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 months’ imprisonment.

2      R v Mako [2000] 2 NZLR 170 (CA).

The appeal

[7]                   Mr Allen has affirmed an affidavit which sets out the grounds of his appeal. He believes that the length of his sentence is partly attributable to an unfair probation report, because he did not have an adequate opportunity to provide the report writer with the information she needed to know. He does not believe that the report is objective, fully-inclusive or accurate. His affidavit evidence states that he strongly disagrees with the report, particularly relating to his level of remorse. He considers that the Judge did not have adequate information from the report writer so the sentence should be quashed. He also deposes that the unfair report will be considered when he becomes eligible for parole.

[8]                   To put these statements in context, it is necessary to set out the relevant parts of the probation report. Under the heading “Attitudes” the report records that:

Mr Allen presented as very self entitled and this may be just his way, but his main priority was that the Court was made aware of all the “good work” he has done since his release from prison in 2013, the possible loss of his current relationship and the like, as opposed to any targetted (sic) sense of remorse.

[9]                   Under the heading “Remorse and Offers to Make Amends” the report reads as follows:

Mr Allen presented as lacking insight and as not having a great deal of remorse for the victims of this offending, rather considering his own losses and emotional separation from his whanau, in particular - his partner equally important as to the impact his offending would have had on the staff of the chemist shop. Mr Allen did agree to attend Restorative Justice, and I am unaware if this has occurred.

[10]               It is clear from the affidavit that Mr Allen received a copy of the report prior to sentencing. He obviously had an opportunity to challenge any aspect of it at the time of sentencing. This is, in effect, what occurred with counsel making submissions about Mr Allen’s remorse contrary to what was written in the report. The Judge clearly took account of Mr Allen’s remorse stating “you were willing to attend restorative justice and there is evidence both from that, and your willingness to address issues, of genuine remorse”.3 The Judge provided a six month discount to account for this factor.

3      R v Houghton, above n 1, at [9].

[11]               I also note that the pre-sentence report is, of course, only a recommendation. As was stated in Re Mitchell: re Healey:4

…the Probation Officer’s report is at the most only a guide to the Court—one of the factors to be taken into consideration. It is the duty and responsibility of the Court to sentence a prisoner: that duty and that responsibility the Court must never surrender to the Probation Officer or the Prisons Board or any other authority. Not only should there be no reality of surrender of duty and responsibility, but the Court should be careful to avoid even the appearance of any such surrender.

[12]               In my view, Judge Neave was able to assess the report alongside the other information he had available to him. This included a letter written by Mr Allen as well as other letters written in support and information about Mr Allen’s mental health issues. Judge Neave also heard submissions from counsel as to the appellant’s remorse and he was clearly influenced by them. The pre-sentence report was therefore only one tool that the Judge had at his disposal to assess the appropriate sentence and, looking at the sentencing notes, I do not consider that it appears to have been particularly influential.

[13]               Indeed, if anything I consider the discounts provided by Judge Neave were generous. In total, Mr Allen received a 37 per cent discount from the original starting point after aggravating factors had been taken into account.

[14]               The starting point was also reasonable. The Judge had regard to and took into account the decisions in R v Mako,5 Dearman v R,6 and R v Collett.7 He considered that the offending, involving an imitation firearm, was slightly less serious than in the Dearman and Collett cases where sentences of seven years were imposed.

[15]               The starting point of six years adopted by the Judge was clearly appropriate. In my view, there is nothing to suggest that a different sentence should have been imposed. In addition, the Judge did not appear to have attached much weight, if any, to the report in issue. He provided all of the discounts that were available to Mr Allen in the circumstances.

4      Re Mitchell: re Healey [1938] NZLR 671 (SC) at 674

5      R v Mako, above n 2.

6      Dearman v R [2016] NZCA 143.

7      R v Collett CA83/04, 30 August 2004.

[16]               Finally, I note as an aside, that a sentence appeal is not an appropriate pathway to challenge an unfair report as it relates to eligibility for parole. Eligibility for parole will turn on the offender’s circumstances at the time parole is being considered and obviously it is up to Mr Allen to demonstrate that he is ready for parole at that time.

[17]For these reasons, Mr Allen’s appeal is dismissed.

Solicitors:

A C Kelland, Barrister, Christchurch

Raymond, Donelly & Co., Christchurch