R v Bidois DC Christchurch CRI-2011-009-5380 [2011] NZDC 1868 (8 November 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2011-009-005380
CRI-2011-009-005377
CRI-2011-009-005382
CRI-2011-009-003380
CRI-2010-009-017300
_{CRI-2011-009-005381}

THE QUEEN

v

RICHARD JOHNATHAN BIDOIS LUKE DAVID BRADLEY

LUKE AARON PETER SHAILER JAMES COURTNEY RANDLE

Hearing: 8 November 2011

(Heard at Rangiora District Court)

Appearances: K Basire for the Crown

S Clay for the Prisoner Bidois

J O'Connell for the Prisoner Bradley

E Bulger for the Prisoner Shailer

R Maze for the Prisoner Randle

Judgment: 8 November 2011

_{NOTES OF JUDGE R E NEAVE ON SENTENCING}

[1] Luke Shailer, Richard Bidois, Luke Bradley and James Randle are all for sentence this morning in respect of your varying roles in what can only be described as a professional burglary ring. There may well have been others who were also

_{involved on the periphery and two others, a man called Kent Natsuhara and a youth I}

R V BIDOIS & ORS DC CHCH CRI-2011-009-005380 [8 November 2011]

believe have already been dealt with. Mr Natsuhara received a sentence of two years and I am not aware of what happened to the youth.

[2] The summary of facts involving the enterprise consists of some 26 pages and I am certainly not going to detail all of it but the earlier parts of it I think bear repetition.

[3] In December of 2010 an operation was commenced in response to what was perceived to be a series of burglaries and thefts involving hair salons and professional shoplifting. Between 5 September 2010 and 21 December 2010 some

25 hair salons reported burglaries and they and other commercial burglaries showed a very similar method of operation. In particular, insofar as the hair salons were concerned, heavy objects were thrown through the front windows and hair-care products, straighteners and cash were stolen.

[4] During that same period a professional shoplifting ring seemed to be targeting electronic equipment including televisions and iPod consoles. During this time a number of offences were identified as having been committed by you four and others.

[5] As a result of telephone data obtained, text messages showed a significant degree of communication, in particular between you Shailer and also Bidois, Randle, Bradley and the youth. These were based on the procurement and disposal of stolen property.

[6] A number of those conversations involved either organising or preparing to commit offences and later disposing of the property. There were also conversations recording debate about how much money individuals should get for their role in the varying offences. There were also a significant number of text messages between Natsuhara and co-offenders relating to “going shopping”. During that period something like 17 substantive burglary charges were established as having been committed and significant amounts of stolen property were traded by and amongst you.

[7] A snapshot of the period shows the following items for sale or actually sold to third parties including four laptop computers, six flat screen televisions, five gaming machines and eight hair straighteners. You targeted residences and businesses across Christchurch but primarily in the suburbs of Riccarton, Shirley, Merivale and the central business district. You operated by organising via text messages to go to ‘work’ and police were able to recognise a pattern of offending that occurred very close to the transmission and reception of these text messages.

[8] A conservative estimate of the impact that you have had on the financial life of the community is in the vicinity of $180,000. In addition of course there was substantial damage done while gaining entry and in the commission of the offences.

[9] In addition to commercial premises, on a number of occasions there were domestic burglaries as well where people’s homes have been broken into and essentially raided by you or some of you.

[10] As a result you, Shailer, now face charges in relation to 16 burglaries, eight of which are residential and eight of which are commercial and I think a further three charges of theft.

[11] Bidois you face a charge of conspiracy with Bradley involving 10 burglaries of which seven are residential. There is a receiving and a theft charge. Bradley you face charges in relation to 10 burglaries of which I think six or possibly seven are residential and receiving and you Mr Randle face one charge of burglary although it is accepted that you were a party rather than a person who actually committed the burglary, although for reasons I will detail, little if any credit comes to you for that.

[12] I should note that Mr Natsuhara was dealt with on, by my calculation,

11 counts of theft, the maximum penalty for that was seven years, also receiving and unlawfully getting into a motor vehicle. The maximum penalty of course for burglary is 10 years.

[13] In the Crown submissions, you Shailer, are identified as the ring leader and nobody I think is disputing that although it is equally clear that there was individual

activity taking part by others in the group. Essentially you are the spider at the centre of the web with others in varying degrees of closeness to that centre of activity.

[14] The burglaries occurred between October and December of 2010, which, perhaps for you, falls fortunately before the worst devastation that was to befall Christchurch but nonetheless after there had been significant disruption to life as a result of the earthquake in September.

