Piper v R
[2012] NZCA 104
•22 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA246/2011 [2012] NZCA 104 |
| BETWEEN MARTIN JOHN PIPER |
| AND THE QUEEN |
| CA247/2011 |
| AND BETWEEN RICHARD JOHN PIPER |
| AND THE QUEEN |
| Hearing: 13 March 2012 |
| Court: Stevens, Chisholm and Heath JJ |
| Counsel: P J Kaye for Appellants |
| Judgment: 22 March 2012 at 3.00 pm |
JUDGMENT OF THE COURT
The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
Following a four day trial in the District Court at Manukau, Martin Piper and his son Richard Piper were found guilty by a jury of kidnapping, using a document and robbery. Judge Andrée Wiltens sentenced Martin Piper to three years and six months imprisonment and Richard Piper to two years and six months imprisonment.[1]
[1] R v Piper CRI-2009-092-7595, 1 April 2011.
Although both appellants initially appealed against conviction and sentence, they subsequently abandoned their conviction appeals. The appellants allege that their sentences are manifestly excessive because:
(a)the starting points were too high; and
(b)inadequate weight was given to mitigating factors; and
(c)in the case of Richard Piper, the Judge failed to take into account an offer of amends and his trial counsel (not Mr Kaye) failed to place a letter of apology before the Judge.
The offending
At about 8 am on 23 January 2009 the appellants and two other males[2] drove to a Pakuranga address at which the 18 year old female victim was present. Having entered the dwelling Martin Piper demanded money from her, following which Richard Piper and the other offenders shut the door and “surrounded” the victim. Both Martin and Richard Piper continued to demand money from the victim and, after she had told them that she had no money, they forced her to telephone other people and ask for money.
[2]One of whom, Lex Martin, was sentenced at the same time as the appellants. The other has not been identified.
When these attempts to extort money failed, Martin Piper threatened to cut off the victim’s hair. Then Richard Piper took the victim’s EFTPOS card, which she reluctantly handed over, although she provided a false PIN number.
Richard Piper and one of the co-offenders then went to an ATM machine and attempted to withdraw money from the victim’s account. After attempts to withdraw the money failed Richard Piper called Martin Piper (who was still with the victim) and there were unsuccessful attempts to obtain the correct PIN number from the victim.
Shortly after this Richard Piper and the co-offender returned to the address and the victim was forced to call her bank and obtain her account balance. Richard Piper and the co-offender drove her to the bank where $470, being the account balance, was withdrawn. This money was taken by the offenders and it has not been recovered.
Although there is no precise timing of these events, it is clear that they spanned at least two hours.
The appellants
Martin Piper
At the time of sentencing Martin Piper was 43 years of age. He has a long list of previous convictions for drug offending, low level violence, and breach of court orders. His most recent conviction in 2010 for possession of methamphetamine for supply attracted a sentence of six months home detention. Because the probation officer’s report in relation to that offending was relatively recent, there were cross-references to it in the report relating to the offending now under appeal.
In the earlier probation officer’s report a long-standing drug and alcohol problem was noted. It was also recorded that Mr Piper had expressed remorse to the probation officer, who considered that the appellant had insight into his offending and displayed a high motivation to change. The probation officer’s recommendation of home detention was adopted by the sentencing Judge.
The report relating to the offending giving rise to this appeal recorded that Mr Piper had completed the Bridge Programme in June 2010 and had been abstinent from alcohol and drugs since that time. It was indicated that Mr Piper had told the probation officer that he was determined to live a non-offending lifestyle upon his release from prison and that the offending for which he was to be sentenced had occurred whilst he was “in the height of his drug addiction”. He expressed remorse for the offending.
Nevertheless, it was the probation officer’s view that Mr Piper’s offending history indicated a lack of motivation to change his behaviour. It was also noted that Mr Piper had been sentenced to a variety of sentences which had not deterred him from re-offending, the risk of which was assessed as moderate. Imprisonment was recommended.
Richard Piper
When sentenced Richard Piper was 21 years of age. His previous record involves dishonesty, anti-social conduct, and disobedience of court orders. In 2010 he was sentenced to two years and two months imprisonment for injuring with intent to cause grievous bodily harm. That offending had occurred approximately three weeks after the offending giving rise to this appeal.
