CYRESS MARTIN AND THE KING

[2024] NZHC 2772

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2024-463-000083

CRI-2024-463-000084 [2024] NZHC 2772

BETWEEN

CYRESS MARTIN

Appellant

AND

THE KING

Respondent

Hearing:	19 September 2024
Appearances:	R Adams and S Price for Appellant C Houia for Respondent
Judgment:	25 September 2024

JUDGMENT OF VENNING J

[Sentence appeal]

This judgment was delivered by me on 25 September 2024 at 3.00 pm, Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Pollett Legal Ltd, Tauranga Counsel:  R Adams, Tauranga

MARTIN v R [2024] NZHC 2772 [25 September 2024]

Introduction

[1]                 Cyress Martin pleaded guilty to two charges of aggravated robbery, four charges of unlawfully getting into a motor vehicle, one charge of burglary, and two charges of failing to assist with a search.

[2]                 On 11 July 2024, Judge T R Ingram sentenced Mr Martin to six years’ imprisonment.1 Mr Martin appeals to this Court against the sentence.

[3]The appeal is advanced on the grounds that:

(a)the Judge failed to follow relevant and binding High Court authority in fixing the starting point; and

(b)the Judge failed to have sufficient regard to the principles of totality and consistency in sentencing.

[4]                 It is argued on Mr Martin’s behalf that those errors led to a manifestly excessive sentence.

Background

[5]I take the background to the offending from the Judge’s sentencing notes:

[2]        The circumstances are well-known to you, and I do not propose to go into a great deal of detail, suffice it to say that the Mount Maunganui aggravated robbery of Michael Hill Jewellers was an example of the kind of serious youth offending which has become epidemic in New Zealand over the last two or three years.

[3]        What happened was that you and your co-offenders arrived at Michael Hill Jewellers. Motor vehicles had been stolen in advance, one to be used as an immediate getaway vehicle and the second to be used later to avoid police detection. There were disguises. There were weapons. They were all manual weapons, there were no firearms. You had a large knife. Elderly staff members were threatened. The public was threatened. This occurred in the middle of the afternoon. There was a potential risk of harm to a number of people. $274,955 worth of jewellery was stolen. Most of it not recovered. The motor vehicles were damaged and although reparation is payable there is no realistic prospect of you ever paying it and I will not order it.

1      R v Martin [2024] NZDC 16252.

[4]        There were a total of six offenders. You appeared to have a leadership role in the group of offenders. There was a substantial level of intimidation and danger. The target premises Michael Hill Jewellers had been seriously affected, and I have received material to indicate that the company’s operations had been severely affected in New Zealand, and indeed some stores had been closed because of the effect of these ongoing robberies. The victim impact statements make harrowing reading. There was a substantial mental strain on the people who were affected.

[5]        The Mananui Dairy was quite similar. It is a small dairy in the Whakatāne area. Again, it was the middle of the afternoon when this took place. Again, you and your associates were wearing balaclavas and gloves. There was a stolen vehicle. You and three others ran into the dairy. The counter was rushed. The victims did their best to avoid you but one was cornered and you jumped on the counter, ripped out the cash register, then came back later for additional materials. One of your co-offenders had a machete and there was a great deal of intimidation going on with a large machete. You kicked the female victim in the back. This was unequivocally violence meted out to a member of the staff. A good deal of tobacco products were stolen, and the cash register was taken. There was a good deal of intimidation involved in a matter of this kind.

[6]        The Michael Hill Whakatāne offending was a night-time burglary that involved three associates of yours. The public were not present at that time of night, but there were disguises and items to assist in the burglary were taken. A good deal of property was destroyed and Michael Hill has now apparently shut that particular store.

The District Court decision

[6]    After referring to the background to the offending the Judge noted that although only 18 years of age, not yet 19, Mr Martin had a substantial record, including 22 convictions in the Adult Court and 37 Youth Court appearances which included two aggravated robberies and some 22 prior charges of unlawfully taking motor vehicles or unlawfully getting into motor vehicles.

[7]    The Judge referred to the Provision of Advice to  the Courts (PAC)  report, a  s 333 report, and other reports and assessments which he said demonstrated “unequivocally that you have had arguably the worst possible upbringing for a young man”.

