Love v The the King
[2022] NZCA 614
•7 December 2022 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA416/2022 [2022] NZCA 614 |
| BETWEEN | JAMIE NGATATA LOVE |
| AND | THE KING |
| Hearing: | 2 November 2022 |
Court: | French, Thomas and Mallon JJ |
Counsel: | D A Ewen for Appellant |
Judgment: | 7 December 2022 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of 10 years’ imprisonment on the robbery charge is quashed and a sentence of 18 months’ imprisonment is substituted.
CThe sentences for the other charges are unaffected.
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REASONS OF THE COURT
(Given by Mallon J)
Introduction
The appellant pleaded guilty to and was convicted of robbery,[1] demanding with intent to steal[2] and wilful damage.[3] The robbery was a “third strike” offence under the now repealed “three strikes” sentencing regime.[4]
[1]Crimes Act 1961, s 234.
[2]Section 239(2).
[3]Summary Offences Act 1981, s 11(1)(a).
[4]Sentencing Act 2002, s 86D, repealed by Three Strikes Legislation Repeal Act 2022, s 5.
In the High Court, Mander J sentenced the appellant to 10 years’ imprisonment for the robbery, the maximum sentence for that offence, taking the view that he had no discretion to impose a lesser sentence under the three strikes regime.[5] Were it not for that regime, he would have sentenced the appellant to 18 months’ imprisonment rather than the 10 year maximum.[6]
[5]R v Love [2020] NZHC 1215 at [15].
[6]At [29].
The sentencing took place before the Supreme Court’s judgment in Fitzgerald v R.[7]The Court held that, where imposing the maximum sentence under the three strikes regime would breach the right not to be subjected to disproportionately severe punishment, the offender should be sentenced in accordance with ordinary principles.[8]
[7]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
[8]New Zealand Bill of Rights Act 1990, s 9. Fitzgerald v R, above n 5, at [137]–[139] per Winkelmann CJ, [231] per O’Regan and Arnold JJ and [252] per Glazebrook J. Winkelmann CJ also considered that s 86D(2) of the Sentencing Act adds a sentencing principle that recidivism by those caught by the regime is to be viewed as very serious and worthy of a stern sentencing response.
Following that judgment, the appellant appeals his sentence. He says the 10 year sentence was grossly disproportionate punishment so as to breach s 9 of the New Zealand Bill of Rights Act 1990 and should be quashed. He says it should either be replaced with a sentence of 18 months’ imprisonment or an order could be made under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Leave to appeal has been granted.[9]
Background
The offending
[9]Love v R CA416/2002, 23 September 2022 (Minute of Collins J).
The demanding with intent to steal charge was for an incident on the evening of 15 August 2019. The appellant approached and sat next to a person who was sitting in the gaming lounge of a bar and demanded money from him. The appellant threatened he would make a scene. The person felt intimidated by the threats and handed over $60 to the appellant to get him to leave.
The wilful damage charge was for an incident five days later at Hillmorton Hospital where the appellant was an outpatient. The hospital had maintained an account for the appellant as part of its assistance with his finances. The appellant arrived at around 8 am intending to get some money from his account but the office had not yet opened. The appellant kicked and smashed the window of the door to the office, broke an outdoor chair and used part of that chair to smash three windows of another building on the hospital grounds. Staff working inside the building felt threatened by the appellant’s actions.
The incident that was the subject of the robbery charge occurred at around 11 am that day. The appellant went into a café and shouted aggressively at the cashier to hand over money or he would “blow [her] brains out”. The appellant demanded the cashier put the till on the counter. He took around $380 from the till and then left.
First strike
The appellant committed his first strike offence in January 2012. He approached two tourists who agreed to give him a lift in their car. When they reached the place where the appellant was to be dropped off, he demanded money from them. Fearing for their safety, they handed over $300. The appellant was convicted of robbery following a jury trial and sentenced to a term of imprisonment.
Second strike
The appellant committed his second strike offence, another robbery, in February 2019. He went into a service station, sat down at a table and waited for customers to leave. He then approached the store attendant with his hands behind his back, saying he had a weapon and demanding money and tobacco. He left with $150 and tobacco to the value of $5000. A compulsory treatment order was made following his guilty plea on this and other offending.[10]
Personal circumstances
[10]Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34.
The appellant is now 46 years old. He was raised by his grandparents with whom he was close. He had no trouble at school until he was 14 years old when he started using drugs and alcohol and was expelled from school for truancy. He has never held a stable job and has led a “chaotic lifestyle” characterised by many periods of imprisonment.
He has a long list of convictions. Many of them are for wilful damage, shoplifting, theft, disorderly behaviour, possession of an offensive weapon, drugs (mainly cannabis) and breaching bail, community work or release conditions. He also has several convictions for assault, in addition to the offending that gave rise to the first and second stage warnings under the three strikes regime.
He is diagnosed as having Bipolar Affective Disorder complicated by methamphetamine use and an antisocial personality. He has been under the care of Specialist Mental Health Services on and off for the last 25 years. He was in the care of the Wellington Medium Secure Forensic ward between February and 29 July 2019 and responded well to medication. He was transferred to Hillmorton for the purposes of facilitating his transfer into the community. He was discharged on 30 July 2019 into the care of the Forensic Community Team.