Mr Piper is a methamphetamine addict. At interview he told the probation officer that he was not guilty, that he had not done anything wrong, and that he had been overcharged. Although he stated he was remorseful, the probation officer commented that he greatly minimised the offending and had a tendency to blame the victim.
The probation officer reported that Mr Piper was willing to pay the victim $1000 in reparation for her suffering “if he were able”. She also advised that there was outstanding reparation and fines of $1,117.50 and that Mr Piper was ambivalent about addressing his drug addiction, but that he would be willing to undertake an alcohol and drug programme in prison “if asked to”. The risk of re-offending was assessed as high.
Sentencing in the District Court
Having described the offending the Judge noted that the victim had experienced a difficult time since the offending. It was the Judge’s view that she was petrified of repercussions from the two appellants and their co-offenders. He noted that two days before sentencing the victim had asked for reparation, but the Judge decided that it would be “futile” to make any such orders.
After expressing the view that the most important principles of sentencing in this case were to hold the appellants accountable for the harm they had done, to denounce their conduct, and to deter them and others from acting in a similar way, the Judge concluded that rehabilitation must “take a lesser position”.[3] He also recorded that he was compelled to impose the least restrictive outcome that was available in all the circumstances.
[3] At [13].
Aggravating features of the offending identified by the Judge were: multiple offenders who had made numerous threats over a period of time; entry into a private dwelling; premeditation; and offending while on bail. He did not consider there were any mitigating features of the offending.
After accepting that the offenders had played different roles the Judge said:
[17] Martin Piper, you are the most culpable, not only are you the oldest and therefore the most senior, but you influenced the conduct of the other two, you were the leader here. You, therefore, are the most culpable and I adopt a starting point for this offending, having regard to all three offences on a totality basis, of three years’ imprisonment.
[18] Richard Piper and Lex Martin, I see no difference between your conduct although, as I say, you are less involved than Mr Martin Piper. The starting point for each of you is two years, six months’ imprisonment on a totality basis again.
Then the Judge took into account the personal circumstances of the appellants. To reflect Martin Piper’s previous convictions, some of which the Judge considered to be “particularly serious”,[4] he applied an uplift of eight months. An uplift of three months was applied to reflect Richard Piper’s previous convictions.
[4] At [20].
Having reached three years and eight months for Martin Piper the Judge said:
[30] ... I am not prepared to impose a minimum period of non-parole, as recommended by the prosecution, primarily because of some efforts that you have made while in custody in terms of rehabilitation. At your age it is extremely late for rehabilitation to occur or to be considered as an effective option for the Court. Nevertheless any steps that you take have to be recognised.
Concurrent sentences of three years and six months for each of the three offences were then imposed.
In the case of Richard Piper the Judge allowed a discount of three months to reflect his youth and arrived at a sentence of two years, six months imprisonment. This sentence was cumulative on the sentence that Richard Piper was already serving. He was due for release on that sentence early the following month.
The starting points and uplifts
Argument for appellants
Mr Kaye submitted that there was no proper basis for differentiating between the starting points of the two appellants and that two and a half years was the absolute maximum available to the Judge. He emphasised that this offending did not involve any violence and that this factor had not been given sufficient weight by the Judge.
Counsel argued that the decisions cited by the Crown at sentencing, [5] and (as Mr Kaye put it) apparently relied on by the Judge, involved significantly more serious offending by virtue of actual violent and significant harm to the victims. He submitted that R v MacKenzie[6] and Mahutoto v R[7] illustrated that the starting points used by the sentencing Judge in this case were too high and were thereby contrary to s 8(e) of the Sentencing Act 2002, which requires consistency in sentencing.
[5]Chahil v R [2010] NZCA 244 and [2010] NZCA 331, Tozer v R [2010] NZCA 7, R v Duffy HC Christchurch CRI-2009-042-2801, 15 April 2010 .
[6] R v MacKenzie HC Auckland CRI-2006-057-1114, 20 March 2007.
[7] Mahutoto v New Zealand Police HC Auckland CRI-2011-404-111, 20 June 2011.
Mr Kaye also contended that the uplift of eight months to reflect Martin Piper’s previous offending was too severe. He took issue with the Judge’s comment that some of the previous offending was “particularly serious” and contended that an uplift of four to six months would have been appropriate.