[8]    The considerable degree of planning, the involvement of public, use of weapons, targeting of premises, the vulnerability of victims, the use of violence, including threats and intimidation, the significant amount of property stolen, and the

associated offending led the Judge to conclude that Mr Martin’s offending was very serious offending indeed.

[9]    Judge Ingram took a starting point of six years for the lead offence being the Michael Hill Jeweller aggravated robbery. That was a starting point taken by another Judge in relation to a co-offender. Judge Ingram considered himself bound to apply the same starting point for parity reasons. As to the Mananui Dairy aggravated robbery, the Judge considered a five-year starting point to be appropriate for that. For the remainder of the offending which amounted to the taking of the cars and the failure to assist with searches the Judge considered an uplift of one year to be appropriate. The adjusted start point was 12 years. The Judge noted that as Mr Martin was 17 at the time of the burglary offending, he could not impose any uplift for that offending given the provisions of s 18 of the Sentencing Act 2002 (the Act).

[10]   Ms Adams had referred the Judge to the decisions of R v Ah Young; Maiko v R; and Matkovich v Police,2 where starting points for multiple aggravated robberies had been adjusted down on the basis of totality. However, the Judge made the following observation:3

[20] In terms of other cases that have been referred to I carefully read the decisions in R v Young, Maiko v R, and Matkovich v Police. All those are reasonably recent. But none of them involved offending post 2020, and the epidemic of offending which occurred as the COVID epidemic swept across the country. Since then there have been hundreds of offences of this kind right throughout the country, and whilst I accept that those cases are authority for the proposition that on a totality basis something in the order of seven years and six months or perhaps eight years might be appropriate, I expressly do not follow those cases because I am satisfied that the prevalence of this offending requires a different response from the Court, particularly having regard to the Court’s efforts over the years to assist you with rehabilitative sentences.

[11]   The Judge rejected the submission there should be a reduction for totality from the starting point of 12 years. He provided his reasons as:

[34] Your counsel has argued that in these circumstances there should be a reduction for totality. I do not accept that any such reduction for totality is required in this case and I have several reasons for saying that. Firstly, you

2      R v Ah  Young  [2017] NZHC 2890; Maiko  v R  [2020] NZHC 2958; and Matkovich v Police

[2021] NZHC 1660.

3      R v Martin, above n 1 (footnotes omitted).

are entitled to some significant credits which I will detail in a moment. Secondly, it seems to me that unless or until the courts approach offending of this kind with significant deterrent sentences, then the offending is likely simply to continue as it has done over the last few years, whilst the courts have been adopting that approach.

[12]   The Judge declined to uplift the starting point for Mr Martin’s prior history. Then, turning to personal circumstances he applied 25 per cent for guilty plea, five per cent for the limited remorse expressed by Mr Martin, 10 per cent for his youth and possible inherent potential for rehabilitation, and 10 per cent for his likely impaired mental function. That led to the end sentence of six years’ imprisonment which the Judge imposed on the aggravated robbery of the Michael Hill Jeweller store. On the charge of the aggravated robbery of the Mananui Dairy he imposed a three-year sentence. The Judge then imposed sentences of one year on each of the four charges of unlawfully getting into a motor vehicle, with all sentences to be served concurrently. The Judge convicted and discharged Mr Martin on the two charges of failing to assist with a search and on the charge of the burglary of Michael Hill Jeweller. There was no minimum period imposed and no order made for reparation.

Appeal submissions

[13]   In her thoughtful and focused submissions, Ms Adams confirmed that the Judge’s approach to totality and consistency were the essential points under the appeal. She submitted that his refusal to make a totality adjustment was out of line with other cases regarding similar offending, which the Judge expressly declined to follow.

[14]   No challenge was made to the Judge’s allowance for the 50 per cent discount comprised of 25 per cent for the guilty plea, five per cent for remorse, 10 per cent for young age and inherent potential for rehabilitation, and 10 per cent for his personal circumstances and background.

[15]   Ms Adams referred to the Judge’s comments cited above and then noted he had expressly chosen not to follow the cases counsel had referred to, in which cases the High Court had reduced the starting point for totality. She submitted the Judge appeared to be influenced by his perception that there had been an “epidemic of offending … hundreds of offences of this kind right throughout the country”. Ms

Adams noted there was no empirical or evidential material before the Court to support that conclusion.

