Hughes v The Queen

[2018] NZHC 1888

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000028

[2018] NZHC 1888

BETWEEN

DUNCAN MCLEOD CARTER HUGHES

Appellant

AND

THE QUEEN

Respondent

Hearing:

26 July 2018

Appearances:

S Cameron for the Appellant

S F Gilbert for the Respondent

Judgment:

27 July 2018

JUDGMENT OF GORDON J

This judgment was delivered by me on 27 July 2018 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Hamilton

S Cameron, Hamilton

HUGHES v R [2018] NZHC 1888 [27 July 2018]

Introduction

[1]    The appellant, Duncan Hughes, pleaded guilty to one charge of aggravated robbery.1

[2]    On 21 May 2018 in the District Court at Hamilton, Judge Menzies sentenced Mr Hughes to two years and eight months’ imprisonment.2

[3]    Mr Hughes appeals his sentence on the basis that it was manifestly excessive. Specifically, he submits that Judge Menzies erred by setting a starting point that was too high. Mr Hughes does not take issue with the discounts given.

[4]The Crown opposes the appeal.

Factual background

[5]    At about 6:40 pm on 14 August 2017, Mr Hughes and his two co-offenders drove to the Waihou Dairy. That dairy is owned by the two victims, a husband and wife, and their house adjoins the business.

[6]    Mr Hughes and his two co-offenders exited their vehicle wearing items of clothing to conceal their faces. Mr Hughes and one of the other co-offenders were each armed with a sharp implement which appeared to be either a screwdriver or a knife. The other co-offender was armed with a hammer.

[7]    Mr Hughes and his two co-offenders then entered the dairy brandishing the weapons. The first victim, the wife, was behind the counter at the time. She saw them enter the dairy and moved to a secure part at the rear of the store, locked the door and called the Police.

[8]    The second victim, the husband, was in the body of the dairy stocking a fridge. Upon seeing the three armed offenders waving weapons, and fearful for his safety and that of his family, he told Mr Hughes and his two co-offenders that they could take

1      Crimes Act 1961, s 235(b).

2      R v Hughes [2018] NZDC 10076.

anything they wanted. He then locked himself in the bathroom located at the back of the dairy.

[9]    Mr Hughes and his two co-offenders jumped the counter of the dairy and removed the till drawer from the cash register. This contained approximately $650. They also took cigarettes and tobacco products worth $2,000, and confectionery.

[10]   One of Mr Hughes’ co-offenders approached a customer in the dairy, presented the knife he was carrying and told him to lie on the ground and empty his pockets.

The customer did so, giving away his cell phone.3

[11]Mr Hughes and his two co-offenders then drove away.

District Court decision

[12]   Judge Menzies acknowledged that R v Mako4 is the guideline case for the offence of aggravated robbery.5

[13]   The Judge then summarised the pre-sentence report relating to Mr Hughes and also identified that a s 27 cultural report6 had been prepared by Mr Hughes’ mother.7 He also noted that Mr Hughes’ uncle spoke in Court, and that there was a significant number of character references and expressions of support.8

[14]   After setting out the submissions of both sides, Judge Menzies turned to identifying the aggravating features of the offending. The Judge first stated that there could be “no doubt” that some planning would have been required.9 He also noted the use of weapons which were being brandished, if not actually used, the use of disguises, that there were multiple offenders, and that cash and items to the value of about $2,500 were taken.10

3      That co-offender faces an additional charge in relation to the customer. Mr Hughes faced only the one charge.

4      R v Mako [2000] 2 NZLR 170 (CA).

5      R v Hughes, above n 2, at [3].

6      See Sentencing Act 2002, s 27.

7      At [8]-[10].

8      At [11]-[12].

9 At [22].

10     At [22]-[24].

[15]   Judge Menzies drew assistance11 from the following example of an aggravated robbery provided by the Court of Appeal in Mako:12

[56]  … This envisages a robbery of a small retail shop by demanding  money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.

[16]   Based on that passage, the Judge adopted a starting point of five years’ imprisonment.13 He rejected a submission that the aggravating features he identified were inherent in the nature of the offence itself.14

[17]   Judge Menzies accepted that discounts for youth and good character were appropriate.15 The Judge adopted a global discount of 18 months’ imprisonment to reflect “youth, remorse, the hearing difficulties, and the family support”.16 He then applied a discount of 10 months’ imprisonment for Mr Hughes’ guilty plea.17

[18]   The Judge therefore reached an end sentence of two years and eight months’ imprisonment.18

Approach on appeal

[19]Section 250(2) of the Criminal Procedure Act 2011 provides:

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

11 At [24].

12     R v Mako, above n 4.

13     R v Hughes, above n 2, at [25].

14 At [25].

15 At [27].

16 At [28].

17 At [29].

18 At [30].

In any other case, the court must dismiss the appeal.19

[20]   A sentence may be set aside where it is manifestly excessive.20 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached.21 The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.22

Submissions

[21]   Ms Cameron, for Mr Hughes, principally submits that the starting point of five years’ imprisonment was too high. She takes issue with the application of the passage from Mako in [15] above to the circumstances of this case. She submits that the starting point of five years was above the available range and that the correct starting point ought to be no more than four years’ imprisonment. This would then enable consideration of home detention as an end sentence (by applying the discounts given by Judge Menzies).

