Brown v The The Queen
[2022] NZCA 413
•31 August 2022
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA113/2022 [2022] NZCA 413 |
| BETWEEN | SKYE DESTINY BROWN |
| AND | THE QUEEN |
| CA204/2022 | ||
| BETWEEN | MANAIA SEW-HOY | |
| AND | THE QUEEN | |
| Hearing: | 14 July 2022 |
Court: | Dobson, Peters and Downs JJ |
Counsel: | N M Dutch for Appellant Brown |
Judgment: | 31 August 2022 at 11.00 am |
JUDGMENT OF THE COURT
AThe extension of time in CA204/2022 is granted.
BThe appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Downs J)
Skye Brown and Manaia Sew-Hoy were convicted of aggravated robbery in relation to an intellectually disabled complainant.[1] Ms Brown was also convicted of kidnapping the same complainant.[2] Both Ms Brown and Mr Sew-Hoy received terms of imprisonment.[3] Both appeal their conviction and sentence.[4]
[1]Crimes Act 1961, ss 235(b) and 66.
[2]Section 209(b).
[3]R v Brown [2022] NZDC 3370 [Sentencing notes]. Ms Brown was sentenced to two years and nine months’ imprisonment. Mr Sew-Hoy was sentenced to two years and five months’ imprisonment.
[4]Criminal Procedure Act 2011, ss 229 and 244.
Mr Sew-Hoy’s notice of appeal was filed on 28 April 2022, some 20 working days out of time. The point was not taken at any stage, probably because the appeals related to short terms of imprisonment and there was good reason to have both appeals heard together. The Court of Appeal (Criminal) Rules 2001 provide that a notice of appeal filed out of time is to be treated as if it includes an application for an extension of time.[5] In these circumstances we grant the necessary extension of time for commencement of his appeal.
Background
[5]Court of Appeal (Criminal) Rules 2001, r 12.
The complainant suffered a brain injury when he was almost two years old. Consequently, the complainant has an intellectual disability, visual and hearing problems, and other difficulties.
The complainant met Ms Brown through church. He thought her a friend. That said, the complainant had left Ms Brown apparently stranded in more than one place because she can be “a bit too much”.
The offending occurred on 10 February 2020, in and around Tauranga.[6] The complainant was at the Welcome Bay roundabout, when another car pulled up behind his. Ms Brown got out of that car, into the complainant’s. Ms Brown told the complainant to follow the other car, which drove to a nearby Caltex service station. The complainant did. He was worried he was going to be “rolled”.
[6]The complainant was then aged 28.
At the Caltex service station, the driver of the other car — Aiden Roberts — got into the front passenger seat of the complainant’s car. Ms Brown moved into the back seat of his car. Mr Roberts told the complainant to drive to Pāpāmoa. He did.
Mr Roberts began rummaging through the complainant’s belongings and holding onto them.
Mr Roberts told the complainant to stop his car under a tree near the beach. The complainant complied. The other car arrived and parked behind the complainant’s. Mr Roberts then threatened to chop up the complainant and spread his body parts along the beach. Mr Roberts told the complainant to swap seats. Again, the complainant complied. Mr Roberts produced what the complainant described as a “mini axe”. Mr Roberts repeatedly struck the steering wheel with the weapon. Mr Roberts said he was going to take “everything”.
Ms Brown was in the back seat or by the complainant’s car while Mr Roberts made these threats.[7] Mr Sew-Hoy was either in the complainant’s car or the other car. We return to this topic later.
[7]In his evidential interview, the complainant said Ms Brown was in the back seat. In cross-examination, he said Ms Brown was “by the white car”; that car being his. It was put to the complainant that Ms Brown was in the other car. The complainant said, “no”.
Someone asked the complainant how much money he had. He was told to use his phone to access his bank account. Mr Roberts then used the complainant’s phone to transfer $200 between accounts, so money could be withdrawn from an ATM. Thereafter, Mr Roberts drove the complainant’s car, with the complainant in the front passenger seat.
