Marsh v R
[2019] NZCA 220
•13 June 2019
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA732/2018 [2019] NZCA 220 |
| BETWEEN | WIREMU KORI MARSH |
| AND | THE QUEEN |
| CA776/2018 | ||
| BETWEEN | WADE ARMSTRONG | |
| AND | THE QUEEN | |
| Hearing: | 27 May 2018 |
Court: | Collins, Peters and Mander JJ |
Counsel: | G A Walsh for Appellant Marsh |
Judgment: | 13 June 2019 at 2.30 pm |
JUDGMENT OF THE COURT
A.Mr Marsh’s appeal against sentence is allowed. The sentence of four years and nine months’ imprisonment is quashed and substituted with a sentence of three years and six months’ imprisonment.
B.Mr Armstrong’s appeal against sentence is allowed. The sentence of five years’ imprisonment is quashed and substituted with a sentence of three years and nine months’ imprisonment.
___________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
Wiremu Marsh and Wade Armstrong were sentenced respectively to four years and nine months’ imprisonment and five years’ imprisonment on one charge of aggravated robbery following their conviction by a jury.[1] Each appeals their sentence on the ground that it was manifestly excessive because the common starting point taken by the sentencing Judge was too high. Mr Armstrong also maintains a three month uplift to reflect his previous convictions was unwarranted.
Background
[1]R v Armstrong [2018] NZDC 24016.
The victim was a drug dealer. Mr Armstrong contacted the victim ostensibly for the purpose of purchasing drugs. He together with a female associate arrived at a residential complex where the victim was staying. The victim let Mr Armstrong and his female associate into the complex. There was conflicting evidence at trial regarding the narrative and sequence of events thereafter.
Judge K Saunders proceeded on the basis that while the victim and Mr Armstrong were discussing the sale of methamphetamine, the female associate went to the front door and let two men enter the building. Mr Marsh was one of those men. Thereafter, the victim, concerned at this turn of events, made his way to an apartment where his cousin and her partner resided. Mr Armstrong and Mr Marsh followed and entered the apartment.
Matters became tense. The cousin and her partner unsuccessfully attempted to get the appellants to leave. The situation became increasingly heated and, once it became clear the men would not go, the cousin and the partner left. The victim knew he was going to be robbed. Mr Armstrong stood over him with a clenched fist and threatened him. Half a gram of methamphetamine, $50 in cash, a small sports bag and a cell phone were taken by the appellants.
At sentencing, the appellants and the Crown urged the Judge to take varying views regarding the characterisation of the offending. The Crown submitted it was a premeditated robbery, in respect of which the drug deal had been used as a pretence to gain access to the residential complex. The appellants maintained it was simply a drug deal that had gone wrong after both men had been invited into the property and the robbery was opportunistic.
In her sentencing remarks Judge Saunders concluded:
[14] Having sat through the trial as the Judge I am of the view that the jury’s verdict is consistent with the facts that this was a premeditated robbery with an element of home invasion. There were two groups of you who both entered through different doors, with you, Mr Marsh, being let in by an associate and remaining unlawfully in the victim’s residence. Neither of you left when you were asked to do so.
Having reviewed the available evidence ourselves, we acknowledge the conflicting evidence, including that provided by witnesses called by the Crown, but consider that the Judge was entitled to come to the view she did on the facts. In any event, we consider there is no dispute regarding the essential aggravating features. There was no forced entry into the residential complex or into the apartment itself, but both appellants were unlawfully present after being asked to leave by the occupants, and the robbery took place in a private dwelling.
The sentencing
Judge Saunders considered the robbery involved an element of home invasion and that other factors affecting the culpability of the offenders included the number of participants in the robbery and the low-level violence used. A starting point of four years and nine months’ imprisonment was adopted.[2]
[2]At [17].
No uplift was applied for the fact that Mr Marsh had committed the robbery whilst on bail or to reflect his previous convictions. However, Mr Armstrong received a further three months’ imprisonment to reflect his history of prior offending. No personal mitigating features were identified and no complaint is made in that regard.
Discussion
The relevant guideline judgment is R v Mako.[3] However, the circumstances of the offending do not readily fit the particular categories of robbery described in that case. That is not unsurprising when regard is had to the range of conduct that can constitute an aggravated robbery and the various features and factors that will detract or contribute to the seriousness of the criminality encompassed by the offence.[4] Ultimately, the assessment of the weight and combination of features to determine the relative seriousness of a particular offence is a matter of judgment for the sentencing Court in the exercise of its discretion.[5]
[3]R v Mako [2000] 2 NZLR 170 (CA).
[4]At [34].
[5]At [35].
Both the appellants and the Crown recognise the present offending sits somewhere between the category of robbery committed as part of a residential home invasion, which may justify starting points of between seven and 10 years’ imprisonment, and a street robbery, which is described in Mako as being “[a]t the other end of the scale” and which may justify starting points between 18 months and three years’ imprisonment.[6] However, the overarching question remains as to where along that continuum the present offending sits when regard is had to the nature and degree of the identified aggravating features.
[6]At [58]–[59].
