Kingston v R

[2010] NZCA 460

IN THE COURT OF APPEAL OF NEW ZEALAND

CA318/2010
[2010] NZCA 460

BETWEENGARETH TYNAN KINGSTON

Appellant

ANDTHE QUEEN

Respondent

Hearing:28 September 2010

Court:Glazebrook, Potter and Asher JJ

Counsel:A A M Schulze for Appellant

M D Downs for Crown

Judgment:12 October 2010 at 10.00 am 

JUDGMENT OF THE COURT

A            The appeal is allowed. 

BThe sentence of two years three months imprisonment is quashed and a sentence of two years imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]        The appellant, Gareth Kingston, pleaded guilty on arraignment in the District Court at Rotorua to a charge of aggravated robbery under s 235(b) of the Crimes Act 1961.[1]  He was sentenced by Judge McGuire to two years and three months imprisonment and was ordered to pay reparation of $250.

[1]     R v Kingston DC Rotorua CRI-2009-063-005602, 23 April 2010.

[2]        Mr Kingston appeals against the sentence on the grounds that it is manifestly excessive because the sentencing Judge:

(a)erred in adopting a starting point for sentencing of four and a half years imprisonment;

(b)erred in giving insufficient weight to the mitigating factors.

Factual background

[3]        On 28 September 2009 Rangi Tonihi and another person entered the Mitchell Downs Takeaways for the purpose of committing aggravated robbery.  Mr Tonihi had a knife which he presented to the two female employees.  He and the other offender escaped with cash and small goods to the value of just over $1,000.  There were two children present during the aggravated robbery.

[4]        The appellant was the getaway driver.  He received $50 in cash and two packets of cigarettes from Mr Tonihi for his part in the robbery.

[5]        The appellant was subsequently apprehended by police.  He was co-operative and forthright and offered to testify against the co-offender, Mr Tonihi.

The sentencing

[6]        In describing what occurred on 28 September 2009, Judge McGuire said it could be inferred from the appellant’s statement to the police that the appellant knew very little of what was going to happen, but he did see one of the co-offenders with a knife and that the two men put bandanas over their faces.  He noted the appellant said in his statement “I thought something was up but thought they were going to go and rob a house”.  The Judge observed: “Not really that that should matter”. [2]

[2] At [2].

[7]        The Judge noted the appellant was co-operative with the police and made a full statement.

[8]        He referred in some detail to the victim impact statements from the owner and the two workers in the takeaway shop, noting the “collateral damage” which happens when robberies such as this occur.  He said of such aggravated robberies:[3]

... the only possible credible response of Judges and the Courts is to condemn them and those who take part in them.

[3] At [9].

[9]        The Judge noted the appellant was 24 years old.  He referred to the observation in the pre-sentence report that the appellant tended to minimise his part in the offending, saying that he did not know what was going on until it happened.

[10]       The Judge noted that counsel for Mr Kingston, Mr Schulze, emphasised his relatively minor role in the offending, but said:[4]

... some, but some only, account can be taken of that because it simply gets down to this, Mr Kingston.  An aggravated robbery of this kind cannot occur without a getaway driver, frankly, unless the offenders want to take the huge risk of leaving a vehicle somewhere and then going to it.

[4] At [13].

[11]       He said the sentence had to be one of imprisonment.  He took a starting point of four and a half years, the same starting point as was taken for the co-offender, Mr Tonihi, who had been previously sentenced following a guilty plea.  He made an allowance of one-third for the appellant’s early guilty plea and further reduced the sentence on account of the appellant’s remorse, which he accepted was genuine, and his assistance to the police.  The total reduction was fifty per cent, resulting in an end sentence of two years and three months imprisonment.

Submissions for the appellant

[12]       Although it was advanced as a ground of appeal that insufficient weight had been given to the mitigating factors, Mr Schulze accepted in oral submissions that the fifty per cent discount allowed by the sentencing Judge was “generous”.  We agree the discount was appropriate.  R v Hadfield is authority that  a discount of up to sixty per cent may be appropriate in cases where the defendant entered a guilty plea at the first reasonable opportunity and provided significant assistance to the police with respect to co-offenders.[5]

[5]     R v Hadfield CA337/06, 14 December 2006 at [30]–[31].

[13]       The single issue that remained on appeal was whether the Judge erred in taking a starting point of four and a half years.

[14]       Mr Schulze submitted:

(a)The appellant had a lesser role in the offending.  His culpability and involvement was truly less than a full participant;

(b)He acted under compulsion which is a relevant mitigating factor on sentencing.  Mr Schulze stated that the police and the officer-in-charge of the investigation accepted that the appellant played a secondary role in the offending and was compelled to act in the way he did.  (There was no finding to that effect in the District Court.  The Judge did not address the issue of compulsion and it appears there was no evidence before him to support counsel’s assertion.  This Court cannot reassess the evidence on appeal);

(c)The appellant made clear in his second interview with the police that he was unaware he would be involved in an aggravated robbery and by the time he knew what was going on he had little or no choice but to remain and participate;

(d)The appellant’s relative involvement and culpability did not require the adoption of the same starting point as that adopted for his co‑offender, Mr Tonihi.  His involvement and role in the offending was distinguishable from that of his co-offenders.

