 16 months’ imprisonment imposed by Judge McDonald is manifestly excessive.

Result

[60]	The appeal is dismissed.

Davison J