Dearman v R
[2016] NZCA 143
•29 April 2016 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA408/2015 [2016] NZCA 143 |
| BETWEEN | CLINTON MICHAEL DEARMAN |
| AND | THE QUEEN |
| Hearing: | 2 March 2016 |
Court: | Ellen France P, Keane and Dobson JJ |
Counsel: | AND Garrett for Appellant |
Judgment: | 29 April 2016 at 3 pm |
JUDGMENT OF THE COURT
A An extension of time to appeal against sentence is granted.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
On 2 October 2013, Clinton Dearman was sentenced in the Dunedin District Court, to imprisonment for seven and a half years, and a 50 per cent minimum period of imprisonment, three years, nine months, for two aggravated robberies of the Forbury Pharmacy, Dunedin, the first on 4 July 2012 and the second on 29 November 2012.[1]
[1]R v Dearman DC Dunedin CRI-2012-012-4014, 2 October 2013.
This sentence, in its totality, is consistent with a sentence indication the sentencing Judge, Judge Crosbie gave Mr Dearman on 27 June 2013, as a result of which Mr Dearman pleaded guilty to the two offences.[2] Originally, as a result of the second offence, Mr Dearman also stood charged with kidnapping and aggravated assault. But, the Crown undertook not to pursue the kidnapping charge at the sentencing indication and Mr Dearman was subsequently discharged on both charges.
[2]R v Dearman DC Dunedin CRI-2012-012-4014, 27 June 2013.
On 15 July 2015, Mr Dearman, who by then was acting for himself, appealed his convictions as well as his sentence, one year, eight months out of time, complaining about the conduct of his then counsel (not his counsel on this appeal). He has since abandoned that aspect of his appeal. He appeals his sentence.
First Mr Dearman contends that the starting point the Judge took for the first of his aggravated robberies, seven years, ought to have been no higher than six years, the starting point the Judge had intimated in his sentencing indication; and that this alone rendered his sentence manifestly excessive.
Secondly, he contends that in uplifting the starting point robbery by two years three months for the second aggravated robbery the Judge wrongly assumed that it was aggravated by the related assault. However, he had been discharged on the assault charge. On that basis, he contends that the uplift must have been inflated.
Mr Dearman is entitled to pursue his appeal against sentence, despite the fact that he accepted a sentencing indication.[3] He requires an extension of time to do so.[4] He was to give an affidavit explaining his delay but did not do so in time for his appeal. The Crown contends that the interests of justice do not justify any extension, but accepts that it is unprejudiced. We have heard his appeal on its merit.
Two aggravated robberies
[3]Crimes Act 1961, s 383(1). Section 245 of the Criminal Procedure Act 2011 recognises that an appeal can be brought against a sentence that has been imposed following a defendant accepting a sentencing indication.
[4]Crimes Act, s 388(2).
According to the undisputed summary of facts on sentence, which Mr Dearman accepted on the sentence indication also, he first went to the Forbury Pharmacy, Dunedin on 4 July 2012 and waited until it was about to close. He then went in, wearing a balaclava and carrying a large knife. He told the five staff members still there that he was going to rob the pharmacy. He swore continually, and was intimidating.
He made four staff members go into the back room, where he held them at knifepoint and had one fill a plastic bag with controlled drugs from the safe, which he repeatedly said had to be filled to overflowing. Then, as he left, he said he would stab anyone who tried to follow him. He was not apprehended.
On 29 November 2012, Mr Dearman returned to the pharmacy, again as it was about to close. He parked in a nearby street to be able to see when that was imminent. Immediately after he saw a staff member take down the “Open” sign he went inside, this time wearing a beanie pulled over his face with eye-holes cut in it.
He took a bundle of cash from a staff member, that had just been taken from the till. He made all staff go into the back room (apart from one who escaped without him knowing). He pushed them to make them move faster. He told them he had a knife (he had one in his bag together with a hammer). He filled his bag with controlled drugs from the safe himself. He taped the wrists of the staff members behind their backs with duct tape, shut them in the toilet and left.
Just as he left the pharmacy the police arrived, alerted by the staff member who had escaped. One officer told him to stop where he was. He refused and kept heading towards his car. He swore and told the officer he had a gun. The officer pepper-sprayed him as he tried to get into his car. After a level of struggle he was arrested.
Afterwards, Mr Dearman admitted both robberies. He said that he had stolen the drugs because he needed the money. He explained that he had detained the staff the second time to ensure that he could get away. He explained his assault on the officer by saying he was trying to avoid arrest.
Sentence under appeal
On sentence, as on the sentence indication he gave to Mr Dearman earlier, Judge Crosbie fixed his starting point for the first robbery and the uplift for the second robbery, having regard to R v Mako, and deterrence.[5] He was especially influenced as to both by R v Collett, another case of pharmacy robbery.[6]
[5]R v Mako [2000] 2 NZLR 170 (CA).
[6]R v Collett CA83/04, 30 August 2004.
The Judge’s seven-year starting point for Mr Dearman’s first robbery was taken from Collett, where that was the starting point taken for the first of four robberies. It stood one year higher than the six-year starting point Judge Crosbie had intimated in his sentence indication. But in the two year, three month, uplift he made for the second robbery the Judge reduced by around one year his intimated uplift. His total starting point, nine years, three months, remained constant.
In the Mako analysis the Judge made, he identified four features aggravating Mr Dearman’s two robberies:
(a)He had targeted the pharmacy twice, each time with a level of planning and preparation, on the second robbery parking his car where he could see the pharmacy from a hidden vantage point.
(b)He had disguised himself each time by covering his head with a balaclava or beanie and in the second robbery had used latex gloves.