[15] It is important that you have particularly targeted small businesses and domestic dwellings. Both are equally vulnerable. The businesses do not have the invasiveness of attacks upon residential dwellings and I note at least one of your victims was actually in the house at the time the burglary was concerned and of course she was absolutely terrified.

[16] I have read the victim impact statements and they speak of the sense of intrusion, lack of safety, the stress and fear which accompany those who have been the victim of burglaries and I rather suspect too there is a real sense of injustice from those who have been the victims of burglary, that they have had to go to work to put food on the table, to earn the items which they have accumulated and have them taken by people too lazy and greedy to go out and get a job is an incredibly frustrating feeling.

[17] I think it is also important to note Judge Crosbie’s comments when he

sentenced Natsuhara and I agree wholeheartedly with him. He said at paragraph 8:

“I have also got to weigh up against that there are in every case of this type victims and from my experience now on the bench, the victims who own small businesses can be just as affected as those whose houses are stolen from or burgled. A lot of the people, particularly the types of premises that you targeted worked long and hard hours to make a standard of living that one could not describe as extravagant and for you to be involved in the destruction of their business costs them not only money but time. It is also frustrating for business owners to be affected by people like you in this way.”

[18] All of you to some extent have proven yourself to be too lazy and greedy to go to work to get what you want or perceive yourself as entitled to get. I think

Mr Bradley, your grandmother puts her finger on it very nicely when she describes your champagne tastes when you are unprepared to go out and earn it. At the moment your behaviour has been consistent with parasites who suck the life out of those who do work hard for a living.

[19] In respect of the Crown submissions, the aggravating circumstances of the burglaries and noted and as far as you are concerned, Shailer, the Crown points to the premeditation of it. It was highly organised and there was systematic targeting of commercial premises particularly hair salons at nights and residential properties during the day. You communicated with other members of the group via text, organised the procurement and disposal of stolen property and are identified as the main offender.

[20] Something like 17 burglaries were committed by the group in which you personally participated in 16 over a short space of time. There was damage to property of about five and a half thousand dollars in the course of the burglary. You are said to be directly involved in stealing something like $131,000 worth of property and the proportion of reparation sought for you is just over $68,000.

[21] The burglaries committed by the group netted over $140,000 and the total value of the losses are said to be in the vicinity of $180,000. I referred to the victim impact statement. As far as you are concerned, you are aged 23, you have got seven previous convictions for burglary and three other dishonesty convictions and that is an aggravating feature. You had just finished a term of home detention and were subject to release conditions and indeed those to some extent involved non-compliance with earlier sentences. There was at least one offence committed whilst you were on bail after having been arrested in December. However, it is accepted that there is some credit due to you for your guilty plea.

[22] Bidois and Bradley, the premeditation I have already referred to, the number of offences, although of course in your cases it is lesser than that involving Mr Shailer but the same features I have already referred to. Bradley you are said to be directly involved in stealing just under $80,000 worth of property with a

proportion of reparation of just over $38,000. You Bidois are directly involved in stealing slightly over $80,000 with reparation set at just under $34,000.

[23] Mr Bradley you have got one previous conviction, you are only aged 20 and you have fully accepted responsibility for the offences with which you were charged and I agree with the Crown that the previous conviction is not an aggravating feature as far as you are concerned. Mr Bidois you are a year younger. You do have a previous conviction for burglary and you were on a community work sentence when you started on this offending and I think the Crown’s approach is sensible that those factors do not require an aggravation or an uplift but do somewhat undercut some of the credit that would otherwise be coming to you for your age.

[24] Mr Randle you were involved in one commercial burglary. The circumstances were that you received a text message from Mr Shailer asking you whether you were interested in purchasing some property and then you have effectively incited him to commit a burglary on the basis that if he commits the smash and grab you would buy everything that he got and you certainly did subsequently acquire property as a result of the burglary that was then committed at your instigation. It was planned and premeditated and something like $3600 worth of goods, or slightly more was obtained.

[25] Significant amounts of reparation are sought from each of you.

[26] The Crown suggests in terms of a starting point that I should adopt a figure of about eight years in particular in relation to Mr Shailer and obviously work down from there as a proportion of that. This is based on the Crown’s assessment that the case has most similarities with a Court of Appeal decision called R v Nguyen CA110/01, 2 July 2001. That involved a sentence of six and a half years following a trial of a 19 to 20 year old who committed 15 counts of burglary and was involved in $400,000 worth of loss. However, as Mr O’Connell I think points out in his submissions, in particular, although other counsel make the same point, that there are significant differences between Nguyen and this case.

