Anderson v R
[2019] NZCA 294
•9 July 2019 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA754/2018 [2019] NZCA 294 |
| BETWEEN | KAIPARA ANDERSON |
| AND | THE QUEEN |
| Hearing: | 10 June 2019 |
Court: | Brown, Whata and Moore JJ |
Counsel: | N S Leader for Appellant |
Judgment: | 9 July 2019 at 12.30 pm |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of five years and 10 months’ imprisonment is quashed.
CA sentence of four years and seven months’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
Kaipara Anderson pleaded guilty to charges arising out of his involvement in the robbery of The Warehouse at Dargaville. On 26 January 2018 he was sentenced by Judge de Ridder in the District Court at Whangārei to five years and 10 months’ imprisonment.[1]
[1]R v Anderson [2018] NZDC 1305.
Nine months later his co-defendant, Mr Cameron, was sentenced in the High Court at Whangārei to five years and two months’ imprisonment.[2]
[2]R v Cameron [2018] NZHC 2046.
Mr Anderson appeals his sentence on the basis that the starting point imposed was too high given the principle of parity.
Factual background
Late in the evening of 28 May 2017 Mr Cameron and Mr Anderson covered their faces with homemade balaclavas. They put on black clothing and shoes and wore latex gloves. Mr Cameron armed himself with a cut down .22 calibre rifle. It is not known whether that firearm was loaded.
The men drove to The Warehouse in Dargaville. There they broke into the rear perimeter area and entered the building through an insecure door. Inside the store were five staff; a man and four women. Undetected, Mr Cameron and Mr Anderson were able to watch the staff’s movements via the CCTV security system in the manager’s office. Mr Anderson armed himself with items he found in the office; a screwdriver and a pair of scissors.
At 11:00 pm, via the store’s public address system, the supervisor announced it was time for “smoko”. Shortly afterwards two of the victims entered the administration area where Mr Cameron and Mr Anderson were hiding. They were immediately confronted by the intruders. They were threatened that if they did anything stupid or did not comply with instructions they would be shot. Then, at gunpoint, they were directed into the toilet area. Their hands were bound with electrical cord. Then they were tied to each other.
Shortly after this the three other workers entered the administration area. They too were confronted by the men. At gunpoint they were escorted to the toilets. At Mr Cameron’s direction the supervisor identified herself. The other two victims were then bound with electrical cord in a similar fashion to the first two victims. Mr Anderson, armed with the screwdriver and scissors, stood guard over the four bound victims while Mr Cameron, armed with the gun, directed the supervisor to take him to the “money”. She led him to the safe and was directed, at gunpoint, to open it. Mr Cameron instructed her to place the contents of the safe into a bag he was carrying. Cash and cheques to a value of over $27,000 were placed in the bag along with some 300 items of jewellery valued at more than $242,000.
Mr Cameron then bound the supervisor’s arms and hands using adhesive tape. He directed her to return to where the other victims were tied up. He tied her back-to-back with two of the other victims. Bound in this way all five victims were directed to sit on the floor.
Mr Cameron then rifled through the staff’s personal property before asking the supervisor if she wished him to inform someone of the robbery so that she and the others could be released. The supervisor simply asked both men to leave.
They did, but not before taking the supervisor’s handbag which contained a variety of items including jewellery, a cellphone, cash and car keys.
About an hour after the two men had first entered The Warehouse the victims managed to free themselves. They called the Police.
After leaving the scene, Mr Anderson burned his clothing at a nearby house.
Several days afterwards Mr Cameron was pulled over by the Police. Later that same day the Police went to arrest Mr Anderson at his home. A search revealed seven tinnies containing approximately seven grams of cannabis. Another tinny was found on Mr Anderson.
When interviewed, Mr Anderson admitted going to The Warehouse with Mr Cameron and arming himself with scissors and a screwdriver. He said he had been paid $400 by an unknown person to assist in the robbery.[3] In respect of the cannabis he said he had been selling approximately 20 cannabis tinnies a week.
[3]To the probation officer who prepared the PAC report he said this figure was $1,000 and was offered to him by Mr Cameron.
