Howieson v The Queen
[2018] NZHC 772
•23 April 2018
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2018-442-2
[2018] NZHC 772
BETWEEN JAKE HOWIESON
Appellant
AND
THE QUEEN
Respondent
Hearing: 17 April 2018 Appearances:
C Stevenson for the Appellant Z Fuhr for the Respondent
Judgment:
23 April 2018
JUDGMENT OF CULL J
[1] Mr Howieson appeals his sentence of four years eight months’ imprisonment for aggravated robbery and related charges, because it does not reflect parity with two of the three co-defendants and is manifestly excessive.1
[2] The Crown opposes the appeal and argues the starting point was within the available range and discloses no error by the sentencing Judge, as there is no “unjustifiable” disparity in the sentencing of the three relevant co-defendants.
[3] The difference in the sentence of Mr Howieson was two months more than the co-defendant Mr Kumeroa and three months more than the co-defendant Mr Edwards.
1 R v Howieson [2018] NZDC 2469.
HOWIESON v R [2018] NZHC 772 [23 April 2018]
Factual background
Previous history leading to suspension of licence
[4] Mr Howieson has three previous convictions for driving while disqualified which occurred on 30 April 2014, 16 February 2015 and 14 July 2015.
[5] On 25 June 2017, Mr Howieson was issued a three month driver licence suspension for excess demerit points.
Driving while suspended (third or subsequent offence) and the unlawful taking of a motor vehicle
[6] The incident leading to the charge of unlawfully taking a motor vehicle2 and one of the charges for driving while suspended (third or subsequent offence)3 occurred on 14 July 2017. At around 6.00 pm on that day, the first complainant parked his car outside of his home. At some point during that night, Mr Howieson was outside the complainant’s address and discovered the car was unlocked. He then started it and drove the car to his own house.
[7] Mr Howieson later denied stealing the car when questioned by police on 18 July 2017.
Driving while suspended (third or subsequent offence) and aggravated robbery
[8] On 15 July 2017, Mr Howieson and three co-defendants (Mr Harmon, Mr Edwards and Mr Kumeroa) planned to commit a robbery of a dairy down the road. Mr Edwards had access to a pump action shotgun that was intended to be used during the offence. Mr Howieson and Mr Harmon agreed to accompany Mr Edwards and Mr Kumeroa to and from the dairy.
[9] The incident that led to the charge of aggravated robbery4 and one of the charges for driving while suspended (third or subsequent offence) occurred on 16 July
2 Crimes Act 1961, s 226(1). Maximum penalty seven years’ imprisonment.
3 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment and a mandatory minimum one year disqualification from holding or obtaining a driver licence.
4 Crimes Act 1961, s 235(c). Maximum penalty 14 years’ imprisonment.
2017.5 On this day at around 8.15 pm Mr Howieson walked to pick up the car he stole on 14 July 2017. Mr Howieson then drove the car with Mr Edwards and Mr Kumeroa past the dairy. They had the gun in the back of the car.
[10] When they saw there were no customers in the dairy Mr Howieson positioned the car outside the front doors. Mr Howieson and Mr Harmon remained in the car.
[11] Mr Edwards and Mr Kumeroa wore masks and pulled their hoods up over their heads before they entered the store.
[12] Mr Edwards was carrying his shotgun when he entered the dairy and demanded the second complainant open the register or he would be shot. Once the second complainant opened the register, Mr Edwards forced him behind the shop counter and told him to stay on the ground and not look at him. Mr Edwards removed the money from the register and stuffed it into his pockets. Mr Edwards then made the second complainant open a second register draw under the counter. Mr Edwards stuffed the cash from the second register into his pockets.
[13] Mr Kumeroa stole packets of tobacco and cigarettes from the cupboard behind the counter and put them in a sports bag.
[14] While this occurred, a customer entered the dairy and surprised them. Mr Edwards pointed his shotgun at her and told her to get out.
[15] Mr Howieson sounded the horn, and Mr Edwards and Mr Kumeroa got back into the car with the stolen goods and cash. The group left the scene and later abandoned the car.
[16] The defendants were later located and spoken to. Mr Edwards admitted the facts as outlined and blamed Mr Kumeroa. Mr Howieson denied taking the car, but admitted driving to the dairy to commit the aggravated robbery. Mr Harmon admitted the facts as outlined and explained he was terrified but went along for the ride.
5 This date appears to be recorded wrong in the police summary of facts and the victim impact statement. Both reports list the 17th as a Sunday, which is incorrect. The correct date must be the 16th, as the 17th is a Monday.
Reparation and defendant information
[17] The car sustained wheel, tyre and fontal panel damage. The estimates for repair total to $7,500. As the car door was unlocked when it was broken into, the complainant is not covered by their insurance.
