Davies v Police
[2014] NZHC 1138
•27 May 2014
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2014-470-16 [2014] NZHC 1138
BETWEEN CATHY ANNE DAVIES
Appellant
AND
POLICE Respondent
Hearing: 27 May 2014 Appearances:
W T Nabney for Appellant
N G Belton for RespondentJudgment:
27 May 2014
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
27 May 2014 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Ronayne Hollister-Jones Lellman, Crown Solicitors, Tauranga
Copy to:
W T Nabney, Tauranga
DAVIES v POLICE [2014] NZHC 1138 [27 May 2014]
[1] The appellant pleaded guilty to one charge of aggravated robbery under s 235(c) of the Crimes Act 1961. Judge Harding sentenced the appellant to four years and two months’ imprisonment.1 She now appeals against that sentence.
[2] The appeal was lodged out of time but an extension of the time for appealing is not opposed. The time is extended accordingly.
[3] Although the appeal originally raised an issue concerning the starting point identified by the Judge, that point has been expressly abandoned by Mr Nabney. The main emphasis of the appeal is that insufficient discount was given for the combination of the appellant’s guilty plea, her remorse and lack of previous convictions. Mr Nabney also submits that the final sentence imposed was too severe having regard to sentences imposed on the appellant’s two co-offenders who received sentences of two years nine months (Thomas Borthwick) and three years
six months (Lucy Kellick).2
Background
[4] The sentencing took place on the basis of an agreed summary of facts in which it was alleged that on the afternoon of 24 July 2013 Ms Kellick and Mr Borthwick met with the appellant at her home. Together, they devised a plan to commit an aggravated robbery of the Brookfield Veterinary Clinic in Tauranga. Ms Kellick had been an employee of the clinic and was in a position to provide information as to its layout, the location where drugs were stored on the premises and as to the best time to stage the robbery.
[5] Having been driven to the vicinity by Ms Kellick, the appellant and Mr Borthwick donned black balaclavas. They entered the clinic and made their way directly to the rear of the premises. There was only one staff member present, as Ms Kellick knew would be the case. Mr Borthwick walked into the room where the
staff member was, carrying a large carving knife which he had brought to the scene.
1 R v Davies DC Tauranga CRI-2013-070-002862, 19 March 2014.
2 Police v Borthwick DC Tauranga CRI-2013-070-002862, 3 October 2013; Police v Kellick DC Tauranga CRI-2013-070-002862, 13 December 2013.
He was followed by the appellant, who had armed herself with an extendable metal baton.
[6] Mr Borthwick demanded that the safe be opened and that drugs stored there be placed in a white plastic bag that he had brought with him. Whilst that was occurring, the appellant remained inside the clinic keeping an eye on the front door. While she did so, she held the extendable baton in front of her where it could be seen. Once the contents of the safe had been placed in the plastic bag, the appellant and Mr Borthwick made their way out of the clinic. As they passed the main counter area, the appellant stole a wallet and Apple iPhone which had been sitting on the counter. The appellant also stole the handset to the main clinic telephone in order to prevent an emergency call being made.
[7] All three then drove off in Ms Kellick’s car.
[8] Mr Belton, for the respondent, submits that on the basis of these facts the appellant played an integral part in the offending and there is no basis to distinguish her culpability from that of her co-offenders. I agree with that and note that the starting point of five and a half years’ imprisonment adopted by Judge Harding, was the same starting point adopted by Judge Rollo in sentencing Mr Borthwick and Judge Ingram in sentencing Ms Kellick.
The sentence
[9] The Judge noted that both the Crown and the defence accepted that the appropriate starting point was five and a half years’ imprisonment. He recorded the submission made by Mr Nabney that there should be a full discount for the guilty plea although it had been offered at a late stage. Further, Mr Nabney had emphasised that the probation report acknowledged that the appellant was deeply remorseful. Mr Nabney argued for a total discount of around 33 percent.
[10] The Judge said:3
3 At [10]-[11].
[10] …I am unable to accept Mr Nabney’s submission that you should get a full discount for plea because it comes at a very late stage and, as the Crown submits in the face of it, virtually unassailable Crown case, particularly since it was then proposed that both of your co-offenders, both of whom had been sentenced, would be giving evidence.
[11] I accept there is now genuine remorse but the evidence of that is late and probably of little assistance to the victim. In the circumstances in my view a total discount of the area of 20 percent, reflecting both plea and remorse is appropriate. There is no basis to grant more in my view. Subtracting that from five and a half years the result is a sentence of four years and two months’ imprisonment and I express the hope that you will be able to continue on the better progress that you are now on, continue with the medication that you are now on and avoid any possible repetition of this sort of behaviour.
[11] Although the Judge referred to a total discount of about “20 percent”,
Mr Belton points out that the discount in fact afforded for the mitigating factors was
24 percent.
The appeal
[12] As noted above, the main complaint is as to the allowance given for mitigating factors and the comparison with the sentences imposed on the co- offenders.
[13] Mr Nabney submitted that what he described as a “20 percent discount” given by the Judge was insufficient to reflect the appellant’s guilty plea, remorse and otherwise good character. As noted, the discount was in fact 24 percent.
