Allen v The the Queen
[2022] NZHC 48
•27 January 2022
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 starting point would have been at least four years’ imprisonment.5 However, as it was an
3 R v Allen CRI-2020-083-1494 DC Whanganui 27 August 2021 [Sentence Indication]
4 R v Mako [2000] 2 NZLR 170 (CA).
5 Sentence Indication, above n 3, at [12].
attempted robbery rather than a completed offence, the Judge indicated a starting point of three and a half years’ imprisonment.6
[7] The Judge also indicated he would give a 25 per cent discount for guilty plea if Mr Allen accepted the indication.7 This results in a sentence of 32 months’ imprisonment. The Judge said he would not increase the sentence for Mr Allen’s previous convictions.8 The Judge stated that further discounts may be available based on Mr Allen’s personal circumstances, but that is unlikely these further discounts would bring the end sentence below 24 months’ imprisonment.9
[8] At sentencing the Judge echoed many of his comments from the sentence indication. He stated the only reason the offence was not complete was due to the actions of the victims, as opposed to Mr Allen or his co-defendants deciding not to go through with it.10
[9] A pre-sentence report and s 27 cultural report were prepared for the sentencing. The Judge described the content of both reports; the pre-sentence report “paint[ed] a bleak picture of [Mr Allen]” and suggested he lacked remorse or insight into his offending.11 The cultural report described Mr Allen’s upbringing spent with his grandparents or in foster care and his alienation from tikanga and his whakapapa.12 It detailed Mr Allen’s aspirations to work and reconnect with his children and whakapapa. The Judge considered, despite what was said in the pre-sentence report, that Mr Allen had remorse for the victims.13
[10] The Judge awarded a six month discount for Mr Allen’s remorse, the content of the cultural report and his youth. This is an approximately 14.3 per cent discount from the three and a half year starting point. The Judge said based on the pre-sentence report alone, there would have been no discount for these factors. This resulted in an end sentence of 26 months’ imprisonment.
6 At [12].
7 At [13].
8 At [15].
9 At [14].
10 R v Allen, above n 2, at [9].
11 At [15].
12 At [12] and [14].
13 At [15].
Approach on appeal
[11] The appeal is brought under s 244 of the Criminal Procedure Act 2011. Under s 250(2) the appeal must be allowed if the court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. The ultimate question is whether the sentence is manifestly excessive.14 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.15
[12]I approach the matters raised on appeal on that basis.
Starting point
[13] Mr Waugh argued that the Judge erred in adopting the three and a half year starting point. He relied on the lower starting points adopted in Hune v R and Ross v Police, and particularly criticised the reduction of the starting point by only six months because the offending was only an attempted robbery.16 He referred to the decision of the Court of Appeal in Carpenter v R where the Court accepted a 25 per cent reduction on a four year starting point to reflect the offending was an attempt.17 He argued that the discount should have been 30 per cent in the present case.
[14] For two interrelated reasons I do not accept these criticisms. First it seems to me that both Carpenter and the present case are comparable in terms of the closeness to completing the offence. In both cases the victims escaped at more or less the last moment. Moreover in the present case the offending could be regarded as more serious given that several weapons were brought, there was a struggle with the firearm, and that the firearm was discharged while the victims were escaping. That makes the offending more serious than Hune or Ross. Secondly the Judge held that had the offending been completed the starting point would have been four years’ imprisonment “or more”.18 If four and a half years was adopted the three and a half years starting
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [33] and [35].
15 Ripia v R [2011] NZCA 101, at [15].
16 Hune v R [2018] NZCA 294 (three year starting point reduced to two years eight months); Ross v New Zealand Police [2015] NZHC 1633 (three year starting point).
17 Carpenter v R [2010] NZCA 560.
18 R v Allen, above n 2, at [10].
point is only just under 25 per cent reduction. I do not accept that a three and a half year starting point was inappropriate.
[15] In any event the question is whether the sentence is manifestly excessive. It is the ultimate end sentence that matters rather than the methodology by which it was reached. It could not be said that a starting point of three and a half years was outside the available range for a premeditated attempted robbery involving weapons, including a loaded shotgun, especially when there was a struggle over the shotgun, and it was discharged during the course of the attempt. The appellant may not himself have used the shotgun, but can be taken to have been aware of it, and he said he was carrying a knife.
