Allen v The the Queen - [2022] NZHC 48

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA

WHANGANUI ROHE

CRI-2021-483-20

[2022] NZHC 48

CHARLES GEORGE ARTHUR ALLEN

v

THE QUEEN

Hearing: 27 January 2022

Appearances:

J H Waugh for Mr Allen

K D Tanner with M M Wilkinson-Smith for the Crown

Judgment:

27 January 2022

JUDGMENT OF COOKE J

[1] Charles Allen appeals his sentence of 26 months’ imprisonment following a guilty plea to a charge of attempted aggravated robbery.1

[2] Mr Allen was sentenced on 22 November 2021 by Judge Rowe after he accepted a sentence indication.2 On appeal, Mr Allen submits that the end sentence was manifestly excessive as the starting point adopted by the Judge was too high and the Judge gave insufficient credit for Mr Allen’s personal circumstances.

1 Crimes Act 1961, ss 235(c) and 72; maximum penalty seven years’ imprisonment.
2 R v Allen [2021] NZDC 22840.

ALLEN v R [2022] NZHC 48 [27 January 2022]

Facts

[3] At the time of the offending Mr Allen was 25 years’ old. Mr Allen, along with three others, planned to rob the victim of $10,000. The victim had made a post on Facebook saying he recently received a large ACC payment and wanted to purchase a four wheel drive. The victim was contacted by one of the four perpetrators. She said that she had a Toyota Hilux for sale for $10,000. The victim and the woman arranged to meet in order for the victim to view the vehicle. The victim withdrew $10,000 and was driven by his then partner to meet the woman.

[4] Mr Allen and the two other perpetrators drove to the meeting place. One of the perpetrators was in a car, the two others were hiding in nearby sand dunes. The two in the sand dunes had their faces covered; one was carrying a shotgun, the other was carrying a medical crutch like a gun. They approached the victim and his partner in their car, and one of them smashed the car window and aimed the shotgun at the victim. He told the victim to give him the money. The victim managed to grab the shotgun and a brief struggle ensued. The victim lost grip of the gun and told his partner to drive off. She did so and the perpetrators fired the shotgun twice in an unknown direction.

[5] The police were called and they located the three male defendants. When questioned by police, Mr Allen accepted he was one of the two people who approached the vehicle and told police he was carrying a knife during the offending. Mr Allen denied being the perpetrator who carried the shotgun.

District Court decision

[6] The Judge gave his sentence indication on 27 August 2021.3 In the sentence indication, the Judge considered the guideline judgment of R v Mako,4 and discussed the aggravating factors of the offending, including premeditation and use of weapons. The Judge said had the offence been complete, rather than an attempt, the…

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.

Continue reading Allen v The the Queen

Details

AGLC: Allen v The the Queen [2022] NZHC 48
Case: [2022] NZHC 48
Decision Date: 27 January 2022

CaseChat Overview and Summary

Charles Allen appealed his sentence of 26 months' imprisonment for attempted aggravated robbery, arguing that the sentence was manifestly excessive. The appeal was heard in the High Court of New Zealand and the judgment was delivered by Cooke J. Mr Allen's counsel argued that the starting point for the sentence was too high, and that insufficient credit was given for Mr Allen's personal circumstances. The court examined the arguments and found that the starting point was appropriate, given the seriousness of the offence. The court also found that the discounts given for personal mitigating factors were within an acceptable range and that the ultimate sentence was not manifestly excessive.

The court considered the seriousness of the offence, which involved planning and weapons, and the fact that the offence was only prevented from being completed due to the actions of the victims. The court also considered Mr Allen's personal circumstances, including his youth, remorse, and cultural background. While the court acknowledged that greater discounts could have been given for some of these factors, it found that the ultimate sentence was not manifestly excessive.

The court dismissed the appeal, noting that the sentence was within an acceptable range for the offence and Mr Allen's personal circumstances. The court also noted that practical considerations, such as the delay in the appeal and the impact on Mr Allen's eligibility for release programs, were not grounds for manipulating the sentence or the appeal. The court found that these considerations were more appropriately addressed in other ways, such as by the Parole Board.

The final orders of the court were that the appeal was dismissed, and Mr Allen's sentence of 26 months' imprisonment was upheld. The court emphasized that the ultimate question was whether the sentence was manifestly excessive, and found that it was not. The court also noted that another judge may have increased the sentence for personal aggravating circumstances arising from Mr Allen's prior convictions.

Orders