At the time of the present offending, he had become frustrated about not being able to access money, was using drugs, particularly methamphetamine and MDMA, and was erratic and volatile. Dr Hillier, a consultant psychiatrist who prepared a report in October 2019 considered that the appellant was aware of the adverse effects drugs and alcohol have on his mental state, understands that he presents as irritable and aggressive in a manner people find intimidating, and realises that he needs help. He was on the telephone to his aunt, a mental health worker, when he carried out the robbery in the café.
The pre-sentence report writer assessed the appellant as at a high risk of reoffending. His cyclical pattern of relapsing with drug abuse or ceasing to take his medication and then entering a manic phase would need to be addressed to reduce his risk of harm to the public.
High Court sentencing
Section 86D of the Sentencing Act 2002 at the relevant time provided that the Court must sentence an offender who is convicted of a stage 3 offence to the maximum term of imprisonment for that offence. It also provided that the Court must order that the offender serve the sentence without parole unless it is satisfied, given the circumstances of the offence and the offender, that it would be manifestly unjust to make the order.[11] Any other sentence imposed at the same time had to be imposed concurrently.[12]
[11]Section 86D(3).
[12]Section 86D(6).
This meant the Judge imposed a 10 year imprisonment sentence on the robbery conviction.[13] He imposed concurrent sentences of six months’ and one month imprisonment on the demanding with intent and wilful damage charges respectively.[14] He considered it would be manifestly unjust to order that the appellant serve the 10 year sentence without parole.[15] This was because it would be grossly disproportionate to the sentence he would have received had the three strikes regime not applied (he would have been sentenced to 18 months’ imprisonment[16] and automatically released after 9 months);[17] the appellant’s modus operandi involved threats rather than physical harm;[18] and there was a link between the appellant’s mental condition and his offending.[19]
Appeal
[13]R v Love, above n 5, at [15].
[14]At [42]–[43].
[15]At [38].
[16]The Judge derived this by taking a starting point of 18 months’ imprisonment for the robbery (taking into account that the robbery was spontaneous, but the business was vulnerable to this type of offending because of its few staff and uncontrolled access and the cashier was left traumatised); an uplift of six months’ imprisonment for the demanding with menaces (as separate offending for which a cumulative sentence was appropriate); no uplift for the wilful damage (as being part of the chain of events on the morning of the robbery); an uplift of six months to reflect the ongoing risk he represented to the public in view of his previous conviction history; and discounts of five per cent for remorse, 10 per cent for the link between the appellant’s mental disorder and the offending, five per cent for difficulties in his upbringing and background; and 25 per cent for his guilty pleas.
[17]At [37].
[18]At [35].
[19]At [36].
The issue on appeal is whether the 10 year imprisonment sentence was a grossly disproportionate punishment contrary to the right affirmed in s 9 of the New Zealand Bill of Rights Act 1990. If it is, then the appellant is to be sentenced according to ordinary sentencing principles. The appellant submits that the difference between 18 months and 10 years speaks for itself. The Crown accepts that it “may” be grossly disproportionate given the differences in the respective lengths of the sentences, the relatively low level nature of the offending and the appellant’s personal circumstances. The Crown’s principal caveat to this is that there are two cases currently before the Court that are awaiting judgment.[20]
[20]Allen v R CA715/2021, heard on 23 June 2022; and Sheers v R CA351/2022, heard on 14 September 2022.
We are satisfied a 10 year sentence was grossly disproportionate. It is far in excess of the 18 month sentence the appellant would have received but for the three strikes regime. On that sentence he would have been automatically released after nine months whereas the appellant has no guarantee of release on parole at any time before the expiry of the 10 year sentence. This disparity is so great as to cause “shock” to the national conscience.[21] While the appellant is a recidivist offender, his offending is generally low level and generally does not involve robbery. His robberies have not involved weapons or any physical harm. The differential in the sentence he would have otherwise received is greater than in Phillips v R and Mitai-Ngatai v R where in each case the third strike sentence was substituted with sentences under ordinary principles.[22]
[21]Fitzgerald v R, above n 7, at [79]–[81] per Winkelmann CJ, [239] per Glazebrook and [167] per O’Regan and Arnold JJ; and Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [172].
[22]Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661; and Mitai-Ngatai v R [2021] NZCA 695. We note that in those cases the Crown conceded that s 9 had been breached.
We therefore consider that the 10 year imprisonment sentence on the robbery charge should be quashed and substituted with a sentence of 18 months’ imprisonment. The concurrent sentences on the other two charges would remain. We agree with the Crown that it is not appropriate to make an order under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act. While the appellant will need assistance when he is released, no further criminal detention can be justified. The appellant’s mental health care will need to be provided under the civil regime rather than the criminal one.
Result
The appeal is allowed.
The sentence of 10 years’ imprisonment for the robbery is quashed. A sentence of 18 months’ imprisonment is substituted. The sentences on the other charges are unaffected.
Solicitors:
Crown Law Office, Wellington for the Respondent
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