Anderson v R
[2014] NZCA 410
•22 August 2014 at 3.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA75/2014 [2014] NZCA 410 |
| BETWEEN | JACKSON TOKOMANAHI ANDERSON |
| AND | THE QUEEN |
| Hearing: | 13 August 2014 |
Court: | Stevens, Simon France and Mallon JJ |
Counsel: | J W Watson for Appellant |
Judgment: | 22 August 2014 at 3.15 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time in which to appeal is granted.
BThe appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant was convicted after trial on one count of aggravated robbery, two counts of unlawfully taking a motor vehicle and three counts of theft. Judge Harvey sentenced him to seven years and six months’ imprisonment for the lead charge of aggravated robbery, with lesser concurrent sentences for the motor vehicle and theft charges.[1] A minimum period of imprisonment of three years and nine months was also imposed.
[1]R v Anderson DC Whangarei CRI-2011-011-458, 19 December 2013 [sentencing decision].
Mr Anderson appeals that sentence as being manifestly excessive. He contends the starting point was too high, due to the Judge’s treatment of the presence of what appeared to be a firearm and his erroneous assessment of the level of criminality involved under the guidelines in R v Mako.[2] He also contends that the Judge erred in his approach to how related offending was to be treated. Further he submits the imposition of a minimum period of imprisonment was wrong in principle. Although the appeal was filed out of time, an extension of time was not opposed and is granted.
Background
[2]R v Mako [2000] 2 NZLR 170 (CA).
The appellant stole two cars over the four day period between 12 and 15 May 2011. On three occasions during that period, he filled one of those cars with petrol, fleeing the petrol stations in question without paying.
On 16 May 2011, the appellant, with an associate, entered a jewellery store in Dargaville. The store was staffed by a single female at the time. The appellant was armed with what appeared to the victim to be a single-barrelled firearm. Both the appellant and his associate were wearing dark-coloured clothes and wore balaclavas and gloves.
The appellant and the associate each had defined roles in the robbery. The appellant asked for the better looking jewellery and demanded to be taken to the safe. His associate smashed a display cabinet containing expensive bracelets and chains, stealing also diamond rings and earrings. During the course of the robbery, the staff member tried to call 111 but the appellant, upon noticing her attempt, smashed the telephone.
The appellant and his associate exited the store, got into one of the stolen vehicles and left. The appellant drove to the second motor vehicle, which had been left some distance from the store. There, he changed cars. The two then drove to Auckland where they had arranged to be picked up by another associate.
Sentencing decision
Judge Harvey noted the presence of a number of aggravating factors. These involved actual and threatened violence and the apparent use of a weapon.[3] At the time of the offending the appellant was on bail; the value of the property taken was approximately $20,000 and the offending involved substantial premeditation. There were no mitigating factors present. Judge Harvey concluded the jeweller’s shop, although small, was correctly categorised as a commercial premises.[4]
[3]Sentencing decision, above n 1, at [15].
[4]At [31].
The appellant disputed the existence of a firearm and, recognising some uncertainty about it, the Judge adopted a starting point of six years’ imprisonment.[5] The fact that the appellant stole two motor vehicles and petrol prior to the event warranted an uplift in starting point to seven years’ imprisonment. The Judge initially intended to impose an uplift of 12 months for the appellant’s previous convictions.[6] However, on the basis of correspondence from Mr Anderson, the Judge accepted he had gained insight into his offending and genuinely sought to change his life for the better, to support his child. He therefore reduced this uplift by six months. An end sentence of seven years and six months’ imprisonment was imposed.
[5]At [32].
[6]The Crown proposed an uplift of six to 12 months on the basis of the appellant’s previous relevant convictions and because the offending occurred when the appellant was on bail and subject to a curfew.
The Judge considered the need to hold the appellant accountable, to denounce his conduct, to deter him and to protect the community from him justified the imposition of a minimum period of imprisonment of three years and nine months.[7] Concurrent sentences of 12 months’ imprisonment and two months’ imprisonment were imposed in respect of the theft of motor vehicle and petrol charges, respectively.[8]
The appeal
[7]At [40]–[41].
