Allen v Police - [2016] NZHC 3104

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2016-409-000096

[2016] NZHC 3104

BETWEEN
JONATHAN ALLEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 December 2016

Appearances:

A C Kelland for Appellant E J Henderson for Crown

Judgment:

13 December 2016

JUDGMENT OF DUNNINGHAM J

[1] On 22 June 2016 Jonathan Allen was sentenced to four years and three months’ imprisonment on one charge of aggravated robbery.1 He now appeals that sentence.

Background

Facts

[2] Mr Allen planned the robbery of a pharmacy seeking drugs and money. On 19 December 2015, at approximately 1.20 pm, he was driving a four-wheel drive vehicle in the Waltham area with the intention of executing his plan. He had disguised himself with white overalls, a hard hat and a mask and had armed himself with an imitation sawn-off double-barrel shotgun which he had made on an earlier occasion.

1 R v Houghton [2016] NZDC 11556.

ALLEN v NEW ZEALAND POLICE [2016] NZHC 3104 [13 December 2016]

[3] Mr Allen entered the pharmacy and demanded drugs and money from the staff and asked them to open the safe. He threatened the staff with the imitation shotgun while making his demands. The staff opened the safe and the appellant took cash valued at $190 and drugs including Methadone, Morphine, and Ritalin, valued at $994. He then left the pharmacy.

[4] He was stopped by the police a short distance away with the stolen property and the imitation firearm in his possession. When spoken to by police he admitted the facts of the offending.

District Court sentencing

[5] In the District Court, Judge Neave noted Mr Allen’s extensive criminal history including a previous aggravated robbery in 2009. The Judge accepted that there was planning and premeditation from the creation of the weapon and use of the disguise. While acknowledging that the sawn-off shotgun was only an imitation weapon, he concluded that it was terrifying for the staff in the pharmacy nonetheless. The offending involved threats and intimidation, although this was largely captured by the elements of the charge itself. Although Judge Neave did not go so far as to say that the staff were vulnerable, he considered that they fell within a class which require special attention. The amount of property taken was not significant and it was recovered, although the fact that drugs were taken was an aggravating factor.

[6] Judge Neave referred to the guideline judgment of R v Mako,2 and adopted a starting point of six years’ imprisonment. An uplift of nine months was then imposed for Mr Allen’s previous offending. This was then mitigated by six months for his mental health issues and a further six months for his remorse, including his offer to attend restorative justice, and his willingness to address his drug-related issues. This reduced the starting point to 69 months. A further 17 months was then deducted to provide for a maximum guilty plea discount. This resulted in a final sentence of 51 months or four years three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 3104
Decision Date: 13 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, Jonathan Allen appealed his sentence of four years and three months’ imprisonment for aggravated robbery. The case was heard by Dunningham J on 13 December 2016. Allen argued that his sentence was influenced by an unfair probation report, which he claimed was not objective, fully-inclusive or accurate. Specifically, he took issue with the report's assessment of his level of remorse.

The primary legal issue for the court was whether the sentencing judge had appropriately considered the probation report in determining the appropriate sentence. Allen argued that the judge had relied too heavily on the report, which did not accurately reflect his level of remorse and other mitigating factors. The court needed to determine if the judge's assessment of the report and the resulting sentence was fair and reasonable.

Dunningham J concluded that the sentencing judge had not unduly relied on the probation report in determining Allen's sentence. The judge had taken into account the report along with other information, including submissions from counsel and letters in support of Allen. The judge had also considered Allen's remorse and other mitigating factors, providing a six-month discount for these reasons. The starting point for the sentence was appropriate, and the judge had provided all available discounts. The court found that the sentence was fair and reasonable, and dismissed Allen's appeal.

Orders