[27] In Nguyen there was something like a million dollars worth of property taken by the group and it is also noted that in addition to the counts of burglary there are allegations in relation to conspiracy to commit burglary, charges of unlawfully taking a motor vehicle and attempting to defeat the course of justice. The appellant was one of the two principal offenders executing the sophisticated plan of offending. He also had 14 previous convictions over the three years prior to his offending.

[28] There is reference also to a case of Burnie v Police HC Auckland AP 16-90,

10 April 1990 where six years was upheld for eight burglaries. Those involved residential properties but most importantly on one occasion the elderly resident of the property and her son were assaulted as the appellant escaped. The starting point of eight years was upheld there but I think the violence that was committed in the course of escaping from one of the burglaries makes that a significantly more serious example than the present case.

[29] There is also reference to a case of Paku v R [2011] NZCA 269 where a five and a half year sentence was upheld for one of a group of eight burglars involved in an organised ring targeting residential property, goods in the vicinity of $200,000 were stolen, and that compared with the eight years in Nguyen, the offenders had done rather well in terms of a starting point.

[30] I think it is important to recognise the differences between Nguyen and this case. Nonetheless any starting point adopted needs to reflect the fact that this was cold, calculated offending of an entirely commercial nature and motivated by nothing but greed.

[31] Mr Shailer, Ms Bulger has said everything that could possibly be said on your behalf but is also realistic in reflecting the aggravated features that are present in this case. She reminds me that you are entitled to significant credit for your guilty plea, it did not come at the first instance, but given the complexity of the matter, a plea was advanced before things advanced too far down the track and she submits that a

20 percent credit would be appropriate and I think that is a fair assessment. She accepts that there are aggravating circumstances because of your previous convictions and recognises that because of them you need to be treated both as a

spree burglar and a recidivist burglar and that there needs to be some uplift for the previous.

[32] She submits, however, that you are genuinely remorseful, she refers to the letters that I have seen and reminds me that you were willing at an early stage to meet with victims, to participate in restorative justice if they felt inclined to do so and that letters had been provided at an early stage to your victims.

[33] You have significant support in the community and it is suggested that you have in fact benefited from the remand in custody and perhaps somewhat belatedly learned some lessons. There is other evidence of a growing sense of responsibility in relation to your participation in a trial albeit in relation to non contentious issues but nonetheless indicating a much greater degree of responsibility than you have displayed before.

[34] The pre-sentence report records that you have had a good family background and indeed that is a slightly depressing commentary that can perhaps be made on all of you. So regularly and frequently we see in this Court people who have not had good starts in life and they perhaps can call in their aid the fact that life has not treated them particularly fairly to begin with. Mr Bidois you might be in a slightly different category in this regard but the rest of you cannot claim that. You had advantages. You had parents, grandparents and people supporting you who know what right from wrong is and had done their best to provide you with a sound background and you have thrown it in their faces.

[35] Mr Shailer you were working quite well until you lost your job and up until that point you had been an exemplary worker. Unfortunately when you lost your employment you succumbed too easily to jealousy of those who did have money and went about getting it in the ways that I have described. Your father has described you as normally a wonderful young man who had been caught up in the excitement of the trends lifestyle and was blinded to the reality of their offending. I rather think that does not do you full justice in the sense that you are at the centre of all this and other people will have got caught up with you quite as much as the reverse.

[36] You have indicated a willingness to pay reparation and you have placed your assessment at something like $40,000. I refer to the willingness to be involved in a restorative justice process. You have said to the report writer that you express regret for your current situation and remorse for the folk who have suffered from your offending and you are very much conscious of the woman who was forced to hide in fear because of your presence in her home.

[37] The pre-sentence report writer notes the statements of remorse but questions the maturity and degree of foresight into the harm which you have caused a large number of people. However, having read the further material that is placed before me today I am inclined to think that that remorse is rather more genuine than I had initially thought. It is thought you would benefit from rehabilitation programmes in prison and I can only urge you to take advantage of them and hope the prison authorities will provide them.

[38] The recommendation is for a short term of imprisonment with release conditions. I fear that your offending is such that a short term is out of the question and that your rehabilitation will have to be left to the parole board and such steps as you are able to take during your sentence.

[39] I wonder too, whether you have fully got your head around the fact that you are going to be just as responsible for the crimes even if you are not personally involved in going into the houses, given your centrality in all this, and as I say you have very strong family support which one would hope would minimise the risk that you pose to the community when you are eventually released.

[40] Mr Bidois and Mr Bradley there is very little to distinguish between the two of you. Mr Bidois, Mr Clay on your behalf contrasts your age with the others and indeed you are the second youngest in this group. Unfortunately your role in all this rather belies that fact. Again I am not entirely sure you fully recognise the aggravating features that I have already referred to but again there is no reason to believe that you have not learned a significant lesson from all this and may be willing and ready to make some changes.