[8]At [42].
The appellant contends Judge Harvey erred in his assessment of the level of criminality in the offending. Counsel for the appellant emphasises there were no members of the public present, no actual physical violence was involved, no money was actually taken (despite access being sought to a safe), and no threats were actually made, other than a demand to access the safe. The Judge focused too closely on the type of target premises, not the particular combination of features present. Had the Judge performed this assessment of criminality correctly, a lower starting point would have been justified.
Secondly, the appellant contends Judge Harvey wrongly took into account the presence of a firearm in the course of the aggravated robbery. Counsel argues that, after the Crown amended the indictment to charge aggravated robbery through the presence of more than one individual, the firearm could not be relevant to sentencing.[9] Thus the firearm assumed undue importance in the Judge’s reasoning, resulting in an artificial increase in the starting point.
[9]The appellant was convicted of a charge under s 235(b) of the Crimes Act 1961, not s 235(c), which is the corresponding offence involving the use of a weapon.
Thirdly the appellant argues Judge Harvey double counted the car conversion and theft offending. Finally, he contends the minimum period of imprisonment ought not to have been imposed.
Analysis
Starting point
We are satisfied the Judge’s adoption of a starting point of seven years’ imprisonment was within range. The criminality of the offending properly included the offending committed in the lead up to the aggravated robbery, namely the motor vehicle and petrol thefts. With respect to the aggravated robbery itself the criminality was rightly assessed by reference to the particular combination of features involved. No compelling submission has been advanced to justify a departure from the starting point chosen.
With regard to relevant aggravating factors noted in R v Mako, this was a carefully planned robbery of commercial premises.[10] Although the jewellery shop itself was small, Judge Harvey was correct to view it more akin to a place where members of the public could be expected to be present and valuable items (such as rings and jewels) were likely to be held in a safe. We accept that the Judge could not say with certainty whether a gun was used by the evidence before this Court. Nowhere in his sentencing notes did the Judge say that a gun was actually used. Rather Judge Harvey states it is not certain that the appellant did have a firearm. What is clear, however, is that the appellant conducted the robbery in such a way as to represent convincingly to the victim a gun was involved and to cause her genuine intimidation and fear.[11] Disguises were used and the target location was scouted beforehand and selected for the high value of its items within. It is true no members of the public were threatened, but this was really, as noted by Judge Harvey, a matter of luck. Actual violence was used, in smashing the phone when the staff member tried to use it and smashing a display cabinet. Property to the wholesale value of $20,000 was taken.[12] There was therefore no error in the starting point adopted.
Uplift
[10]R v Mako, above n 2, at [54].
[11]At [37]–[38] and [43].
[12]At [44].
The appellant submits that Judge Harvey was wrong to uplift the starting point for the aggravated robbery offending because of the other offending (car conversion and theft), which were then subject to discrete penalties. We consider the Judge’s approach was an orthodox one. The overall starting point included culpability for all the offending. Accordingly discrete penalties for the lesser offending were made concurrent. Therefore there was no double-counting.
Minimum period of imprisonment
Finally, the appellant argues the imposition of a minimum non-parole period was wrong in law. As the Judge imposed an uplift to recognise previous offending, the appellant submits his previous convictions were taken into account twice in the course of sentencing. In this context the Judge noted the observations of the probation officer who assessed the appellant as having a high likelihood of reoffending and a medium risk of harm to others. The Judge added:
[39] I may only impose a minimum period of imprisonment if I am satisfied that it is necessary to hold you accountable, to denounce your conduct, to deter you and other people from committing the same or similar offences and to protect the community from you.
[40] I am satisfied that a minimum non-parole period is required here. First to denounce the behaviour, secondly to deter you from re-offending and thirdly to protect the community from you. I assess the minimum non-parole period at three years and nine months.
The appellant has shown no error in the Judge’s analysis. The relevant statutory criteria in s 86(2) of the Sentencing Act 2002 were properly applied. This was not a case of previous convictions being double counted.
Result
The application for an extension of time is granted. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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