Both cars went to a second service station, then an ATM at Papamoa Plaza. Ms Brown said, “we’ll go and get the money out”. The complainant’s evidence was not entirely clear on who withdrew $240 from his account. In his evidential interview, the complainant said Ms Brown did; likewise, the “guy with the big eyes”. But, in cross‑examination, the complainant said Mr Roberts was the only person who did so. The group then purchased cigarettes from a dairy.
The group then went to a PostShop; Mr Roberts had told the complainant to change the ownership of his car to him. Ms Brown and Mr Sew-Hoy went inside the PostShop with the complainant, where they tried to put the car into Mr Roberts’ name. The transaction was declined because of an absence of identification.
The complainant was then driven some more. He was ultimately dropped near a McDonald’s restaurant, and walked home. The entire sequence took at least two and a half hours. The complainant’s car was taken. So too, of course, were $240 and several items of personal property.
Police were promptly involved but none of the complainant’s property was recovered. Ms Brown was arrested on 26 February 2020. She said she knew the complainant but otherwise remained silent. Mr Sew-Hoy was arrested on 5 June 2020. We discuss his police interview later. Mr Roberts pleaded guilty to an offence of aggravated robbery in relation to the complainant.
Conviction appeals
Ms Brown and Mr Sew-Hoy were convicted after a jury trial before Judge Cameron. They appeal their convictions on a number of grounds. This Court must allow the appeal if satisfied that the jury’s verdicts were unreasonable,[8] or that a miscarriage of justice has occurred for any reason.[9] A miscarriage of justice is defined as an error, irregularity or occurrence in relation to or affecting the trial which has created a real risk that the outcome of the trial was affected, or which has resulted in an unfair trial.[10]
The kidnapping charge
[8]Criminal Procedure Act, s 232(2)(a).
[9]Section 232(2)(c).
[10]Section 232(4).
The trial began on 6 December 2021. Immediately before trial, the Judge allowed the Crown to add a kidnapping charge against Ms Brown.[11] The charge also named Mr Roberts as a kidnapper.
[11]R v Brown [2021] NZDC 24306 [Charge amendment decision].
The Judge granted the Crown’s application on the bases Ms Brown would not suffer prejudice and existing evidence disclosed the charge.[12] This introduces the first ground of appeal, which concerns Ms Brown only.
[12]At [2]–[3]. The relevant provisions governing such an application are Criminal Procedure Act, ss 133 and 191; and Crown Prosecution Regulations 2013, reg 6(2).
The Crown first signalled it would apply to add the charge on 26 November 2021 (at a hearing directed at another purpose). It filed and served the requisite application on 29 November 2021.
On behalf of Ms Brown, Mr Dutch contends the interests of justice did not favour an additional charge. He observes no explanation was provided for its lateness, and the likely one involves tactical considerations; the correspondence accompanying the application said the Crown would accept a guilty plea “to only the aggravated robbery”. Mr Dutch argues Ms Brown was placed under “unfair pressure” to plead guilty shortly before trial. So, taken together, she has suffered a miscarriage of justice.
We consider it was open to the Judge to allow the Crown to add a charge of kidnapping, and for the reasons he gave. The charge was available on the existing evidence as the sequence disclosed an ongoing, unlawful detention of the complainant.[13] Ms Brown suffered no prejudice beyond that inherent in any additional charge, for the Crown’s case against her remained exactly as it was.
[13]Crimes Act, s 209(b).
We acknowledge the possibility the charge might have been motivated by a hope of resolution but see nothing improper in the circumstances. In particular, we do not consider the number or nature of the charges to have been “inflated to increase the likelihood of an offer by the defendant to plead guilty to lesser charges”[14] because the detention of the complainant was integral to the sequence of the offending and, unlike every other defendant, Ms Brown knew the complainant. Ms Brown was, therefore, aware of the complainant’s vulnerability when she got into his car and directed him to follow the other car, from which all else followed. Moreover, the complainant said Ms Brown explained the offending as it unfolded: she said it was happening because he had abandoned her in Lower Hutt and other places. In short, we consider it was open to the Crown to signal Ms Brown as the primary defendant on trial by adding the kidnapping charge.[15]
Unreasonable verdicts?