Other than one ring, none of the jewellery or cash has been recovered.
Apart from some minor cuts and abrasions caused by the ligatures, none of the victims suffered any physical injuries. However, unsurprisingly, the victim impact statements reveal varying levels of post-traumatic stress and emotional harm.
On 21 and 28 August 2017 Mr Anderson pleaded guilty to the following charges:
(a)one charge of aggravated robbery;[4]
(b)five charges of kidnapping;[5] and
(c)one charge of possession of cannabis for supply.[6]
Application for extension of time
[4]Crimes Act 1961, s 235(c); the maximum penalty is 14 years’ imprisonment.
[5]Section 209; the maximum penalty is 14 years’ imprisonment.
[6]Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c); the maximum penalty is eight years’ imprisonment.
Mr Anderson’s appeal was filed approximately nine months after the expiry of the statutory filing date. As earlier noted he was sentenced on 26 January 2018. Mr Cameron was sentenced on 9 October 2018.
Mr Anderson applied for an extension of time to file his appeal.[7] This was not opposed by the Crown. Given that the appeal relates to issues of parity with Mr Cameron’s sentence we grant the extension.
The judgment under appeal
[7]Criminal Procedure Act 2011, s 248(4).
After reciting the facts, the sentencing Judge noted that the following aggravating factors were engaged:[8]
(a)the use of disguises;
(b)premeditation;
(c)the use of weapons;
(d)the presence of two offenders; and
(e)the vulnerability of the victims.
[8]R v Anderson, above n 1, at [13].
As to Mr Anderson’s specific involvement the Judge said:[9]
… although I accept that you were not the ringleader of this offending, it seems that other people apart from your co-offender were behind it. You knew full well what was going on, you had plenty of opportunity especially when you saw the firearm to back out, but you willingly went along with the exercise and you were a willing and active participant right throughout from the moment that you disguised yourselves and then entered the building, remaining there and taking part in confronting and terrifying these five workers. So you cannot seek to diminish your role.
[9]At [12].
The Judge set a starting point of nine years’ imprisonment[10] after observing that there was little difference on that point between the parties.[11] No uplift was given for the possession for supply charge. The Judge then applied discounts of 18 months for Mr Anderson’s youth and remorse and a further discount of 20 months (being 22 per cent) for his guilty plea. This led to a final sentence of five years and 10 months’ imprisonment.
The ground of appeal
[10]At [14].
[11]At Mr Anderson’s sentencing the Crown sought a starting point for the aggravated robbery and the kidnapping charges of eight to 10 years’ imprisonment with a modest uplift for the cannabis offending. Mr Leader suggested a starting point of eight to nine years’ imprisonment with a six‑month uplift for the cannabis charge. In this Court Mr Leader accepted the starting point range he had advanced in the District Court was too high.
The sole ground of appeal is that given the principle of parity the starting point of nine years’ imprisonment was set too high. For Mr Anderson, Mr Leader submitted that Mr Cameron’s level of culpability was higher; yet van Bohemen J adopted the significantly lower starting point of seven years.
It is thus necessary to examine how the sentence for Mr Cameron was constructed.
Mr Cameron’s sentence
Justice van Bohemen drew on this Court’s judgment in R v Mako.[12] He noted the presence of the following aggravating factors:[13]
(a)a moderate degree of unsophisticated planning;
(b)the presence of a lethal weapon;
(c)threats of violence towards the victims;
(d)binding and immobilisation of the victims;
(e)entry into commercial premises with the expectation of a reasonably high potential gain, albeit at a time when members of the public were not present; and
(f)the value of the unrecovered property.
[12]R v Mako [2000] 2 NZLR 170 (CA).
[13]R v Cameron, above n 2, at [31].
Against these factors van Bohemen J balanced the fact that Mr Cameron had demonstrated some modest degree of empathy towards the victims when he offered to phone someone to assist in their prompt release.[14]
[14]At [32].
In formulating the starting point, the Judge made reference to the following examples set out in Mako:[15]
[54] … The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation should attract… a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. ...
…
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. …
[15]At [25]–[26] and [30].
