Heydon v The Queen
[2017] NZHC 1127
•26 May 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2017-412-9 [2017] NZHC 1127
BETWEEN LOGAN WILLIAM HEYDON
Appellant
AND
THE QUEEN Respondent
Hearing: 23 May 2017 Appearances:
A Pinnock for the Appellant
M Cooke for the RespondentJudgment:
26 May 2017
JUDGMENT OF MANDER J
[1] The appellant, Logan Heydon, was sentenced to three years and four months imprisonment on a charge of aggravated robbery. He appeals his sentence on the ground it was manifestly excessive. The focus of his appeal is a submission of unjust disparity with the sentence imposed on a co-offender who performed a similar role in the offending.
Background
[2] At around 1.00 am in the morning, Mr Heydon together with five other young men travelled to a residential address for the purpose of robbing the occupants. Mr Heydon and another young man, Mr Lynn, each drove a motor vehicle to transport two of their associates who were disguised and armed with weapons. After their four associates entered the house they each remained with their vehicles, acting as lookouts.
[3] The four men who entered the house threatened the male and female victims with their weapons. These included what appeared to be a pistol (in fact an
inoperable BB gun), a knife, an axe and a wheel brace. Four hundred and fifty
HEYDON v R [2017] NZHC 1127 [26 May 2017]
dollars in cash and an ounce of cannabis were taken after the firearm was presented
to the male occupant’s head and a knife held to the throat of the female victim.
[4] After the robbers came from the house, Messrs Heydon and Lynn each drove two of the armed men to a location to divide the money and drugs.
District Court decision
[5] Following the guideline judgment of R v Mako a starting point of eight years imprisonment, described by the sentencing Judge as being at the lower end of the range, was adopted.1 Because of Mr Heydon’s lesser role as a driver the starting point was reduced to one of seven years imprisonment.
[6] From that point, the sentencing Judge allowed a 10 per cent credit for youth (20 years of age) and previous good character (absence of previous convictions for serious violent offending), 5 per cent in recognition of Mr Heydon’s background of mental health issues, 5 per cent for remorse, and 25 per cent for his guilty plea.
[7] The sentence was further reduced by four months to recognise that for Mr Heydon his first term of imprisonment was going to be difficult. The sentence of three years and six months imprisonment was further reduced by two months in recognition of Mr Heydon’s participation in a restorative justice conference which the victims had found helpful.
The appeal
[8] Three grounds of appeal were relied upon by Mr Heydon in support of his submission that the sentence was manifestly excessive:
(a) That Mr Heydon’s sentence of three years and four months imprisonment when compared with the sentence of two years imprisonment which was converted to one of 10 months home detention received by his co-offender, Mr Lynn, gives rise to unjust
disparity.
1 R v Mako [2000] 2 NZLR 170 (CA).
(b)That the sentencing Court failed to have proper regard and give adequate credit to Mr Heydon’s limited involvement in the robbery, his remorse, offer to make amends, and the time spent by him on bail.2
(c) The sentencing Court failed to have proper regard to the need for consistency of sentences in respect of similar offenders committing similar offences, the need to impose the least restrictive outcome appropriate in the circumstances, and the outcome of the restorative justice process.3
[9] From those grounds three issues can be identified for determination on the appeal:
(a) Was the starting point applied to reflect Mr Heydon’s offending too
high?
(b) Was there an unjustified disparity between Mr Heydon’s final
sentence and that of his co-offenders, Mr Lyn and Mr Unahi?
(c) Did the sentencing Judge fall into error in his approach to the credit he afforded to Mr Heydon for mitigating factors.
