Christofides v R
[2011] NZCA 126
•1 April 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA494/2010 [2011] NZCA 126 |
| BETWEEN ALEX CHRISTOFIDES |
| AND THE QUEEN |
| Hearing: 21 March 2011 |
| Court: Randerson, Simon France and Lang JJ |
| Counsel: L Freyer for Appellant |
| 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.
____________________________________________________________________
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 depart from the starting point prescribed in Mako because of observations made in earlier cases by His Honour Judge Wade, who was based at that time in the District Court at Manukau. In R v Tunupopo Judge Wade had said: [4]
One of the effects of the frequency with which robberies of this type occur in South Auckland is that the stage is rapidly approaching where these businesses will simply shut, either because the owners have had enough or they cannot afford the insurance premiums that are required because they have to obtain insurance cover, or they cannot afford to equip their small businesses with the sort of security measures that are necessary. So the whole community will suffer because dairies will close down and there will not be alternative businesses that they can go to. So the impact of this offending is not simply on the owners of the businesses, but on the wider general public.
[4] R v Tunupopo DC Manukau CRI-2007-092-11850, 30 May 2008 at [16].
Eighteen months later, in R v Leatinuu the Judge said: [5]
I am yet again dealing with an aggravated robbery of a liquor store. As recently as last week I commented upon the level of violence and the prevalence of liquor store and dairy robberies that take place. I remarked then on the need to impose sentences of general deterrence over and above those set out by the Court of Appeal in their guideline decisions. I say such is necessary in order to reflect the mounting concern that members of the public, the police, and the Judges of this Court have as regards to the crime wave of violence in South Auckland. I am reinforced in that viewpoint by para 50 of the well know R v Mako [2000] 2 NZLR 170 decision, in which the Court of Appeal expressly approved local judges uplifting sentences in order to deal with crime of a particular type taking place in a particular area.
…
There is no point in passing sentences intended to deter others from committing crime of a particular type unless the penalties are spelt out, so that those who are tempted to commit them are in no doubt as to the consequences. It is for that reason that I am directing that my remarks are given to a wider audience. Anyone who holds up a retail shop in South Auckland, whether it be a dairy, a liquor store, or any other kind of retail premises, is going to go to prison for a very long time. That will be the case whether they are young or old, and regardless of their personal circumstances. There will rarely be any question of home detention or community detention, and the only issue will be the length of the sentence.
The Court of Appeal guideline is a starting point for robberies of small retail premises of the order of four years. But because of the prevalence of retail shop robberies in South Auckland I make it plain that from now on my starting point from Monday onwards will be one of five years imprisonment. Therefore, before contemplating doing a hold up for the sake of a few beers, a few cigarettes or a small amount of cash, the would-be robbers might reflect upon the inevitable misery that will be inflicted upon them as a result of their offending.
(Emphasis added)
[5] R v Leatinuu DC Manukau CRI-2009-092-13506, 13 November 2009 at [4], [6] and [7].
In sentencing Mr Christofides, Judge Andrée Wiltens referred to Judge Wade’s comments in Tunupopo and Leatinuu and said:[6]
I have taken over from Judge Wade this year as the Liaison Judge in terms of jury trials and regrettably I have to advise that I see the prevalence with which Judge Wade had to deal with these matters.
It seems to me bearing in mind that the maximum is 14 years of imprisonment, that in South Auckland five years is a more appropriate starting point for this type of armed robbery. So I am starting at five years imprisonment for this offending.
Should the Judge have proceeded on the basis of Judge Wade’s new guideline for aggravated robberies in South Auckland?
[6] R v Christofides DC Manukau CRI-2009-092-7801, 25 June 2010 at [18] and [19].
We observe at the outset that Judge Wade appears to have intended his comments in Leatinuu to operate as a warning to persons who might be tempted to rob retail shops in South Auckland after 13 November 2009. The robbery for which Mr Christofides was to be sentenced had, however, been committed 18 months earlier. Mr Christofides therefore had no opportunity to reflect upon Judge Wade’s words before he decided to carry out the robbery of the Meadowlands Superette.
We have wider concerns, however, with the approach that Judge Wade proposed. As the Supreme Court recently noted in R v Hessell,[7] a court should not alter sentencing policy in a manner that restricts the ability of sentencing judges to impose sentences that are appropriate to address the differing circumstances of individual cases. Applied literally, the approach that Judge Wade advocated in the passages highlighted above in Leatinuu would fetter his ability to impose sentences that were appropriate for the circumstances of individual cases in the future.
[7] R v Hessell [2010] NZSC 135 at [67].
Guideline judgments of this Court are only issued after the Court has had regard to a wide range of material, much of which will not generally be available to judges at first instance. The object of the exercise is to create national consistency in sentencing levels for particular offences. The desirability of consistency in sentencing is an important principle now enshrined in s 8(e) of the Sentencing Act 2002. As a result, if a guideline judgment is not followed in one locality, sentencing levels in that locality will become inconsistent with those applied elsewhere.
We accept that Mako expressly preserved the ability of sentencing judges to depart from the prescribed sentencing levels when the promotion of deterrence required such an approach. The Court said:[8]
Deterrence is a factor in sentencing. This generally is accommodated in the sentencing levels indicated. But there may be circumstances where a particular form of offending or offending in a particular area will call for special consideration. It is entirely appropriate to take into account the need to protect the public.
[8] At [50].