[14] Mr Nabney submitted that Ms Kellick had received a discount of 22 percent for her guilty plea and a further nine months for her remorse, good character and rehabilitative efforts resulting in an end sentence of three years and six months. Mr Borthwick had received an end sentence of two years and nine months in recognition of his early guilty plea and attendance at a restorative justice conference.
[15] While he accepted that the appellant could not claim a similar level of discount as that given to Mr Borthwick, she should have been entitled to a discrete discount of about 20 percent to reflect her guilty plea, and a further discount for her remorse and good character. He submitted that would result in a further reduction of at least six months, and a final sentence slightly longer than that imposed on
Ms Kellick (that would reflect the fact that Ms Kellick had pleaded guilty earlier than the appellant).
[16] For the respondent, Mr Belton submitted that the discount applied for the guilty plea and remorse was appropriate. He noted that the guilty plea came at a very late stage. It was not entered until 21 February 2014, when reserved trial dates had already been confirmed for the weeks beginning 17 February, and 10, 17 and 24
March 2014. The guilty plea came after the first of those trial dates had passed. By the time it was entered, the Crown’s case against her was very strong. Both of the co-offenders were prepared to give evidence at the trial detailing the appellant’s involvement. The appellant herself had already made a number of significant admissions confirming her involvement in a video-recorded interview that would have been admissible at the trial.
[17] As to the co-offenders, Mr Belton accepted that Mr Borthwick had received an allowance for mitigating factors totalling 33 months or 50 percent of the starting point. However, he was able to rely on significant mitigating factors including a very early guilty plea; a comparatively young age (23 years); he participated in a very successful restorative justice conference with the victim, during which he made a full apology (which was accepted), and promised to rehabilitate himself in relation to his ongoing drug problem. He exhibited genuine remorse and was prepared to give significant assistance to the prosecution. On the latter point, Judge Rollo specifically referred to the appellant having “been of assistance to authorities in understanding the nature of the issues in this case” and to “assistance that has been given”. These references were brief, as was appropriate when the cases against
Ms Kellick and the appellant remained unresolved.4
[18] As to Ms Kellick, she received credits totalling 24 months or 36 percent on the starting point. Mr Belton again submitted that she was able to rely on more significant mitigating factors than the appellant. These included an earlier guilty plea, entered on 1 November 2013, more than three and a half months before the appellant’s guilty plea and well in advance of any scheduled trial dates. She had
made substantial rehabilitative efforts, displayed genuine remorse and was of prior
4 Police v Borthwick, above n 2 at [10] and [17].
good character. The sentencing Judge, Judge Ingram, specifically noted that he was allowing 15 months for the guilty plea, and three months each in respect of remorse, good character and rehabilitative efforts.5
Discussion
[19] Mr Nabney accepted that the appellant could not claim the same level of discount given to Mr Borthwick. I agree that there are obvious differences between his case and that of the appellant, not the least of which are the much earlier guilty plea, the restorative justice conference and his apology and the assistance that he provided to the police.
[20] The disparity between the sentence imposed on Ms Kellick and that which the appellant received is potentially of more significance. As has been seen, one element of the discount given to Ms Kellick was an allowance of three months in respect of her rehabilitative efforts. Mr Nabney did not claim that the appellant should have received a similar allowance, but he did claim that her remorse and otherwise good character should have been specifically recognised.
[21] The difficulty with his submission is that the Judge has allowed the appellant a significant discount on the sentence that would otherwise have been applied in respect of what was a very late guilty plea and the factor of remorse. Although he did not mention previous good character when setting out the basis on which the sentence was calculated, I have not been persuaded that that omission in the circumstances of this case means that the resulting sentence was manifestly excessive, or inappropriate when compared with the sentence given to Ms Kellick.
[22] Having regard to the late guilty plea, there was a significant allowance for remorse and the discount overall was sufficient also to accommodate an allowance for good character even if that was not mentioned by the Judge.
[23] In Hessell v R the Supreme Court held that discounts for guilty pleas should not exceed 25 percent, while genuine remorse should be separately recognised. 6
5 Police v Kellick, above n 2 at [18].
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
While it accepted the relevance of the timing of the guilty plea, the Court emphasised the need to consider all the relevant circumstances of the plea, including the strength of the prosecution case.7 Here, the prosecution case was virtually unassailable, especially given the preparedness of the co-offenders to give evidence against the appellant. Added to that, the plea was late in the day. Mr Nabney was not able to refer to any other considerations relevant to the plea that suggest it should have resulted in a more significant discount. On my assessment, while time and resources would have been saved, and the victim spared the need to give evidence, it
would not have been a lengthy trial. In all the circumstances, a lesser discount than the judge gave for the plea and remorse could have been justified.
[24] It is very difficult to get from that point to the idea that the appellant’s sentence is excessive because there was no express discount for previous good character. The 16 months’ discount actually given was sufficient to include an allowance for that consideration. In that respect it can be noted that in the case of Ms Kellick, whose guilty plea was significantly earlier, the allowance for the guilty plea was only 15 months. In this case, the discount for the plea and remorse was 16 months.
[25] I am not persuaded that the Judge’s approach was wrong, nor that the sentence imposed was inappropriate having regard to the sentences imposed on the co-offenders.
Result
[26] For the reasons I have given the appeal is dismissed.
7 At [74].
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