[41] The pre-sentence report in your case refers to a number of matters, all of which I need to take into account and I am particularly concerned about the material that is referred to in the report and which is spelt out in more detail in the letter and the material I got from Sergeant Gray and also referred to in your father’s material before me. I think it is fair to say to some extent you have not been served well by the system and I think I do need to factor that in deciding what to do with you. On the other hand I do have to balance against that, that you chose quite deliberately to victimise a whole different set of people who were quite unrelated to you and who had no responsibility whatsoever for the tough start that you had had. The letter that I have read from you seems a reasonably impressive one and more importantly and I had already noted in the pre-sentence report that you had taken the advantage of your remand in custody to already get involved and start doing something about your situation and I have read a further report dated 7 November which confirms the positive impression that you have made.

[42] You had employment prior to being remanded in custody and the indications are that your employment will be available to you upon your release which of course makes reparation a much greater prospect.

[43] You indicated that you really could not work out now why you got involved in all this but accept that you were not thinking straight and there does seem to be some suggestion that the consequences of your actions both in terms of other people and yourself have begun to hit home. You have only got the one previous conviction for burglary and you are said to be suitable for home detention.

[44] I think it probably is appropriate to emphasise that for reasons which were entirely beyond your control and which are set out in Sergeant Gray’s report, there was a really significant disruption to your life at a vulnerable time and that perhaps greater thought ought to have been given to the effects upon you of those matters.

[45] You have been in custody for something like four and a half months which is the equivalent of nine months’ imprisonment. You too, pleaded guilty very early and indeed I think in yours and Mr Bradley’s case it is probably appropriate to regard it as the first opportunity.

[46] Mr Bradley, I have read Mr O’Connell’s submissions and I have already referred to them to some extent as well. In particular he reminds me of your age. You were only 19 at the time. You have made full and frank admissions to the police on your arrest and pleaded guilty very promptly. He referred to your comparative immaturity and susceptibility to pressure placed on you by co-offenders, and indeed even today in Court I have seen you larking about with people in the back of the Court at a time when you really should be focused on your future and your own actions, but points to the fact that you have no relevant previous convictions, your remorse is said to be genuine and there is an offer to make reparation.

[47] Mr O’Connell also re-emphasizes the deep remorse and points to the probation report for that and emphasizes too that the offending was out of character for you. The pre-sentence report is a realistic document I think and indicates that whilst those around you indicate that you have got very good positive and loveable qualities, equally you having got to the stage where you were more interested in easy money and an easy life than actually knuckling down and working for a living.

[48] I think as I have already indicated your grandmother has nailed your situation very, very accurately and there is the comment referred to on page 2 that she said:

“He mixed with unhelpful influences in an anti social group and he was a follower.” She said, “He would prefer not to dirty his hands and thought those who would work were mad.” Mrs Kelly said she remains “supportive of her grandson but she knows he must take responsibility for his offending”, and further stated that he had “been brought up to know right from wrong”,

and I think that encapsulates it in a nutshell. You are lucky that your family are prepared to stand behind you although you have done precious little to deserve it. You have got to build on that and accept that life I am afraid does not just hand things out on a plate. You have to work for them.

[49] The summary in the report is that you are someone who is immature, that you had at that stage limited insight into your offending but were quite candid about your role and indeed there are one or two comments in the report which in point of fact do not do you any credit but I will accept those as a candid acknowledgement of responsibility which is in fact a good sign. You had a strong sense of being entitled

to things rather than earning them and that is something you are going to have to get behind.

[50] I think, as your family does, the report writer recognises that you need to be held accountable for your actions and that unless you serve a suitable penalty you are just not going to get the message. Home detention was not called for you in your case and I do not see any indication at this stage of any reasons why I should now call for such a report for consideration and perhaps I can contrast you with Mr Bidois for a number of reasons that you have had advantages which you have thrown away which he did not have.

[51] Mr Randle, as far as you are concerned, you are obviously in a completely different league. You are obviously right on the fringe of the situation and have one burglary to be dealt with and I have already referred to the circumstances of that. You are aged 26, although I am not sure that you fully accept your involvement in this case. The pre-sentence report is generally favourable insofar as you are concerned. It refers to health difficulties which you have got, it refers to the fact that you are in fact a hard worker which makes all this the more remarkable, you have set up a business, you have support, you are in a position to pay a financial penalty and work in the community is available. You have no previous convictions that are relevant and indeed other than some driving matters, no convictions at all at the age of 26. You are willing and able to make reparation and this was a burglary of a commercial premises.