[14]Crown Law Solicitor-General’s Prosecution Guidelines (1 July 2013) at [8.2].
[15]As noted at [14] above, the other lead offender, Mr Roberts had pleaded guilty to aggravated robbery.
Ms Brown and Mr Sew-Hoy contend the guilty verdicts in relation to the aggravated robbery charge are unreasonable.[16] A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the defendant was guilty.[17] There are several aspects to this argument, and some elaboration is needed.
[16]Criminal Procedure Act, s 232(2)(a).
[17]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
We begin with the charge, which was framed this way:
Charge 2
Aggravated robbery
Sections 235(b) & 66
Crimes Act 1961MANAIA SEW-HOY and SKYE DESTINY BROWN together with AIDEN MARK ROBERTS robbed [the complainant]
Particulars: $240.00 cash, iPhone, driver’s licence, Sony car stereo, Garmin GPS, vaping device and / or a Mazda motor vehicle registration LCU125.
Robbery is theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or prevent resistance to its being stolen.[18] Aggravated robbery can occur in several ways, including when a person, “being together” with another, or others, robs someone.[19] So, aggravated robbery requires proof of theft and accompanying violence or threats of violence (to extort the property or prevent resistance to its being stolen) by two or more people being together. The theft and violence need not be contemporaneous, but there must be a nexus between them for a charge of robbery or aggravated robbery to be made out.[20]
[18]Crimes Act, s 234(1).
[19]Section 235(b).
[20]R v Maihi [1993] 2 NZLR 139 (CA) at 141.
Ms Brown and Mr Sew-Hoy contend they could not have been guilty of aggravated robbery because on their analysis, the theft of the complainant’s car and other items of property ended once Mr Roberts had apparent control of the car and other items at Pāpāmoa beach. On this argument, anything said or done thereafter by Ms Brown or Mr Sew-Hoy — for example, going into the PostShop to change the ownership of the complainant’s car into Mr Roberts’ name — could not establish aggravated robbery as the underlying theft had long since ended. In other words, there could be no accompanying violence in the sense explained above.
The leading case on when theft ends is this Court’s decision in R v Maihi.[21] The Court said:[22]
A threat may have a continuing effect which is still operating when goods are handed over. The act of [theft] itself may not have ceased and if, as a matter of common sense, the jury found that the accused was still in the process of stealing the item when the violence or threat of violence was employed, they would be entitled to find that robbery was completed at that point.
The Court referred approvingly to the English decision of R v Hale,[23] in which an argument that theft was necessarily an instantaneous act was rejected.[24]
[21]R v Maihi, above n 20.
[22]At 141 (citation omitted).
[23]At 141, citing R v Hale (1978) 68 Cr App R 415 (CA).
[24]R v Hale, above n 23, at 418.
Also important is this Court’s recent decision in R v Tahana.[25] In that case, Mr Tahana entered a liquor store and picked up two bottles. He walked towards some fridges near the store entrance, then outside, with both bottles. The attendant confronted him outside the store. The Crown alleged Mr Tahana turned and presented a knife. The attendant backed away.
[25]R v Tahana [2021] NZCA 497, (2021) 29 CRNZ 1002.
The Court in Tahana affirmed Maihi and Hale. It said “a theft by taking may, depending on the circumstances, be a continuing act”.[26] It gave the example of an item “being stolen” while it was carried through the store: a jury could find, “as a matter of common sense, that it is still in the process of being stolen up to the point where it is removed from the premises”.[27] The Court said that “[a]t any point in that process, it would be quite natural to say ‘they are stealing’ the item”.[28] And, if the person were accosted in the store and responded with violence or the threat of violence, “it would be natural to say that the item was still in the process of being stolen, and that the violence accompanied the theft”.[29]
[26]At [40].
[27]At [41].
[28]At [41].
[29]At [41].