(c)He had carried a large knife to threaten the staff in the first robbery and in the second had threatened staff with the knife he was carrying in his bag, together with a hammer.
(d)His intent in targeting the pharmacy twice had been to obtain controlled drugs.
The Judge accepted that Mr Dearman might have planned to rob the pharmacy, as it was closing, to ensure that members of the public were absent. But, he said, the effect on the staff had been significant. They had suffered recurrent fear and sleeplessness. Some had undergone counselling. Some had questioned whether they should quit the pharmacy, to the detriment of their livelihoods.
The Judge held that it was irrelevant that Mr Dearman might not have intended the staff to suffer that degree of emotional harm. He said:[7]
… the bottom line is this: they are never to know that when faced with a knife-wielding large man wearing a balaclava. They are only ever going to think the worst.
[7]R v Dearman, above n 1, at [15].
The fact that nobody was injured was fortuitous. The risk was always there.
The Judge then increased his total starting point by six months for Mr Dearman’s previous convictions, which between 1984 and 2008 were very extensive and had culminated in 2006, when Mr Dearman was imprisoned for two years, four months, for a burglary and aggravated assault. He allowed Mr Dearman a 20 per cent discount for his plea and a small further discount for remorse. None of these aspects are in issue on this appeal.
Consequently, the Judge sentenced Mr Dearman to the sentence under appeal, imprisonment for seven years, six months; and, after alluding briefly to the four aggravating features he had earlier identified, the Judge imposed a 50 per cent minimum period of imprisonment of three years, nine months, which Mr Dearman’s then counsel accepted was open as a matter of discretion. That is not in issue either.
Primary issue — starting point
In advancing his primary ground of appeal, Mr Dearman contends that any starting point for his first robbery in excess of six years, is inconsistent with the starting points for robberies of commercial premises, which this Court identified in Mako, when setting starting points for that order of offending, lying between six to eight years, or more:[8]
The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.
[8]R v Mako, above n 5, at [54].
Mr Dearman takes issue, especially, with the Judge’s reliance on Collett, which he contends involved more serious offending. To contend that a six-year starting point was the highest justifiable he relies on R v Taha, a High Court sentencing decision to which the Judge was not apparently referred, where a six-year starting point was taken for multiple offenders, in the aggravated robbery of a veterinary centre, where one was carrying a gun.[9]
[9]R v Taha [2014] NZHC 1615.
In Collett, the decision of this Court to which the Judge was referred and on which he did rely, the appellant, who had no previous convictions, was sentenced to seven years imprisonment for four aggravated robberies, and had unlawfully taken four motor vehicles to carry out those robberies. His co-offender, who had a previous conviction for aggravated robbery, had earlier been sentenced to eight and a half years imprisonment.
In those four robberies, as in this case, small and vulnerable suburban pharmacies were targeted at times when the public was likely to be absent. The two offenders wore balaclavas and latex gloves. In the first robbery the appellant was armed with a semi-automatic rifle. In the remaining three both were armed with knives. They were after prescription pseudoephedrine, and medicines containing it, as well as cash. Nobody was harmed and their gains were relatively modest.
The primary point on that appeal was whether the Judge had been right to take into account their purpose, to obtain precursor substances in order to be able to produce and sell methamphetamine. This Court held that the prospect of those further offences could not be taken into account as aggravating. What was aggravating was that their purpose had been to obtain a substance, which was capable of being used in manufacture of a dangerous illicit drug.[10]
[10] R v Collett, above n 6, at [20].
As to the sentence itself, this Court held that the starting point the Judge took for the first offence was “entirely appropriate” and that the four year uplift he made for the three remaining burglaries, a 50 per cent uplift, was justified by the robberies alone when coupled with the unlawful taking of the four cars.[11]
[11]At [23]–[24].
In our view the Judge was entitled to regard Collett as a reliable comparator. It may have involved four robberies by two offenders, not two robberies by one, but the Judge was alive to that distinction in the sentence he imposed on Mr Dearman.
The only distinction on which Mr Dearman can rely is that in Collett, in the first of the four robberies, the appellant there carried a semi-automatic weapon, not a knife. However, there, as here, the weapon was only used to threaten staff members. Its greater potential than a knife to cause injury and death did not become material.
In both cases the staff members held in the pharmacies were at equivalent immediate risk. Also, in contrast to Collett, in his first robbery Mr Dearman actively threatened staff with his knife, as he held them at knife point in the back room while his bag was filled. There was a very real risk, as the Judge said, that a staff member could have been hurt.
A further distinction on which Mr Dearman relies, that he was intent on obtaining drugs in order to sell them, not in order to enable methamphetamine manufacture, is a distinction without a difference. We do not regard the Hutchins decision as taking any aspect of this analysis any further.
Second issue — uplift
Mr Dearman’s second ground of appeal, that the Judge inflated the uplift he made for the second robbery because he assumed that it was aggravated by Mr Dearman’s aggravated assault on the officer, and purported to sentence Mr Dearman for that further offence on which he had been discharged, is also unsustainable.
The Judge immediately recognised his error, and, in an addendum to his remarks on sentence, confirmed that he had fixed the uplift without taking into account the related charge of aggravated assault. We accept what the Judge said. He fixed his uplift, as he had his starting point, taking into account the four aggravating factors he had earlier identified. He then held that the fact that there had been two robberies with the same aggravating features was aggravating in itself.
That apart, we are satisfied, as a result of our own review of the record, that the uplift the Judge made for the second robbery was both called for and proportionate. So too, that being so, was his total sentence. Neither was, in any sense, manifestly excessive.
Result
For these reasons, we grant Mr Dearman an extension of time to appeal against sentence, but we dismiss his appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
4