Gerrard v Police [2016] NZHC 2616 (1 November 2016)

Last Updated: 8 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000072 [2016] NZHC 2616

BETWEEN	AARON KYLE GERRARD Appellant
AND	NEW ZEALAND POLICE Respondent

CRI-2016-409-000073

BETWEEN AARON KYLE GERRARD Appellant

AND NEW ZEALAND POLICE Respondent

Hearing:	1 November 2016
Appearances:	A Bailey for Appellant P A Norman and K Basire for Respondent
Judgment:	1 November 2016

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] On 26 July 2016, in the District Court Judge Garland sentenced the appellant to 25 months’ imprisonment, reparation of $215 and in addition made an order for destruction of a golf club in respect of a range of charges. These charges were:

(a) Burglary, which carried a maximum penalty of 10 years’

imprisonment;

(b) Theft ($500-$1000), carrying a maximum penalty of one year’s

_{imprisonment;}

GERRARD v NEW ZEALAND POLICE [2016] NZHC 2616 [1 November 2016]

(c) Being unlawfully in a yard, carrying a maximum penalty of three

months’ imprisonment or a fine not exceeding $2000; and

(d) Two counts of receiving stolen property, carrying a maximum penalty

of one year’s imprisonment.

[2] The appellant appeals against this sentence upon the following grounds:

(a) That the Judge erred in reducing the guilty plea discount provided on account of what was said to be the apparent strength of the prosecution case;

(b) Irrespective of the strength of the prosecution case, the guilty plea discount itself was inadequate;

(c) The Judge had no jurisdiction to order the destruction of the golf club.

Background

Burglary

[3] Turning now to the background facts in this matter, as to the burglary charge, on 2 April 2016, the appellant entered into the victim’s property by forcing open her garage door. Once inside, he collected household items including electronic goods, food and a suitcase before leaving on a bicycle. The total value of the stolen property was $2500. The appellant was apprehended by police shortly thereafter

Theft

[4] Turning now to the theft charge, the appellant was on police bail and due to make his first appearance on the burglary charge on 8 April 2016. On Thursday

7 April 2016, the appellant stole a mountain bike valued at $800 from the Woolston Working Men’s club. He mounted the bike and rode down the roadway where he was located by police. The appellant admitted taking the bike and acknowledged it did not belong to him. In explanation the appellant stated, “I was walking along and thought fuck I need a ride.”

Being unlawfully in a yard

[5] Turning to the next charge of being unlawfully in a yard, on Friday 29 April

2016, the appellant walked up the driveway of a dwelling house on Cygnet Street with a golf club in his right hand. He approached the garage door and when it would not open he walked around the side of the garage, triggering a sensor light and causing him to back track down the driveway and run away from the address on foot. In explanation the appellant stated he walked up to the garage to relieve himself. He stated he had found the golf club and was using it as a walking stick.

Receiving (x2)

[6] On the two receiving charges, between 12 April 2016 and 4 May 2016 a complainant reported two mountain bikes, with an aggregate value of a little over

$2100 were stolen from his secure yard in Cranmer Square. On 26 April 2016, the appellant pawned one of the bikes and received a loan for $140. Another complaint was filed on 19 April 2016 for a missing bike valued at $800. That bike was later found to be pawned by the appellant for a loan of $75.

Jurisdiction

[7] Turning now to jurisdiction in this matter, Mr Gerrard appeals as of right.¹

Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed. If either element is not satisfied, the appeal court must dismiss the appeal.

[8] The focus, however, is on the correctness of the end result, not entirely on the process by which the sentence was reached. In making this assessment, appellate courts are not to interfere with the legitimate exercise of judicial discretion or

_{indulge in mere tinkering with the sentence.}²

¹ _{Criminal Procedure Act 2011, s 244.}

² Maihi v R [2013] NZCA 69 at [21].

District Court Sentencing

[9] In the District Court in this case Judge Garland adopted an 18 month starting point on the lead charge of burglary. This is at the bottom of the 18 to 30 month range suggested in Arahanga v R for a residential burglary.³ Judge Garland further uplifted the sentence by eight months to take into account the totality principle and the other four convictions. This gave an overall starting point of 26 months’ imprisonment.

