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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kingston v R

Details

AGLC: Kingston v R [2010] NZCA 460
Case: [2010] NZCA 460
Decision Date: 12 October 2010

CaseChat Overview and Summary

The appeal was brought by Gareth Kingston against his sentence for aggravated robbery. The sentencing judge had imposed a term of two years and three months imprisonment. Kingston argued that the sentence was manifestly excessive, specifically contending that the judge erred in adopting a starting point of four and a half years and in not adequately weighing the mitigating factors. The Crown conceded that some reduction in the sentence was appropriate but opposed a sentence of home detention.

The Court of Appeal considered the nature and extent of Kingston's involvement in the crime. Kingston was the getaway driver and received a share of the proceeds. Although he claimed to have limited knowledge of the full extent of the robbery beforehand, the court found that he voluntarily associated with the principal offenders, knew they intended to commit a crime, and was aware that one of them had a knife. The court acknowledged that while Kingston was not the ringleader, he played a critical role in the offending. The court found that a starting point of four years was appropriate, reflecting a modest reduction in culpability compared to the principal offender. The Court of Appeal substituted a sentence of two years imprisonment, reflecting the fifty percent discount already applied by the sentencing judge.

The Court of Appeal allowed the appeal and substituted a sentence of two years imprisonment in place of the original sentence of two years and three months.

Orders