This approach was considered consistent with the purpose of the offence of robbery, which penalises more severely theft committed through the use or threat of violence.[30] The Court said the concern is engaged when “a defendant goes into a store and demands that an employee hand over an item behind the counter, and threatens violence if they do not comply”.[31] The concern is “equally engaged [when] the defendant threatens violence to enable the defendant to complete the process of taking the item from the store, after taking it from a shelf”.[32] It followed no “principled difference” existed between these scenarios.[33]
[30]At [42].
[31]At [42].
[32]At [42].
[33]At [42].
However, the Court said a point would be reached “when, on any view, the item has been stolen”.[34] Violence thereafter would give rise to a separate offence, rather than robbery or aggravated robbery.[35]
[34]At [44] (emphasis in original).
[35]At [44].
The Court held the bottles taken by Mr Tahana could constitute an ongoing theft “while they were carried through the store, and out the door”.[36] But, once Mr Tahana was outside the store, “the theft was complete”.[37] It followed Mr Tahana’s alleged threat of violence with the knife “did not accompany the theft”, for by that time, the theft had ended.[38]
[36]At [50].
[37]At [50].
[38]At [50].
The Court said that:[39]
In some cases it will be a matter for the jury to decide whether an item was still in the process of being stolen, and whether the violence accompanied the theft, or whether the theft had been completed and the item had been effectively stolen.
[39]At [44].
In light of these principles, we consider it was open to the Crown to assert, and for the jury to find, that the theft of the complainant’s property was a continuing act or transaction which did not end until the defendants dropped the complainant outside the McDonald’s restaurant. We make six overlapping observations.
First, until he was dropped outside the McDonald’s restaurant, the complainant remained in immediate proximity of all of his property. Indeed, the complainant had, until then, been in his own car. The balance of the complainant’s property remained within reach, albeit presumably in the apparent possession of Mr Roberts.
Second, if, by chance, police had intervened at any point before the complainant was abandoned at McDonald’s, it would have been open to every member of the group to assert they had no intention to permanently deprive the complainant of any his property, and their continued association with him was evidence of that. That explanation would almost certainly have precluded a successful charge of aggravated robbery, because any or all of the property could have been returned to the complainant immediately.
Third, expressed in terms of Maihi and Tahana, it seems to us that as “a matter of common sense” everything was still in the process of being stolen until the group dropped the complainant at McDonald’s, for only then did the group truly have control of the complainant’s property. Expressed yet another way, until then, his property had not really been taken. That the complainant was still being detained underscores this analysis.
Fourth, it is beyond argument Ms Brown and Mr Sew-Hoy went into the PostShop with the complainant in an attempt to have him transfer ownership of his car to Mr Roberts — all three are shown in CCTV footage at the counter, dealing with a member of staff. To borrow the language of Tahana,[40] “it would be natural to say that the [car] was still in the process of being stolen, and that [Mr Roberts’ earlier] violence [still] accompanied the theft”.
[40]At [41].
Fifth, for these reasons, we see nothing objectionable in the charge referring to different items of property. A charge for each item would have needlessly complicated the trial and been heavy-handed. In fairness, neither appellant argues otherwise.
Sixth, we consider Tahana readily distinguishable on its facts. The theft in that case ended once the bottles were taken outside the store. That analysis reflects the setting in which the offending took place. We are not concerned here with a store setting or its functional equivalent.
This leaves other aspects of this ground of appeal. Mr Dutch contends there was inadequate evidence of a common intention to rob the complainant. On behalf of Mr Sew-Hoy, Mr Hall advances the same contention. Both stress the offending cannot have been premeditated, as the group encountered the complainant by chance at the Welcome Bay roundabout when their car was behind his.
Given the totality of evidence, including what each member of the group said and did, we consider it was open to the jury, acting reasonably, to conclude a common intention existed to rob the complainant. We take this view based on the following facts:
(a)Ms Brown got into the complainant’s car and directed him to follow the other car, which then stopped at the Caltex service station.
