Collett v The Queen

[2004] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 83/04

THE QUEEN

v

MICHAEL REUBEN COLLETT

Hearing:25 August 2004

Coram:Chambers J
Williams J
Panckhurst J

Appearances:  D G Young and M R Scherb for Appellant

J C Pike for Crown

Judgment:30 August 2004 

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

INTRODUCTION

[1]       The appellant, effectively a first offender, was sentenced by Laurenson J in the High Court at Auckland to seven years imprisonment in relation to four offences of aggravated robbery and four offences of unlawfully taking motor vehicles.  In this appeal he contends that such sentence was clearly excessive in that the Judge erred in having regard to the purpose behind the aggravated robbery offences (to obtain pseudoephedrine for the manufacture of methamphetamine), in increasing the adopted starting point by more than 50% on account of aggravating factors and by giving insufficient weight to full payment of reparation as a mitigating factor.

Circumstances of the offending

[2]       The eight offences were interrelated.  They occurred in a three month period.  They followed a pattern.  On the day of, or shortly before, each robbery the appellant and his co-offender, Kiran Wellman, converted a motor vehicle.  Minor damage was caused in gaining entry to them. The vehicles, typically of modest value, were taken from a variety of locations.  They were then used to drive to the scene of each robbery and to depart from it, but were then abandoned. Otherwise the offences of unlawful taking were unremarkable.

[3]       The robberies were of small suburban pharmacies.  They were committed on 22 October and 4 December 2002 and on 13 January and 14 January 2003.  They also followed a set pattern.  Each pharmacy was selected on account of its location and vulnerability.  Each was occupied by no more than two persons.  The two offenders entered the pharmacies wearing balaclavas and latex gloves.  In the first robbery the appellant was armed with a semi-automatic rifle, but thereafter both offenders were armed with knives.  Demand was made for any prescription pseudoephedrine on the premises.  If available this was taken (on 22 October 2002 from a floor safe which contained registered medicines).  In addition boxes of cough medication containing pseudoephedrine were removed from the shelves.  In each instance a pharmacist or assistant was required to open the till and any available cash was taken. 

[4]       No actual physical harm was caused in the course of the robberies.  Nor were members of the public involved, but a total of seven pharmacists or assistants (two people on three occasions and one on the other) were terrorised in the course of commission of the crimes.

[5]       In the end result pharmaceutical products and money to a value of $4,770 was taken from the four pharmacies and damage to a value of $2,000 caused to the four converted vehicles.  Reparation in the total sum of $6,770 was paid by the appellant’s mother prior to the sentencing.

[6]       On 16 January 2003 a search warrant was executed at the address occupied by the appellant.  Balaclavas, a semi automatic rifle (with a live round in the breech), knives, gloves and various pharmaceutical products were recovered.  When interviewed the appellant was cooperative and made full admissions concerning his involvement in the offences. 

[7]       On 10 November 2003, on arraignment, the appellant pleaded guilty to all the charges.  He was sentenced on 12 December 2003. 

The sentencing

[8]       The Judge, after detailing the circumstances of the offending and noting the appellant’s personal circumstances as disclosed in the pre-sentence report, referred to the impact upon the victims both those from the pharmacies and the vehicle owners.  He described such impact upon the former group as profound and awful. 

[9]       Several aggravating features were then identified, including the number of offences, the threatened use of violence, the premeditation involved and what the Judge described as an additional factor being “that the purpose of the offending was to enable (the appellant) to produce and sell methamphetamine, a crime which is causing huge problems for the community.”

[10]     The Judge noted that R v Mako [2000] 2 NZLR 170 (CA) was the precedent case for aggravated robbery sentences. With reference to features identified in Mako as indicative of the seriousness of the crime, being the use of weapons, the nature of the premises entered, the use of disguises, whether victims were intimidated and the degree of premeditation and planning, the Judge identified a starting-point of seven years imprisonment.  He then added four years to that starting-point to recognise the number of robberies, that seven victims were involved and the fact that the purpose of the offending was to produce and sell the dangerous drug methamphetamine. 

