R M Mansfield for Appellants E J Hoskin for Respondent
Judgment:
25 August 2020 at 12 pm
JUDGMENT OF THE COURT
AThe appeals against sentence are allowed.
B In respect of Mr Carr, the sentence of 10 years’ imprisonment with an MPI of five years for the lead charge of aggravated robbery is quashed and a sentence of 10 years and six months’ imprisonment with an MPI of five years and three months is substituted.
CThe order that Mr Carr’s sentence of six years’ imprisonment for aggravated robbery be served cumulatively on the sentence for the lead charge is quashed. All sentences are to be served concurrently.
DIn respect of Mr Anderson, the application for an extension of time to appeal is granted.
E The sentence of five years and 10 months’ imprisonment imposed on Mr Anderson for the lead charge of robbery is quashed and a sentence of four years and 10 months’ imprisonment is substituted.
FAll sentences imposed on Mr Anderson are to be served concurrently.
Para No Introduction [1] The offending [6] The sentences [16] The appeals [34] Carr [34] Submissions [34] Discussion [43] Anderson [69] Disposition [72] Result [75] Carr [75] Anderson [78]
Introduction
These appeals are from sentences imposed by Downs J in the High Court at Auckland in respect of aggravated robberies and related offending.[1]
Mr Carr was sentenced on four charges of aggravated robbery, two of robbery, five of unlawful using or taking a motor vehicle, two of dishonest use of a document, one of demanding with menaces, one of aggravated assault and two of theft. The Judge took two of the aggravated robbery offences as the lead charges, sentencing Mr Carr to terms of 10 years and six years’ imprisonment respectively, the sentences to be served cumulatively. The other offending attracted concurrent terms of between three months’ and five years 10 months’ imprisonment. There was an effective term of 16 years’ imprisonment.
Mr Anderson was sentenced at the same time on two charges of robbery and one of aggravated assault. He had been Mr Carr’s accomplice in respect of the two robberies. The sentence imposed for the lead robbery charge was five years and 10 months’ imprisonment. Eighteen-month terms were imposed in respect of the other two offences, to be served concurrently.
It is contended on appeal that the Judge erred in adopting a global starting point of 18 years’ imprisonment in respect of Mr Carr. Both appellants allege also that the Judge erred in failing to apply a reduction to reflect their upbringing and associated cultural and social deprivation, and…
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.
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Details
AGLC
Carr v R [2020] NZCA 357
Case
[2020] NZCA 357
Decision Date
CaseChat Overview and Summary
This appeal concerns the sentences imposed on two appellants, Carr and Anderson, by Downs J in the High Court at Auckland. The appellants were convicted of multiple offences including aggravated robbery, robbery, unlawful using or taking a motor vehicle, dishonest use of a document, demanding with menaces, aggravated assault and theft. The Court of Appeal allowed the appeals, substituting new sentences. In respect of Carr, the sentence of 10 years’ imprisonment for the lead charge of aggravated robbery was increased to 10 years and six months’ imprisonment, and all sentences were to be served concurrently. In respect of Anderson, the sentence of five years and 10 months’ imprisonment for the lead charge of robbery was reduced to four years and 10 months’ imprisonment, and all sentences were to be served concurrently. The Court found that the Judge had erred in adopting a global starting point of 18 years’ imprisonment for Carr. The Court considered that a starting point of 14 years’ imprisonment was appropriate. The Court also found that the Judge had erred in failing to apply a discount to reflect the appellants’ upbringing and associated cultural and social deprivation. The Court found that the cultural reports provided under s 27 of the Sentencing Act 2002 justified a discount of 15 per cent for both appellants.