After concluding that Mr Cameron’s offending sat somewhere between the two examples given in Mako at [54], van Bohemen J set the starting point at seven years’ imprisonment. The Judge observed that in reaching that figure he had regard to a number of comparable cases.[16]
[16]At 35]; referring to Anderson v R [2014] NZCA 410; R v Marsters [2013] NZHC 1434; R v Tuku-Inamata [2014] NZHC 2654; R v N [2014] NZHC 2236; R v Wellington [2014] NZHC 2993; R v Inamata [2015] NZHC 284; Tukaki v R [2013] NZCA 411; and Martin v R [2016] NZCA 213.
The Judge expressly recognised that the question of parity with Mr Anderson was engaged. He dealt with this in the following way:
[28] Clearly, the fact Judge de Ridder adopted that starting point [of nine years’ imprisonment] is highly relevant and persuasive given you and Mr Anderson acted in this together, with you, arguably, playing a more serious and culpable role given your brandishing of a firearm. That said, I am required to come to my own decision based on my understanding of the facts and the law.
Appellant’s submissions
Mr Leader submitted van Bohemen J’s analysis was correct. A near identical assessment of Mr Anderson’s culpability would lead to the same seven-year starting point. He said the discrepancy in starting points is incapable of justification. It is so stark and so irreconcilable that the appeal should be allowed, particularly given Mr Anderson’s relatively lower culpability.
Respondent’s submissions
Mr Harborow, for the Crown, submitted there is a genuine point of difference justifying the different starting points. This is because Mr Cameron was being sentenced for a second strike offence and accordingly was required to fully serve his whole sentence without parole.[17] Mr Harborow variously described this factor as “pervasive” and “looming large” throughout van Bohemen J’s sentencing remarks with the consequence the Judge adopted a more lenient compensatory starting point.
[17]Sentencing Act 2002, s 86C(4).
The essence of Mr Harborow’s submission was that it is wrong in principle to take parity into account when setting the starting point in cases where the consequences of a second strike offence are engaged. In developing that submission he observed that parity is not a blunt instrument; regard needs to be given to the differences between defendants. In this case the key difference is that Mr Cameron was being sentenced on a second strike offence.
On the question of whether the nine year starting point adopted by Judge de Ridder was manifestly excessive, Mr Harborow submitted that the present case falls squarely within [54] of Mako; commercial premises targeted by two offenders seeking valuables from a safe. As the Court observed in Mako the offenders were prepared. They broke into the staff area. They were armed with weapons and wore disguises. That conduct called for a starting point of “six or perhaps more” years.[18]
[18]R v Mako, above n 12, at [54]. Set out above at [27].
However, Mr Harborow said that van Bohemen J interpreted this passage as meaning “six years” without taking into account the particular aggravating factors present in this case, including the detention and binding of the victims as well as the value of the unrecovered property taken. Taking those factors into account justified a starting point of eight years or more.
In support, he referred to R v Tuku-Inamata where the defendant, who was not the ringleader, was armed with a screwdriver.[19] There were six offenders and a loaded gun was carried by a co-defendant. Ellis J adopted an eight year starting point which was described by this Court in a related appeal as being at the lower end of the range.[20]
[19]R v Tuku-Inamata, above n 16.
[20]Martin v R, above n 16, at [11].
Mr Harborow thus submitted the nine year starting point adopted by Judge de Ridder was within the available sentencing range.
Discussion
Principles
We must allow the appeal if we are satisfied that there was an error in the sentence appealed from such that a different sentence should be imposed.[21] Ultimately, the focus is on the sentence imposed, rather than the process by which it was reached.[22]
[21]Criminal Procedure Act, s 250(2).
[22]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
The general desirability that there be consistency of sentences between offenders committing the same or similar offences is a well-recognised principle.[23] But as this Court pointed out in O’Sullivan v R, not every difference between sentences or starting points for co-defendants will support an appeal on the grounds of disparity:[24]
It is not enough that an offender thinks he has been unfairly treated. The question is whether or not there is a real justification for any grievance – that will be the case if a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would think that something had gone wrong with the sentencing process.
(Footnotes omitted).
[23]Sentencing Act, s 8(e).