[52] Given the fact that it was a commercial burglary by someone with no relevant previous convictions, who has pleaded guilty promptly and who is willing to make reparation at a realistic level and for whom community work is appropriate. Accordingly I can deal with you fairly simply. You are sentenced to 200 hours community work and ordered to pay reparation in the sum of $2209.70 which is your share of that particular burglary in a lump sum within 28 days.

[53] Mr Shailer, the Crown says I should start at eight years based upon Nguyen. As I have indicated that seems to be a much worse case. It seems to me that taking into account all the matters that I can and drawing the appropriate distinctions

between that case and this, a starting point of six years is appropriate. I consider you are closer to Burnie and Paku v R [2011] NZCA 269.

[54] There needs to be an uplift for your previous conviction and record and the fact that you were offending in such close proximity to the previous sentence, that will be a further sentence of six months which brings me up to 78 months. You are entitled to credit for 20 percent for your plea of guilty which is a sentence which I have rounded up to 16 months which brings me back to 62 months. I do not really see any exceptional remorse here, but I accept that what you have said and done is genuine and I have already noted that there is a much greater degree of willingness to accept reparation than I had previously thought and this is something I do need to take into account and I will give you a further credit of 12 months in respect of that which brings me down to a sentence of 50 months. If you impress the parole board, given the time you have spent in custody, you should be eligible for release within the foreseeable future. That is a sentence of four years two months’ imprisonment and there will be reparation of $40,000 to be paid at a rate to be determined upon your release and that willingness to make such significant reparation with the very responsible and sensible approach of your father goes some way to reduce the sentence.

[55] That sentence will be imposed on the burglary charges and on the lesser charges you will be sentenced to two months’ imprisonment concurrent but the sentence on the burglary charges reflects the totality of the offending.

[56] Bidois and Bradley, dealing with you two is much more difficult because I have got to work out whether I can sensibly distinguish between the two of you. You have the slightly lesser role than Mr Shailer and have fewer charges although to some extent that is offset by the conspiracy charge which at least involve you in planning more burglaries than those you committed.

[57] There are still sufficient aggravating features to require a significant starting point. Compared with Burnie’s case there is no violence, no previous convictions of any importance and I think a starting point of four and a half years is appropriate in each of your cases. That is four and a half years’ imprisonment is where I start so I

hope you have got that ringing very clearly in your ears. However, each of you will receive full credit for your plea of guilty which seems to have come at the first reasonable opportunity and that I assess is 14 months’ imprisonment which brings me down to 40 months.

[58] In respect of your age and lack of previous convictions, I think there is some justification for a further reduction and in each case that is a sentence of six months.

[59] Bradley, whilst you are somewhat older, you have got a better record so those things even out in the wash. Each of you is also assessed as being willing to make reparation as ordered and I think you should get further credit for that as well because it is a significant which you are committing yourself to and I think you should each receive a further credit of nine months for that which is a sentence of

25 months.

[60] You, Bidois seemed to display slightly more remorse and understanding and that is a factor I think I can take into account. You have already made use of your time in custody to do some positive steps which again I think is a factor which enables me to distinguish between the two of you. Furthermore, I have already referred to the quite extraordinary personal circumstances which through no fault of your own and to the advantage of the system of justice generally, saw you uprooted and unsupported through a difficult period of your life that clearly caused difficulties and it seems to me justice requires that I acknowledge it. Furthermore, there may even be some risk to you by time being spent in custody. I think I can give a further credit of five months in respect of those factors which brings me down to 20 months’ imprisonment. You are eligible for home detention. It should be pretty close to the maximum. Bearing in mind you have already served a nine months’ sentence and point of fact you may well be involved in the justice system longer than Mr Bradley and indeed for that reason I have changed my mind and will not impose a sentence of community work on you as well. But each of you can also pay reparation.

[61] Therefore, you Mr Bradley, on the burglary charges are sentenced to

25 months’ imprisonment with reparation, a figure of $31,974.61 to be paid upon

your release.

[62] You, Mr Bidois are sentenced to pay reparation in the sum of $27,514.36 at a rate which at the moment I will assess on a nominal basis but will have to be sorted out once you are back in employment of $20 per week. In addition, you are sentenced to 10 months’ home detention on the conditions set out in the pre-sentence report with post release conditions for a further six months.

[63] If I have missed any minor matters there will just be concurrent sentences of two months but the burglaries will be the lead sentence.

Ms Basire addresses the Court regarding Mr Shailer.

[64] I think that is appropriate, I will make it $40,000 pro-rata over the whole of his offending.

R E Neave

District Court Judge