Bell v Police
[2016] NZHC 1715
•27 July 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2016-412-000011 [2016] NZHC 1715
BETWEEN ZANE LEVI BELL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 25 July 2016 Appearances:
A Dawson for Appellant
L C Preston for CrownJudgment:
27 July 2016
JUDGMENT OF DUNNINGHAM J
[1] Mr Bell appeals his sentence of two years five months’ imprisonment imposed in respect of various charges.1 Four of the charges arose out of the events which occurred on one night. These are:
(a) assault;
(b) assault with intent to injure; (c) burglary; and
(d) robbery.
1 R v Bell [2016] NZDC 10091.
BELL v NEW ZEALAND POLICE [2016] NZHC 1715 [27 July 2016]
[2] Mr Bell was also charged with operating a motor vehicle causing sustained loss of traction, which occurred on a separate occasion.
Background
[3] The events which triggered the commission of the first four offences with which the appellant was charged, began with a damaged seat belt. In November 2014, the victim and his partner borrowed a Toyota motor vehicle from the sister of a man they knew. That man is a school friend of the appellant. During the time the vehicle was being used by the victim and his partner, their dog damaged the seat belt in the vehicle. As a result, $100 was paid to the sister. A dispute arose over what, if any, further money should be paid.
[4] On 6 January 2015 the appellant and his friend had been to a funeral in Dunedin. As they drove back to Lawrence, the issue of the money paid to the friend’s sister was discussed. Both had been drinking. The friend’s girlfriend was also in the car.
Common Assault
[5] On arriving at Lawrence, the appellant drove to the victim’s address. He went to the victim’s property and banged on the door. When the victim opened the door, he said “You owe my sister in law money” and punched the victim.
Burglary and assault with intent to injure
[6] The appellant then chased the victim into the house where he continued to say that money was owed. In the kitchen the appellant threw two punches at the victim who blocked one, and the other missed. He then kicked the victim twice to the forearm area and threw four or five further punches, one hitting the victim’s jaw.
[7] The appellant said to the victim, “right then, we’ll go to the ATM machine and you’ll give me $200.” In the lounge the victim obtained an ATM card from his pregnant partner’s purse and he left the house with the appellant. They walked to the car where the appellant said to the victim, “you best have $200 there”.
Robbery
[8] The appellant then drove the victim to the local ATM in Lawrence where he accompanied the victim up to the ATM and stood beside him. There, the victim withdrew and handed over $200. On returning to the car the money was given to the friend’s girlfriend who later gave it to the sister whose seatbelt was damaged.
[9] The victim walked home from the ATM. Subsequently the sister returned
$200 to the victim.
Operated a motor vehicle causing sustained loss of traction
[10] On an unrelated charge, the appellant was also convicted of operating a motor vehicle causing sustained loss of traction. This was committed when the appellant was on bail.
Impact on victims
[11] The impact of the events of 6 January 2016 on the victims was significant. As the Crown submissions described it, the victims did not know the appellant and were “traumatised” by the incident. The male victim’s pregnant partner witnessed him being hit and chased around the house and, after the appellant left with him, she was so scared she could not breathe or talk and she vomited with fear.
District Court decision
[12] In determining the starting point, Judge Phillips referred to the tariff decision for aggravated robbery, R v Mako.2 He noted, however, that in Mako the tariff related to aggravated robbery as opposed to robbery simpliciter as was the lead charge in this case. However, taking into account the various aggravating features of the offending, which included actual and threatened violence, the appellant’s unlawful presence in a dwelling place, the impact upon the victims, the vulnerability
of the victims, and the degree of premeditation, the Judge adopted a starting point of
three years and three months’ imprisonment for the lead charge of robbery. He
2 R v Mako [2000] 2 NZLR 170 (CA).
considered that was appropriate “overall, taking into account all of the events and the
charges relating to 6 January at Lawrence”.3
[13] The Judge then afforded a combined 25 per cent discount for the combination of the appellant’s guilty plea and “good degree of remorse” (albeit noting the degree of remorse which was expressed was reduced to some extent by the comments made to the pre-sentence report writer that “he pleaded guilty only to expedite matters”). An end sentence of two years five months’ imprisonment was reached.