[16]   Ms Adams then noted that s 85 of the Act required the Court to have regard to totality. Sentences imposed for more than one offence must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[17]   Ms Adams also noted s 8(e) of the Act enshrined what has been referred to as the consistency principle, namely the desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances. Ms Adams then referred to the cases which had been referred to the District Court Judge.

[18]   In R v Ah Young, a starting point of seven years, six months was adopted having regard to totality.4 Mr Young was involved in the aggravated robberies of a dairy and a bar, in addition to the taking of a motor vehicle. In the first robbery approximately

$50 was taken. In the second, cash in excess of $42,000 was taken. There were some similar aggravating features to Mr Martin’s offending such as the use of disguises. A pistol was used. In R v Maiko,5 in the space of 21 days, Mr Maiko, a 20-year-old appellant had committed three separate aggravated robberies. Less than $5,000 in total was taken. An adjusted starting point of seven years was taken having regard to totality. In Matkovich v Police,6 Mr Matkovich faced two charges of aggravated robberies, one of assault with a weapon, and six of unlawfully taking a motor vehicle. Cigarettes and $800 was taken. Again for totality a starting point of seven years, eight months’ imprisonment was adopted for what Ms Adams submitted to be similar offending to the present.

[19]   Ms Adams also referred to other cases in support which were not referred to by the Judge: R v Redshaw, and Old v R.7 In R v Redshaw, Mr Redshaw and a co- offender committed three aggravated robberies. The premises involved were a service station, a pizza shop, and a dairy. Approximately $4,000 cash and cigarettes worth

4      R v Ah Young, above n 2.

5      R v Maiko, above n 2.

6      Matkovich v Police, above n 2.

7      R v Redshaw [2022] NZHC 1175; and Old v R [2023] NZHC 2369.

$20,000 were taken. On each occasion the offenders wore masks. Brewer J took a starting point of seven years’ imprisonment for the offending. That reflected a starting point of five years for the first two aggravated robberies and a related charge of unlawfully taking a motor vehicle with an uplift of two years for the third aggravated robbery. Old v R involved two charges of aggravated robbery.  The first robbery was a home invasion, the second was of a tavern. An unknown amount was taken in the home invasion. Approximately $4,390 was taken from the tavern. While the Court considered a global starting point of nine years’ imprisonment was within range, having regard to totality, the Court accepted a starting point of seven to seven and a half years was appropriate.

[20]   Ms Adams submitted that having regard to the above cases a sentence of eight years was the appropriate starting point and, applying the 50 per cent discounts for mitigating personal factors, that led to an end sentence of four years so that the sentence of six years imposed was manifestly excessive.

The Crown submissions

[21]   Ms Houia submitted the Judge had not erred in his approach in relation to totality. The totality assessment required consideration of the role of the offender and all applicable aggravating circumstances to be taken into account. It was not useful to approach the totality issue in a “discrete or miscroscopic” way.8

[22]   Ms Houia submitted that the key principle was that the total sentence must represent the overall criminality of the offending and the offender. The issue remained whether the end sentence was manifestly excessive.9

[23]   While accepting the starting point of 12 years could be regarded as high that was balanced against a number of factors noted by the sentencing Judge, including that there was no uplift for prior record, no uplift could be applied for the burglary due to the statutory exemption, and Mr Martin was entitled to significant reductions for

8      R v Dodd [2013] NZCA 270 at [39].

9      R v Barker CA57/01, 30 July 2001 at [10]; and Tutakangahau v R [2014] NZCA 279.

his youth, pleas, remorse and difficult upbringing and background totalling 50 per cent.

[24]   She noted it appeared the sentencing Judge relied on the observations in Berkland v R that where offending was particularly serious the principles of denunciation and deterrence became more powerfully engaged.10 The Judge was obviously influenced by the offending which was an example of the kind of serious youth offending which had become epidemic in New Zealand. Further, Ms Houia noted that the Judge was satisfied that Mr Martin took a leadership role in the Michael Hill Jeweller robbery. Having regard to the significant discounts totalling 50 per cent credit on the starting point Ms Houia submitted it could not be said that the end sentence was wholly out of proportion to the gravity of the offending.