We consider the Crown was right to acknowledge that the offending bore some similarity to a street robbery, involving, as it did, more than one offender demanding the victim hand over property by the use of menacing conduct rather than actual physical violence. However, we also accept the fact the robbery occurred in a private dwelling place and the element of premeditation is required to be reflected in the starting point. Notwithstanding the controversy regarding whether there was an unlawful entry, by the time of the robbery both appellants were unlawfully present in the dwelling. That is an aggravating factor recognised by the Sentencing Act 2002.[7]
[7]Sentencing Act 2002, s 9(1)(b).
Counsel took us to a number of sentencing decisions of this Court in an endeavour to demonstrate the starting point was too high. In R v Crawford a starting point of four and a half years’ imprisonment was upheld on appeal where the occupants of a boarding house robbed a fellow resident. [8] The offending was committed in the victim’s room. However, the robbery was more serious. It involved the use of a knife to threaten the victim and actual violence. The victim was also held for a period of time while one of the offenders took his EFTPOS card in an attempt to withdraw cash from his account.
[8]R v Crawford [2009] NZCA 479.
In Te Hau v R a starting point of three years’ imprisonment was not disturbed for an aggravated robbery which involved two offenders going to the victim’s house and demanding money.[9] After moving outside the victim was punched in the face and a laptop and keys to the victim’s vehicle were stolen. Threats were made that if the victim did not come up with the money demanded or called the police he would be killed.
[9]Te Hau v R [2013] NZCA 431.
Finally, in Norton v R the appellant and his co-accused went to the victim’s home seeking compensation for a damaged tyre.[10] They were armed with a hammer and a piece of wood. The victim let them into his house. Once the men were in the victim’s bedroom threats were made. A cell phone and an iPod were stolen. Because the robbery occurred in the victim’s bedroom, the sentencing Judge considered it more serious than if it had occurred in a public street but did not consider it as a serious as a home invasion. A starting point of two and a half years’ imprisonment was not disturbed on appeal.
Decision
[10]Norton v R [2012] NZCA 334.
Inevitably, no two cases are the same and each must turn on its own facts. Difficulties can arise in applying a guideline decision like Mako where there are aggravating features present to varying degrees which do not fit squarely within the recognised categories of offending that attract particular bands of imprisonment. We accept the Judge was entitled to take into account that the robbery occurred in a private dwelling place, and that there was premeditation with entry to the building having been gained on the pretext of Mr Armstrong wishing to purchase drugs from the victim.
However, having regard to the approach taken in other cases, but moreover, because of the particular circumstances of the present offending, including the limited value of the property taken, we consider the starting point adopted was excessive. A starting point of three and a half years’ imprisonment would have more accurately reflected the seriousness of the offending.
Uplift for previous offending
Mr Armstrong argued that the starting point should not have been uplifted by three months because of his criminal history. He submitted that his past offending did not indicate a propensity to commit robbery. While it was not pressed, the approach taken by the sentencing Judge to Mr Armstrong’s previous offending was compared with that taken in respect of Mr Marsh. He has a similar history and was on parole at the time, yet received no uplift for those factors.
Mr Armstrong has 42 convictions over a period of 16 years; many relate to violence and three involve firearms. Dishonesty offending is also a feature of his prior offending. We accept the Crown’s submission that, despite the absence of any previous conviction for aggravated robbery, his history of violence and dishonesty demonstrates the risk he poses to the community which is assessed in the pre-sentence report as high. We therefore consider the uplift was warranted.
At first blush, it may seem Mr Armstrong may have some grounds for being aggrieved that no uplift was imposed on his co-offender despite having a similar history, which includes some 20 convictions over 11 years, including 10 for violence. While Judge Saunders expressly rejected affording a discount to Mr Marsh on the basis that as a second strike offender he would be required to serve the full term of his sentence without parole, we consider it likely, as the Crown submitted, that the Judge’s decision not to impose an uplift to mark Mr Marsh’s previous offending is linked to that fact.[11]
[11]See Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
As a result of Mr Marsh’s conviction, he received a second strike.[12] This Court has observed that when considering an uplift for previous convictions or for offending whilst on bail or while subject to a sentence, the sentencing Court should decide whether the stage two offender’s loss of parole renders such an uplift unnecessary.[13]
[12]Sentencing Act, s 86C.
[13]Wipa v R [2018] NZCA 219 at [36].
We accept that Judge Saunders did not expressly articulate her reason for not uplifting Mr Marsh’s sentence in those terms, but, even leaving to one side that likely rationale, we accept the Crown’s submission that just because Mr Marsh benefitted from such leniency it does not give rise to any disparity when the approach taken in respect of Mr Armstrong was available to the sentencing Court. No adjustment is required simply to match the sentence imposed on a co-offender even if it may be viewed as somehow falling short of that which should have otherwise been imposed.[14]
Result
[14]R v Nathan CA378/90, 24 April 1991; and Macfarlane v R [2012] NZCA 317.
Mr Marsh’s appeal against sentence is allowed. The sentence of four years and nine months’ imprisonment is quashed and substituted with a sentence of three years and six months’ imprisonment.
Mr Armstrong’s appeal against sentence is allowed. The sentence of five years’ imprisonment is quashed and substituted with a sentence of three years and nine months’ imprisonment.
Solicitors:
Bean Law, Hamilton for Appellant Armstrong
Crown Law Office, Wellington for Respondent
8
4
0