Jurisdiction on appeal
[14] Mr Bell appeals to this Court as of right.4 Under s 250 of the Criminal Procedure Act 2011, the appeal must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should be imposed. It is well accepted that where a sentence is “manifestly excessive”, that is an error which would justify allowing an appeal.5
Furthermore, 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.”6
Grounds of appeal
[15] The appellant advances the following grounds of appeal:
(a) the starting point adopted by the learned Judge was too high;
(b)insufficient credit was afforded by the Judge for personal mitigating factors; and
(c) the correct sentence should have been one of home detention.
3 At [26].
4 Criminal Procedure Act 2011, s 244.
5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].
6 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
Analysis
Was the starting point too high?
[16] The starting point taken in the District Court was three years and three months’ imprisonment. The appellant submits that a more appropriate starting point of two years six months’ imprisonment should have been adopted.
[17] Mr Dawson for the appellant argued that, had an appropriate discount been applied to the usual band for aggravated robbery of 18 months to three years in R v Mako,7 then a range of 12 months to two years would have been reached. In this case, the charge of robbery simpliciter would have warranted a sentence at the bottom end of this range being 12 months. Mr Dawson then acknowledged that a reasonably significant uplift of 18 months should be added for the aggravating
features of the offending, particularly for the element of home invasion. He also acknowledged that the violence justified an uplift, but submitted that it need not be great as the violence was not significant, as some of the punches did not connect and no lasting injury resulted. Furthermore, he cautioned against double counting for violence as the offence of robbery already encompasses the element of violence or threats of violence. Overall, therefore, he submitted that a starting point of two years six months was warranted.
[18] To support the appropriateness of this sentence length, Mr Dawson referred this Court to the decisions of Peni v Police and Hartley v Police. In Peni v Police,8 the victim was waiting at a bus stop with a handbag over the shoulder. The appellant was riding by her on a bike and grabbed hold of the handbag which resulted in the victim falling to the ground. A starting point of 18 months was adopted.
[19] In Hartley v Police,9 the defendant approached the victim who had just withdrawn funds from an ATM machine. The defendant offered oral sex in exchange for value. The victim declined. The defendant then demanded the money from the
victim before choking and kicking him several times. On appeal, Hammond J cited
7 R v Mako [2002] 2 NZLR 170.
8 Peni v Police HC Auckland CRI-2010-404-434, 14 February 2011.
9 Hartley v Police HC Wellington AP311/02, 16 April 2003.
Smeed v Police,10 where Chambers J had suggested that, for non-aggravated robbery, the tariff should be 70 per cent of the aggravated robbery tariff. This meant that the usual tariff for a robbery conviction should therefore be 70 per cent of 18 months to three years, being 12 to 25 months’ imprisonment. However, Hammond J nevertheless concluded that the starting point in Hartley of between two and a half to three years was not out of range, although for reasons relating to the offender, he adopted a starting point of two years.
[20] Mrs Preston, for the Crown, pointed out that while Judge Phillips did not articulate the exact way he took into account that the charge in this case was robbery simplicitor not aggravated robbery as in Mako, the aggravating features in this case, particularly the home invasion and violence involved, meant that the starting point of three years three months was clearly within range.
[21] In response to the decisions cited by the appellant in support of this appeal, she observed that:
(a) four of them were advanced on the appellant’s behalf in the lower
Court but were found by the Judge to be of limited utility;
(b)the two additional decisions, being Peni and Hartley, involved respectively quite different factual situations and, in the latter, an incident involving fewer aggravating features and charges;
(c) the starting point adopted in Hollingum v Police,11 of three years’ imprisonment, was not inconsistent with this case, with the High Court saying that the sentence was “easily within range”;
(d)in the only Court of Appeal authority adduced for the appellant, Piper v R,12 the Court upheld as within range, a starting point for the lead offender of three years in a case involving premeditation and
home invasion but no actual violence.
10 Smeed v Police HC Whangarei AP50/00, 24 October 2000.
11 Hollingum v Police [2016] NZHC 1291.
12 Piper v R [2012] NZCA 104.
[22] Counsel also referred to a range of cases where the Court of Appeal had upheld starting points on sentence appeals involving home invasions and stand-over violence for robberies which were within a range of three to more than four years.13
However, I note that each of these cases involved the use of a weapon, in addition to the other aggravating factors.
