Christofides v R - [2011] NZCA 126

IN THE COURT OF APPEAL OF NEW ZEALAND

CA494/2010
[2011] NZCA 126

BETWEEN ALEX CHRISTOFIDES
Appellant

AND THE QUEEN
Respondent

Hearing: 21 March 2011

Court: Randerson, Simon France and Lang JJ

Counsel: L Freyer for Appellant
J M Jelas for Respondent

Judgment: 1 April 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of five years six months imprisonment is quashed. In its place a sentence of four years nine months imprisonment is substituted.

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REASONS OF THE COURT
(Given by Lang J)

Mr Christofides was found guilty by a jury in the District Court on a charge of aggravated robbery.
When he sentenced Mr Christofides, Judge Andrée Wiltens selected a starting point of five years imprisonment. He then added an uplift of six months to reflect the fact that Mr Christofides had several prior convictions for aggravated robbery. The Judge found there were no mitigating factors personal to Mr Christofides which should reduce his sentence. He therefore imposed an end sentence of five years six months imprisonment.[1]
[1] R v Christofides DC Manukau CRI-2009-092-7801, 25 June 2010.
Mr Christofides appeals against the sentence on the basis that the Judge selected a starting point that was too high, and that he failed to have due regard to efforts Mr Christofides had made to rehabilitate himself. On that basis he contends that the end sentence is manifestly excessive.

Facts

Before he carried out the robbery, Mr Christofides disguised himself by putting on sunglasses and wrapping a bandanna around the lower part of his face. He then entered the Meadowlands Superette, pointed an imitation pistol at the shopkeeper’s head and demanded money. He took $300 from the cash register, and then fled from the shop. He left the scene in his motor vehicle, which he had left parked nearby.

Was the starting point too high?

At sentencing, both counsel agreed that a starting point of around four years imprisonment was appropriate. That is the starting point that this Court identified in R v Mako[2] for an aggravated robbery of the type that Mr Christofides committed. In that case the Court said[3]
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken, five years, and in bad cases six years, should be the starting point.
[2] R v Mako [2000] 2 NZLR 170.
[3] At [56].
The Judge decided to…

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 Christofides v R

Details

AGLC: Christofides v R [2011] NZCA 126
Case: [2011] NZCA 126
Decision Date: 1 April 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Alex Christofides, the appellant, challenged his sentence against the respondent, the Queen. Christofides was found guilty of aggravated robbery by a jury in the District Court and subsequently sentenced to five years and six months imprisonment by Judge Andrée Wiltens. The appellant contended that the starting point of the sentence was too high and that the judge failed to adequately consider his rehabilitation efforts, rendering the sentence manifestly excessive. The appeal was heard on 21 March 2011 by Randerson, Simon France, and Lang JJ, with L Freyer representing the appellant and J M Jelas representing the respondent.

The primary legal issue was whether the District Court judge was justified in departing from the starting point prescribed by the Court of Appeal in R v Mako for aggravated robberies of the type committed by Christofides. Additionally, the court had to determine if the judge failed to give appropriate weight to the efforts Christofides had made to rehabilitate himself, which could potentially reduce his sentence.

The Court of Appeal found that both counsel had agreed on a starting point of around four years imprisonment, in line with the guidelines set out in R v Mako. The judge, however, decided to depart from these guidelines, citing the prevalence of similar robberies in South Auckland as justification. The Court of Appeal disagreed, emphasizing the importance of national consistency in sentencing and the necessity of accurate statistical information to justify any departure from prescribed sentencing levels. The Court found that the judge was not justified in departing from the guidelines due to the absence of such information. Therefore, an appropriate starting point, considering all relevant circumstances, was four years and nine months imprisonment. Regarding the appellant's rehabilitation efforts, the Court found that the judge acknowledged these efforts by not imposing a minimum term of imprisonment, which was deemed sufficient recognition.

The appeal was allowed, the sentence of five years and six months was quashed, and a sentence of four years and nine months imprisonment was substituted.

Orders