Bennett v R HC Hamilton CRI 2011-419-78

[2011] NZHC 1516

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-419-78

BETWEEN  JOHNNY BENNETT Appellant

ANDTHE QUEEN Respondent

Hearing:         20 October 2011

Appearances: C Bean for appellant

J M O'Sullivan for respondent

Judgment:      3 November 2011

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3 pm on Thursday 3 November 2011

Solicitors:

C Bean, Hamilton

Crown Solicitor Hamilton  [email protected]

BENNETT V R HC HAM CRI 2011-419-78 3 November 2011

[1]      Mr  Bennett   appeals   against   a  sentence   of   three   years   nine  months imprisonment imposed upon him in the Hamilton District Court on 25 August 2011 by Judge Burnett, on charges of aggravated robbery and burglary.   The appeal is advanced on four principal grounds:

(a)       The  calculation  of  the  sentence  was  illogical  and  ignored  totality principles;

(b)The sentence itself was manifestly excessive and ignored parity and youth issues;

(c)       The starting point for the aggravated robbery was excessive; and

(d)      The Judge incorrectly imposed an uplift from the starting point on

account of the appellant’s earlier appearances in the Youth Court.

The burglary

[2]      On 5 May 2011, the appellant and an associate went to a residential address in Bailey Street, Huntly, between the hours of midnight and 6 am.  The offenders gained entry to a garage on the property by jemmying open the locked door.  The appellant and his associate seized a KTM 250 CC motorbike valued at $4,900, which they removed from the garage, scratching two other vehicles in the garage as they did so.  They also removed a Stihl chain saw, motocross riding gear, personal items, and a Rip curl wallet. These additional items were valued at about $3,100.

[3]      The appellant pushed the motorbike down the road before starting it and riding it to his home address.  The police subsequently located the motorbike and arrested the appellant.  The motorbike was returned to the victim, but the remaining items were never recovered.

[4]      The victim suffered a total financial loss of $2,850, being the amount of his insurance excess ($750) together with an uninsured component ($2,100).

[5]      The  aggravated  robbery  occurred  just  17  days  later,  at  a  time  when

Mr Bennett was on bail pending sentence for the burglary.

[6]      On the evening of 22 May 2011, the appellant, together with his co-offenders Marsh and Wilson and a further unknown person, went to Harris Street in Huntly. Their purpose was to rob the Bridge Street takeaway store.  One of the group was in possession of an imitation firearm, one had a crowbar, and one had a hammer. Members of the group were all wearing items of clothing, including face coverings, which disguised their identities.  The group gathered at the Youth Centre across the road from the takeaway bar, in order to keep watch on the target premises.  They intended to commit the robbery when no members of the public were in the store.

[7]      At about 8.50 pm, the manageress of the store, a 30 year old Asian woman, was seen to be closing the store.  Two other female staff members and a young child were nearby in a vehicle waiting for her.  She locked the door and commenced to pull down the security roller door over the front of the store.  At that point the group approached her, running across the street in order to confront her.  An imitation gun was presented;  the group demanded that she hand over the store takings, which she had in her handbag.  She was surrounded by the four offenders, one of whom pulled at her bag, and eventually succeeded in overpowering her to the point at which the group gained possession of the bag and its contents.

[8]      During the confrontation, the group intimidated the victim by demanding the money,  by surrounding  her  at  close  quarters,  and  by threatening  her  with  their weapons.  As soon as the bag and its contents were secured, the offenders ran away. They took the bag to a residential address and there divided up the cash.  The precise amount obtained is uncertain but it was between $900 and $1,030.  A member of the group threw away the other contents of the bag, which have not been recovered.

[9]      Police identified the offenders within a matter of hours.  When located the appellant admitted being involved in the aggravated robbery and explained that he did so in order to help out an associate who needed money.

[10]     Judge Burnett faced a complex sentencing task.  The three prisoners had their aggravated robbery offending in common.   Each was also young.   Marsh was 17 years old;   Wilson and the appellant were 19.   But Marsh was also charged with possession of cannabis for supply, and the appellant with burglary.  Wilson was not for sentence in respect of any other offence.   Neither Marsh nor Wilson had any previous  convictions,  nor  any  previous  appearances  in  the  Youth  Court.    The appellant has a prior  record in  both the Youth and District Courts.   The Judge considered that Wilson presented the best prospects for successful rehabilitation, and that the outlook for Marsh was not without promise either.   By contrast, the appellant’s rehabilitation profile was relatively bleak.