Crown’s response
While the Crown accepts that there was no violence, Mr Raftery emphasised that this offending involved premeditated offending by four men who were involved in a home invasion. He submitted that a starting point within the range of two and a half to three years was open to the Judge.
In support of the proposition that the starting point was within range Mr Raftery referred to R v Rangitaawa[8] where starting points ranging between three years and nine months and four and a half years had been adopted for each of the three offenders, even though no physical violence was involved. Mr Raftery also noted that, unlike the offending giving rise to this appeal, MacKenzie and Mahutoto did not involve significant premeditation or robbery of the victim.
[8] R v Rangitaawa HC Christchurch CRI-2004-009-14066, 11 August 2005.
With reference to Martin Piper’s uplift, Mr Raftery submitted that regardless of whether some of the previous offending could be described as “particularly serious”, the extent of Mr Piper’s previous offending justified such an uplift.
Discussion
We reject Mr Kaye’s proposition that the Judge erred by adopting different starting points for the appellants. Given that he presided over the trial, Judge Andrée Wiltens was entitled to draw an inference as to the leadership role played by Martin Piper. Once the Judge reached the conclusion that Martin Piper was more culpable by virtue of his leadership role, it was virtually inevitable that he would adopt a higher starting point for that offender.
Given that there is no tariff for offending of this kind, the starting point will invariably reflect the particular factual situation before the sentencing Judge. This offending involved the premeditated invasion of a dwelling and the intimidation of a young woman by a group of men over an extended period. While there was no actual violence, the threat to cut off this woman’s hair must have been particularly distressing to her. Moreover, the offenders made off with her only savings.
All in all, this was a nasty incident. We agree with the Judge that the impact on the victim, and the need to hold the appellants accountable and to denounce their conduct, justified a deterrent sentence.
When determining whether a starting point is out of range, comparison with other cases is of limited assistance. However, given the reliance placed on MacKenzie and Mahutoto by Mr Kaye, it is appropriate that we make brief reference to each of those cases.
In MacKenzie the prisoner believed that the complainant was involved in a sexual relationship with his 14 year old sister. Together with others he kidnapped the complainant, subjected him to violence, and used the complainant’s cashflow card to extract money. However, as Mr Raftery pointed out, there were no charges of using a document or robbery. While the sentencing Judge, Lang J, adopted a starting point of two years and six months, he also specifically accepted that the Crown was correct in saying that a starting point of around three years was available.[9] We do not accept that this decision establishes that the starting point in this case was out of line.
[9] At [44].
Mahutoto involved an appeal to the High Court against a sentence of two years and four months imposed in the District Court for kidnapping and assault. Mr Mahutoto and the victim had previously been in a relationship. The victim was forced into a car by Mr Mahutoto where she was assaulted. It was recorded by Wylie J that counsel for the appellant did not dispute the starting point adopted by the District Court Judge.[10] Again, we do not derive any particular assistance from that decision.
[10] At [11].
On the other hand, we agree with Mr Raftery that there are some parallels with Rangitaawa in which starting points ranging between three years, nine months and four and a half years were adopted by Cooper J for blackmail and kidnapping. Like the appellants in this case, the offenders in that case believed that the victim owed money. One of the offenders organised a group of 15 people to take the law into their own hands. The victim was detained for about three hours during which time he was forced to write out a cheque for $5,000 and sign various documents acknowledging debts and providing security. Even though there was no physical violence, relatively high starting points were adopted.
We therefore conclude that the starting points of three years for Martin Piper and two and a half years for Richard Piper were within the range available to the Judge.
Notwithstanding Mr Kaye’s criticism of the Judge’s description of Martin Piper’s previous offending, we are satisfied that the uplift of eight months was within range. He has two previous convictions for possession of methamphetamine for supply. Apart from that he has an extremely lengthy previous record and he was on bail at the time of the offending.
The uplift for Richard Piper was modest. Shortly after the offending giving rise to the appeal he was involved in serious violence. He was also on bail. It is not surprising that there is no challenge to the uplift.