[10] Judge Garland then uplifted the sentence by a further three months to take into account the appellant’s previous criminal history and the fact that the last three of the appellant’s offences were committed whilst he was on bail for the first two. The appellant has 32 previous convictions, eight of which are for dishonesty offending, including burglary and being unlawfully in an enclosed yard. Additionally, the appellant has seven previous breaches of community work.

[11] In mitigation, Judge Garland in the District Court allowed a four month reduction for the guilty pleas, taking the view that the prosecution evidence against the appellant was overwhelming. This gave the end sentence of 25 months’ imprisonment.

Analysis

[12] Before me on this appeal the appellant submits that it was improper for Judge Garland to conclude that the prosecution case was “overwhelming” in the absence of submissions. Reading the summary of facts, to which the appellant pleaded guilty, however, and in light of Judge Garland’s decision, there seems to me to be a strong argument that the District Court was correct to conclude that the evidence against the appellant in this case was overwhelming.

[13] On the burglary charge, the summary of facts states that all stolen property was recovered from the appellant. The formal witness statement of Constable Bradley Moore sets out that he apprehended the appellant at 10.30 a.m. on

_{the day of the burglary, heading down Linwood Avenue, very close to the victim’s}

³ Arahanga v R [2012] NZCA 280 at [78].

address. The appellant was riding a bicycle on the footpath and carrying a TV and a suitcase on his back. He was arrested and the items returned to the owner, who confirmed they were hers.

[14] On the theft charge, the summary of facts set out that the appellant was again apprehended down the road from the Woolston Working Men’s club from where the bike was stolen. The appellant admitted to police that he stole the bike.

[15] On the charge of being unlawfully in an enclosed yard, the summary of facts sets out that the appellant admitted to police that he entered the property to relieve himself.

[16] And lastly, on the charge of receiving stolen goods, the appellant admitted to the police that he received the bikes and pawned them to obtain a small loan. Other police evidence includes receipt from the pawn shop and CCTV footage.

[17] Next, the appellant further submits that discount awarded for his guilty plea should have been given in terms of a percentage rather than by way of a calculation of months. I do not, however, see any significant merit in this submission. Whilst it is conventional for sentencing courts to award discounts for guilty plea in terms of percentages, there is no expressed requirement for the courts to do so. Indeed, it is easy enough for all parties concerned to convert a calculation of months by way of discount into a percentage figure relating to a starting point taking into account other aggravating and mitigating factors.

[18] The essential issue on appeal, as I see it, is whether Judge Garland in the

District Court was correct in only allowing a reduction which amounted to

13.8 percent for the appellant’s guilty plea in light of what was said to be the overwhelming prosecution evidence in this case. The starting point for this discussion is the Supreme Court’s decision in Hessell v R.⁴ The decision concerned a judgment of the Court of Appeal which set out guidelines on the approach to be

_{taken by sentencing courts when a person charged with offences pleads guilty.}⁵ _In

⁴ _{Hessell v R [2010] NZSC 135}

⁵ Hessell v R [2009] NSCA 450, [2010] NZLR 298.

the Court of Appeal’s decision, sentence reductions were determined according to a sliding scale with a 33 percent reduction for a plea entered at the first reasonable opportunity at one end, and a 10 percent reduction for a plea entered three weeks before commencement of the trial, at the other.⁶ The Court of Appeal’s original decision essentially took away the discretion of the sentencing judge, to an extent, in determining the amount of discount to be given for the defendant’s guilty plea.

[19] On appeal, the Supreme Court disagreed with the Court of Appeal’s decision to remove a sentencing judge’s discretion and imposed a sliding scale of discount depending on the time at which the guilty plea was entered. The Supreme Court held that, in considering the principles and purposes of the Sentencing Act, the legislative history and the historic judicial approach, the discount afforded for a defendant should be discretionary and dependent on the individual circumstances of the case. The Supreme Court held specifically at [74] and [75 of its decision:

[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

[75] The reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflects the fact that remorse is dealt with separately. Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when the opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.

[20] In light of the Supreme Court’s decision, there is no doubt that the extent of the discount awarded for a guilty plea is discretionary and dependent on an evaluative assessment of the individual case. Even though it may have become “convention” in the majority of the cases for an automatic reduction of 25 percent to be afforded where a guilty plea is entered at the earliest convenience, this does not mean that a sentencing judge does not have the discretion to deviate from the

_{discount if it is deemed appropriate.}

⁶ At [15].