[18] The second complainants from the dairy lost $2,000 in cash and $11,409 in cigarettes and tobacco (retail value). These amounts are not covered by insurance.
District Court decision
Sentencing indication
[19] Mr Howieson sought a sentencing indication for the possible penalty he would face if he pleaded guilty to four charges: the unlawful taking of a motor vehicle, two charges of driving while suspended, and aggravated robbery. In the Nelson District Court, on 12 September 2017, the Judge indicated if Mr Howieson pleaded guilty he would likely face a sentence of 59 months’ (or 4 years 11 months’) imprisonment.6 The Judge also indicated reparation and disqualification from driving were likely to be ordered. Mr Howieson subsequently pleaded guilty to these four offences.
[20] The Judge began his assessment with the charge of aggravated robbery. He turned his attention to the tariff case R v Mako and the relevant aggravating factors from that decision which were present here.7 Specifically:8
(a)there was a reasonably significant degree of planning and preparation that went into the robbery over several days including the number of offenders, a car being stolen, a weapon sourced, and discussions about the robbery;
(b)Mr Howieson’s role as the driver was considered critical to the robbery;
6 R v Howieson DC Nelson CRI-2017-042-1626, 12 September 2017 [sentence indication].
7 R v Mako [2000] 2 NZLR 170 (CA).
8 Sentence indication, above n 6, at [11]–[17] and [27]; and Mako, above n 7, at [26], [37]–[40], [45]–[46] and [50].
(c)attempts were made to hide the appearance of two of the offenders through masks and hoods;
(d)the use of a shotgun, that was pointed at two different innocent individuals, to instill fear into those present in the dairy to ensure compliance;
(e)the nature of the premises: “dairies like this are found all over our community, and they serve a purpose for the community and people should not have to, when they are running a business like this, be confronted with people, four of you, one of whom has a shotgun”;
(f)property was taken from the dairy and associated offending occurred because Mr Howieson stole a car to assist with the offence;
(g)the second complainant felt significant fear when he was robbed and has feelings of constant high alert and vigilance; and
(h)the need for deterrence of this type of offending.
[21] In fixing a starting point for the aggravated robbery charge, the Judge referred specifically to Mako and emphasised that the offence in the present proceedings was very serious due to the abundance of aggravating features that were present.9 Giving particular attention to the degree of planning, the shotgun, the multiple offenders, the harm to the victims and the need for deterrence, the Judge reached a starting point of six years’ imprisonment.
[22] The Judge then turned his attention to the second charge of the unlawful taking of a motor vehicle. He concluded that looking at the offending on a totality basis, an uplift of six months would be appropriate to account for this offence. This would bring the total starting point to six years and six months’ imprisonment.
9 Sentence indication, above n 4, at [27], citing R v Mako, above n 7, at [52].
[23] The Judge considered the final two charges of driving while suspended (third or subsequent offence). As this was Mr Howieson’s fourth conviction for driving while suspended in a very short space of time, an uplift of another month should be given for this offence. This would bring the total starting point to six years and seven months’ imprisonment.
[24] In terms of credit, the Judge considered there should be no discount for youth, in light of Mr Howieson’s 28 previous convictions and his history of breaching court sentences. However, the Judge stated that if Mr Howieson pleaded guilty now, he would be afforded the full 25 per cent discount for his guilty plea. This would lower the sentence to four years 11 months’ imprisonment. The Judge viewed this final number as a proportionate response to a serious crime.
[25] Finally, the Judge concluded that other sentences such as disqualification from driving and reparation orders would be raised at sentencing.
Sentencing decision
[26] Mr Howieson pleaded guilty to the four charges. In sentencing Mr Howieson on 13 February 2018, the Judge began by referencing his sentencing indication to establish the appropriate starting point.10 He adopted six years’ imprisonment as a starting point for the aggravated robbery, with an uplift of six months for the unlawful taking charge, and a final uplift of one month for the two driving while suspended charges. The total starting point was six years and seven months’ imprisonment. With 25 per cent discount for Mr Howieson’s guilty plea, this became a sentence of four years and 11 months’ imprisonment.
[27] Counsel for Mr Howieson submitted that the Judge should give a further discount for the issues Mr Howieson suffered in terms of attention deficit hyperactivity disorder and drug addiction problems. This submission was made so that Mr Howieson’s sentence would be in parity with his other co-defendants. Based on Mr Howieson’s willingness to seek treatment for his drug problems and his ADHD,
10 R v Howieson, above n 1.
The Judge gave a further discount to Mr Howieson of three months. This reduced Mr Howieson’s total end sentence to four years and eight months’ imprisonment.