Approach to appeal
[10] An appeal against sentence may be allowed by this Court if satisfied there has been an error in the imposition of a sentence and that a different sentence should be imposed.4 The appeal Court will only intervene and substitute its view if the sentence is manifestly excessive and cannot be justified when assessed against
relevant sentencing principles.5
2 Sentencing Act 2002, ss 9(2) and 10.
3 Section 8(e), (g) and (j).
4 Criminal Procedure Act 2011, s 250(2) and (3).
5 Ripia v R [2011] NZCA 101 at [15].
Discussion
The starting point
[11] Mr Heydon submitted the overall starting point of eight years for the principal offenders was too high, and that the reduction of one year to mark Mr Heydon’s lesser role as a getaway driver was insufficient. The latter submission largely relied upon a comparison between the end sentences ultimately received by the offenders in R v Mako.6
[12] In that case a sentence of five and a half years imprisonment imposed on the principal offender who had entered a bar armed with a sawn-off shotgun, threatened patrons, and forced the barman at gunpoint to lead him to the safe, was increased to one of seven years imprisonment. The driver of the getaway car had been sentenced to four years imprisonment. As a result, there was a three year difference between the sentence received by the principal offender in that case and the getaway driver. Relying on that outcome Mr Heydon sought to argue that the one year difference in the present case to distinguish his role as a getaway driver from that of the principal offenders who entered the house was insufficient. However, I do not consider that comparison bears scrutiny.
[13] R v Mako is the principal appellate judgment providing guidance for sentencing for aggravated robbery. It resulted from a Solicitor-General’s appeal against the sentence imposed on Mr Mako who was one of three co-offenders. The Crown did not appeal the getaway driver’s sentence, and the Court of Appeal had no jurisdiction to make any adjustment to his sentence. Notably, Gault J, in delivering the judgment of a full bench of the Court of Appeal, observed that the sentence for
the driver “plainly was lenient”.7
[14] I accept the Crown’s submission that the starting point of eight years for the
principal offenders was well within range and, indeed, could have been higher. In R
v Mako the Court observed, in respect of this category of aggravated robbery, that:
6 R v Mako [2000] 2 NZLR 170.
7 At [24].
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted will require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[15] While the higher maximum penalties for home invasion were repealed by the Sentencing Act 2002, the commission of an offence involving a home invasion is a recognised aggravating factor.8 The Court of Appeal has since confirmed that the element of home invasion properly provides a basis to increase the starting point from seven to 10 years.9 As was recognised by the sentencing Judge himself, the selection of a starting point of eight years for the principal offenders for a premeditated home invasion robbery involving multiple disguised offenders carrying weapons was lenient.
[16] The reduction from that starting point to seven years to reflect Mr Heydon’s role as a getaway driver was also within range. Relevantly, in R v Mako, the Court of Appeal commented:10
As this Court made clear in Smart there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.
[17] This approach was reiterated by the Court of Appeal in R v Royal, when it observed that it had previously been emphasised that offenders who play a different role from the actual robber, be it a getaway driver or decoy, cannot expect to be treated as less culpable than those more directly engaged.11 In Royal, the Court observed that a discount of 12 months from a starting point of 11 years represented an understandable approach to recognise the appellant’s less central role in the offending. In that case the appellant, like Mr Heydon, played a secondary role as a
lookout and decoy.
8 Tiori v R [2011] NZCA 355 at [12]; Sentencing Act 2002, s 9(1)(b).
9 R v Fenton [2008] NZCA 379 at [12]; R v Royal [2009] NZCA 65 at [10].
10 R v Mako, above n 1, at [64], referring to R v Smart CA57/94, 24 May 1994.
11 R v Royal, above n 9, at [20], citing R v Mahaki and Te Moni CA 309/97, 8 April 1998.
The parity issue
[18] Both the appellant, Mr Heydon, and Mr Lynn played similar roles in the offending. Both acted as getaway drivers. Mr Heydon submitted the 16 month difference between his final sentence and that of Mr Lynn was not justified. Additionally, by reference to the sentence imposed on one of the principal offenders, Mr Unahi who received a prison term eight months longer than his own, Mr Heydon submitted the starting point for his secondary role in the robbery should have been less.
[19] The 18 year old Mr Lynn was sentenced on the basis that he had limited knowledge of how the robbery was to occur, and was not aware that his co-offenders had weapons until he saw them entering the property. In sentencing Mr Lynn the Judge took a starting point of six and a half years. From that point the Judge allowed the same discount that was extended to Mr Heydon, namely a 45 per cent credit for youth, good character (Mr Lynn had no previous convictions), restorative justice, and guilty plea. As with Mr Heydon, the sentencing Judge considered that prison would be severe and difficult for a young man of 18 years, and he extended to Mr Lynn a further deduction of three months in recognition of that consideration.
