Pratt v The Queen
[2014] NZHC 2337
•24 September 2014
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2014-443-022 [2014] NZHC 2337
BETWEEN ROWAN NELSON PRATT
Appellant
AND
THE QUEEN Respondent
Hearing: 22 September 2014 Counsel:
J C Hannam for appellant
J M Marinovich for respondentJudgment:
24 September 2014
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] In somewhat unusual circumstances, Mr Pratt pleaded guilty to both a charge of aggravated robbery1 and one of wounding with intent to cause grievous bodily harm,2 where both charges arose out of one confrontation and taking of property from the victim.
[2] Mr Hannam, who has acted for Mr Pratt throughout, sought a discharge pursuant to s 147 of the Criminal Procedure Act 2011 (CPA) on the ground that he was entitled to enter a special plea to the charge of wounding with intent to the effect that it depended on the same facts as the charge of aggravated robbery, amounting to a previous conviction for the purposes of the provision that is now s 46 of the CPA.
That argument was rejected in a ruling given by Judge Roberts on 7 July 2014.
1 Crimes Act 1961, s 235(b). The maximum penalty for this offence is 14 years’ imprisonment.
2 Crimes Act 1961, s 188(1). The maximum penalty for this offence is 14 years’ imprisonment.
PRATT v R [2014] NZHC 2337 [24 September 2014]
[3] Mr Pratt was sentenced on 27 August 2014 in the District Court at New Plymouth to three years nine months’ imprisonment for the first charge and seven years for the second charge, to be served concurrently.3 Judge Roberts also imposed a minimum period of imprisonment of three and a half years’ imprisonment.
[4] Accordingly, Mr Pratt has appealed on the basis that it was unjust to enter a conviction on the charge of wounding with intent to cause grievous bodily harm because the facts relating to the wounding charge are substantially the same as those relied upon by the Crown to provide the charge of aggravated robbery.
[5] Mr Pratt also appealed against the sentence imposed, but accepted that if the appeal against conviction was unsuccessful, then the seven year term of imprisonment was not open to challenge.
Facts
[6] On Friday 21 March 2014, Mr Pratt drove with two associates, Mr Richards and Ms Featonby, into the centre of New Plymouth. At a petrol station they encountered the victim, who proceeded to an ATM machine and withdrew $300. Mr Pratt left the vehicle in which he and his companions were travelling, and struck the victim three times on the back of the head using a 40 centimetre long timber chair leg before the victim turned to confront Mr Pratt face on. Mr Pratt demanded money, the two men began to wrestle and the victim was hit several more times with the chair leg. Both men lost their footing and fell to the ground. Mr Richards joined in, kicking and punching the victim. The victim then felt both men search his pockets. They took his cell phone, a packet of cigarettes and the $300. The victim was taken to hospital with a large wound to the side of his head requiring four staples, numerous lumps and bruises to his head, a sore neck, a broken rib, two black eyes, a burst blood vessel in his left eye, blurred vision and six loose teeth. Seven weeks after the incident he still had a ringing in his ears, which he has been advised may never cease. He also suffers from blurred vision, short term memory loss and
tires easily.
3 R v Pratt DC New Plymouth CRI-2014-043-000501, 27 August 2014.
District Court decision
[7] Mr Pratt argued in the District Court that the charge of wounding with intent to cause grievous bodily harm should be dismissed under s 147 of the CPA on the basis that the special plea of previous conviction is available. Section 46 of the CPA provides:
46 Previous conviction
(1) If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—
(a) the same offence as the offence currently charged, arising from the same facts; or
(b) any other offence arising from those facts. (2) Subsection (1) does not apply if—
(a) the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and
(b) the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.
[8] Judge Roberts held that the facts required to prove the charge of wounding with intent to cause grievous bodily harm, and the facts for the aggravated robbery, are not the same and therefore he was not satisfied that s 46(1)(b) of the CPA applied.
Submissions on appeal
[9] Mr Hannam submitted that the offending involved an “ongoing continuum of action” where there was a complete overlapping in the sequence of events, and the violence involved could not be distinguished from Messrs Pratt and Richards’ joint intent to rob the victim.
[10] Section 235 of the Crimes Act provides for three forms of aggravated robbery, in the following terms:
235 Aggravated robbery
Every one is liable to imprisonment for a term not exceeding 14 years who—
(a) robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person; or
(b) being together with any other person or persons, robs any person; or
(c) being armed with any offensive weapon or instrument, or any thing appearing to be such a weapon or instrument, robs any other person.
[11] In the present case, the prosecutorial decision was to rely on the joint participation of Messrs Pratt and Richards as the feature that constituted their robbery of the victim an aggravated one. In Mr Pratt’s case, he also faced the charge under s 188 of the Crimes Act for wounding with intent to cause grievous bodily harm that was treated by the prosecution as appropriate to reflect the significant level of violence that he committed in his attack on the victim. Mr Hannam was inclined to suggest that if a charge under s 235(b) can be accompanied by a charge under s 188(1) in such circumstances, it would render s 235(a) otiose.