(b)At the Caltex service station, Mr Roberts got into the front passenger seat of the complainant’s car. Ms Brown moved into the back seat. Mr Roberts told the complainant to drive to Pāpāmoa. The rest of the group followed in the other car.
(c)Mr Roberts told the complainant to stop his car under a tree near the beach. The other car arrived and parked behind the complainant’s car.
(d)There, Mr Roberts explicitly threatened the complainant with violence, including by use of a weapon. He said he was going to take “everything”.
(e)Throughout the events described in (d) above, Ms Brown was in the back seat of the complainant’s car or by his car.
(f)As observed, Ms Brown and Mr Sew-Hoy accompanied the complainant into the PostShop, and there attempted to have him transfer ownership of his car to Mr Roberts.
(g)At some point, Ms Brown said the offending reflected the complainant’s abandonment of her in Lower Hutt and other places.
(h)In his police interview, which we foreshadowed at [14] above,
Mr Sew-Hoy made significant admissions to police.[41] Mr Sew-Hoy said they saw the complainant driving; Ms Brown said she knew the complainant; and Mr Roberts told her to get into the complainant’s car and make him follow them. Then, on the way to the Caltex service station, Mr Roberts was saying he was going to take “whatever” Mr Roberts wanted. Mr Sew-Hoy described Mr Roberts this way: “his mindset [was] whatever he got it’s mine”. Mr Sew-Hoy said there had been an issue between Ms Brown and the complainant; he understood the complainant had taken her “stuff”. Mr Sew‑Hoy elaborated: “Like he had his clothes, her clothes, her onesies. … All that kinda weird stuff”. This exchange then occurred:[41]These were evidence against him only.
WM:And so [Mr Roberts] decided to take everything from [the complainant]?
MS:Mm yeah basically.
WM:And that’s what he’s, that’s what he’s told, told you guys.
MS:Yeah.
WM:Before all this … has kicked off.
MS:Yeah, yeah kinda like … Where everything, everything he owns is mine.
The interview continued. Mr Sew-Hoy said once they arrived at the beach, he knew of the “negotiations” in relation to the taking of the complainant’s phone and money. Mr Sew-Hoy said Mr Roberts was “the main instigator, he made us do all that”. He said Mr Roberts and another went with the complainant to the ATM. Mr Sew-Hoy acknowledged going into the PostShop to “get ownership of the car”. He said he was under the influence of methamphetamine at that time. Mr Sew-Hoy acknowledged knowing the complainant had “a disability”. He said the complainant was crying, and he told him not to. Mr Sew-Hoy added he “kinda felt like yeah fuck oh what could I [have] done you know he’s, he’s just sitting there crying, his phone’s gone, his car’s you know [been taken] over by someone he doesn’t know”. Mr Sew-Hoy said, “I feel you know some kind of remorse”.
(i)Finally, there is no evidence Ms Brown or Mr Sew-Hoy expressed any surprise at what was occurring or sought to disassociate themselves in any way from the offending. Neither appellant testified.
As will be apparent, we also consider it was open to the jury, acting reasonably, to conclude Ms Brown and Mr Sew-Hoy shared the common intention to rob the complainant.
This leaves a final point in relation to this ground of appeal.[42] Mr Hall contends the evidence is equivocal as to whether Mr Sew-Hoy was inside the complainant’s car at the beach or in the other car, as Mr Sew-Hoy also told police. Mr Hall contends the jury should, therefore, have had a reasonable doubt about his guilt.
[42]Neither Ms Brown nor Mr Sew-Hoy contends the question trail contained error or was defective in any way. Neither challenges the correctness of the summing up.
We accept the complainant’s evidence on whether Mr Sew‑Hoy was inside his car or the other car is difficult to follow, as it turns on the complainant’s description of a “skinny guy”, in circumstances where there appears to have been more than one male within the group who fitted this description. However, in light of our discussion from [44] below, the jury did not need to be sure Mr Sew‑Hoy was inside the complainant’s car; rather, they needed to be sure Mr Sew-Hoy was present when Mr Roberts threatened the complainant.
