Tilby v Police [2019] NZHC 1552 (3 July 2019)

Last Updated: 8 July 2019

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 very short period of time; the victims being children and members of the public; targeting goods with a sinister criminal overlay of on-selling the CCTV cameras; pre-meditation and planning; a significant number of cameras of a significant value being stolen; and having tools to get the cameras and clambering over items, up walls and up buildings.² Relying on Crawford v Police and Pirini v Police,³ the Judge set a starting point of 32 months’ imprisonment for the five burglaries. She uplifted that by four months for the other four offences and by two months for 18 previous dishonesty convictions. She gave him a 25 per cent discount for the guilty pleas and reduced the resulting sentence of 28.5 months to 27 months’ imprisonment on a totality basis. She ordered reparation of $13,852.84, reflecting the amounts stolen. Mr Tilby appeals the sentence.

¹ Police v Tilby [2019] NZDC 8192.

² At [25]–[26].

3. Crawford v Police [2015] NZHC 3262; Pirini v Police HC Wellington CRI-2010-485-20, 13 April 2010.

Submissions

[4] Mr English, for Mr Tilby, distinguishes Crawford and Pirini on the basis that buildings were entered there, rather than just yards, and the risk of confrontation was lower here. He points to other sentences for burglary with significantly lower starting points: Walker v Police; McKernan v Police; Payne v Police; and Ranginui v Police.⁴ In those cases, starting points were set or upheld at: 15 months for seven burglaries of a secure scrap-yard; 12 months for burglary by forced entry to a school classroom; 18 months, apparently, for burglary of four schools, including taking computer equipment from one, and of one residence; and six months for burglary of $24,188 of electrical items from a school. Mr English submits these cases were more serious than this one because what was stolen were educational tools and this was not sophisticated. He submits the starting point here should have been somewhere between 12 and 18 months’ imprisonment, with a similar end point, after uplifts and discounts even out. He also submits Mr Tilby’s offending was drug-driven and a further discount for rehabilitation should have been given to allow Mr Tilby to take up a bed at Odyssey House which is available to him on 10 July 2019. Mr English submits the reparation should have taken into account Mr Tilby’s inability to make any payment in the immediate future. And he submits it would be appropriate to grant leave to apply for home detention if Mr Tilby receives a sentence of short duration.

[5] Mr Stuart, for the Police, submits the starting point adopted for the burglaries appropriately reflects the circumstances of the offending. He submits the burglary of schools is a category of its own and the victims here were children and members of the public. He submits Mr Tilby forced entry into locked premises, scaled buildings and forcibly removed cameras used to protect the safety of school buildings and children, in a spree of five targeted burglaries. He disputes the risk of confrontation being low as two burglaries occurred before 8 pm. And he submits the Police are concerned CCTV cameras are often used as early warning systems for criminal offending. He submits the offending here is more serious than that in Crawford and the end sentence is consistent with that in Pirini. He submits no further discount for,

4. Walker v Police [2012] NZHC 2628; McKernan v Police [2012] NZHC 104; Payne v Police HC Palmerston North, CRI 2011-454-42, 12 December 2011; Ranginui v Police HC Palmerston North, CRI-2007-054-4518 4 July 2008.

or explicit reference to, rehabilitation or remorse was required. Mr Stuart acknowledges the reparation order may need to be reconsidered to take into account Mr Tilby’s inability to make any payment in the immediate future. Overall, he submits the end sentence is not manifestly excessive.

Decision

[6] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. My focus is on whether the end sentence is within the available range.

[7] There is no guideline decision for burglary, but the Court of Appeal has said relevant factors include the degree of planning and sophistication of the offending, the nature of the premises entered, the kind and value of property stolen, the damage done, the impact and potential impact on occupants or owners and the extent of the offending.⁵ The cases cited by counsel provide limited assistance because of their factual differences. Ranginui and McKernan involved only one burglary. Pirini and Walker involved commercial premises and Pirini used a superseded methodology. Payne and Crawford are perhaps the most similar. In Payne the District Court set a starting point of 30 months’ imprisonment for five burglaries from four schools and one residence and although the computers were only taken from one school they were of a similar value to the cameras here. On appeal, the High Court reduced the starting point to 18 months which was crucially influenced by that being the starting point for sentencing a co-offender.⁶ In Crawford the High Court upheld a starting point of 34 months for three burglaries of more valuable electronic items by forced entry to offices at the Auckland University of Technology and 11 dishonesty offences.

[8] I consider burglary of public education and library facilities is an aggravating factor because they represent a direct undermining of the social fabric of the community. I do not place any particular emphasis on CCTV cameras being stolen. Their significance lies more in their location at schools. Burglary at times when people can be expected to be present, which includes before 8 pm, is another

⁵ R v Nguyen CA 110/01, 2 July 2001 at [17].

⁶ Payne v Police, above n 4, at [7].

aggravating factor as is whether there is forced entry. There was some disagreement between counsel about whether the burgled schools were fenced or not and how secure they were. But Mr Tilby pleaded guilty on the basis of a summary of facts which records that, at the relevant times, Bruce McLaren Intermediate and Waitakere College were closed, gated and locked. And as Judge Pidwell identified, offending while subject to sentence and pre-meditation are aggravating factors

[9] Having regard to these factors, I do not consider Judge Pidwell erred in setting the starting point at 32 months’ imprisonment. As she said, there were five separate burglaries of three different targeted vulnerable educational institutions, of CCTV cameras designed to protect schools.⁷ The starting point was on the high side, but Judge Pidwell’s other uplifts and discounts were, if anything, generous. I do not consider the end sentence is manifestly unjust. It was within the range available to the Judge.

[10] As agreed by both parties, however, I do uphold the appeal of the reparation order, only. I quash the reparation order, in order to give Mr Tilby a better chance of making a fresh start on emerging from prison.


Palmer J

⁷ Police v Tilby, above n 1, at [21].