Mitigating discounts
[16] Mr Waugh argues that there were a series of errors in relation to the discounts given for personal mitigating factors. He argues that the factors justified a 20 per cent discount from the starting point — five per cent for youth, five per cent for remorse and 10 per cent for cultural factors — should have been given. He calculates the six month discount given by the Judge to have involved a 13 per cent discount for personal factors, assuming a 25 per cent reduction for the guilty plea. Six months is a little over 14 per cent of the three and a half year starting point.
[17] I will address each of the criticisms raised specifically below, but the key difficulty with the submission again comes back to the need for an appellant to establish that the sentence is manifestly excessive. In a case such as the present there are a mix of personal mitigating factors that overlap. There is no one set percentage that should be given for each of them. In the end it is a matter of standing back and assessing whether the discounts given for personal mitigating circumstances were within range, and ultimately whether the sentence was manifestly excessive. Mr Waugh’s submission is that the ultimate discount should have been 20 per cent rather than 13 per cent, but there are various approaches that could be adopted to the sentencing exercise and the real question is whether the end sentence was excessive.
[18] I accept Mr Waugh’s point that the Court of Appeal indicated in Moses v R that a discount for remorse over and above the guilty plea is available where there is
tangible evidence of that remorse.19 But as Ms Tanner submitted additional discounts are generally regarded as discretionary, and it was open for the Judge to only grant a limited additional discount for remorse here.
[19] I do not accept Mr Waugh’s submission that youth was a relevant mitigating factor which needed to be recognised. As the Court of Appeal said in Churchward v R youth is relevant given the developmental issues arising for younger persons.20 In Rolleston v R the Court indicated that discounts for people aged between 17 and 20 had been between eight and 18 per cent.21 But here Mr Allen was 25 years’ old at the time of the offending. This does not prohibit a youth discount, but this age is outside the more common range. It cannot be regarded as an error to fail to give a specific youth discount for a person of that age.
[20] I accept Mr Waugh’s submission that a greater discount for cultural factors could have been given given the approach to those discounts endorsed by the Court of Appeal. But the Judge here adopted a totality approach to discounts for personal factors, and the particular discount he gave for cultural factors needs to be seen in the round.
[21] As I have emphasised, the ultimate question is whether the sentence was manifestly excessive. If a 20 per cent discount for personal factors had been applied that would have led to a sentence of just over 23 months rather than 26 months. By itself that may demonstrate the difficulty in establishing that the sentence was outside a legitimate range. But more importantly the real question is whether an end sentence of 26 months’ imprisonment was manifestly excessive. That sentence is only two months greater than a sentence of short duration for offending that can be regarded as serious. Moreover as the Crown has submitted, another Judge may have increased the sentence for personal aggravating circumstances arising from the appellant’s prior convictions.
19 Moses v R [2020] NZCA 296, at [24].
20 Churchward v R [2011] NZCA 531, at [77].
21 Rolleston v R [2018] NZCA 611, at [34].
Practical considerations
[22] Mr Waugh emphasised a particular matter, relevant to both his arguments, arising from this sentence being 26 months’ imprisonment, and not a sentence of short duration of 24 months’ imprisonment or less.
[23] Due to the delay in these proceedings being addressed Mr Allen has been on remand, and has not been eligible for any release programmes. As a consequence Mr Waugh submitted that he was unlikely to be released by the Parole Board without having completed such programmes, and in effect will be required to serve the full 26 month term. By contrast, had this been a sentence of short duration, he would have been released after 12 months or less on release conditions. Mr Waugh argued that this was unjust, and that it influenced whether the sentence is manifestly excessive.
[24] There is force in this point, but I accept the Crown’s submission in response that it is not appropriate to manipulate the sentence, or this appeal, to address these practical considerations. A sentencing Judge may keep an eye on these type of practical considerations, but the sentencing principles should still be properly applied. The practical implications described by Mr Waugh are more properly addressed in other ways, and potentially the Parole Board.
Conclusion
[25] It is appropriate to consider both of the points concerning the length of the sentence raised on appeal together. When doing so I am satisfied that the sentence imposed by the Judge was not manifestly excessive given the offending, and in light of the appellant’s personal circumstances (both mitigating and aggravating). For these reasons the appeal is dismissed.
Cooke J
Solicitors:
Crowley Waugh, Whanganui for Mr Allen
Wilkinson Smith Lawyers, Whanganui for the Crown
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