[21] However, subsequent to Hessell v R, the Court of Appeal has consistently emphasised that overwhelming evidence in and of itself does not justify a significant reduction of the discount due to a guilty plea. In Ormsby v R, the appellant was only afforded 10 per cent discount despite his early guilty plea. The Court of Appeal in that case held:⁷

[14] Mr Walsh submitted the full 25 per cent discount sanctioned by the Supreme Court in Hessell v R should have been allowed. Ms Cooke responded with two submissions. First, relying on [60] in Hessell, she maintained Mr Ormsby pleaded guilty in the face of a very strong Crown case. To use the Supreme Court’s words, he had “little choice but to plead guilty”...

[15] Those arguments are not without their difficulties. Irrespective of the strength of the Crown case, a defendant always has a choice of plea. Logically, it is difficult to see why a plea of guilty in the face of a strong case should be worth less than a guilty plea in a weak case. That is particularly so if the reasons for allowing the discount include – as we thing they do – sparing the victim(s) the trauma of a trial, the State cost of running it, and acknowledging that a guilty plea is generally an expression of remorse.

[22] As recently as May of this year 2016, the Court of Appeal once again emphasised that overwhelming evidence does not necessarily justify a reduction or discount for guilty plea. This was in a case Rowles v R where the Court held:⁸

Finally, Ms Stevens submitted that the 20 per cent discount given was inadequate and the full 25 per cent that is available should have been given. The reason the Judge gave was the fact that the case against Mr Rowles was overwhelming. Mr Barr, for the Crown, submitted that Mr Rowles had not, in fact, pleaded at the earliest possible stage and instead waited until a charge of attempted murder laid after the charge of causing grievous bodily harm with intent had been resolved. We do not accept that. It is clear that Mr Rowles had indicated unequivocally at a very early stage that he would take responsibility for his offending. We take note of the fact that the letter to the victim’s family acknowledging his actions was approximately six weeks after he was charged.

Nor do we accept the Judge’s reason for not allowing the full 25 per cent. It is true that the case against Mr Rowles was overwhelming. But even in the face of an overwhelming case, there is benefit to the State, to the victim and his family in a guilty plea....

[23] It seems that, as the law stands, the extent of discount afforded for a guilty

_{plea is at the Judge’s discretion. However, overwhelming evidence in and of itself}

⁷ _{Ormsby v R [2014] NZCA 73 at [15].}

⁸ Rowles v R [2016] NCA 208 at [23] and [24].

does not necessary warrant a significant reduction from the maximum discount allowed in accordance with Hessell v R.

[24] In light of this guidance from the Court of Appeal and superior Courts generally, I am of the view in this case that Judge Garland in the District Court did err in only affording a 13.8 percent discount for the appellant’s early guilty plea. In my view it was an inadequate discount under all the circumstances here. I propose therefore to allow the appeal and substitute for the sentence of 25 months’ imprisonment one of 23 months’ imprisonment. This amounts to a 20 percent discount for the appellant’s guilty plea which, in my view, in this case is appropriate.

[25] Leave is granted for the appellant to apply for home detention.

[26] I turn now to the order Judge Garland in the District Court made for the destruction of the golf club which was carried by the appellant when he committed the offence of being unlawfully in a yard. In making this order, Judge Garland did not appear to state his jurisdiction to make the order although it is clear that the Police sought the order in the summary of facts.

[27] Under s 44A of the Summary Offences Act 1981 the Court may order the disposal of an instrument of burglary. This necessitates, however, that the person was found guilty of an offence against s 14 of the Act, namely possession of burglary tools. In this case the appellant, however, was not charged under s 14.

Before me it seems that counsel for the Crown accepted that destruction of the golf club item in question was not permitted under the Sub Part 6 regime in the Search and Surveillance Act 2012 for items seized. In addition it appears the only basis for such an order would be a forfeiture order which was not one sought in this case. For all these reasons I find that the Judge in the District Court did not have jurisdiction to order the destruction of the golf club and that order is now quashed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Andrew Bailey, Barrister, Christchurch