[20] The important distinguishing feature between the personal circumstances of Mr Heydon and that of Mr Lynn was the cooperation and assistance Mr Lynn provided to the authorities. As a result of providing a statement to police and carrying through with a promise to assist the police, one co-offender who was going to trial pleaded guilty as a result of becoming aware of the evidence Mr Lynn was prepared to give.
[21] The Judge noted the need to encourage cooperation with the police, and that Mr Lynn had provided material assistance which was required to be acknowledged by a further credit. Accordingly, for his assistance and cooperation a further discount of 20 per cent was applied. Having reached an end sentence of two years, the sentencing Judge was able to commute the term of imprisonment to a final sentence of 10 months home detention. In addition, 400 hours community work was also imposed.
[22] Mr Unahi was sentenced on the basis he was a principal offender. From a starting point of eight years, his sentence was reduced by 45 per cent on a very similar basis to that applied to Mr Heydon’s situation: 10 per cent for youth and good character, 5 per cent for remorse and attending restorative justice, 5 per cent for mental health issues, and 25 per cent for his guilty plea. That reduced Mr Unahi’s sentence to one of four years and five months imprisonment.
[23] The sentencing Court, as with Mr Heydon, then allowed a further five month discount in recognition that a sentence of imprisonment for a first offender would be difficult. In reaching an end sentence of four years imprisonment, the sentencing Judge took into account the appropriate overall level of sentence for this type of offending and parity with the sentence he had earlier imposed on Mr Heydon.
[24] The approach to be taken to the question of parity between co-offenders is well established, and is encapsulated in the following passage from the Court of Appeal’s judgment in R v Lawson:12
...differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of the co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute... But the test is objective, not subjective. It is not merely whether the offender thinks he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something has gone wrong with the administration of justice.
[25] I do not consider any unjustified disparity arises between the sentences imposed on Mr Heydon and the other getaway driver, Mr Lynn, nor in respect of his other co-offender, Mr Unahi. To the contrary, each was treated consistently. I do not
consider the objective independent observer would consider something to have gone
12 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
awry with the administration of justice when regard is had to the individual circumstances of each offender and their role in the offending.
[26] The only potential source of dispute regarding the respective approaches to sentencing Messrs Heydon and Lynn arises from the extent of their knowledge of what was to occur. Initially, the sentencing Judge was not minded to distinguish between the two offenders, it having been contended on behalf of Mr Lynn that he was not aware of the presence of weapons until his co-offenders had got out of his vehicle and approached the property, whereas Mr Heydon was sentenced on the basis that when driving his two co-offenders he knew they were armed with weapons.
[27] Submissions made on behalf of Mr Heydon largely centred on contesting whether it was a realistic point of distinction between the two getaway drivers, and the correctness of sentencing Mr Lynn on the basis of his claimed ignorance, for which he was afforded a further six month deduction from the starting point. The difficulty with that argument is that the appeal Court can only assess the respective sentencing decisions on the basis of the accepted factual matrix upon which the individual sentences are based.
[28] The sentencing Court can only proceed, in the absence of a disputed facts hearing, on the material factual particulars which are accepted by the defendant for the purposes of sentencing. In the case of Mr Heydon it is notable that the prosecution had available to it text messaging which made it apparent he knew what was being planned and what was going to happen at the time he assisted his co- offenders in the way he did. While the extent of that knowledge may be disputed, it is evidence of Mr Heydon having been more closely involved at the preparatory stage of the robbery than Mr Lynn.
[29] Mr Heydon does not dispute his knowledge about the presence of weapons, but for the purposes of his appeal seeks to dispute the extent of Mr Lynn’s ignorance about the presence of weapons until a very late stage. The fact remains, however, that the Judge who sentenced both men was prepared to make that factual distinction on the information before him. The additional six month discount which Mr Lynn achieved as a result does not provide a proper basis to submit the sentencing Judge
erred in not providing a similar discount to Mr Heydon in the absence of him being able to point to a similar lack of knowledge.