[25]   As to consistency, Ms Houia submitted that the Judge had directed his mind to s 8(e) and in applying the guideline judgment of R v Mako,11 the Judge had satisfied the requirement for consistency.  As to the cases referred to by  defence counsel,   Ms Houia submitted that the particular aggravating features present across the two aggravated robberies in this case elevated it to a different category of criminality, namely the use of actual violence, the presence of a range of weapons by the group, the high level of premeditation involved and the targeting of Michael Hill Jeweller. She also noted the significance of the amount stolen being in the hundreds of thousands of dollars which was significantly more than in the other cases cited by counsel.

[26]   Standing back and looking at it overall she submitted that the end sentence was justified by the general sentencing principles of denunciation and deterrence, and it could not be said to be manifestly unjust or out of all proportion to the gravity of the offending.

10     Berkland v R [2002] NZSC 143.

11     R v Mako [2000] 2 NZLR 170.

Analysis

[27]   As noted, s 85 provides for the application of the totality principle. Once the adjusted starting point has been arrived at for the various offences, in this case the aggravated robberies of Michael Hill Jeweller and the dairy, and the associated charges of unlawfully getting into motor vehicles, the Judge was required to stand back and address the issue of totality overall.12

[28]   The Judge considered totality having regard to the ultimate end sentence and with an eye to the discounts he was going to apply. While in some cases totality is considered at the end of the sentencing exercise, it is generally accepted the preferred approach is to consider totality before considering mitigating circumstances.13 However, ultimately the purpose of the totality principle requires that the overall starting point should not be wholly out of proportion to the gravity of the overall offending.

[29]   Where the sentence arrived at by aggregating the individually appropriate sentences is not wholly out of proportion to the gravity of the overall offending then no reduction is required.14 It is not the case that in every situation the starting point is to be or should be reduced. The requirement is that the Judge must consider the issue of totality.

[30]   The Judge was clearly aware of the totality principle but for the reasons he gave, he did not consider the starting point for sentence to be wholly out of proportion to the gravity of the overall offending. On one view of it, the six-year starting point for the Michael Hill Jeweller aggravated robbery which the Judge took for parity reasons, might be regarded as generous to Mr Martin.

[31]   The related submission on behalf of the appellant in this case, is that the Judge failed to properly apply the consistency principle having regard to the cases that counsel referred to where starting points had been reduced for totality and on the basis that the Judge expressly declined to apply the High Court authority referred to him.

12     Polaapau v R [2020] NZCA 227 at [44].

13 At [44].

14     Ashcroft v R [2014] NZCA 551 at [32].

[32]   However, as the Court of Appeal have confirmed, while s 8(e) is relevant and consistency is a necessary value it does not impose absolutes. The question is always whether the starting point adopted is within an acceptable range by reference to the Judge’s assessment of particular culpability factors in the case before him or her. In Smith v R the Court said:15

[41] While, of course, the courts must take into account the general desirability of consistency in sentencing in respect of similar offenders committing similar offences in similar circumstances, the ultimate question for us is whether the starting point adopted is within an acceptable range. We must have regard to all the relevant principles of sentencing, including the gravity of the offending in the particular case, the degree of culpability of the offender and the maximum penalties which are prescribed for the offences. This approach was articulated in Arnott v R, where this Court said:

“ … there is questionable utility in applying a rigid comparative analysis between sentences imposed in circumstances which inevitably differ in at least one material respect. Consistency is a necessary value but it does not impose absolutes. In an area of offending like serious fraud, the leading authorities set the applicable parameters. The question is always whether the starting point adopted is within an acceptable range by reference to the Judge's assessment of the particular culpability factors.”

[33]   Although not referred to by counsel in submission  before  the  Court,  in Carr v R, a relatively recent Court of Appeal case which dealt with aggravated robbery, the Court considered the issue of totality.16 Mr Carr was sentenced on four charges of aggravated robbery, two of robbery, five of unlawfully 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 and took a starting point of 18 years’ imprisonment.