[11]     Marsh and Wilson were each sentenced to home detention.   The appellant was sentenced to three years nine months imprisonment.  That sentence was reached by adopting a starting point of four years imprisonment for the aggravated robbery, adding 13 months for the burglary and a further two months for the appellant’s Youth Court  record.    From  the  resultant  figure  of  five  years  three  months,  the  Judge deducted 18 months for mitigating factors (principally the guilty plea), so producing an end sentence of three years nine months imprisonment on the aggravated robbery charge.   The Judge imposed a 12  month  concurrent  term  for the burglary,  and directed total reparation of $2,025 ($225 for the aggravated robbery and $1,800 for the burglary).

Starting point

[12]     Mr Bean submits that the starting point adopted for the aggravated robbery was too high.   He says it ought to have been three to three and a half years imprisonment.  Underpinning that submission is the contention that this was not a “ robbery of a small retail shop by demanding money from the till under threat or use

of a weapon … with an accomplice waiting to facilitate a getaway …”.[1]

[1] R v Mako [2000] 2 NZLR 170 at [56], where a starting point of about four years imprisonment is suggested for such offending.

[13]     The Judge held that the intention of the offenders was to target the takings of the small business, in or outside commercial premises.   They waited  until they considered the victim to be at her most vulnerable, isolated from anyone else, and distracted by the task of closing up the premises.  Moreover, the victim could have been expected to have all of the day’s takings of the business in one place, namely her bag.

[14]     The Judge’s finding on this point was inevitable in my opinion.   This is nothing like the street robbery described in Mako.   A starting point of four years imprisonment  was  plainly warranted,  having  regard  to  the  presence  of  multiple offenders, the  substantial degree of premeditation involved  including the use of disguises, the deployment of weapons and the vulnerability of the victim.   Had customers been present then a higher starting point might have been appropriate. The choice of a starting point of four years imprisonment was therefore correct.

The burglary uplift

[15]     Mr Bean places at the forefront of his submissions in respect of the burglary, the detail of the Judge’s arithmetic.   She chose a 13 month starting point for the burglary which she added to the four year starting point for the aggravated robbery. But when she came to impose a concurrent term for the burglary (having nominated the aggravated robbery as the lead offence), she selected a 12 month concurrent term.  Mr Bean says that was illogical.

[16]     In my view it was simply a minor discrepancy.  Concurrent sentences do not affect the overall end sentence.  The effective penalty in respect of the burglary was the 13 month uplift imposed by the Judge.

[17]     Mr Bean’s next point was that the 13 month period was itself too high.  He

characterised Mr Bennett as a first time burglar.

[18]     In my opinion, it is not right to regard him as a first burglary offender.  His record discloses that he committed burglaries in November and December 2007, for which he was ultimately admonished in the Huntly Youth Court on 16 October 2008.

The burglaries are described as involving property worth over $5,000 in each case, so they were not minor in scale.   Care must be taken over the use to which appearances in the Youth Court are put for subsequent sentencing purposes, but I consider it appropriate to take them into account in determining whether Mr Bennett ought to be treated as a first time burglar.

[19]     The earlier matters and the targeted, determined and sophisticated character of the present burglary required a custodial penalty.   Counsel referred to R v Columbus.[2]   There, the Court of Appeal dealt with a case in which the appellant had forced open the vehicle access door of a garage to a residential property during the afternoon.  That caused damage of $672.  He stole a mountain bike, together with gardening tools and a tool box.   He pawned the bike later that day but it was

recovered by the police.

[2] R v Columbus [2008] NZCA 192.

[20]     As  the Court  of Appeal  judgment  points  out,  the starting point  must  be selected without reference to a prisoner’s prior record.  In particular with respect to sentences for burglary, the starting point must reflect the culpability inherent in the offence itself, without the introduction of any consideration of the past record of the prisoner for similar offending.  In that case, the Court of Appeal considered that the appropriate starting point was 12 months imprisonment.