[22]   Ms Cameron submits that the following features mean that the level of confrontation and degree of intimidation was much less than what was envisaged in the passage from Mako that Judge Menzies referred to:

(a)Any direct interaction with the shop-keeper was fleeting;

(b)The offending lacked the typical ‘stand-over’ or direct extortion of the shop-keeper; and

(c)There was a lack of any verbal demands to hand over property under threat of violence.

[23]   Ms Cameron also submits that because of the absence of victim impact statements, there is no evidence of ongoing psychological effects on the two

19     Criminal Procedure Act 2011, s 250(3).

20     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

21     Kumar v R [2015] NZCA 460 at [81].

22     Tutakangahau v R, above n 20, at [30].

shopkeepers that are commonly apparent in cases of aggravated robbery. Ms Cameron refers to paragraph [46] in Mako where the Court of Appeal said that victim impact is of considerable importance in assessing the seriousness of aggravated robbery offences. The Court referred, with approval, to the Australian case of R v Henry.23 In that case, the Court, having referred to three earlier cases, referred to the potentially devastating psychological damage consequent on armed robberies being something of which the Courts have taken judicial notice over many years.24 Ms Cameron says that type of victim impact is not present here.

[24]   Ms Cameron further submits that not  only  does  the  level  of  gravity  in  Mr Hughes’ case fall short of what was envisaged for the five-year starting point in Mako, the offending is also less serious than the offending in those cases cited by the defence25 and the six additional cases cited by the Crown.26 Ms Cameron submits that in those cases there is an element of demanding accompanied by threatened or actual violence. Those two elements are lacking here.

[25]   Ms Cameron acknowledges that the summary of facts which Mr Hughes accepted on the entry of his guilty plea records that “all three entered the dairy brandishing their weapons”. But, she says there was no subsequent conduct towards the two victims beyond the circumstances of their entry.

[26]   Ms Cameron therefore submits that the Judge made a material error in adopting a five-year starting point and that then affected the end sentence.

[27]   Ms Gilbert, for the Crown, submits that the starting point both accords with the guidance provided by the Court of Appeal in Mako and is consistent with starting points adopted for like offending. She submits that the end sentence cannot be said to be manifestly excessive.

23     R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346.

24 At [313].

25     Molia v R [2013] NZCA 512; Mahia v R [2014] NZHC 3284; and Bennett v R HC Hamilton CRI- 2011-419-78, 3 November 2011.

26 Christofides v R [2011] NZCA 126; R v Bidois [2009] NZCA 426; Solicitor-General v Singh  [2014] NZHC 3331; Howieson v R [2018] NZHC 772; Solicitor-General v Morunga [2015] NZHC 1954; and R v Maru [2012] NZHC 1411.

[28]   Ms Gilbert points to the use of disguises and the fact that weapons were brandished in a way that caused the victims to immediately lock themselves away in secure areas. She submits that the four-year starting point referred to in [56] of Mako, contemplates only one person carrying out the robbery. Here, there were three offenders and there was a customer present. Therefore, a five-year starting point was well within the range available to the District Court Judge.

[29]   In relation to the victims, Ms Gilbert referred the Court to the written submissions the Crown filed for sentencing which stated:

The proprietors of the dairy have been significantly impacted by this offending. However, for cultural reasons, do not want to participate in the court process further nor provide a victim impact statement. While the money stolen was recovered within the motor vehicle, the proprietors, again for cultural reasons, are unwilling to accept the return of the money. Culturally the funds are considered tainted and they are therefore uncomfortable with its return.

[30]   There is therefore an explanation as to why the victims did not wish to engage with the process of providing a victim impact statement. But the absence of such a document cannot be taken as an absence of effect on the victims.

Discussion

[31]   The case of R v Mako is the guideline judgment for aggravated robbery sentencing.27 In that case, the Court of Appeal categorised the seriousness of aggravated robbery offending through a number of general scenarios.

[32]   As the Courts have consistently recognised, it is always important to be careful of the risks of a literalist application of the Mako sentencing principles. They are, as the Court said in Rickard v Police,28 “designed as guidelines, and the indicated starting points are to be used flexibly according to the particular factual situation”.29 The Court in Mako acknowledged this point:

[34] The range of conduct that can constitute aggravated robbery is very wide. In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, that will contribute to or detract

27     R v Mako, above n 4.

28     Rickard v Police HC Auckland CRI-2009-404-70, 30 April 2009.

29 At [14].

from the seriousness of the conduct and the criminality involved. It is the particular combination of these variable features which requires assessment for sentencing in each case …

[33]   In this case, the Judge, after referring to paragraph [56] in Mako,30 stated that he could not adopt a starting point of three years and six months’ imprisonment to four years’ imprisonment (as was submitted on behalf of Mr Hughes) in the circumstances of this case due to the aggravating features he had identified.31 The Judge commented:

[25] … This was multiple offending, weapons were being brandished, disguises were being used and in my view the argument is whether it is five years or more. I have decided that the appropriate balance to be achieved is that the starting point that I will take is five years’ imprisonment.