[12] Mr Hannam invited me to treat the sequence of aggravating circumstances for a robbery in (a) to (c) of s 235 of the Crimes Act as reflecting a hierarchy of importance so that there was an obligation on the prosecution to bring a charge under the first of those three alternatives that was appropriate. Certainly, where all of the conduct giving rise to possible charges against Mr Pratt occurred in one rapid and continuous interaction with the victim, Mr Hannam argued that it was artificial to overlook the violent attack as the relevant form of aggravating conduct that made the robbery worse than if none of the aggravating elements had been present.
[13] For the Crown, Mr Marinovich resisted any constraint on the way prosecutorial decisions might be made as to which of the forms of aggravated robbery might constitute a charge in any given circumstances. On the facts here, Mr Marinovich argued that the level of violence and its timing, with Mr Pratt then being joined by Mr Richards, and then the robbery occurring, warranted two charges to reflect the criminality of Mr Pratt’s involvement.
[14] Mr Marinovich took the position that the requirement under s 46 of the CPA for there to be charges “arising from the same facts” meant literally that the same facts had to be relied on by the prosecution to make out all of the elements of both the charges in question.
[15] That was not the case here, as the charge of aggravated robbery against Mr Pratt depended on his being with Mr Richards at the time the victim was robbed. The preceding violence committed by Mr Pratt against the victim did not form any part of the charge under s 235(b) of the Crimes Act. Distinctly, the wounding charge under s 188 required the prosecution to prove that Mr Pratt had caused grievous bodily harm, in circumstances where he intended to do so.
[16] Although it did not apply on the facts here, Mr Marinovich identified the prospect of a prosecution under s 235(a) where grievous bodily harm had resulted from an attack in the course of a robbery, where the Crown could not (and would not be required to) establish that the defendant had intended to cause grievous bodily harm.
[17] Mr Marinovich cited the sentence appeal decision of Ronald Young J in Police v Zafiri as an example of the need for a prosecutorial discretion to lay a charge or combination of charges that reflected appropriately the criminality of what was involved.4 Zafiri involved facts similar to the present case in that Mr Zafiri armed himself with a metal car jack brace, and appears to have led the attack on the victim, with another man. After a serious and violent attack, the victim was forced to hand over a bag that he had stoutly refused to relinquish. In a Police appeal from what was claimed to be a manifestly inadequate sentence, Ronald Young J recognised that the focus on the guideline judgment in R v Mako5 in relation to street robberies led the sentencing court to miss “the essential criminality of what was a
very brutal assault which ended in the theft of [the victim’s] bag and contents”.6
4 Police v Zafiri HC Auckland CRI-2010-404-316, 16 November 2010.
5 R v Mako [2000] 2 NZLR 170 (CA).
6 Police v Zafiri, above n 4, at [15].
[18] Mr Marinovich suggested that resort to a separate wounding charge, and reflecting the robbery aspect by reliance on a further charge under s 235(b), was a means of drawing out the full effect of the criminality of what was involved.
Analysis
[19] The Court of Appeal in R v Brightwell confirmed that the underlying rationale for a plea of previous conviction is that a person should not be prosecuted twice for the same offence.7 In that case, Mr Brightwell had been charged with presenting a firearm at a person and assaulting a person using a shotgun as a weapon. The Court of Appeal held that, in order for the plea to be available:
(a) the first matter must be the same in whole or in part as the second; and
(b)on the trial of the first matter the appellant might have been convicted of the second charge, had all the proper amendments been made.8
The Court held that two distinct offences were committed, although they comprised one series of actions.
[20] Accordingly, whether two separate charges arise from the same series of actions is not the issue. The question is whether two distinct and separate offences were committed or whether the later charge is based on the same facts that were necessary to constitute the elements of the first charge.
[21] Here the appellant was convicted of wounding with intent to cause grievous bodily harm and robbing the victim with the assistance of another person. If the Crown had failed to establish the factual elements for wounding with intent to cause grievous bodily harm, then Mr Pratt could still have been prosecuted for aggravated robbery under s 235(b). It follows that the “same facts” are not relied on, so that a
plea of previous conviction in terms of s 46 of the CPA is not available.
7 R v Brightwell [1995] 2 NZLR 435 (CA). That case considered s 358 of the Crimes Act 1961, which was the predecessor to s 46 of the CPA, in materially the same terms.
8 At 437.
[22] I do not accept that any constraint should be imposed on the prosecutorial discretion as to which element of s 235 is to be invoked, where there are tenable alternatives. Each decision should reflect the circumstances, as the prosecution intends to allege that they were.
Result
[23] Accordingly, the appeal against conviction is dismissed. Given Mr Hannam’s concession that the appeal against sentence could not proceed unless one conviction was overturned, there is no need to consider the appeal against sentence, and it is similarly dismissed.
Dobson J
Solicitors:
Hannam & Co, New Plymouth for appellant
Crown Solicitor, New Plymouth for respondent
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