[21]     Ms O’Sullivan submits that this case is more serious than Columbus because: (a)     The appellant committed the burglary with another associate;

(b)It occurred during the early hours of the morning rather than during the afternoon, as in Columbus;  and

(c)       The value of the property taken was much higher.

[22]     She submits that a starting point in the range of 15-17 months imprisonment would have been appropriate, and that the starting point of 13 months imprisonment

selected can be justified by reference to totality principles.  I agree.  I consider that an uplift of 13 months was well within the range available to the Judge.

Further two month uplift

[23]     Mr Bean submits that there was no proper basis for the Judge’s decision to impose a further two month uplift by reference to Mr Bennett’s previous Youth Court appearances.  There appears to be only one previous appearance, at which time the appellant was dealt with on the two burglaries to which I have referred above, and another charge of being unlawfully in a building.  He was admonished on all three and directed to pay reparation of $215.

[24]     It is unusual to take into account Youth Court appearances, especially where convictions are not entered.  But any consideration of this aspect of the appeal must have regard to the fact that the aggravated robbery occurred while Mr Bennett was on bail for the burglary, which had occurred just 17 days earlier.  He had obviously learned absolutely nothing from his apprehension and appearance on the burglary charge.  The Judge would have been entitled to add at least two months by way of uplift for the fact that the aggravated robbery was committed while the appellant was on bail.  In my opinion, that cancels out the challenge to the two month uplift.

Totality

[25]     Mr Bean refers to s 85(2) of the Sentencing Act 2002, which warns against the imposition of a total period of imprisonment wholly out of proportion to the gravity of  the  overall  offending,  where  cumulative  sentences  are  imposed.    He submits that, given the whole of the offending here, totality considerations have been overlooked, with the result that the end sentence of three years nine months imprisonment is out of proportion to the appellant’s culpability.

[26]     I disagree.  Mr Bean is right not to challenge the Judge’s decision to impose in effect a cumulative sentence (by way of substantial uplift to the starting point for the aggravated robbery).  These were quite separate offences committed more than two weeks apart and involving quite different victims.  Each was badly shaken by

what occurred.  The victim impact reports make sobering reading.  Where separate offences may properly be regarded as part and parcel of a single transaction, albeit spread over time, there will often be room for a substantial discount on totality grounds, but in circumstances such as the present where there are quite different offences committed at different points in time and involving different victims, there is less room for a totality discount.

[27]     Ms O’Sullivan says that the Judge can be taken, at least notionally, to have discounted the burglary starting point somewhat on totality grounds.  I am not sure about that, but I consider that while the Judge might well have reduced the sentence by some small degree, there has been no error in principle and it would not be right for me to interfere on totality grounds with the sentence imposed.

Parity and youth

[28]     Mr Bennett is 19 years old.   Sometimes a separate discount for youth is identified and applied in appropriate cases.  But in my view this is not one.  In Mako[3] itself, the Court of Appeal noted that there is very little room for the allowance of a youth discount for serious violent offending, and in particular in the context of aggravated robberies.

[3] R v Mako [2000] 2 NZLR 170 at [65].

[29]     I turn to Mr Bean’s parity, or disparity, argument.   I accept that it will be relatively unusual for three young co-offenders involved in an aggravated robbery to be treated so differently.  But a careful reading of the sentencing notes demonstrates that  the  Judge  approached  a  difficult  sentencing  exercise  in  a  principled  and analytical fashion.

[30]     Mr Marsh was the youngest offender at 17 years.  He also faced a charge of possession of cannabis for supply;   he was found with some 15 tinnies which he accepted were for sale.  The Judge took a starting point of 12 months imprisonment for the cannabis offending, so reaching five years imprisonment as a total starting point.  She allowed a full discount of 25% for the guilty plea which brought her to

three years nine months imprisonment.  She then said:

[12]      When   I   look   at   his   pre-sentence   report   I   observe   that   he acknowledges he is an associate of the Cripps, that he is thinking of severing his ties, but that he is clearly ambivalent.   It is not at all clear what his motivation in moving towards change is and that can only be assessed in hindsight.  He does get credit for his age and for prospects of rehabilitation and remorse.  He has provided some correspondence where he sets out his goals etc and it seems that he does have some prospects if he is to sever his ties from the Cripps gang.  Accordingly, I am asked to make provision for this, to recognise this and to allow a sentence of home detention.  I do so with some reservations and I reduce his sentence to 12 months home detention,  with  a  concurrent  term  of  six  months  home  detention  for possession for supply.   He does have youth.   He has expressed remorse. There are prospects for rehabilitation and he has demonstrated some insights.