[24]O’Sullivan v R [2015] NZCA 147 at [21].
The disparity must be unjustifiable or gross; a lenient or unusually merciful sentence extended to one offender cannot create a legitimate expectation that other related offenders will receive the same indulgence.[25]
Was the starting point too high?
[25]Macfarlane v R [2012] NZCA 317 at [24].
In this case, having reviewed the two sentencing decisions, we are of the view that there is a gross and irreconcilable discrepancy between the respective starting points. A difference of two years cannot properly be explained given the different levels of culpability. In this we agree with Mr Leader (and with van Bohemen J) that Mr Cameron’s involvement in the robbery was more serious than Mr Anderson’s. Indeed the sentencing Judge appeared to accept as much.[26] Such a conclusion was inevitable on the facts for the following reasons:
(a)throughout Mr Cameron was armed with a firearm which he brought with him. In contrast Mr Anderson improvised by arming himself with items he found in the manager’s office;
(b)Mr Cameron assumed the lead role, directing the victims at gunpoint and interrogating the staff;
(c)Mr Cameron directed the supervisor to “lead him to the money”;
(d)once the safe had been opened Mr Cameron placed the sports bag on the floor and directed the supervisor to fill it;
(e)Mr Cameron bound the supervisor’s arms and hands and led her to the toilet area where she was tied to the other victims;
(f)Mr Cameron rifled through the staff’s personal property and the supervisor’s handbag; and
(g)consistent with his leading role, Mr Cameron asked the supervisor if there was anyone she wanted him to call.
[26]R v Anderson, above n 1, at [12].
In contrast, the summary reveals Mr Anderson as a secondary party whose principal task was to support Mr Cameron and to maintain guard over the victims.
Furthermore, when measured against other cases, particularly Mako, we do not accept that van Bohemen J’s starting point for Mr Cameron was unduly lenient or unusually merciful. Indeed, drawing guidance from the relevant comments in Mako, it seems to us that the starting point was entirely appropriate. There was no actual violence let alone injury. There were no obvious gang connections nor was there a confrontation with the Police. These are all factors which the Court in Mako suggested could attract starting points of eight years or more.[27] Although a weapon was brandished, it was not used. There is no evidence it was loaded. The risk to the public was minimal and the staff, although justifiably frightened, were not made to suffer unduly. As for the kidnapping charges we agree with van Bohemen J that the relevant criminality of this offending was subsumed in the starting point insofar as the detention of the victims was taken into account as an aggravating factor.[28]
[27]R v Mako, above n 12, at [54].
[28]R v Cameron, above n 2, at [36].
We also agree with van Bohemen J that the index offending sits somewhere between the examples set out at [54] of Mako; that is six “or perhaps more” years and eight years or more.
Mr Harborow argued that van Bohemen J viewed the first example given by the Court in Mako at [54] as warranting a starting point of six years only rather than “six or perhaps more years”. We do not think that is so. The Judge adopted a starting point of seven years. This accurately reflected the fact that, in this case the victims were bound and property of substantial value not recovered, warranting a starting point higher than six years. It should also be noted that there was a further factor listed in the example at [54] of Mako that was not present in Mr Anderson’s offending to a significant degree: the risk to members of the public. Overall, we do not think the Judge’s starting point can be impeached or that he misconceived the Mako guidelines in any way.
As for the comparison to Tuku-Inamata, the offending in that case was clearly more serious: it involved actual violence to the point that one of the victims was hospitalised; the firearm used by the offenders was loaded; members of the public were present; the degree of planning was greater evidenced by the use of plastic ties and a getaway car; and the end result was a dangerous car chase with police.[29] Although the Court of Appeal indicated that the starting point for Mr Tuku-Inamata was at the lower end of the range, it left undisturbed a starting point of seven-and-a-half years for his co-offender Mr Martin, who played a similar role.[30]
[29]R v Tuku-Inamata, above n 16.
[30]Martin v R, above n 16, at [12].