[23] In my view, had this just been the charge of robbery, with no additional charges, a starting point in the range 12 to 25 months would have been appropriate, but there would have been no particular reason to pitch it at the lower end of this range as contended for by Mr Dawson. However, the aggravating features, some of which were the subject of separate charges, are clearly significant, because they took this from being simply the extraction of money by the threat or use of violence at the ATM, to quite a prolonged and serious course of conduct commencing with the assault and home invasion. As Mrs Preston submitted, the robbery could only occur as a consequence of the appellant entering the victim’s home unlawfully and then using the threat of violence to get his victim to accompany him to the ATM machine. These are factors which justified an uplift of at least 18 months’ imprisonment. Indeed, even Mr Dawson acknowledged an 18 month uplift was warranted for these factors.
[24] Taking a starting point of 18 months as I have calculated, and adding an uplift of 18 months or more for the other aggravating features, means that a starting point in excess of 36 months is reached. This, in my view, demonstrates that Judge Phillips’ starting point of three years three months was within range and open to him. I do not consider the Judge erred, therefore, by setting the starting point too high.
Was there insufficient credit afforded to the appellant’s personal circumstances?
[25] The appellant submits that Judge Phillips failed to take into account the full list of mitigating factors submitted by counsel during sentencing. The list of factors included the guilty plea, remorse, offer to pay reparation, and the strong community
support network the appellant enjoys.
13 R v Gray [2008] NZCA 311; Hodgkinson v R [2012] NZCA 478, and R v Shirley [2009] NZCA 216.
[26] Section 9(2) of the Sentencing Act 2002 sets out non-exhaustive mitigating factors for the Court to consider. It states:
(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:
(a) the age of the offender:
(b) whether and when the offender pleaded guilty: (c) the conduct of the victim:
(d) that there was a limited involvement in the offence on the
offender’s part:
(e) that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding:
(f) any remorse shown by the offender, or anything as described in s 10:
(fa) that the offender has taken steps during the proceedings (other than steps to comply with procedural requirements) to shorten the proceedings or reduce their cost:
(fb) any adverse effects on the offender of a delay in the disposition of the proceedings caused by a failure by the prosecutor to comply with a procedural requirement:
(g) any evidence of the offender’s previous good character:
(h) that the offender spent time on bail with an EM condition as defined in s 3 of the Bail Act 2000.
Section 9(4) further provides that the Court is entitled to take into account any other aggravating or mitigating factors that the Court thinks fit.
[27] In sentencing, Judge Philip afforded the appellant 20 per cent off the starting point for the appellant’s guilty plea (although noting this was generous) and a further five per cent for his remorse. However, the Judge queried the extent of the appellant’s remorse as, according to the pre-sentence report, the intent of his guilty plea was to expedite the process. The appellant also disagreed with elements in the summary of facts.
[28] I consider the Judge was entitled to place little, if any, weight on many of the other factors put forward by counsel for Mr Bell. For example, Mr Bell’s recent commitment to the church and his significant family support do not necessarily warrant a reduction in sentence. Furthermore, the fact that he had not committed an offence in five years and was compliant with his bail conditions are not mitigating factors, and the Judge was entitled to take that into account as he did by not uplifting the starting point of the sentence, even though the appellant had previous criminal convictions, including for violence.
[29] The extent of discount afforded by the sentencing Judge for mitigating factors is a matter of discretion. In exercising that discretion, the Judge considered that the
20 per cent discount for the guilty plea was a generous discount and he was satisfied that an overall discount of 25 per cent adequately reflected the factors which he considered relevant, noting that he had a reasoned basis for not giving a greater discount for remorse. I do not consider the Judge to have erred in considering the applicable mitigating factors.
Home detention
[30] Because of my conclusions on these two points, I do not need to consider the third ground of appeal which is whether home detention should have been imposed, and accordingly, I do not address it.
Conclusion
[31] I accept that the sentence imposed by Judge Phillips was available and within range having regard to the principles of sentencing and other comparable cases. Furthermore, the Judge took care, at the conclusion of the sentencing exercise, to make an assessment of whether, in totality, the sentence reached was appropriate. In this regard, the Judge concluded that the sentence recognised “your culpability and the seriousness of your criminal actions and the overall impact of your criminality upon your victim”.
[32] As a consequence, I accept that the end sentence is not contrary to principle or other appellate authority. The appeal is, accordingly, dismissed.
Solicitors:
Public Defence Service, Dunedin
L C Preston, Barrister, Dunedin
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