[31]     In reaching that conclusion, the Judge took into account the fact that the robbery was carried out within 24 hours of Mr Marsh having been released on police bail for the cannabis offending.   She observed further that if he did not make a complete break with the Cripps gang, then any rehabilitation attempts were likely to be unsuccessful.   The home detention sentence was intended to encourage him to make that break, and to support him in doing so. In addition to the sentence of home detention, Mr Marsh was ordered to pay reparation of $225.

[32]     As mentioned earlier, Mr Marsh had no previous convictions, nor any Youth

Court appearances.

[33]     Mr Wilson was 19 years old.  The Judge accepted that he was not carrying a weapon at the time of the aggravated robbery, and was not a member of the Cripps gang, albeit that he was associated with the gang.

[34]     Judge  Burnett  considered  that  Mr  Wilson  stood  to  benefit  most  from  a sentence of home detention, and that it was appropriate to craft a sentence which produced that result.  She referred to material before the court indicating that he had very substantial support in the community, that the suggested home detention address was thoroughly suitable, and that he had the advantage of a senior male mentor in good standing.  She expressly found that of the three offenders, Mr Wilson had the best prospects for successful rehabilitation.

[35]     Like Mr Marsh, Mr Wilson had no previous convictions and no Youth Court appearances.   Neither did he face any charges other than the aggravated robbery

charge.  Although she did not expressly say so in her sentencing remarks, it is to be inferred that the Judge adopted the same starting point of four years imprisonment for the aggravated robbery as she did for the other offenders.  She then allowed a

25% discount for the guilty plea, but also a further discount for age, rehabilitative prospects and time spent on bail.  In that respect, Mr Wilson had been on a 24 hour curfew while on bail over a period of two months.  The Judge imposed a sentence of

12 months home detention, together with an order for reparation of $225, to be paid forthwith.

[36]     The Judge concluded by saying, “What does distinguish you also from your co-prisoners is that there was no additional offending prior to or following this aggravated robbery”.

[37]     Against that background, Mr Bean submits that the disparity between the penalties  imposed  upon  these  three  offenders  was  simply  too  great,  and  that Mr Bennett is entitled to a significant reduction in the penalty imposed in the District Court. Home detention is not sought.

[38]     Disparity arguments are apt to give rise to difficult problems in some cases. The disparity principle is perhaps narrower than is sometimes appreciated.  In R v Rameka,[4] McCarthy J, writing for the Court of Appeal, said:

[4] R v Rameka [1973] 2 NZLR 592 at 593.

We take this opportunity to say something concerning disparity of sentence as a ground of appeal, because it has been raised in several appeals recently. It  has  long  been  the  view  of  this  Court  that  little  help  is  gained  by considering other sentences in respect of the same  offence (R v Radich [1954] NZLR 86) or, indeed, other sentences imposed by other Judges or Courts on other offenders whose offences are in some way linked with those of the appellant. The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence (R v Richards (1955) 39 Cr App R

191).  In  each  case  the  whole  of the  surrounding circumstances  and  the situation of the offender have to be taken into account and, as this Court has said previously, these factors vary infinitely. But it is true that there has been, of recent years, both in this country and in England, an increased willingness to  take  disparity of  sentence  into  account  when  the  disparity cannot  be justified and is gross.

[39]     Subsequently, in R v Autagavaia, Cooke J delivering the judgment of the

Court of Appeal said:[5]

[5] R v Autagavaia [1985] 1 NZLR 398 (CA) at 401.

