H v Police HC Wellington CRI 2009-485-130
[2009] NZHC 2330
•13 October 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2009-485-130
BETWEEN H
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 13 October 2009
Counsel: E A Hall for the Appellant
J Webber and M Ferrier for the Respondent
Judgment: 13 October 2009
ORAL JUDGMENT OF MILLER J
[1] Ms H appeals against a sentence of two years and ten months imprisonment imposed on one charge of aggravated robbery, one of driving while disqualified, and one of refusing to permit a blood specimen to be taken in circumstances where she had at least two relevant prior convictions.
[2] The summary of facts, which was accepted at sentencing, recorded that on Sunday 11 January 2009 the appellant was with three associates in a stolen Subaru. They were involved in a spate of offences across the Wellington district. The appellant did not play an active part in most of these offences, but she was heavily involved in the aggravated robbery of a taxi driver at Miramar. She and her co- accused, a Mr Wilson, had got out of the stolen car and were arguing about Wilson’s driving. He walked into the middle of Miramar Avenue and flagged down a passing taxi, which had to stop in order to avoid hitting him. The taxi driver, Mr Lachin, told Wilson that he was not working, but Wilson opened the driver’s door and told
Mr Lachin to give him all his money or he would die. Wilson produced a
H V NEW ZEALAND POLICE HC WN CRI 2009-485-130 13 October
2009
screwdriver and held it to Mr Lachin’s neck, and Mr Lachin gave him $40 cash which he had in his shirt pocket.
[3] The summary of facts recorded as follows:
As Wilson took the money, H got into the taxi through the front passenger’s door.
She began to scream and abuse Lachin stating, “Mother fucker, give me all your money and get out of the car”.
H closed the door behind her and sat up on the passenger’s seat with her back against the door.
Using the door as leverage she began to kick Lachin and stomped her legs over him on at least three occasions, striking him on the shoulder.
Wilson continued to hold the screwdriver against Lachin’s throat before forcing him from his vehicle, leaving the keys in the ignition.
Wilson got into the driver’s seat of the taxi and H remained in the passenger’s seat.
[4] The summary went on to record that Wilson then drove the taxi from Miramar Avenue before stopping in a nearby street, where the two offenders searched the taxi. It is also recorded that when spoken to by police the following day the appellant denied any involvement in the robbery but later admitted all the facts as outlined.
[5] The facts in relation to the driving offences were that, having been twice convicted of driving with excess breath alcohol and once of driving while disqualified, the appellant was stopped on 10 November 2008 and failed a breath screening test. She gave a false name, which ironically happened to be that of another disqualified driver. On the way back to the police station for evidential breath testing, the police stopped at a family member’s house so her young child, who was with her, could be dropped off. She attempted to escape but was apprehended. She refused to provide an evidential breath test and a blood test, following which her true identity was discovered.
[6] The appellant explained the robbery by saying that she had been drinking alcohol over a 24-hour period and may have been drugged by one of her associates.
She expressed remorse. The Judge accepted that the appellant clearly has a problem with alcohol.
[7] I record at this point that the arrest was on 12 January 2009 and the guilty plea was entered on 2 July. However, an offer had been made to plead in February, and I accept for purposes of this appeal that the plea was entered at the earliest reasonable opportunity.
[8] The Judge observed that although the victim of the robbery did not sustain any physical injuries from the attack, he was emotionally affected and he had changed his shifts because he was scared to drive at night, affecting his ability to earn income. She noted that the appellant is aged 23 with three children under five and with family support from her parents. She described the appellant’s partner as a gang member, and recorded that the probation service considers the appellant is connected with the Mongrel Mob.
[9] The appellant consented to community detention, but not home detention because she said it would not work for her. Her home was suitable, but she herself was not considered a suitable candidate for an electronically monitored sentence, and the police were concerned about visitors and associates who would come to the address.
[10] Noting that this was a robbery of a taxi driver, the Judge referred to R v Mako [2001] 2 NZLR 170 at [57]. The offending was impulsive, but there were two people involved and Wilson had a screwdriver. The appellant participated actively, getting into the car once the screwdriver was produced. The Judge appears to have drawn the inference from the summary of facts that the appellant knew about the screwdriver. She found that the victim was a vulnerable member of the community, and the appellant was involved in threatening and intimidating him. The appellant also took the money and the car.
