Nicholls v Police

[2016] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000196 [2016] NZHC 1979

BETWEEN

CORY JAMES NICHOLLS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 August 2016
Counsel:	A Speed for Appellant Z Hamill for Respondent
Judgment:	23 August 2016

JUDGMENT OF DOWNS J

Solicitors/Counsel: A Speed, Auckland.

R Chambers, Auckland.

Kayes Fletcher Walker, Auckland.

NICHOLLS v POLICE [2016] NZHC 1979 [23 August 2016]

[1]      Before I discuss the appeal, I record a matter that arose at the outset of the hearing.  Counsel for the appellant, Mr Chambers, did not appear.  He is, I gather, overseas.  Unfortunately Mr Chambers forgot to arrange for anyone to appear for the appellant on his, that is Mr Chambers’, behalf.  But at short notice Mr Speed very kindly appeared to convey the position and to offer an apology, which I accept.

[2]      Mr Speed said he could be ready to argue the appeal if given a little more time, but quite properly noted he did not have any specific instructions from the appellant.  Mr Speed is in the same set of chambers as Mr Chambers.

[3]      For  the  Crown  Ms  Hamill  was  neutral  as  to  whether  the  appeal  should proceed in these circumstances, while noting it had been adjourned once previously.

[4]      I  concluded  the  interests  of  justice  favoured  the  case  being  heard  and determined because:1

(a)       The issues are simple and everyone agrees that to be so.

(b)      Mr Chambers had filed full written submissions, which I had read.

(c)      The only instructions that could be given would be to proceed with the appeal, abandon it, or seek to have it adjourned until Mr Chambers returned.  No particular factual instructions would likely arise because the appellant pleaded guilty to an agreed summary of facts, and as noted I have had the benefit of Mr Chambers’ written submissions and now helpful oral argument from Mr Speed.

[5]      And so to the appeal itself.   It is a sentence appeal.   The appellant was sentenced to a term of imprisonment for two years and six months on a charge of aggravated robbery pursuant to s 235  of the Crimes Act  1961.2     The appellant contends the sentence is manifestly excessive, largely by reference to the starting point of three years’ imprisonment adopted by Judge Field.   The offending and

sentencing Judge’s methodology can be described briefly.

1      Section 325(2)(b) of the Criminal Procedure Act 2011 provides a party to an appeal may be represented by a lawyer at the hearing of the appeal.  I was satisfied the appellant had the benefit of legal representation for the reasons set out above.

2      R v Nicholls [2016] NZDC 10650; maximum penalty 14 years’ imprisonment.

[6]      The appellant and a co-offender, Mr Tonga, were charged with aggravated robbery following events on 17 July 2015.   At approximately 2.15 pm that day, Mr Tonga knocked on the victim’s door wearing a Black Power t-shirt.  Mr Tonga asked the victim if he wanted to buy any weed, and when the victim declined, Mr Tonga walked into the house.   Mr Tonga put his hands into a fighting stance, asked the victim for his money and took $20 from him.  Mr Tonga told the victim to sit down and asked the victim what else he had.  Mr Tonga then picked up a footstool and held it above his head before throwing it onto the couch.

[7]      The appellant was waiting with another man in a van outside.  On Mr Tonga’s signal, both immediately entered the victim’s house.  Once inside, the appellant and the other man began collecting property and loading it into the van.3

[8]      I  pause  here  to  observe  that  the  Crown’s  written  submissions  contained reference to this sequence as if it were a “looting”.  For the appellant, Mr Chambers and now Mr Speed, took issue with that description.  At the hearing of the appeal Ms Hamill for the Crown abandoned any reliance upon it, and I put it entirely to one side.  I return to the facts.

[9]      The victim was not injured.  Mr Tonga told him to not move for 80 seconds after the van started.  All three offenders then left, the last of whom has never been identified.

[10]     Upon arrest, Mr Tonga said the victim owed him $200 as a drug debt.  The appellant said he had been taken to the address and was unsure what would be happening there.  He said once Mr Tonga called him inside, he knew something was wrong. The appellant did, however, admit taking the items.

[11]     The appellant pleaded guilty on 11 April 2016; the morning of his standby trial.  He was sentenced on 13 June the same year.  Judge Field adopted a three and a half-year starting point in relation to Mr Tonga, whose end sentence was just under three  years’  imprisonment.    The  Judge  said  the  Black  Power  t-shirt  worn  by

Mr Tonga  was  meant  to  create  the  impression  the  robbery  was  a  gang-related

3      Items such as a PlayStation 4, games, a laptop, a pair of shoes, a watch, sunglasses and a mobile phone — all readily saleable items. Most of the property was, however, recovered.

collection, but His Honour put this potentially aggravating factor to one side.  That approach might well have been benevolent.4

[12]     The Judge concluded the appellant’s role was lesser than that of Mr Tonga and so a lower starting point was called for.  But in settling upon a starting point of three years’ imprisonment, the Judge considered the appellant had provided considerable help to Mr Tonga and was present on the basis he would provide extra “muscle” if needed.   The Judge uplifted the starting point by two months in recognition of the appellant’s previous convictions for dishonesty, which were described in the pre-sentence report as comprising “a long history of dishonesty

charges”.5     The Judge then apparently mitigated the sentence by eight months to

reflect what he said were prospects of rehabilitation, positive aspects in the pre- sentence report and further deduction for the guilty plea.  The ultimate sentence was two years’ and six months’ imprisonment.