It was open to the jury to be sure of this aspect. Mr Sew-Hoy told police he was present: Mr Sew-Hoy said he was in the other car, which was parked behind the complainant’s. Moreover, as observed, Mr Sew-Hoy accepted being aware of what he described as “negotiations” between Mr Roberts and the complainant in relation to the latter’s property. In context, the jury could legitimately conclude this was a euphemism for Mr Roberts’ threats of violence to the complainant given the balance of Mr Sew-Hoy’s police interview and other trial evidence.
For completeness, we accept Ms Mildenhall’s submission on behalf of the Crown there is no reasonable possibility the “being together” requirement of aggravated robbery was not established on the evidence, a point not taken by either appellant. This element was discussed by this Court in Deys v R.[43] It held physical distance between the robber and one or more associates when the robbery occurs is not determinative of the “being together” element.[44] Or, as the Court observed:[45]
The second participant (as well as any additional participants where there are more than two) must be physically proximate to an extent that his, her or their presence operates to support or heighten the threat to the victim. The involvement of such participants needs to be immediate in the sense that they share a common purpose of confronting the victim with the threat of and, if the circumstances require, actual use of violence to facilitate the taking of the victim’s property.
[43]Deys v R [2018] NZCA 567.
[44]At [21].
[45]At [26].
Mr Roberts was, obviously, the main offender. He was inside the complainant’s car, with the complainant, at the beach. There, Mr Roberts threatened the complainant with violence. Ms Brown was in the back seat of the complainant’s car or by his car while Mr Roberts did so. It follows the jury could be sure a second participant — Ms Brown — was physically proximate to an extent her presence operated to support or heighten the threat to the complainant.[46] In other words, the jury could be sure there were two or more people “being together” in the sense required while the complainant was threatened with violence at the beach.
[46]This issue was reached on the question trail only once the jury had concluded Ms Brown had formed a common intention with Mr Roberts or Mr Sew-Hoy, or both to rob the complainant.
That this issue was not live at trial (or on appeal) is hardly surprising; neither appellant made a sustained attack on the complainant’s evidence or the Crown case more generally. Indeed, the real trial issues were twofold only: was there a common intention to rob the complainant? If so, did Ms Brown and Mr Sew-Hoy share that? Again, we consider it was (well) open to the jury to answer yes to both of these questions according to the criminal standard of proof beyond reasonable doubt.
The Judge’s supplementary direction to the jury
When summing up, the Judge said it was the Crown’s case “that from the outset Skye Brown had a common intention with Aiden Roberts and Mr Sew-Hoy to rob [the complainant]”. After the summing up, the Crown raised this description with the Judge. On its behalf, Ms Pollett submitted the common intention to rob the complainant did not need to be formed as soon as Ms Brown interacted with the complainant; rather, it might have been formed later — at the beach, for example.
The Judge recalled the jury and after addressing another point, said:
The other point was that I said that the Crown case was that the common intention, which we discussed, was formed right from the outset when Skye Brown got into [the complainant]’s vehicle. That was not an accurate statement because common intention, a meeting of minds, does not have to be formed from the outset and can be formed at any stage of the continuum prior to the actual taking of the items. So that is the Crown position in relation to this, that at some point along that continuum there was a common intention formed to rob [the complainant].
Mr Dutch takes no issue with the correctness of the direction as a matter of law. However, he contends the direction was unfair as it did not accurately capture the Crown’s case. Mr Dutch says the Crown’s closing advanced the formation of the common intention from Ms Brown’s first interaction with the complainant, which Mr Dutch had argued was improbable given the chance encounter at the roundabout. Mr Dutch therefore says the direction undermined Ms Brown’s case.
Early in her closing address, Ms Pollett said Ms Brown instigated the offending. She said that Ms Brown “put these events in motion when she got into [the complainant’s] car at the … roundabout and told him to travel to the Welcome Bay Caltex”. This remark could perhaps be understood as implying the common intention arose when Ms Brown got into the complainant’s car. However, later in her (short) address, Ms Pollett said:
What a robbery is, ladies and gentlemen, is a theft accompanied by a threat of violence and so that of course is what we have here. So there needs to be a meeting of the minds. So it doesn’t mean that Skye Brown or Manaia Sew‑Hoy have to threaten [the complainant], it means that they’re all part and parcel of that common intention or joint enterprise to take something off him for the threat of violence.
