Aitkenhead v The Queen

[2017] NZHC 1104

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-25 [2017] NZHC 1104

BETWEEN

BRENDON RYAN AITKENHEAD

Appellant

AND

THE QUEEN Respondent

Hearing:	23 May 2017
Appearances:	J Westgate for the Appellant J Eng for the Respondent
Judgment:	25 May 2017

JUDGMENT OF MANDER J

[1]      The   appellant,   Brendon   Aitkenhead,   was   sentenced   to   25   months imprisonment after pleading guilty to one charge of aggravated robbery.  He appeals his sentence on the ground it is manifestly excessive.  He maintains the starting point adopted by the sentencing Court was too high, and that an aspect of his conduct, when he intervened to stop the victim being further assaulted, should have been taken into account as a mitigating factor.

Background

[2]      The victim had completed work as a security guard and was walking home late at night when he was confronted by Mr Aitkenhead and his three co-offenders; Messrs Robinson, Barnes and a youth, HL.  The four of them confronted their victim and asked for cigarettes.  The victim replied that he had none.  The victim attempted to move on but the offenders blocked his path, surrounded him, and demanded that he empty his pockets.  After the victim initially refused he was shoved by one of the

young men before making available his phone and other personal items.

AITKENHEAD v R [2017] NZHC 1104 [25 May 2017]

[3]      Mr Aitkenhead told the victim he had five seconds to run away.  The victim attempted to do so, however, Mr Aitkenhead and two of his associates pursued him. The victim was pulled to the ground and repeatedly kicked and punched by Mr Barnes and HL.   Mr Aitkenhead did not engage in the physical violence, and it ceased when he intervened and told the others to stop, stepping between them and the victim.  However, Mr Aitkenhead, for a second time, instructed the victim that he had five seconds to run away and began counting down from five.  The victim ran from the scene and escaped.

[4]      The offenders were located shortly after and found with items of the victim’s property.    Mr Aitkenhead  was  found  in  possession  of  the  victim’s  earphones. Despite initially seeking to defend the charge, the adult offenders eventually pleaded guilty.  Mr Aitkenhead changed his plea on the day of his trial, following a sentence indication.

[5]      As a result of the offending the victim suffered swelling and bruising to his face, neck and back.  He reported emotional effects from the offending and was now anxious when alone at night.

The sentencing decision

[6]      In accordance with a prior sentence indication, the sentencing Judge adopted a starting point of two years and four months imprisonment.  The same starting point was adopted for each of the adult offenders on the basis each were equally culpable in relation to the robbery itself up until the point the victim was chased.   The subsequent assault on the victim was dealt with by the sentencing Court by way of an adjustment to the starting point.  As a result, Mr Barnes’ sentence was uplifted by one year to reflect his attack on the victim.  Mr Robinson who had not chased the victim received no uplift, nor did Mr Aitkenhead.

[7]      The sentencing Judge rejected a submission that Mr Aitkenhead was entitled to a reduction for his actions in bringing the assault by Mr Barnes and HL to an end. The Judge viewed Mr Aitkenhead’s conduct at that stage of the events as the absence of an aggravating factor, and that his actions did not warrant any discount from the starting point for the aggravated robbery.

[8]      Mr Aitkenhead has previous convictions for possession of a knife in a public place, burglary and breaches of sentences.  The Judge rejected a submission that a discount should be applied for the absence of previous convictions for violence, but equally no uplift was applied.  A discount was applied to reflect Mr Aitkenhead’s remorse and the fact he had been willing to engage in restorative justice with the victim.  Despite the very late guilty plea on the morning of his trial a further five per cent discount was applied for his guilty plea which resulted in an end sentence of two years and one month imprisonment.

Appeal

[9]      Mr Aitkenhead submitted that the sentencing Judge erred in the imposition of his sentence.   He argued the starting point was too high and that he should have received a greater discount for mitigating factors.  The latter submission was based on the proposition that Mr Aitkenhead should have received an additional discount in the order of 10 per cent for stopping the violence.

[10]     Mr Aitkenhead acknowledged the approach taken by the sentencing Court in distinguishing between the aggravated robbery itself, which was completed by the time the victim first fled, and the later assault was correct.  However, he argued that not only was he not involved in the subsequent assault but that he assisted the victim by physically intervening and bringing the violence to an end.   He maintained the sentencing Judge had erred by not recognising that action as a mitigating factor.