[34]   On appeal the Court accepted the submission for Mr Carr that that was too high and applied a starting point of 14 years’ imprisonment to take account of the gravity of the overall offending. In the course of its decision the Court of Appeal referred to the tariff judgment of R v Mako,17 and also to a number of previous cases involving aggravated robberies. In Kite v R, Mr Kite had been responsible for the planning and

15     Smith v R [2021] NZCA 169 at [41] (footnotes omitted); and see Arnott v R [2015] NZCA 236 at [12].

16     Carr v R [2020] NZCA 357.

17     R v Mako, above n 11.

execution of three significant armed robberies in Auckland.18 He carried out a reconnaissance of the area and security personnel and arranged for the placement of stolen motor vehicles to be used in the robberies and recruited associates who were armed with firearms. Overall about $225,000 was stolen of which only just over

$4,000 was recovered. In addition, Mr Kite pleaded guilty to six charges of using and four charges of attempting to use documents to obtain a pecuniary advantage as well as escaping. The Court of Appeal held a starting point of 14 years’ imprisonment was within the range available to the Judge. In R v Shedden the offender was convicted of five aggravated robberies and discharging a firearm causing grievous bodily harm, six counts of unlawfully taking a motor vehicle, two counts of theft, and counts of aggravated burglary and possession of burglary instruments.19 A starting point of 20 years’ imprisonment was adopted. As the Court of Appeal noted:20

These cases illustrate the variety of circumstances in which aggravated robberies take place.

[35]   The Court also referred to Moke v R where the offender pleaded guilty to six charges of aggravated robbery.21 Mr Moke and two others had targeted service stations in disguise armed with a baseball bat and sawn-off shotgun. A starting point of 11 years’ imprisonment was considered appropriate. In R v Collettt the offender pleaded guilty to four charges of aggravated robbery and four charges of unlawfully taking a motor vehicle.22 The aggravated robberies were carried out at pharmacies to obtain pseudoephedrine-based products to manufacture methamphetamine. Pharmaceutical products and money to a value of $4,770 were taken from the four pharmacies. A starting point of 11 years’ imprisonment was upheld. In Growden v R there were three aggravated robberies against occupants of campervans.23 The sentencing Judge took a starting point of 13 years’ imprisonment which the Court of Appeal accepted as appropriate.

[36]   A review of Carr and the cases cited, while accepting that some were more serious than the present, satisfies the Court that the requirement for consistency with

18     Kite v R [2007] NZCA 385.

19     R v Shedden HC Auckland T024003, 12 December 2003.

20     Carr v R, above n 16, at [50].

21     Moke v R [2007] NZCA 110.

22     R v Collettt, CA83/04, 30 August 2004.

23     Growden v R, CA67/05, 25 October 2005.

like offending was met in this case. A particularly aggravating feature of the offending in the present case was the large losses sustained by Michael Hill Jeweller which distinguishes the present case from the cases cited by Ms Adams. In Mako the Court of Appeal confirmed that the target premises and potential gain goes directly to seriousness.24 The amount taken in the Michael Hill Jeweller robbery was significantly more than any of the losses in the cases referred to by Ms Adams. While the Judge expressed himself as not following the High Court authority referred to him, the circumstances of the offending was sufficiently different so as not to be binding on him.

[37]   As noted, Ms Adams also made the point there was no empirical evidence to support the Judge’s comments about the need to address the spate of aggravated robberies carried out by youths following the COVID lockdown. In principle, I accept the point made by Ms Adams, however I do note that in Collett v R the Court of Appeal was prepared to accept on an apparently impressionistic basis that:25

[a]ggravated robberies committed upon pharmacies to obtain pseudoephedrine, or pseudoephedrine-based products, have since become prevalent.

The Court went on to say:26

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.

On that basis the Court was fortified in its view that the Judge’s starting point was entirely appropriate. In the present case the Judge did have some limited material before him about the effect of such robberies on Michael Hill Jeweller in particular.

[38]   Standing back and looking at the matter overall, and having regard to the authorities referred to by the Court of Appeal in Carr v R,27 (while acknowledging some of those authorities are somewhat dated, they were nevertheless accepted as relevant by the Court of Appeal), I consider the appropriate totality starting point for

24     R v Mako, above n 11, at [40].

25     Collettt v R, above n 22, at [24].

26 At [24].

27     Carr v R, above n 16.

Mr Martin’s offending in the present case was 11 years as opposed to the 12 adopted by the Judge. Applying the discounts which the Judge allowed of 50 per cent in total would lead to an end sentence of five and a half years’ imprisonment. The difference of six months while modest is significant having regard to Mr Carr’s relatively young age.

Result

[39]The appeal is allowed.

[40]   The sentence of six years’ imprisonment on the charge of aggravated robbery of Michael Hill Jeweller is quashed. It is replaced with a sentence of five years, six months’ imprisonment. The sentences imposed in relation to the other offending stand.

Venning J