It’s a meeting of the minds and when that, the meeting of the minds occurs, as it did here I suggest, is Skye Brown is probably responsible for taking more than the car but at the very least the car and Manaia Sew-Hoy is responsible for the car being taken as well in the ways that he acted at a minimum and you’ll see that in the charge list and your – so you’ve got the $240 cash, you’ve got the driver’s licence, the GPS (inaudible 10:23:36) that’s in the car and his phone of course where he had no phone, no car, and of course the cash that was transferred.
So it doesn’t matter, ladies and gentlemen, who physically took these things. What matters is that they were, it’s a, together it is a joint enterprise or a common intention by them all to rob [the complainant] and so we know that Aiden Roberts took that car and if you, Manaia Sew-Hoy is to be believed that it was flicked off for some meth and cash and we know that the vehicle was subsequently found in Hamilton with changed number plates and things like that. But for Skye Brown, she was there, she was aware of the threat, she knew that something was going to be taken. Aiden Roberts, he said, took his vape, the chargers for his phone, and everything that was there in it.
And so it seems a little bit unclear as to what the defence is to that charge of aggravated robbery. You’ll hear, of course it’s a matter for you, but certainly Aiden Roberts, Manaia Sew-Hoy, Dom, and Skye Brown were there under the three when the big guy said, “you’re lucky you don’t get spread along Pāpāmoa Beach chopped up” and he said that under the tree. They were all present at that point. They were all present in Pāpāmoa.
These remarks — particularly the last paragraph — imply the Crown was not wedded to the proposition the common intention was formed when Ms Brown got into the complainant’s car at the roundabout. Rather, and as Ms Pollett observed to the Judge, it appears the Crown acknowledged the common intention might have arisen later; most obviously, at the beach. For this reason, we see nothing unfair about the supplementary direction.
In any event, we consider the direction could not have given rise to a miscarriage of justice. It did nothing more than educate the jury about when, as a matter of law, the common intention needed to have been formed.
The communication assistant’s interventions
A communication assistant was appointed for the complainant, given his disability. Mr Dutch invites attention to three interventions by the communication assistant during the cross-examination of the complainant, including by Mr Roose.
Intervention 1:
Q. It was your decision which way you went at this roundabout?
COMMUNICATION ASSISTANT ADDRESSES THE COURT – PUT AS QUESTION RATHER THAN STATEMENT (11:12:57)
CROSS-EXAMINATION CONTINUES: MR DUTCH
Q. Did you decide to go to the Welcome Bay gas station at that roundabout?
A. Um, no Skye told me to go there so I went there.
Intervention 2:
Q. Skye didn’t make any threats this day?
A. No.
COMMUNICATION [ASSISTANT] ADDRESSES THE COURT – POSE AS QUESTIONS RATHER THAN STATEMENTS (11:31:12)
CROSS-EXAMINATION CONTINUES: MR DUTCH
Q. Did the big guy transfer the money on your phone –
MS POLLETT ADDRESSES THE COURT (11:32:02)
THE COURT ADDRESSES MR DUTCH
CROSS-EXAMINATION CONTINUES: MR DUTCH
Q. Did Skye threaten you?
A. No.
Intervention 3:
Q. So this is the same guy that went and go[t] the money out [of] the ATM isn’t it.
A. Yes.
COMMUNICATION ASSISTANT ADDRESSES THE COURT – IN FORM OF QUESTION RATHER THAN STATEMENT OF FACT (12:07:25)
THE COURT ADDRESSES MR ROOSE
CROSS-EXAMINATION CONTINUES: MR ROOSE
Q. Was that the same guy as went in and got the money out of the ATM?
A. Yes.
Q. The big guy, the one you called the big guy.
A. Yeah.
In each of the interventions above, the communication assistant invited the cross-examiner to pose a question. As will be apparent, Mr Dutch and Mr Roose (who represented Mr Sew-Hoy at trial) did so, and the complainant responded appropriately with an answer. Mr Dutch contends that because the communication assistant did not intervene while the Crown elicited evidence from the complainant, including by use of arguably complex questions, there is a risk the jury were left “with the opinion that the assistant had formed a view about the defendant’s guilt”.