[30] In any event, as already noted, the text messaging prior to the aggravated robbery indicates that Mr Heydon in fact did have a closer level of involvement, and the differing approaches to this aspect of the sentencing exercise does not give rise to any unjustified disparity. Ultimately, because of the other credits afforded to both co-offenders by way of percentage reductions, the different respective starting points of seven years and six years, six months had only a minimal effect on the final sentences imposed.
[31] Both Mr Heydon and Mr Lynn were provided with the same total discount of
45 per cent for mitigating factors relevant to their personal circumstances. Both were young men, although Mr Lynn had only just turned 18 at the time of the offending. Comparable credits were applied for age, remorse, participation in restorative justice, and their guilty pleas. Because of the prospective difficulties, acknowledged by the sentencing Judge, likely to be experienced as offenders going to prison for the first time, Mr Heydon was provided with a further four month discount and Mr Lynn three months.
[32] The most obvious difference in sentencing the two offenders was the 20 per cent credit provided to Mr Lynn for his cooperation and willingness to give evidence against his co-offenders. It is not disputed by Mr Heydon that this further reduction was justified. A credit for assistance and cooperation in the order of a 20 per cent discount was clearly available to the sentencing Judge.
[33] Once the 20 per cent discount for material assistance and cooperation is accepted as a credit to which Mr Lynn was entitled, Mr Heydon’s parity argument falls away. If the same starting point of seven years imprisonment had been applied to Mr Lynn, as contended by Mr Heydon, the 20 per cent reduction would have resulted in a discount slightly over 16 months. It is apparent therefore that the material difference between the two sentences resulted from the co-operation provided by Mr Lynn.
[34] Turning to the comparison with Mr Unahi’s sentence, the disparity argument is similarly without merit once the starting point for Mr Heydon’s involvement of seven years is accepted as appropriate. The discounts afforded to Mr Unahi for his personal circumstances were orthodox and again comparable to those extended to Mr Heydon. It follows that Mr Unahi’s sentence of four years and Mr Heydon’s sentence of three years and four months are logically reconcilable.
[35] Before turning to the other grounds of appeal, it is to be noted Mr Heydon, as with his co-offenders, benefitted from the 25 per cent discount for the guilty plea being applied as a component of the credit extended for personal mitigating factors, rather than as a discrete final stage in the sentencing exercise.13 Had the Judge applied the usual approach to sentence calculation the end sentence would have been higher and resulted in a sentence of around three years and 10 months. Nothing
turns on this feature as all Mr Heydon’s co-offenders were dealt with in a similar way.
[36] Because of the size of the discount available to Mr Lynn his prison sentence was able to be substituted for one of home detention at the discretion of the sentencing Judge. Notwithstanding the seriousness of the offence for which he was before the Court, as an 18 year old first offender with a suitable address available to him the course adopted by the sentencing Judge to commute Mr Lynn’s sentence to one of 10 months home detention was unsurprising. As the Judge remarked, the Court of Appeal has held that such a sentence carries with it a high level of denunciation and deterrence. Additionally, the 10 months home detention was supplemented by the maximum sentence of 400 hours of community work.
[37] That the sentencing exercise resulted in Mr Lynn becoming subject to a short term of imprisonment which rendered him eligible for home detention does not alter the conclusion that the difference between Mr Lynn’s sentence and that received by Mr Heydon was justified. That outcome would be readily explicable to the informed
objective observer.
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73]; McCreath v R [2014] NZCA 142 at
[18]; R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23at [57]-[60].
Adequate credit for mitigating factors
[38] Mr Heydon sought to identify various deficiencies in the sentencing Judge’s approach to the various credits that were afforded to him for personal mitigating factors. However, any critique has to be assessed against the backdrop that, as previously outlined, Mr Heydon received a 45 per cent reduction from the starting point of seven years imprisonment. When combined with the further four month reduction for the difficulties the Judge acknowledged Mr Heydon would face as a person going to prison for the first time, and the further two month credit for attending the restorative justice conference, in total a 52 per cent reduction was actually achieved.