[28]The final sentence was as follows:
(a)four years and eight months’ imprisonment for the aggravated robbery charge;
(b)12 months’ imprisonment running concurrently for the unlawful taking of a vehicle and two charges of driving while suspended;
(c)two periods of 12 months disqualification from driving to account for both of the driving while suspended charges; and
(d)reparation of $5,227.25.
Approach to appeal
[29] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.11 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.12
Mr Howieson’s position
[30] Mr Howieson argues the sentence was manifestly excessive and does not reflect parity with his co-offenders. Mr Howieson is not challenging his disqualification from driving, or the amount of reparation ordered.
[31] Mr Howieson submits the final sentence given to Mr Edwards (four years and five months’ imprisonment) and Mr Kumeroa (four years and six months’) are not in
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
12 Ripia v R [2011] NZCA 101 at [15].
parity with his own sentence of four years and eight months’ imprisonment. This submission primarily relies upon the following arguments:
(a)Mr Howieson received a six month uplift for unlawfully taking a motor vehicle, and a one month uplift for his two driving while suspended charges. No uplift was given to either Mr Edwards or Mr Kumeroa for unlawfully getting into a vehicle, which would have been obvious to all involved was not in the legitimate possession of Mr Howieson. An uplift should have been given to Mr Edwards and Kumeroa.
(b)Mr Edwards and Mr Kumeroa were the defendants that entered the store and wore disguises. Mr Edwards was the defendant that pointed the gun at innocent people. They were more culpable than Mr Howieson, and should have received higher sentences.
(c)Mr Edwards and Mr Kumeroa have numerous convictions. Mr Kumeroa has had a previous strike warning, and the aggravated robbery in this case was a second-strike offence. Their criminal histories are either as bad or worse than Mr Howieson’s, and they should have longer sentences.
[32] It is conceded that Mr Howieson did seek a sentencing indication which he accepted. However, Mr Howieson submits that in light of the lower sentences received by the other co-defendants in this case with at least equal culpability, the sentence is excessive and does not reflect parity.
[33] No case law is cited for any of these propositions beyond the sentencings of Mr Edwards13 and Mr Kumeroa.14
Crown’s position
[34] The Crown opposes the appeal on the basis that the sentence was in the available range and discloses no error by the sentencing Judge.
13 R v Edwards [2018] NZDC 2463.
14 R v Kumeroa [2018] NZDC 2427.
[35] The Crown submits that Mr Howieson’s argument that the other co-defendants’ records are more serious, and therefore his own sentence is disproportionate, is unworkable. Sentencing is not a mathematical exercise and the Court should not have to quantify fine distinctions between each offender’s particular combination of offences in order to reach a final sentence. The Crown submits there is no difference here that would approach the threshold for disparity.
Relevant law
[36] Only an “unjustifiable” or “gross” disparity in a sentence between co-offenders will justify the intervention of an appellate court.15 The disparity must be so obvious that in light of all the circumstances the objective conclusion would be reached that the administration of justice has been miscarried.16 A disparity by itself is not enough to produce an unjustifiable sentence.17
[37] The Court of Appeal decision in R v Lawson clarified the approach to co- offender’s sentencing:18
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 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 equal culpability of the co-defendants
[38] The equal criminal responsibility of getaway drivers has long been recognised by the courts. In Karaitiana v R, the Court of Appeal upheld the sentencing Judge’s approach as correct, where the culpability of the getaway driver was assessed as equal to that of his co-offenders, observing that he was “a full participant in a premeditated plan to rob… His role as a getaway driver was vital to its success.”19 The appellant helped plan the robbery, stole the car for the robbery, knew a gun would be used and was a necessary part of the robbery overall.
15 R v Rameka [1973] 2 NZLR 592 (CA).
16 R v Autagavaia [1985] 1 NZLR 398 (CA) at 400.
17 Feterika v R [2008] NZSC 67; and R v Te Kaha CA49/05, 5 July 2005.
18 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
19 Karaitiana v R [2014] NZCA 126, at [20].
[39] The Court of Appeal in R v Nathan reiterated this test for appellate interference in disparate sentencing:20
To warrant interference by this Court, the disparity must be gross and unjustified and be of a kind that would lead an observer, aware of all the circumstances, to the conclusion that something had gone wrong with the administration of justice.
[40]This statement was cited with approval by Nation J in the 2017 decision of
Riddell v R.21
The approach adopted for assessing the offender’s criminal history was consistent
[41] The Crown detailed the number of previous convictions held by each of the men:
(a)Mr Howieson has 28 previous convictions, 13 of which are dishonesty offences.
(b)Mr Kumeroa has 16 previous convictions, three of which are for dishonesty offences and two which are for violent offending. He also has a first strike and 16 previous convictions in the Youth Court.