In New Zealand it is a well settled principle that disparity in sentences as between co-offenders may lead to a reduction of a sentence on appeal if, but only if, the disparity is so marked as to lead objectively to the conclusion, when all the circumstances are known, that the administration of justice has miscarried. For a decade the leading authority has been R v Rameka [1973] 2

NZLR 592. Among more recent authorities particular reference may be made to R v Lawson [1982] 2 NZLR 219, 223. It is of interest that the High Court

of Australia has stated the principle in substantially the same way in Lowe v

R (1984) 54 ALR 193, although the result favoured there by Mason J, one of a minority who would have given special leave to appeal on the ground of

disparity, perhaps suggests that Australian Courts may be even less ready than New Zealand Courts to treat a disparity as of such magnitude as to

justify appellate interference. The fact is that a disparity argument rarely succeeds - basically because the antecedents and participation of individual

accused are apt to vary significantly and the sentencing Judge almost always has open a legitimate range of discretion. Indeed, in neither Rameka nor Lawson did such an argument succeed.

[40]     Much more recently, the Court of Appeal said in R v Feterika:[6]

[6] R v Feterika [2008] NZCA 127 at [47].

This court has said on many occasions that a disparity argument cannot be built on an unjustifiable sentence:  R v Te Kaha CA49/05 5 July 2005 at [48]; R v Thompson & Pullen-Burry CA245/98 CA267/98, 22 December 1998.

[41]     The thread running through these cases is that an argument for a reduction in sentence based on disparity cannot succeed where all that can be shown is that a co- offender received a particularly lenient sentence.  The question in every case must be whether the prisoner (or the appellant) has received too long a sentence.   In each case, the whole of the surrounding circumstances and the situation of the offender must be taken into account.

[42]     Here,  there was no  disparity in the Judge’s approach to the selection of starting points, both for the common aggravated robbery offence, and for the other offences  with  which  the appellant  and  Mr Marsh were charged.    The  so-called disparity arose when the Judge came to consider the personal circumstances of each offender.   She took the view that both Wilson and Marsh, for different reasons, presented  good  rehabilitative  prospects  (in  Mr  Marsh’s  case)  and  outstanding

prospects (in the case of Mr Wilson).

[43]     To put it bluntly, Judge Burnett was not impressed by the appellant.  Of him she said:

[15]     Moving now to your personal circumstances, Mr Bates has said all that can be said on your behalf and he puts what are clearly negative features in the most positive light, in that he says you have been honest.  You have been straight-up and you are not seeking to shift responsibility.   You acknowledge that you are a member of the Cripps and you do not seem to have any intention at this stage of leaving the gang.   I would simply encourage you to leave as soon as you are able, otherwise you are going to end up spending most of your young life in prison.  I sincerely hope that that is not what you want.  I have got no doubt you can be staunch and you can survive this.  Most people are able to do that.  You might regard it even as a mark of pride that you can do so.   It is a distorted way of looking at life. What you really want out of life is the best that you can get out of life and that means freedom and happiness.  You are not going to get that in prison. You are only 19 at this stage and you have got much to learn about how much you can miss out on things, simply by failing to put criminal activity behind you and leading the ordinary life that most of us lead.  I cannot say much more than that.   It is in your hands.   It is for you to come to that conclusion.    Up  until  now,  your  life  has  been  punctuated  simply  by consuming alcohol, smoking cannabis and hanging out with your associates, with no particular goal or focus in life.  You have no income and when you have needed income, you committed crime to enable you to have a meagre amount of income and of course, all that that has done is to bring you back before the court.  You were on court bail for a burglary that you committed a few days before, a burglary at night, and you have left a very angry and upset family, who are the victims of your offending.

[16]      You are assessed as having a very high level of usage of alcohol and a harmful pattern of drug use.  The way that you spent your day is described and  you  do  not  express  any  desire  to  change  or  attend  rehabilitative treatment.  You are only 19 but in the Youth Court you have already got two burglaries and a being unlawfully in a building;  in the District Court, wilful damage, careless driving and giving false details.  Unless you are prepared to alter your values and attitudes, regrettably life will not change very much for you.  You have not consented to home detention and in any event, it seems that such a sentence would not be appropriate, given your circumstances.

[44]     In  my  opinion,  the  significantly  different  outcomes  for  these  three  co- offenders was entirely explicable by reference to the personal circumstances which distinguished one from another.  It cannot be said that Mr Bennett’s sentence was too long.   It might be thought that his co-offenders were treated particularly leniently, but as the cases above cited demonstrate, that can never be a ground for interfering with a sentence which is otherwise well within the available range.

[45]     The appellant’s disparity argument therefore fails.

Result

[46]     For the foregoing reasons, the appeal is dismissed.

C J Allan J