Anderson v R - [2014] NZCA 410

IN THE COURT OF APPEAL OF NEW ZEALAND

CA75/2014
[2014] NZCA 410

BETWEEN	JACKSON TOKOMANAHI ANDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	13 August 2014
Court:	Stevens, Simon France and Mallon JJ
Counsel:	J W Watson for Appellant J M Jelas for Respondent
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…

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 Anderson v R

Details

AGLC: Anderson v R [2014] NZCA 410
Case: [2014] NZCA 410
Decision Date: 22 August 2014 at 3.15 pm

CaseChat Overview and Summary

In the appeal of Jackson Tokomanah Anderson against The Queen, the appellant contests the sentence imposed on him by Judge Harvey. The appellant was sentenced to seven years and six months’ imprisonment for aggravated robbery, with concurrent sentences for other related charges. Anderson argues that the sentence is manifestly excessive, particularly due to the starting point being set too high, the presence of a firearm being given undue weight, the related offending being double-counted, and the imposition of a minimum non-parole period being incorrect. The Court of Appeal was required to determine whether the sentence was excessive and if any errors were made in the sentencing process.

The Court of Appeal considered the appellant's arguments and found no error in the Judge's assessment of the level of criminality involved in the offending. The Court held that the criminality of the offending properly included the motor vehicle and petrol thefts committed prior to the aggravated robbery, and the starting point of seven years’ imprisonment was within range. The Court also found that the Judge was correct to assess the criminality by reference to the particular combination of features involved in the aggravated robbery, including the use of a firearm and the target location. The Court further held that there was no double counting of the car conversion and theft offending, and the imposition of a minimum non-parole period was appropriate.

The Court of Appeal granted the application for an extension of time to appeal and dismissed the appeal against the sentence. The sentence imposed by Judge Harvey was affirmed as appropriate and not manifestly excessive.

Final orders: The application for an extension of time is granted, and the appeal against the sentence is dismissed. The sentence of seven years and six months’ imprisonment for aggravated robbery, with concurrent sentences for the related charges, and a minimum non-parole period of three years and nine months, is upheld.

Orders