(c)Mr Edwards has 25 previous convictions, one for a dishonesty offence and one for possession of an offensive weapon.
Discussion
[42] All three of the relevant co-defendants in this case were given a six year starting point for the aggravated robbery. The Judge expressly noted that this was because the offending was a joint enterprise.22
20 R v Nathan CA378/90, 24 April 1991 at 4 citing Rameka, above n 15; and Lawson, above n 18.
21 Riddell v R [2017] NZHC 2612 at [38].
22 Edwards, above n 37, at [18].
The uplifts imposed for other offences were justified
[43] Mr Kumeroa and Mr Edwards did not receive uplifts for their respective charges of unlawfully getting into a vehicle, whereas Mr Howieson received a six month uplift for his additional charge of the unlawful taking of a vehicle. I accept the Crown submission that this difference was justified in light of the more serious nature of the charge for unlawfully taking a vehicle. Unlawfully taking a vehicle has a maximum penalty of seven years’ imprisonment, whereas unlawfully getting into a vehicle has a maximum penalty of two years’ imprisonment.23 Although there was no evidence specifically linking the unlawful taking of a vehicle for the purpose of the aggravated robbery, the stolen vehicle was integral to the plan to rob the dairy.
[44] Although Mr Ord submits that as the getaway driver, Mr Howieson was less culpable than either Mr Edwards or Mr Kumeroa, who actually physically robbed the dairy, the authorities do not support the proposition that the getaway driver has less culpability.
[45] The Court of Appeal in R v Moko expressly stated that a getaway driver should not be treated as less culpable than those confronting the victims unless they are truly less than full participants.24 Karaitiana is a more recent authority for this proposition.25
[46] Mr Howieson was involved in the planning before the event; he had knowledge that a gun would be used; he stole a car that was used in the robbery; and was an integral overall part in the incident. I am satisfied that he was equally as culpable for the robbery, even if he did not enter the building. Further, I note, that the Judge said in his sentencing indication, that Mr Howieson accepted he was “equally at fault” because he was the driver.26 There is no unjustifiable disparity in this case.
23 Crimes Act 1961, s 226(1) and (2).
24 Moko, above n 7, at [64].
25 Karaitiana v R, above n 43.
26 Sentence indication, above n 6, at [25].
Co-defendants criminal histories
[47] Mr Howieson submits that the two other co-defendants had “numerous previous convictions” and that Mr Kumeroa already had a first strike warning. Mr Howieson has 28 prior convictions, Mr Kumeroa has 16 prior convictions and a first strike warning, and Mr Edwards has 25 prior convictions.
[48] I accept the Crown’s submission that District Court Judges cannot be required to sift through each offender’s particular combination of prior convictions to determine the worst combination. The Judge paid particular regard to Mr Howieson’s youth but his previous 28 convictions involving theft, receiving, unlawful taking, two burglaries and shoplifting as well as using a document, together with a history of breaching court sentences such as community work, supervision and home detention lead the Judge to give Mr Howieson no increase because of his history, but no discount either for his youth. The previous criminal history balanced out any discount for youth. Importantly, the Judge specifically took into account the number and nature of the previous convictions and was not required to compare or contrast those convictions with the co-offenders.
Uplifts for the unlawful taking
[49] Mr Howieson was given a six month uplift for the charge of the unlawful taking of a motor vehicle, and a one month uplift for the two charges of driving while suspended he faced. Mr Howieson submits that this uplift created a disparity with his other two co-defendants who did not receive an uplift for the corollary offence of unlawfully getting into a vehicle.
[50] However, Mr Howieson faced a significantly greater serious charge of the unlawful taking of a motor vehicle, compared to the charge of unlawfully getting into a motor vehicle, which the two co-defendants were facing. The difference in charges becomes obvious, when looking at the maximum penalty for each offence:
(a)The maximum penalty for unlawfully taking a vehicle is seven years imprisonment.27
(b)The maximum penalty for unlawfully getting into a vehicle is two years imprisonment.28
[51] I consider Mr Howieson’s sentence is proportionate to his offending. An “unjustifiable” disparity in the sentencing of the three relevant co-defendants has not been established, with the difference in sentences being three months in comparison to Mr Kumeroa and two months in comparison to Mr Edwards. Nor is there any basis for reducing Mr Howieson’s sentence, because Mr Edwards and Mr Kumeroa were not penalised for a lesser charge of unlawfully getting into a motor vehicle. There is no error in the Judge’s sentencing and an unjustifiable disparity has not been established.
Result
[52]The appeal is dismissed.
Cull J
Solicitors:
Crown Law, Wellington
27 Crimes Act 1961, s 226(1)(a).
28 Section 226(2).
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