[15]       Mr Schulze submitted that a starting point in the region of three years imprisonment was appropriate to take into account the appellant’s secondary role in the offending.

Submissions for the Crown

[16]       The Crown noted that while the appellant said he was too scared to leave the car and was “at best a reluctant aggravated robber”, it was also clear that he was prepared to help his co-offenders burgle homes and that he had voluntarily associated with them for that purpose.  Accordingly, while the appellant might have felt under pressure to facilitate the crime that was committed, he was content to facilitate a different crime.

[17]       However, the Crown noted the Judge appeared to have afforded no weight to the appellant’s contention that his culpability was less than that of Mr Tonihi, and accepted that some appellate relief might be appropriate, although any discount should, it was submitted, be modest.  Mr Downs submitted that a starting point lower than six to twelve months than that of his co-offender might be appropriate.  The Crown firmly opposed a sentence of home detention given: the serious nature of the offending; that no suitable address had been provided; and that the appellant is aged 24 and has previously engaged in “not inconsequential” offending.

Appellant’s second statement to the police

[18]       We called for this statement, which was not available at the appeal hearing, to ascertain on the appellant’s own version of events, when he knew what was to happen and why he remained in the car while the co-offenders entered the takeaway shop.  The statement was made at the Rotorua police Station on 21 October 2009.  The appellant describes his activities on Monday 28 September 2009, including arranging to acquire some stolen number plates so he could steal petrol for his van, a matter referred to in the sentencing notes of Judge McGuire.[6]  Later in the day he drove the co-offenders to the Mitchell Downs area at their request.  He saw Mr Tonihi and another offender jump out of the car with bandanas and hoodies on.  He said he thought “something was up but I thought they were going to go and rob a house”.  They returned to the car and he drove them, at their direction, to a reserve.  He said they were “discussing things”, including that Mr Tonihi was going to run in and jump straight over the counter, and the co-offender was to stand by the door as back up.  He said he saw Mr Tonihi place a knife in the pocket of his hoodie.  He said he was scared at the time.  He thought Mr Tonihi noticed he was scared and he told another person, a gang member, to stay in the van with him when they jumped out.  When the co-offenders returned to the van they told him to “go”, and he drove them back to the address where he had picked them up.

[6] At [11].

[19]       He said he was terrified and that he “just wanted to get the hell out of there”.  But he received from Mr Tonihi $50, tobacco and cigarettes.  He took one of the occupants from the address to Ngongotaha for some drugs.  He purchased some alcohol, a box of “Cody’s”, and when he returned to the address he went inside the house and started drinking with Mr Tonihi and others, which he said, made him late for the first aid training course he was attending.

Discussion

[20]       This Court said in R v Mako:[7]

...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 ring leader.

[7]     R v Mako [2002] NZLR 170 (CA) at [64].

[21]       It seems clear on the basis of the appellant’s statement to the police that he was not the ring leader and may well have been a reluctant participant in what occurred.  However, he knew something was up.  He thought the “something” was going to be  a burglary of residential premises.  As Judge McGuire said, “not really that that should matter”.  Further, he heard the discussion about how the robbery would be carried out.  And he knew when the co-offenders left the van on the second occasion, that one of them had a knife and that whatever the “something” was, the knife was taken in relation to the offending that was to occur.

[22]       While the appellant may have known little of what was to happen in advance, a finding the Judge was prepared to infer, he voluntarily associated with persons engaged in criminal activity in a situation where he knew, or must reasonably have anticipated, he could be placed under some compulsion to assist in the proposed offending in the role of getaway driver.  As Mr Downs pertinently observed in his submissions, association with patched members of criminal gangs “generally ends in tears.”

[23]       The appellant at the time of the offending was aged 24.  He knew the co‑offenders previously, although for a comparatively short time.  It appears, despite his assertions that he was scared and wanted to get away, that he continued to socialise with the co-offenders following the robbery.

[24]       While we accept the appellant was not the ring leader, and did not, it would appear, play a part in the planning of the robbery, he played a critical role in the criminal offending.  He may have been a reluctant participant but he voluntarily associated with and assisted those who were the principal offenders.

[25]       Were it not for the Crown’s concession, we would have been inclined to uphold the starting point of four and a half years adopted by the sentencing Judge.  But we accept that some modest reduction is appropriate on the basis that the culpability of the appellant is less than that of the co-offender Mr Tonihi.  We consider a revised starting point for sentencing of four years to be appropriate.  Allowing for the fifty per cent discount given by the sentencing Judge, the end sentence is two years.

[26] We accept the Crown’s submissions that home detention is not an appropriate sentence for the reasons given by the Crown summarised at [17].

Result

[27]       The appeal is allowed.  The sentence of two years three months imprisonment is quashed and a sentence of two years imprisonment is substituted.

Solicitors:

Lance Lawson, Rotorua for Appellant

Crown Law Office, Wellington for Respondent