[39] Mr Heydon was provided with a five per cent discount for remorse which was in addition to the full 25 per cent credit for his guilty plea. That combined credit may arguably be considered generous in the absence of any particular tangible manifestation of concern by Mr Heydon for his victims beyond representations made to the pre-sentence report writer and through his counsel. The Judge himself, while acknowledging that Mr Heydon was remorseful, questioned how much of it was self- remorse. Notwithstanding those reservations the Judge provided a further two month discount in response to representations that Mr Heydon should receive further credit for the fact he had participated in a restorative justice process.
[40] In support of his argument that credit for his remorse should be increased, Mr Heydon cited Rowles v R as an example of where a credit for remorse was increased to eight per cent on appeal.14 In that case a global credit of 4.8 per cent for personal factors as well as remorse was held to have been inadequate. However, the approach taken by the sentencing Judge compares favourably with that case. When the overall discount, taking into account the additional two months for participation in the restorative justice conference is included, the credit for this mitigating factor amounted to 7.5 per cent. In Rowles the Court of Appeal noted that the increased discount of eight per cent incorporated the appellant’s apology, his offer to
participate in restorative justice (which was declined), and an offer of $1,000 cash in
reparation.
14 Rowles v R [2016] NZCA 208 at [18].
[41] Mr Heydon was critical of the sentencing Judge’s remark regarding Mr Heydon’s offer of amends in the form of a payment of $100 to the two victims which he described as being merely token for which no further credit could be extended. At first blush, the submission made on behalf of Mr Heydon that the adequacy of this monetary offer was required to be viewed in light of the $450 cash taken from the victims, and there having been six offenders, may have been thought to have some substance. However, the amount offered has to be assessed in light of the significant emotional impact on the victims as a result of the traumatic and violent offending against them and the violation of their home.
[42] When viewed against the emotional consequences for the victims and the fact Mr Heydon did participate in a restorative justice process for which he received credit, the payment offered could rightly be considered as inconsequential for which no discrete reduction was necessary. It appears the restorative justice process was a positive experience for at least one of the victims. However, that encouraging outcome of itself does not warrant any greater credit being provided to Mr Heydon beyond that already extended for his participation.
[43] Although it was not pressed, there was some criticism of the sentencing Judge for not expressly mentioning in his sentencing remarks the need to impose the least restrictive outcome when sentencing Mr Heydon, whereas the Judge had expressly referred to that principle of sentencing when dealing with Mr Lynn. From the offenders’ respective sentencing decisions it is clear the sentencing Court was fully cognisant of the relative youth of both Mr Heydon and Mr Lynn who were before the Court for very serious offending and facing the prospect of being sent to prison for the first time.
[44] It is apparent from the Judge’s remarks that these features weighed heavily with him and this overarching concern strongly influenced his approach to sentencing the young men including Mr Unahi. There is no basis to the proposition that the sentencing Judge was not equally concerned when sentencing Mr Heydon of the need to impose the least restrictive outcome available to him in the circumstances.
[45] For completeness, I note the complaint regarding time spent by Mr Heydon on bail was not pursued either in written submissions or orally on the hearing of the appeal.
Conclusion
[46] It is trite that the assessment of a sentence cannot be reduced to a simple mathematical calculation. In the present case the overall reduction from the starting point which was commensurate with the approach taken towards Mr Heydon’s co- offenders was generous. Having reviewed the matters raised on behalf of Mr Heydon, I can identify no error by the sentencing Judge. No unjustified disparity arises between his sentence and that of Mr Lynn, nor his other co-offender, Mr Unahi. The justifiable reasons for the differences in the ultimate sentences imposed are readily apparent. The sentence of imprisonment imposed on Mr Heydon was not manifestly excessive.
[47] The appeal is dismissed.
Solicitors:
Adrianna Pinnock Barrister, Dunedin
Crown Law, Wellington
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