We see nothing in the point. No concern was raised by Ms Brown and Mr Sew‑Hoy at trial — the obvious time to do so. The interventions appear legitimate. They were raised in a neutral way. As observed, the complainant responded appropriately on each occasion. The Judge explained to the jury the communication assistant’s role. And, perhaps most significantly, the submission is speculative.
Sentence appeals
Because Mr Roberts pleaded guilty, he was sentenced earlier, and by a different Judge.[47] Judge Mabey QC adopted a four-year starting point and deducted a year for mitigating features. So, Mr Roberts received a sentence of three years’ imprisonment. He was also ordered to pay reparation of $1,000.[48]
[47]R v Roberts [2021] NZDC 12080.
[48]At [21].
Judge Cameron sentenced both Ms Brown and Mr Sew‑Hoy.[49] He adopted a three-and-a-half-year starting point for Ms Brown,[50] and a three-year starting point for Mr Sew-Hoy.[51] The Judge deducted 20 percent for Ms Brown’s “difficult background”.[52] This left a sentence of two years and nine months’ imprisonment for Ms Brown.[53] Mr Sew-Hoy’s sentence was two years and five months’ imprisonment.[54] Both Ms Brown and Mr Sew‑Hoy contend their sentences are manifestly excessive.
[49]Sentencing notes, above n 3.
[50]At [21].
[51]At [23].
[52]At [22].
[53]At [22].
[54]At [24].
Mr Hall argues Mr Sew-Hoy’s starting point was too high; he says it should have been two years and six months. Mr Dutch takes no issue with Ms Brown’s starting point. Rather, he contends the Judge should have discounted the sentence by more than 20 percent for Ms Brown’s background.
The starting point for all offenders is governed by this Court’s guideline judgment of R v Mako.[55] Mako set out a number of examples of different types of offending, and indicated the appropriate starting point for each. We see the offending as falling somewhere between the aggravated robbery of a taxi driver involving weapons or physical violence, which typically calls for starting points between four to five years’ imprisonment,[56] and “a street robbery”, which attracts starting points of up to three years’ imprisonment.[57] As Ms Mildenhall observes, the most serious feature of the offending in this case is the “cowardly targeting of a disabled or otherwise particularly vulnerable individual known to have items of significant value”.[58]
[55]R v Mako [2000] 2 NZLR 170 (CA).
[56]At [57].
[57]At [59].
[58]At [41].
Judge Mabey’s four-year starting point for Mr Roberts is consistent with this analysis; so too are the starting points adopted by Judge Cameron for Ms Brown and Mr Sew-Hoy. Mr Sew-Hoy presents as the least culpable of the three. His three-year starting point reflects this. We add the obvious: a starting point of two and a half years would not recognise the seriousness of Mr Sew-Hoy’s offending. Mr Sew-Hoy knew the complainant was disabled but still participated.
We agree with Mr Dutch that Ms Brown’s cultural report reveals “significant material deprivation”. It is not necessary to elaborate. However, we do not accept the Judge erred in adopting a 20 per cent discount. This Court has emphasised discounts in this context are fact-specific and may be constrained by the relative seriousness of the offending.[59] The level of discount Judge Cameron applied is also consistent with broadly similar cases. For example, in Poi v R, the Court held a 20 percent discount would appropriately recognise a background of severe deprivation in relation to one of the appellants, and concrete rehabilitative efforts by him.[60]
Result
[59]Carr v R [2020] NZCA 357 at [63] and [65].
[60]Poi v R [2020] NZCA 312 at [39].
The extension of time in CA204/2022 is granted.
The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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