Discount for mitigating factors
Argument for appellants
Mr Kaye submitted that Judge Andrée Wiltens had failed to make an appropriate allowance for favourable personal factors relating to both appellants, with a particular focus on rehabilitation and re-integration back into the community. He was also critical of the Judge’s approach that rehabilitation needed to “take a lesser position” in this case and submitted that such an approach is contrary to s 7(1)(h) of the Sentencing Act, which lists assistance towards rehabilitation and reintegration as one of the purposes of sentencing.
Comprehensive and helpful submissions were presented by Mr Kaye in support of the proposition that inadequate weight had been given by the Judge to the appellants’ rehabilitation and reintegration. Material verifying the progress that Martin Piper had made in addressing his drug problem was presented. Mr Kaye submitted that the Judge’s approach to Martin Piper’s rehabilitation was in stark contrast to the views expressed in the probation officer’s report and was also “age discriminatory”.
Discussion
The rehabilitation and reintegration issues arising in this case need to be viewed in context. At the beginning of his sentencing remarks Judge Andrée Wiltens commented:
[1] ... what a difference a short period of time makes. What I have heard today is a total contrast to what I heard during the trial, completely different. Had any of the things that have been said on your behalf today been said back then, it would have counted for a great deal. It counts far less today, having been convicted after a jury trial during the course of which you have been disbelieved as to your explanations for this type of conduct.
Having presided over the trial the Judge was, of course, well placed to make these observations, which were obviously important to the Judge’s approach to personal mitigating factors.
When sentencing Martin Piper the Judge specifically turned his mind to the steps that Mr Piper had taken to address his alcohol and drug addiction and he recognised that some discount was justified. However, he concluded that those considerations needed to be subservient to the need for deterrence and denunciation. Given the circumstances, that conclusion was entirely open to the Judge.
While the discount allowed by the Judge of two months might not be particularly generous, the critical issue for us is whether the end sentence of three years and six months was manifestly excessive. We have not been so persuaded. In our view that sentence was within the range available to the Judge.
Before leaving the issue of Martin Piper’s sentencing, we should make a brief comment about the Judge’s comments to the effect that his decision not to impose a minimum non-parole period reflected Mr Piper’s efforts to rehabilitate himself.[11] To the extent that the Judge seems to have considered that it was open to him to weigh this factor at the minimum non-parole stage of the sentencing process without first considering whether it should have resulted in a reduction in the sentence, his approach is contrary to authority: R v Nguyen[12] and Pitceathly v R.[13] However, in the end result it does not affect the outcome of this appeal and we do not need to say anything more on this subject.
[11] At [20] above.
[12] R v Nguyen [2009] NZCA 239 at [34].
[13] Pitceathly v R [2010] NZCA 95 at [25] and [26].
Now we turn to Richard Piper. We agree with the Judge that he was only entitled to credit for his relative youth. Any allowance for rehabilitation or reintegration was effectively ruled out by the probation officer’s report.
Mr Piper had maintained to the officer that he was not guilty of the offending. He also minimised the seriousness of the offending and displayed a tendency to blame the victim. His attitude towards his drug problem was especially significant. He was ambivalent about addressing his addiction and was not prepared to take the initiative in undertaking an alcohol and drug programme in prison. Not surprisingly the probation officer considered that the risk of re-offending was high.
We are satisfied that the sentence of two years and six months imposed on Richard Piper was not manifestly excessive. The fact that it was cumulative on the sentence he was already serving, which increased the effective sentence by around one month, does not alter that assessment.
Offer to make amends/letter of apology
While s 10 of the Sentencing Act 2002 requires a sentencing Court to take into account an offer of amends, the offer in this case needs to be assessed in context. Unfortunately Richard Piper’s offer of amends was hollow. He already owed fines that exceeded his offer and the offer carried the tag that payment would be made “if he were able”. It does not appear to have been accompanied by any genuine remorse. The Judge did not err by not giving it any weight.
Nor have we been persuaded that the failure of trial counsel to present the letter of apology to the Judge was material to the outcome. Like the offer of amends, the letter needs to be seen in the context of Mr Piper’s attitude, as conveyed to the probation officer. The letter post-dated the report. To the extent that it was an attempt to neutralise the appellant’s attitude reported by the probation officer, it fails in its purpose.
Result
The appeals against sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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