[13]     The appellant contends the Judge erred in his assessment of the criminality of the offending.  He accepts the offending was in a residential home and caused loss to the victim, but notes there was no forced entry, no actual violence and no weapon. The appellant submits the Judge engaged in speculation when concluding he was there to provide “extra muscle”, and points out he was not involved in the initial encounter with the victim or much of what followed.  He also contends the home- invasion feature should not be given undue weight.

[14]     Two sentencing decisions in relation to aggravated burglary were advanced as more appropriate to the appellant’s role,6  with the allied submission that a starting point  of  two  years’  six  months’  imprisonment  would  be  correct,  and  also  a submission  that  the  Judge  was  wrong  to  uplift  a  starting  point  to  reflect  the appellant’s criminal history.

[15]     As will be apparent, the focus of the appellant’s case was the three-year starting point, which he contends is wrong.  But issue is also taken with the Judge’s

4      See R v Mako [2000] 2 NZLR 170 (CA) at [49].

5      Pre-sentence report, p 2.

6      Heald v R [2014] NZCA 143; Arahanga v R [2012] NZCA 480.

arithmetic in relation to mitigating features, on  the basis of this passage in the sentencing notes:7

From the 38 months that I had indicated appropriate I think six months could be deducted for your prospects of rehabilitation and the positive aspects in the report leaving a total of some 28 months.

In all the circumstances and allowing a further deduction for your plea, I

reach a final sentence of one of two years and six months.

[16]     The respondent’s submissions are reflected in the analysis which follows.

[17]     Section 250(2) of the Criminal Procedure Act 2011 provides an appellate court must allow an appeal if satisfied:

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

(b)      a different sentence should be imposed.

[18]     In any other case, the Court must dismiss the appeal.8   The Court of Appeal has confirmed the provision was not intended to change the antecedent approach,9 and that the “manifestly excessive” principle remains apt.10   And as is well-known, the ultimate focus is the sentencing outcome and not associated methodology.

[19]     I reject the appellant’s analysis for the following reasons.

[20]     First, it  was  open  to  the Judge  to  conclude  (on  the basis  of the  agreed summary of facts) the appellant was there to provide additional “muscle” if need be. I note the appellant and the other offender reacted immediately when Mr Tonga signalled for them to do so; they then entered the home and began taking property. The  appellant’s  contention  to  the  Police  he  was  ignorant  to  this  point  is  thus awkward.   Moreover, the appellant pleaded  guilty to aggravated robbery of the

“being together” species; which presupposes he and at least one other person jointly

7      R v Nicholls, above n 1, at [11]–[12].

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

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

10     At [33], [35].

extorted property from the victim under threat of violence.  Materially, the appellant has not challenged conviction.

[21]     Second, the offending falls somewhere between the categories identified in R v Mako,11 namely nocturnal home invasion on the one hand, and street robbery on the other.   The former attracts a starting point of at least seven years; the latter attracts starting points of between 18 months’ imprisonment and three years’ imprisonment.  Against this background, the adoption of a three-year starting point was one open to the Judge.

[22]   Third, the Judge distinguished Mr Tonga’s culpability from that of the appellant’s.  Mr Tonga’s sentence was greater, which in part reflected the adoption of a higher start point in relation to him.   Furthermore, fine distinctions between offenders who act in concert are not required at sentencing, particularly when deterrence is  the primary sentencing objective.   That  is  true for the  offence  of aggravated robbery.

[23]     Fourth, despite the appellant’s submission to the contrary, violating another’s home is a serious aggravating factor in our system of criminal justice.  Mako makes this clear;12  so too s 9(1)(b) of the Sentencing Act 2002.  The point can be put this way:  on  the appellant’s  analysis  this  case  should  be treated  as  akin  to  a street robbery, for, his suggested starting point lies within the range identified by the Court of Appeal for that type of robbery.  But this in my view would be to give insufficient weight to one of the most serious aspects of the offending.

[24]     Fifth, in Te Hau v R,13  a starting point of three years’ imprisonment was considered “appropriate” by the Court of Appeal in relation to a charge of aggravated robbery in the context of similar facts.14   For completeness, that case involved actual violence (two punches to the victim’s face) and an explicit threat to kill. And, in that

case, the stolen property was not recovered.  However, there was one fewer offender

11     R v Mako, above n 3, at [58]–[59].

12     R v Mako, above n 3, at [58].

13     Te Hau v R [2013] NZCA 431.

14 At [14].

there and the violation of the victim’s home was not as intrusive.  Overall, the two

cases suggest similar levels of culpability.

[25]     The  cases  cited  by  the  appellant  involve  aggravated  burglary  and  not aggravated robbery.  While it is true their facts are not much removed from those in question, there is no reason to approach this case elliptically: more apt are Mako and Te Hau, particularly when the former judgment is a guideline one of a Full Court of the Court of Appeal.

[26]     Sixth, I reject the submission it was not open to the Judge to uplift the starting point by reference to the appellant’s criminal history.  I have examined that history and it is sufficient to say it is extensive in relation to offences of dishonesty.

[27]     Seventh, while the Judge’s remarks in relation to discounts for mitigating features can be read as suggesting the Judge intended to impose a 28-month term of imprisonment,  rather  than  one  of  30  months’  imprisonment,  the  issue  remains whether the actual sentence is manifestly excessive.

[28]     I am not persuaded it is.  The Judge mitigated the sentence by eight months even though the appellant’s guilty plea was belated, and notwithstanding his criminal history which I have just referred to.  It therefore appears to me the appellant was the beneficiary of a not insignificant discount for mitigating features which objectively were not compelling.

[29]     The appeal is dismissed.

……………………………..

Downs J