Approach to appeal

[11]     The appeal can only succeed if this Court is satisfied there has been an error in the sentence imposed and that an alternative sentence should be imposed.1   If the sentence is one which can properly be justified having regard to relevant sentencing principles,  it  is  not  for this  Court  to  substitute  its  own  views  for  those  of  the sentencing   Judge.      The   sentence   must   be   either   manifestly   excessive   or inappropriate.  The focus must be on the sentence imposed rather than the process by

which it was achieved.2

1      Criminal Procedure Act, s 250.

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Decision

Starting point

[12]     The first ground of Mr Aitkenhead’s appeal was brought on what was later acknowledged on the hearing of the appeal as being an erroneous interpretation of the guideline judgment of R v Mako.3     That decision prescribes the appropriate starting point for offending of this type. The Court of Appeal observed:

[59]      At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs.  Depending upon the circumstances the starting point would be between 18 months and three years.  Actual physical enforcement might well require a higher starting point.

[13]     Mr Aitkenhead initially sought to submit that a starting point of two years and four months was not available where there was no actual physical violence or presence of a weapon.   However, the range of sentence indicated by the Court of Appeal in Mako for this type of offending is premised on there having been no actual physical violence.

[14]     As noted by the Judge at the time of sentencing, a higher starting point could have been applied, however, in the interests of the victim and to avoid further delay the Judge proceeded on the basis of the two years and four months starting point that had previously been formally indicated to Mr Aitkenhead.

[15]     No question arises as to the active participation of Mr Aitkenhead in the aggravated robbery, who appeared to be acting as something of a leader.  Arguably, there was actual violence because the victim’s initial resistance resulted in him being shoved. The starting point was well within range, if not generous.

Discount for intervention

[16]     I do not consider any error arises from the sentencing Judge declining to provide a discount for Mr Aitkenhead’s intervention after the victim had been caught

3      R v Mako [2000] 2 NZLR 170.

and assaulted.  In sentencing the three adult offenders the approach of the sentencing Judge was to take a common starting point for the joint enterprise that resulted in the aggravated robbery of the victim.  The Judge then made a further assessment of their relative involvement in the subsequent events after Mr Aitkenhead had given the victim five seconds to run away.

[17]     Mr Barnes’ starting point was increased by a year to reflect his involvement in  repeatedly  kicking  and  punching  the  victim  after  he  had  been  caught.    Mr Robinson did not chase the victim and had no participation in the violence, therefore no further uplift was applied.  The appellant, Mr Aitkenhead, despite being part of the chasing group, did not participate in the violence following the robbery.  As a result, the Judge did not consider it necessary to apply any uplift, but nor did he accept Mr Aitkenhead was entitled to any credit.   The Judge observed that while Mr Aitkenhead may have stepped in to stop the violence that was already occurring, he did not prevent it, nor, it appears, did he argue or remonstrate against it.   The Judge took the view that his involvement at that point was better assessed as the absence of an aggravating feature, rather than a mitigating factor.

[18]     I consider the Judge’s approach to Mr Aitkenhead’s involvement at that stage was  a  realistic  and  accurate  reflection  of  his  conduct.     In  some  respects Mr Aitkenhead can consider himself fortunate that he was sentenced only on the basis of his involvement in the aggravated robbery itself.  While he may have been responsible for bringing the violence to a halt by intervening when he did, this appears to accord with his apparent leadership of the group. At the conclusion of the robbery,  he was  the  one who determined  the  basis  upon  which  the victim  was released, providing him with five seconds to get away before he and his associates chased him.   Upon ending the violence, it was Mr Aitkenhead again who told the victim he had five seconds to run away.

[19]     The Judge chose to approach the sentencing exercise on the basis the robbery and the subsequent assault constituted two discrete incidents.  A potentially higher starting point could have been adopted had the actual violence, which was of moderate seriousness and part of the same continuing chain of events, been taken into account as part of the robbery.   Unlike Mr Robinson, Mr Aitkenhead did not

distance himself from the assault, and his intervention appears equally consistent with  him  asserting  his  lead  role  within  the  group,  as  with  the  act  of  a  good Samaritan, warranting a discount.  That is reinforced by his repetition of the warning to the victim after his intervention that he had five seconds to run away before he again began counting down.

[20]     The Judge made no error in his assessment or treatment of Mr Aitkenhead’s conduct after the initial act of robbery had been completed.  Indeed, there is a certain illogicality in Mr Aitkenhead seeking to be afforded a discount in relation to the aggravated robbery in which he fully participated for what occurred thereafter.  The conditional basis upon which Mr Aitkenhead allowed the victim to flee on the first occasion anticipated potential violence should the victim be unable to make good his escape, and so it turned out.  As I have already observed, Mr Aitkenhead is fortunate that he incurred no further penalty for the subsequent violence which was the direct consequence of how he directed the victim’s initial release.

[21]     The appeal is dismissed.

Solicitors:

John Westgate Barrister, Dunedin

Crown Law, Dunedin