It is not difficult to envisage the emergence of offending that may be unique or peculiar to a particular locality. In such a case there can be no objection to judges in that locality adopting higher sentencing levels to meet the particular concern that has become apparent. Aggravated robbery is not, however, a crime that is unique to South Auckland, or to any other area in New Zealand. If there is to be a departure from the starting points prescribed by this Court for that offence, it should occur on a principled basis.
We accept that judges at first instance may perceive that a particular type of offending has significantly increased in volume and/or scale in their locality. Before any such perception is acted upon, however, it is important to obtain information confirming that the perception is correct. Unless there is access to accurate and relevant statistical information, judges have no reliable means of ensuring that is the case. If sentencing levels are increased in a particular locality based on perception alone, there is a risk that sentencing levels in that locality will become out of kilter from those being applied in the remainder of the country, without any adequate justification. That could result in injustice for those offenders sentenced in that area.
For that reason it should generally be for the Crown to indicate that it considers a prescribed sentencing level to be too low having regard to circumstances that have arisen in a particular locality. The Crown has access to national statistics, and will be able to provide the court with data justifying its stance. It will then be for the court to determine whether the submission has merit.
The need for care in this context is demonstrated by an affidavit that the Crown filed in relation to the present appeal. In that affidavit, the District Commander of the Counties Manukau Police District provided the Court with statistical information regarding the prevalence of aggravated robberies within his district. It included the following information:
14 For the five year period under consideration (2006-2010) the district had the highest incidences of recorded aggravated robbery offences in New Zealand. The number of aggravated robberies in the district as a percentage of all aggravated robberies recorded in New Zealand is as follows:
(a) 2006: 25.04%.
(b) 2007: 25.02%.
(c) 2008: 25.90%.
(d) 2009: 25.75%.
…
This material is deficient in several respects. First, it does not differentiate between different types of aggravated robbery. The present case relates to the appropriate starting point to be applied for the robbery of retail premises involving the use of a weapon. To be of any real value, the statistics should relate solely to that type of offending. The inclusion within the figures of other categories of aggravated robbery such as street robberies, skews the data and renders it largely meaningless for present purposes. Second, the evidence does not disclose what proportion of New Zealand’s population lives within the Counties-Manukau Police district. Third, it does not disclose any real increase in aggravated robberies between 2006 and 2009. Rather, the incidence of such robberies appears to have been reasonably static during that period.
This case
Counsel for Mr Christofides advised us that, before the Judge sentenced Mr Christofides, he asked counsel for the Crown whether the Crown sought to rely upon the approach that Judge Wade had advocated in earlier cases. The Crown’s response was that it did not. As we have already indicated, both counsel suggested a starting point in accordance with the guidelines set out in Mako. We accept that the Judge was not bound to follow the approach suggested by counsel. In the absence of statistical information supporting his view, however, we do not consider that he was justified in departing from the approach prescribed by this Court in that case.
Applying Mako, a starting point of around four years imprisonment was appropriate. An uplift was required to reflect the fact that the victim of Mr Christofides’ offending suffered significant loss. Although Mr Christofides only stole $300, the victim was traumatised by the experience to the extent that he effectively walked away from his business. In doing so he says that he suffered total losses amounting to approximately $270,000. We therefore consider that an appropriate starting point having regard to all relevant circumstances was four years three months imprisonment.
Counsel did not quarrel with the uplift that the Judge imposed to reflect the fact that this is the fifth occasion on which Mr Christofides has been convicted for aggravated robbery. One of those previous convictions related to the same premises as the present charge, although it was owned at that time by a person other than the victim of the present offending.
An appropriate end starting point before taking into account mitigating factors was therefore four years nine months imprisonment.
Did the Judge fail to give due recognition to mitigating factors?
Counsel for Mr Christofides submitted that the Judge failed to give sufficient weight to the efforts that Mr Christofides had made to rehabilitate himself during the period leading up to the date upon which he was sentenced. We accept that the Judge did not give Mr Christofides a discount for that factor, but he was not obliged to give it recognition in that way. Instead, he elected to acknowledge it in another way.
Although the Crown did not ask the Judge to impose a minimum term of imprisonment, it was open to him to make such an order. Mr Christofides’ previous convictions for aggravated robbery meant that he easily satisfied the criteria specified in s 86 of the Sentencing Act 2002 for a minimum term of imprisonment to be imposed. The Judge elected not to take that step for the following reasons:[9]
The last thing I want to say to you is that I have given serious consideration to imposing a minimum non-parole period. As the law stands you are entitled to apply for parole once you have served a third of your sentence. By law, in certain circumstances should I see it appropriate, I could set a two thirds of the five and a half year term as a minimum non-parole period which would mean that you would be incarcerated for longer than you might ordinarily be.
Such an order is warranted by dint of the fact of your previous convictions and the seriousness of the nature of this conviction. I have decided against that in this particular case because I am required to impose the least restrictive outcome but more significantly because of the efforts that you have made and your father on your behalf has made in terms of rehabilitation while you were undergoing the home detention sentence.
For that reason I will not impose a minimum non-parole period, but I make it perfectly plain that should there be any repetition of offending of this nature it is inevitable that the Court would have to impose –
(a) A significantly longer term of imprisonment and
(b)A minimum non-parole period which means that you would be incarcerated without the possibility of parole for longer than most prisoners.
[9] At [30]–[32].
These passages make it clear that the Judge gave Mr Christofides’ efforts to rehabilitate himself concrete recognition by not imposing a minimum term of imprisonment. We do not consider that he was obliged to do more than that. This aspect of the appeal therefore fails
Result
The appeal is allowed.
The sentence of five years six months imprisonment is quashed. In its place we substitute a sentence of four years nine months imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
12