R v Cuthbert [2019] NZDC 16558

Published 22 October 2019

Sentencing — burglary — commercial premises — cultural report — cultural background factors — no sentencing tariff — absconding from bail — deportation from Australia — Arahanga v R [2012] NZCA 480 — R v Columbus [2008] NZCA 192 — R v Taueki [2005] 3 NZLR 372 — Connell v P HC Auckland CRl-2011-404-249, 20 February 2012 — McCallion v P HC Rotorua CRl-2006-463-10, 7 March 2006 — R v Tikitiki HC Auckland CRl-2007-004-014044, 28 October 2008 — Nishikata v Police (Wellington HC, AP126-8/99, 22 July 1999 Gendell J) — Mika v R [2013] NZCA 648 — RS v R [2014] NZCA 484 — R v Rakuraku [2014] NZHC 3270 — R v Fane [2015] NZCA 561 — Keil v R [2017] NZCA 563 — R v Heta [2018] NZHC 2453 — R v Hone [2018] NZHC 2605 — Sentencing Act 2002, ss 26, 27 & 85 — Criminal Justice Act 1985, s 16. The defendant appeared for sentence on three charges of burglary. Over a three-month period he had broken into multiple Bunnings stores in the early hours of the morning and forced open the store cash machine. He was interrupted during the last burglary and fled before taking any of the cash from the machine. The total amount of cash taken in the burglaries was $185,782.90. The aggravating features of the offending were targeting commercial premises that stored large amounts of cash, the extent of the loss (cash taken and physical damage to the store buildings), and planning and premeditation. The Court observed there is no sentencing tariff for burglary, given the varied range of circumstances under which burglary occurs, so the circumstances of the offending should predominate in setting the starting point for sentence. The Court set a start point of five years' imprisonment, and added a nine-month uplift for prior offending of a similar nature. The Court then turned to personal mitigating features with an extensive discussion of cultural background factors per s 27 of the Sentencing Act. Given the defendant's background of deprivation and exposure from a young age to family violence and gang culture, the Court allowed the defendant a discount of nine months. Along with discounts for remorse and rehabilitation prospects and guilty plea, the final sentence was three years eight months' imprisonment. Judgment Date: 23 August 2019.