Furthermore, we cannot agree that the consequences of a second strike offence led van Bohemen J to adopt a lower starting point. While it is correct he referred to s 86C(4) of the Sentencing Act 2002 and factored this into his sentence, he was careful to confine the application of this principle to his discussion on the appropriateness of the uplifts for Mr Cameron’s related drug and driving offending, his previous convictions and the fact that the aggravated robbery and kidnapping offences were committed while he was subject to another sentence.[31] This approach is consistent with the judgments of this Court in Paerau v R and Wipa v R.[32] It is far from evident to us that the consequences of Mr Cameron’s second strike affected the formulation of the starting point set for Mr Cameron.
[31]R v Cameron, above n 2, at [38] and [42]–[44].
[32]See Paerau v R [2018] NZCA 139 at [40]; and Wipa v R [2018] NZCA 219 at [36].
Mr Harborow raised a further point. He submitted that the sentencing Judge’s starting point might have incorporated a penalty for the cannabis related offending, justifying, to some extent, the discrepancy between the starting points. He submitted an uplift of between six to nine months may have been appropriate. However, that submission sits uncomfortably with the sentencing Judge’s observation that he did not propose to uplift the nine year starting point to take into account either Mr Anderson’s previous offending or the unrelated charge of possession of cannabis.[33] In any case, the cannabis-related offending was insignificant on any analysis. Mr Anderson was found in possession of approximately eight grams of cannabis, an amount marginally more than quarter of the presumption for supply.[34] Had he not admitted he had been selling cannabis Mr Anderson would doubtless have faced a charge of possession simpliciter, or not been charged at all.
[33]R v Anderson, above n 1, at [15].
[34]Misuse of Drugs Act 1975, ss 6(6) and 2(1A) and sch 5.
It follows we agree that seven years is the appropriate starting point, notwithstanding our view that Mr Anderson’s offending was less serious than his co‑offender’s. We thus turn to consider Mr Anderson’s personal circumstances in setting the appropriate final sentence.
What should the final sentence be?
The sentencing Judge adopted a combined discount of 18 months which equates to a reduction of slightly less than 17 per cent. We are satisfied that this was an appropriate recognition of Mr Anderson’s age and evident remorse for the reasons which follow.
First, Mr Anderson was aged 18 at the time of the offending.
Secondly, we are satisfied Mr Anderson was sincere in his expressions of remorse. A psychological report prepared for the Department of Corrections described him as demonstrating empathy for his victims and expressing genuine remorse for his actions and their impact on The Warehouse staff. Consistent with these observations, Mr Anderson expressed a willingness to engage in restorative justice. That offer appears to have been taken up by three of the victims. Two reported they found the experience a positive and helpful one although, unsurprisingly, they also described suffering long term emotional and psychological consequences.
Furthermore, Mr Anderson’s criminal history is relatively modest and, with the exception of a burglary conviction in 2016 for which he was sentenced to 60 hours’ community work and intensive supervision, mostly relates to driving offences.
We are mindful of the principles enunciated by this Court in Churchward v R.[35] Mr Anderson’s prospects of rehabilitation are positive. His offending bears hallmarks consistent with the impulsivity and peer pressure receptiveness of youth. This conclusion is also supported by the contents of the psychological report which records him as representing a low risk of further violent offending and a low to moderate risk of further general offending. Taking these factors into account we consider the appropriate discount is one of 15 months, which represents 18 per cent. As noted this is broadly comparable to the discount given by the sentencing Judge.
[35]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
Similarly, we see no reason to disturb the Judge’s discount of approximately 20 per cent in recognition of Mr Anderson’s guilty plea. He first appeared on 2 June 2017. On 3 July 2017 he pleaded not guilty and elected trial by jury. However, he entered guilty pleas on 21 and 28 August 2017. Thus, while not pleading at the earliest reasonable or practicable opportunity, he did so at a sufficiently early stage to relieve the witnesses’ anxiety at the prospect of giving evidence and saved the State the substantial costs associated with a jury trial.
Taking all of these factors together, we arrive at an end sentence of four years and seven months’ imprisonment.
Result
The appeal is allowed.
Mr Anderson’s sentence of five years and 10 months’ imprisonment is quashed.
A sentence of four years and seven months’ imprisonment is substituted.
Solicitors:
Crown Solicitor’s Office, Auckland for Respondent
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