R v Rice [2017] NZDC 3967 (28 February 2017)

Last Updated: 27 June 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-085-002823 [2017] NZDC 3967

THE QUEEN

v

_{CRAIG PATRICK WILLIAM RICE}

Hearing:	28 February 2017
Appearances:	A Garrick for the Crown J Miller for the Defendant
Judgment:	28 February 2017

_{NOTES OF JUDGE W K HASTINGS ON SENTENCING}

[1] Craig Rice you appear for sentence having pleaded guilty to three charges. The first is a charge of burglary which carries a maximum penalty of seven years’ imprisonment. This took place in the early hours of 19 June 2016 when you and a co-defendant drove into a construction site of an underground carpark at56 The Terrace. You and the co-defendant took about 50 tradesmen’s tools worth about

$17,000 from lockers in an area in the construction site where the tools were being stored.

[2] The second is a charge of offering to supply to unknown persons a Class B drug GBL. The maximum penalty for that offence is 10 years’ imprisonment. This charge arose from two texts in which you offered to supply GBL for $8 a millilitre and which you offered to find out the price if the unknown inquirer bought a litre.

_{There is no evidence any actual sales took place.}

R v CRAIG PATRICK WILLIAM RICE [2017] NZDC 3967 [28 February 2017]

[3] The third is a charge of theft ex car over $1000, which carries a maximum penalty of seven years’ imprisonment. On 25 June you broke into a car and took three bags containing items belonging to a tourist, including cellphones, clothing, electronic devices and €500.

[4] Your sentence must denounce your conduct to deter you and others from the same and similar offending and must hold you accountable for the loss you caused the victims. I take the burglary charge as the lead charge. I will also say there will be no surprises from what I said at the sentencing indication.

[5] Factors relevant to the assessment of culpability for burglaries were set out by the Court of Appeal in R v Newan. In that case at paragraph 17 the Court said:

“It is necessary in every case to assess the criminality of the particular offending as we said in Mako it is necessary to consider the culmination of factors surrounding the offending conduct. In burglary cases these include the degree of planning and sophistication of the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact on occupants or owners of property and the extent of the offending where multiple burglaries are involved.”

[6] In Blisset v P a starting point of between 16 and 18 months was held to be appropriate for a residential burglary involving property worth $2000. In Gage v R [2014] NZCA 140 April 14, 2014 a starting point of two years and two months was upheld for a burglary of commercial premises by four co-offenders involving

$45,000 worth of goods.

[7] I identify the following aggravating features of this offending: (a) There were two defendants who worked together.

(b) There was planning involved, you discussed the burglary on the phone with your co-defendant and wore high visibility clothing to look more official.

(c) The value of the property taken was $17,000 of which only a small amount has been recovered.

(d) There was damage to the locks of the storage boxes where the victims kept their tools.

(e) You would have caused considerable emotional and financial harm to the victims.

[8] I have before me a number of victim impact statements. One writes:

“It was impossible for me to continue working without tools. I do not have insurance to replace the stolen items, so I had to pay for them myself. It took me about five months to build back up financially to purchase them and I am still in the process of purchasing the stolen tools.”

He writes he had to turn down a couple of jobs during that time and that the last few months have been an emotional struggle for him because he has a family to support and bills to pay during the time he could not work.

[9] Another writes that the burglary was a big inconvenience to him. He is a self employed gib fixer so he does not get paid if he does not work, and he writes that he had to buy new tools which was really time consuming.

[10] A third writes that the missing tools were what he used to earn a living and that he is very annoyed that, “These guys would essential steal someone’s ability to make a living.” A fourth writes that he wants reparation for the tools. And a fifth writes in a similar vein that he uses these tools to provide for his family and that these sorts of things should not happen.

[11] Now you will remember at the sentence indication hearing that I accepted Mr Crawley’s submission that in these particular circumstances there was less risk of confrontation in this area at this time of night than there would have been for example, if it had been a residential burglary. On the other hand the fact that you wore high viz clothing indicates that you anticipated at least the possibility that there was a risk of confrontation.

[12] As I said at the sentence indication hearing I consider your culpability to lie between that in Blisset v P and Gage v R Taking all of these matters into account, a starting point of 20 months’ imprisonment is appropriate. I then add an uplift of six months for your criminal history which includes seven convictions for burglary and 50 convictions for other dishonesty offending within the last 10 years. That brings me to an intermediate position of 26 months. You are then entitled to credit

for remorse which takes the form of a letter of apology that you gave me at the sentence indication hearing as well as your expression of willingness to engage in restorative justice and for your guilty pleas, which is the equivalent of six months and which brings me back down to 20 months.

[13] Turning to the GBL offending. I accept there is no evidence that a sale took place and that the second text involved you offering to contact someone else who would be able to complete a potentially larger sale. This attracts a starting point of six months which would be uplifted by two months to recognise your previous drug offending. You are then entitled to a discount of 25 percent for your guilty pleas, bring your sentence back down to six months. When added to the sentence for the burglary charge the combined sentence on both of those charges is two years and two months.

[14] The theft ex car charge involved goods worth over $1000, the theft of which would have caused considerable distress and inconvenience to the tourist to whom these items belong. You were sentenced on 13 charges on 21 January 2016, which included a number of theft ex car over $1000 charges. I consider a starting point of six months on this charge to be appropriate, which is reduced to four months and two weeks for your guilty plea and letter of apology to the tourist. As I said in the sentence indication hearing I will further reduce that applying the totality principle to three months, which brings me to an end point on all three charges of two years and five months’ imprisonment.

[15] The prospect of reparation looks unrealistic at this stage. I also record that that you have waived your right to a pre-sentence report. To sum up, you are sentenced to two years and five months’ imprisonment on all three charges. Your release conditions are cancelled.

W K Hastings

District Court Judge