Court-Clausen v R - [2020] NZCA 488

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA332/2020
[2020] NZCA 488

BETWEEN	WILLIAM MATIU COURT-CLAUSEN Appellant
AND	THE QUEEN Respondent

Hearing:	29 September 2020
Court:	Collins, Mallon and Ellis JJ
Counsel:	R M Mansfield for Appellant C Ure for Respondent
Judgment:	15 October 2020 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of nine years’ imprisonment imposed in the District Court is quashed and substituted with a sentence of seven years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Court-Clausen appeals the sentence of nine years’ imprisonment imposed by Judge Ingram in the District Court at Tauranga after he pleaded guilty to a charge of aggravated robbery.[1] The essence of the grounds of appeal is:
(a)the starting point of 11 years’ imprisonment adopted by the sentencing Judge was excessive; and
(b)insufficient credit was given for personal mitigating factors.

It is contended these errors and omissions led to a sentence that was manifestly excessive.

Background

[1]R v Moke [2020] NZDC 10395 [Sentencing notes].

Mr Court-Clausen was deported from Australia in 2017 pursuant to s 501 of Australia’s Migration Act 1958. He had been convicted in Australia in relation to a variety of offences and sentenced to terms of imprisonment in 2014 and 2016. The longest sentence was one year and eight months’ imprisonment for driving offences and possession of a prohibited drug.
Soon after his arrival in New Zealand, Mr Court-Clausen joined the Comanchero Gang (the Comancheros).
On the evening of 19 July 2018, Mr Court-Clausen and other Comancheros travelled from Auckland to Mount Maunganui. The group used two cars and arrived at Mount Maunganui at about 4.00 am. Their objective was to enter the house of a suspected drug dealer and take whatever drugs and money they could find. The plan misfired however when Mr Court-Clausen and his associates broke into the home of an innocent couple, who lived near the target address.
At about 4.20 am on 20 July 2018, the victims, who are a couple in their sixties were woken to the sound of people climbing over their front fence. This was soon followed by the victims’ front door being forced open with a sledgehammer. The male victim tried to escape via the garage. His exit was, however, blocked by a large man dressed in black and wearing a balaclava, who pointed a shotgun at the victim as he endeavoured to escape. The male victim was then forced onto the floor of the garage while an offender pointed a gun at him and demanded “money and drugs”. The male victim’s eye was hit, and he was threatened and told his dog would be shot if he did not comply with the assailants’ demands.
In the meantime, the female victim was accosted in the couple’s bedroom by two of the offenders. They were also dressed in black and wearing balaclavas. The assailants forced the female victim 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.

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Details

Case: [2020] NZCA 488
Decision Date: 15 October 2020 at 10.00 am

CaseChat Overview and Summary

William Matiu Court-Clausen appeals against the nine-year imprisonment sentence imposed by the District Court for his role in an aggravated robbery. The Court of Appeal considered whether the starting point of 11 years was excessive and whether insufficient credit was given for personal mitigating factors. The appeal was allowed, and the sentence was substituted with a sentence of seven years and six months' imprisonment.

The Court of Appeal held that the starting point of 11 years was too high, and a starting point of 10 years would have more than adequately reflected the aggravating features of Mr Court-Clausen's offending. The Court noted that while the offending involved a significant degree of planning and caused considerable distress to the victims, the injuries inflicted on the victims in this case were less severe than in other cases, such as Royal v R and Manuel v R. The Court also found that the 15-month deduction for personal mitigating factors set out in the s 27 report was appropriate, as it provided a useful lens to view Mr Court-Clausen's path towards his offending. The Court of Appeal substituted the original sentence with one of seven years and six months' imprisonment, calculated by applying a starting point of 10 years and an uplift of three months for previous offending, deductions for the guilty plea (10 per cent), and factors identified in the s 27 report (15 per cent).

Orders