[11]     Then a reduction of four years was allowed for mitigating factors.  These were the appellant’s cooperation with the police, including assistance in identifying his co-offender and a willingness to give evidence, the pleas of guilty and the absence of previous criminal convictions.  Thereby the Judge arrived at the effective sentence of seven years imprisonment.  Finally the position with reference to reparation was referred to and the fact that in terms of s10 of the Sentencing Act the appellant was entitled to have this factor taken into account was recorded.  Imposition of a minimum period of imprisonment was considered, but rejected, because the offences were considered to be within the ordinary range of offending of the particular kind.  The seven year sentence was imposed on each of the four aggravated robberies, with two years imprisonment on each of the unlawful taking charges.  All terms were made concurrent.

[12]     We note that the appellant’s co-offender, Mr Wellman, was also sentenced by Laurenson J on 15 March 2004 to eight and a half years imprisonment.  Unlike the appellant, he had a previous criminal record including an offence of aggravated robbery upon which he was sentenced to four years imprisonment in 1999.

The appeal arguments

[13]     Mr Young rightly observed that the appeal was filed out of time and therefore sought leave on the basis an extension of time was in the interests of justice.  The question need not detain us since Mr Pike was content to observe that, consistent with normal practice, no time point was taken by the Crown since no prejudice had accrued.  Accordingly, we proceed to consider the case on its merits.

[14]     The principal point advanced in support of the appeal was that the Judge erred in having regard to the purpose of the offending, namely that it was to enable the production and sale of methamphetamine.  Mr Young submitted that not only was this purpose not within the range of aggravating circumstances recognised in Mako, but that it was wrong in principle to regard the offending as inherently more serious because its purpose was to facilitate the manufacture and eventually the sale of methamphetamine at a profit.  While accepting the deleterious effects of methamphetamine use, counsel argued that “offenders must be punished only for the crimes they have committed.”An actual manufacture, let alone subsequent sales of the drug, were in the future.  An offender was not to be punished for crimes he had not committed, albeit ultimately their commission was his purpose or intention.

[15]     Mr Young’s second argument was an interrelated one.  He noted, correctly, that the increase from the starting-point of seven years to a high of 11 years represented an inflation of more than 50% which, he said, significantly reflected the methamphetamine purpose behind the offending. 

[16]     Finally counsel submitted that the Judge erred in that payment of full reparation was not adequately brought to account as a mitigating factor.  The sentencing remarks identified the mitigating factors (cooperation and assistance, the pleas and the absence of previous convictions) as responsible for the four year deduction, before attention was directed to the circumstance of reparation.  It necessarily followed that payment of reparation did not result in any discernible recognition. 

[17]     Mr Pike identified at the outset that the purpose argument represented the nub of the appeal.  He submitted it was legitimate to have regard to the purpose of offending in assessing its seriousness.  It is well-recognised that the potential gain from targeting particular types of premises is a legitimate factor in assessing the culpability of an aggravated robbery.  Bank robbery is the familiar example.  Hence, said Mr Pike, it was equally legitimate to have regard to the potential gain from targeting pharmacies to obtain pseudoephedrine or pharmaceutical products containing that ingredient.  It was notorious that the potential gain to be had from the manufacture of a gram of high grade methamphetamine was $1,000.  This gain could properly be taken into account as an aggravating feature regardless that it was an indirect gain, as opposed to a direct gain such as may follow from targeting a bank for example.  Mr Pike also observed that s9(1)(d) of the Sentencing Act 2002 specifically required that account be taken of “the extent of any loss, damage or harm resulting from the offence”.  There was no reason to confine this statutory aggravating factor to direct harm. 

[18]     On the other hand counsel accepted that, where the purpose, harm or circumstance of aggravation also constituted a separate offence, care was required to ensure that the offender was only punished in relation to the crime(s) proved, or to which he pleaded guilty, not for other criminal offending which may be indicated by the evidence.  By reference to Hall’s Sentencing, Volume II, App 1.3.5, Mr Pike contended that it was legitimate for a Judge to have regard to all aspects of the offender’s conduct and character in arriving at the appropriate sentence for the offence charged, including the purpose of the offending, provided in the end result the sentence imposed was not one which punished the offender for separate offences with which he had not been charged.