[11] In the circumstances, the Judge adopted a starting point of four and a half years imprisonment. Although she approached sentencing on a totality basis, she did not add anything, somewhat surprisingly, for the driving charges. Nor did she treat
the appellant’s previous convictions as an aggravating factor. In mitigation, the Judge noted the appellant’s age, her plea of guilty, and expressions of remorse to the probation officer. She accepted that the appellant was willing to address her alcohol problem.
[12] On appeal, Ms Hall argues that the starting point was too high and the discount too low. The starting point was excessive because there was no evidence that the appellant knew of the weapon, and because she herself did not take the money and car, while the discount failed to recognise, in particular, assistance provided to the police.
[13] The first question is whether it was open to the Judge to draw the inference that the appellant knew of the screwdriver. The inference is manifestly open on the summary of facts. Ms Hall did not take the point at sentencing that the appellant was ignorant of the weapon. It is therefore strongly arguable that it is a fact agreed on by the prosecutor and offender for purpose of s 24(1)(a) of the Sentencing Act. However, I choose not to approach the matter on that basis. I have been referred to the statements made to the police by both the appellant and Mr Lachin. All I need say is that they leave open the possibility that she did not see the screwdriver at the time of the offence. The Judge cannot be criticised for drawing the inference in the circumstances, but I am prepared to approach the appeal on the basis that the appellant’s knowledge of the weapon was an aggravating factor that must be proved under s 24(2) of the Act.
[14] Although knowledge of the weapon is a material fact, it is arguable that Ms Hall overstates its significance. The sentencing Judge need not draw fine distinctions between co-offenders in a group attack: R v Lakatani [2008] NZCA 507 at [33]. As the Court of Appeal noted there, criminal enterprises of this sort generally involve a number of people. The appellant chose in the most emphatic way to associate herself with it, attacking and threatening the victim to get him out of the car. It is also arguable, as Mr Webber submits, that the Judge did not attach sufficient weight to the actual violence used by the appellant herself. The two then took the car, as the Judge found.
[15] It follows that I might simply adjust the sentence by giving the appellant the benefit of the doubt about knowledge of the weapon. On reflection, Mr Webber was inclined to that course. But on the basis of her existing instructions, the appellant not being present on this appeal, Ms Hall was not. A finding in the appellant’s favour could result in a reduction in the effective sentence, although the starting point is otherwise broadly consistent with the authorities: Mako, R v Bishop [2008] NZCA
265, R v Lakatani [2008] NZCA 507, and R v Siafa and Shepherd HC AK CRI
2006-404-0159 12 October 2006. Accordingly, the better course is to hold a sentencing hearing that will give the police the opportunity to prove that the appellant did know of the weapon when she participated in the robbery. I observe that if that fact is proved, the appellant could expect the discount for mitigating factors to be less than that originally given: R v Hessell [2009] NZCA 450 at [47]. The sentencing Judge would not be bound by the approach taken originally, and so might also add something for totality and for personal aggravating factors.
[16] The sentencing Judge should also address the question of credit for co- operation with the police. Nothing seems to have been made of that at the first sentencing, but Ms Hall now argues that the appellant co-operated by naming associates who had been involved in the spate of offences. Naming accomplices is a mitigating factor, for which credit may be given in addition to that for an early guilty plea: Halls Sentencing para 1.7.2, R v Hessell [2009] NZCA 450 at [23]. The weight to be given to this factor, if any, is a matter for the sentencing Judge. I record that Mr Webber argues vigorously that there was no meaningful assistance given by the appellant.
[17] Accordingly, the appeal is allowed. The sentence of imprisonment is set aside, and the appellant is remanded to appear in the District Court at Wellington on Monday, 19 October 2009 at 10 am for re-sentencing. I have previously held that jurisdiction exists for that course of action: Hook v Police HC WN CRI 2005-485-
60 15 June 2005 at [24].
[18] In the meantime, the appellant will remain in custody. A sentence of imprisonment remains probable, in my opinion, even if the sentencing Judge accepts that she did not know of the weapon. It will be for the District Court to deal with
bail having regard to the need to schedule a sentencing hearing and other relevant considerations, such as the risk of further offending while the appellant’s alcohol abuse remains unchecked.
Miller J
Solicitors:
Crown Solicitor’s Office, Wellington for the Respondent
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