[34]   In my view, the starting point adopted by Judge Menzies was a little high. I consider that, adopting a flexible approach to the Mako guidelines, the appropriate starting point was four years and six months’ imprisonment. That takes into account that, although there was more than one offender, the interaction with the shopkeepers was limited and there were no verbal threats made.

[35]   A starting point of four years and six months’ imprisonment is also consistent with the authorities cited by Ms Cameron and the Crown.

[36]   The offending in Mahia v R is indisputably more serious due to the physical violence inflicted on the occupant of the dairy.32 That justifies a higher starting point of six years’ imprisonment.

[37]   I regard the offending in Molia v R as generally comparable to this offending, in that it involved two offenders entering a dairy wearing disguises and armed with a weapon.33 There was similarly a customer present. Although there was a greater degree of confrontation with the store owner in that case, in this offending there was an extra offender who was also brandishing a weapon. In Molia, the Court of Appeal reduced the starting point of five years’ imprisonment to four years and six months’ imprisonment.34

30     Refer [15] above.

31     R v Hughes, above n 2, at [25].

32     Mahia v R, above n 25.

33     Molia v R, above n 25.

34 At [17].

[38]   There is also some commonality with R v Maru.35 That case involved a single offender. As he approached a Caltex service station, he put on a beanie, sunglasses and bandana, and took a knife in his hand, all objects which he had been carrying in a box. When he entered the station, while holding the knife he demanded money from a customer. He also demanded money and cigarettes from a station attendant. The attendant emptied the cash register into the box that the offender had brought with him. A total of $319 cash and $981 worth of cigarettes and tobacco was taken. Collins J adopted a starting point of four years and six months’ imprisonment.36 As can be seen, while in that case verbal threats were made, there was only one offender as opposed to the three in this case.

[39]   In Bennett v R, the appellant appealed his sentence on charges of aggravated robbery and burglary.37 The appellant and three co-offenders robbed the owner of a takeaway store. One of the group had an imitation firearm, one had a crowbar and one had a hammer. They were all wearing clothing which disguised their identities. When the owner was closing the store, the group confronted her and demanded she hand over the store takings in her bag. One of the group presented the imitation firearm. She was surrounded by the four offenders, one of whom pulled at her bag, and eventually succeeded in overpowering her to the point at which the group gained possession of her bag and its contents. The amount obtained was between $900 and $1,030.

[40]   While the starting point of four years’ imprisonment upheld in Bennett is lower, I note the comment of Allan J that “[h]ad customers been present then a higher starting point might have been appropriate”.38

[41]   In the end, no two cases will be exactly alike. However, a consideration of a combination of the features arising in this case, when assessed against the Mako guidelines and cases to which I have referred, justifies a lower starting point of four years and six months’ imprisonment.

35     R v Maru, above n 26.

36 At [20].

37     Bennett v R, above n 25.

38 At [14].

[42]   Ms Cameron also takes issue with Judge Menzies’ comment that this was “multiple offending”.39 She submits this suggests the Judge mistakenly considered that Mr Hughes was party to the additional offence that only his co-offender has been charged with, namely the robbery of a customer in the dairy. This submission is misconceived. When the comment is read in context, it is clear that what the Judge is referring to is the fact that this offending involved several participants, which is an aggravating feature of this offending.

[43]   Lastly, Ms Cameron submits that Mr Hughes’ earlier sentencing indication given by Judge Cocurullo (which was not accepted by Mr Hughes) was still on the file when it should not have been, and this may have influenced Judge Menzies in setting the starting point.

[44]   This is irrelevant as the question is simply whether the end sentence is outside the range available to the sentencing judge.

[45]   I consider that adopting a starting point which is six months too high has produced an end sentence which is outside the range available.

[46]   Ms Cameron takes no issue with the discounts given by Judge Menzies for Mr Hughes. They were a credit of 18 months (30 per cent) for youth, remorse, hearing difficulties and family support, plus 10 months (23.8 per cent), effectively full credit, for his guilty plea.

[47]   Applying first, a credit of 30 per cent to a starting point of four years and six months’ imprisonment produces a discount of 16.5 months (rounded up from

16.2 months). That is a sentence of 37.5 months’ imprisonment before the discount for the guilty plea is allowed for. Applying a credit of 24 per cent for the guilty plea produces an end sentence of  28.5 months’ imprisonment.  I  round  that  down  in Mr Hughes’ favour to 28 months’ imprisonment, in other words, two years and four months’ imprisonment.

39     R v Hughes, above n 2, at [25].

Conclusion

[48]   The appeal is allowed. The sentence of two years and eight months’ imprisonment is set aside and a sentence of two years and four months’ imprisonment is imposed.

Gordon J