Discussion

[19]     In our view the appropriate limits upon a sentencer are correctly identified in the discussion in Hall’s Sentencing referred to earlier.  On the one hand a Judge is required to have regard to all those surrounding circumstances directly related to the particular crime and which are properly to be regarded as circumstances of aggravation or circumstances of mitigation.  For example in the context of rape it would be artificial to focus only on the conduct which actually constitutes the offence, ignoring a home invasion and an assault which accompanied it (assuming these are not the subject of separate charges).  In such a case the invasion and assault are plainly aggravating features. 

[20]     On the other hand separate and discrete offending (including a fortiori future offending), which is merely linked to the subject offence for which sentence is to be imposed, may not be taken into account.  This case affords a convenient example.  That the offenders intended to use any pseudoephedrine they obtained to manufacture methamphetamine and sell it cannot be treated as an aggravating circumstance.  Otherwise there is potential for punishment to be imposed for other offending, and in this instance prospective offending.  But it is proper to treat as an aggravating feature of the present robberies that securing a substance to be used in the manufacture of a dangerous illicit drug was the purpose of the offenders. 

[21]     In sentencing the appellant can it be said the Judge did err by bringing to account other substantive offending, which was also prospective in nature?  We can see that his identifying as an aggravating factor that “the purpose of the four crimes was to produce and sell the dangerous drug methamphetamine” might suggest that other (prospective) offending was at least in mind.  It would have been preferable to simply record that the purpose of the robberies was to obtain pseudoephedrine for use in the manufacture of methamphetamine.

[22]     But this essentially semantic concern disappears upon a consideration of the Judge’s subsequent reasoning.  The increase of four years from the adopted seven year starting-point confirms there was no improper allowance for other offending.  Such increase was amply justified by the fact that here there were four offences of aggravated robbery, this being the primary circumstance of aggravation identified by the Judge.  It follows that any concern as to the manner of expression adopted in the sentencing remarks is displaced upon an analysis of the reasoning process itself.

[23]     Mr Young’s related point was that the increase in the starting-point of seven years to a ceiling of 11 years, being more than 50%, must necessarily have reflected an allowance for methamphetamine offending.  We disagree.  The number of robberies alone, together with the four unlawful takings of cars, was sufficient to explain the increase.

[24]     With reference to the starting-point itself, we are also satisfied that it was appropriate.  In that regard it is pertinent to observe that Mako was decided in March 2000, shortly before the methamphetamine scourge had fully emerged in this country.  Our impression is that aggravated robberies committed upon pharmacies to obtain pseudoephedrine, or pseudoephedrine-based products, have since become prevalent.  It follows, we think, that pharmacists and their staff members are a vulnerable class, not unlike taxi drivers (recognised as such in Mako), who deserve and need the protection of the courts.  With these considerations in mind we are fortified in the view that the starting-point of seven years which Laurenson J adopted was entirely appropriate.

[25]     The final ground of appeal concerned reparation.  It is the case that the Judge expressed his conclusion concerning the effective sentence before regard was had to the circumstance that full reparation had been paid.  He did then note, however, that in terms of s10 the appellant was entitled to have the reparation payment taken into account.  The format of the sentencing remarks does give the appearance that reparation was only referred to by way of an after-thought, when the final sentence had already been determined.  That was unfortunate.  However, standing back and looking at all matters in the round, including the payment of reparation, we are not persuaded that the sentence imposed was clearly excessive.  To the contrary a sentence of seven years imprisonment for serious aggravated robberies in which suburban pharmacies were targeted for the purpose of obtaining pseudoephedrine warranted a stern sentencing response.  A sentence of seven years imprisonment was well within the appropriate sentencing range.

Result

[26]     For these reasons leave to appeal is granted but the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington