Pritchard v The Queen

[2021] NZHC 1562

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000135

[2021] NZHC 1562

BETWEEN

JADE PRITCHARD

Appellant

AND

THE QUEEN

Respondent

Hearing:	14 June 2021
Counsel:	CA Oxnam for Appellant HT Reid for Respondent
Judgment:	29 June 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 29 June 2021 at 10 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland.

Public Defence Service, Auckland.

PRITCHARD v R [2021] NZHC 1562 [29 June 2021]

The appeal

[1]    Jade Pritchard robbed three banks. He pleaded guilty shortly before trial.1 Judge E M Aitken sentenced Mr Pritchard to a 27-month term of imprisonment.2     Mr Pritchard appeals. He contends the sentence is manifestly excessive. The Crown contends Mr Pritchard is fortunate the sentence was not more severe.

Background

[2]The offending occurred between 22 June and 13 July 2018.

[3]    At 12.30 pm on 22 June 2018, Mr Pritchard approached the counter of the Kiwibank Post Shop in Glenmall, Glen Eden. Mr Pritchard gave a note to the teller. The note demanded all the money from the till, said he had a gun and a grenade, and that if the teller did not comply within 30 seconds, he would kill everyone in the bank. The teller gave Mr Pritchard approximately $1,000 in cash. Mr Pritchard then ran from the bank.

[4]    At 2 pm on 1 July 2018, Mr Pritchard approached the counter of the ANZ bank in the West City shopping centre, Henderson. He gave a note to the teller like that used in the first robbery.3 Mr Pritchard lifted his jacket to show the butt of a pistol. The teller gave Mr Pritchard approximately $1,000 in cash. Mr Pritchard also ran from this bank.

[5]    At 3.10 pm on 13 July 2018, Mr Pritchard approached the counter of the BNZ bank in Universal Drive, Henderson. Mr Pritchard gave a note to the teller, who unlike the previous tellers, did not read it. Mr Pritchard lifted his jacket to show a black pistol. He told the teller to read the note, who did. He then gave Mr Pritchard approximately $13,000. Mr Pritchard fled.

[6]    On 14 July 2018, Mr Pritchard bought a used white BMW, in part with the proceeds of the offending.

1      To two offences of aggravated robbery, and one of robbery. Aggravated robbery is punishable by a maximum penalty of 14 years’ imprisonment; robbery, 10 years’ imprisonment.

2      R v Pritchard [2021] NZDC 3396.

3      The summary of facts implies this note did not refer to a grenade.

[7]    Mr Pritchard was charged almost immediately: 16 July 2018. He pleaded guilty 11 September 2020, three days before his trial was to begin.

[8]    Mr Pritchard acted alone throughout. Somewhat unusually, he made no attempt to conceal his identity.

Sentencing

[9]    The offence of aggravated robbery is governed by the Court of Appeal’s judgment in R v Mako.4 Mr Pritchard’s offending did not cleanly fit the judgment, something the Judge noted.5 The Judge settled on a global starting point of five years’ imprisonment. She considered this reflected Mr Pritchard’s “overall culpability”.6

[10]The Judge then considered mitigating factors:7

Turning then to your personal circumstances, there are no aggravating factors, you have no history of violence at all, you have a single conviction for careless driving back in 2006 and to all intents and purposes you appear before the Court as a first offender which makes your offending even harder to comprehend Mr Pritchard. You are 32 years old, I have had the benefit of a probation report and a s 27 report, I have a significant amount of information available to me as to your circumstances. It is material to observe that you were born to teenage parents, your father is Samoan, your mother is Pākehā, your father was in and out of jail, he was particularly violently abusive of your mother, you describe her as a functioning alcoholic and your upbringing included the exposure to violence and neglect that is set out in the reports. It is noteworthy that you were expelled from school for fighting at a relatively young age, you did attend alternative education but with great relief you left home as soon as you were able to at 17 and you have been able to find employment since that time.

You are described as someone culturally disconnected in particular from both your Samoan and your non-Samoan families, you have no real familiarity with your Samoan side but there is a part of you that feels as though he does not fit into the non-Samoan side of your family.

You have been it seems, Mr Pritchard, extraordinarily candid in both the s 27 interviews and the interview with the probation officer. You have not sought to rely on your upbringing as any excuse or explanation [for] your offending, rather you say you do not believe it played a part but you do acknowledge an addiction or an abuse of cocaine and the need to fund that habit. You started abusing drugs following the breakdown of a relationship in 2017 and you saw your offending as a way of making fast money, you did not want your current

4      R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA).

5      R v Pritchard, above n 2, at [10]–[11].

6 At [13].

7      At [14]–[18].

partner I understand to be aware of what was going on and you thought you could get away with continuing to abuse that particular drug if you could find the ready money and this offending was that ready money.

You have been living with your partner and her grandmother, they are both very supportive of you and you of them and that comes through loud and clear in the reports. As I have said you had a good employment history but you have been unemployed whilst on EM bail, I have today been handed a significant amount of documentation which is primarily the work that you have done on the Pasifika Wellbeing programme including anger management. I have had the chance Mr Pritchard to look through it and what comes through there is someone who appears genuinely committed to his rehabilitation.

Your genuine commitment to rehabilitation, your insight into how you came to offend, your regret and your remorse, all of them appear to be genuine. I have reached the view that this is highly out of character offending driven in part by your drug abuse but also by the reality of the impact of your upbringing on you and the obvious stress and anxiety that you were suffering at the time and to which you refer in many of the documents that you have tendered to the Court.

[11]   The Judge deducted 20 percent for this matrix. She was satisfied of a “nexus” between Mr Pritchard’s upbringing and his “abuse … of cocaine” in relation to the offending; of his “genuine remorse”; and of “prospects of rehabilitation”.8

[12]   The Judge deducted a further 20 percent for the guilty pleas, a topic to which I return.

[13]   Finally, the Judge deducted nine months’ imprisonment for restrictive bail conditions. Mr Pritchard was on electronically monitored bail for 21 months, including a long period on a 24-hour curfew.

[14]   This produced a sentence of 27 months’ imprisonment. The Judge also ordered reparation of $9,000.9

A précis of Mr Pritchard’s case

[15]   On behalf of Mr Pritchard, Ms Oxnam contends appropriate discounts should have resulted in a term of imprisonment of 24 months or less, thereby leaving open the possibility of home detention:

8      R v Pritchard, above n 2, at [21].

9 At [23].

(a)Discount for mitigating features other than guilty pleas should have been greater. Mr Pritchard’s traumatic background; relationship breakdown; and cocaine addiction contributed to the offending. Moreover, the Judge found Mr Pritchard was genuinely remorseful and committed to rehabilitation. Taken together, the mix required a discount of 35 or 40 percent, not the 20 percent the Judge allowed.10

(b)Discount for restrictive bail conditions should have been greater too. The Judge erred when referring to Mr Pritchard having been on a 24-hour curfew for seven of the 21-month bail period; the 24-hour curfew lasted 16 months. The discount should have been 12 months, not nine months.

[16]   Ms Oxnam contends home detention should have been imposed, that jurisdiction being available. She also challenges an aspect of the reparation order.

[17]   As will be apparent, no challenge is made to the five-year starting point.        I return to this topic too.

Principle

[18]   A sentence appeal must be allowed if the Court erred and a different sentence should be imposed.11 Or, in short, when a sentence is manifestly excessive.12

Analysis

[19]   An offender’s personal circumstances, including their upbringing, may constitute a mitigating factor if there is a causal nexus between the circumstances and the commission of the offence. In this situation, the offender’s moral culpability is diminished. So too, therefore, penalty. Similar reasoning applies when the commission of the offence reflects an addiction to drugs, alcohol, or both. In each situation, the prospect of an offender’s rehabilitation may increase the discount.

10     Ms Oxnam’s written submissions sought a much higher discount. She recalibrated at the hearing.

11     Criminal Procedure Act 2011, s 250.

12     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

[20]   In Poi v R, the Court of Appeal afforded a co-offender a 20 percent discount in recognition of his “severe deprivation and disadvantage as well as his rehabilitative prospects and the concrete steps that he is taking to attempt to address his past trauma

… with the aim of building a more constructive life”.13   In the same case, the Court

discounted Mr Poi’s starting point by 25 percent given his “reduced moral culpability and his rehabilitative prospects”.14 In R v Heta, a global discount of 30 percent was upheld in relation to the offender’s background, restorative justice efforts, and rehabilitative prospects.15

[21]   In the recent decision of Kreegher v R, the Court of Appeal increased to     10 percent the discount for Mr Kreegher’s “social deprivation, including at the time of the offending”.16 The Court was satisfied Mr Kreegher’s upbringing played a role in the offending. The Court declined a further discount on rehabilitative grounds, noting Mr Kreegher’s “ongoing denial of his offending” and its serious nature.17

[22]   In Carr v R, discounts of 15 percent were substituted by the Court of Appeal. Greater discounts were declined on the basis they might undermine precepts of agency and choice, and because of the seriousness of the offending.18

[23]   This recitation of principle implies the Judge did not err in allowing 20 percent for Mr Pritchard’s upbringing, cocaine addiction and rehabilitative prospects. First, the area is discretionary, and the Judge’s allowance is commensurate with the cited examples. Second, Mr Pritchard’s cocaine addiction, and its putative linkage to the offending, are based on self-reports. Addiction-based discounts require, however, “persuasive evidence as opposed to mere self-reporting”.19 Third, the linkage between Mr Pritchard’s admittedly traumatic upbringing and the commission of the offences is attenuated, something I elaborate below.

13     Poi v R [2020] NZCA 312 at [39].

14 At [51].

15     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [67].

16     Kreegher v R [2021] NZCA 22 at [47].

17 At [48].

18     Carr v R [2020] NZCA 357 at [67]–[68].

19     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].

[24]   Mr Pritchard lived free of crime until the age of 30 despite his background.20 Indeed, Mr Pritchard told Angeline Nielsen, the author of his cultural report, “I was always level-headed. I think I made some right decisions … I never wanted to follow my Dad’s footsteps”. Ms Nielsen spoke to Mr Pritchard’s new partner. She was shocked to learn of the offending because it was “out of character”. The Judge used the same expression when passing sentence.21

[25]   In this respect, the case is like James v R.22 Mr James committed a string of offences as a 40-year-old after a long hiatus. Mr James suffered an abusive childhood and what was described as cultural dislocation. Brewer J accepted there was “some causal relationship” between Mr James’ background and the commission of the offences, but “that relationship is weakened by the fact Mr James lived 15 years crime-free”.23 Brewer J considered the offences’ “immediate causal factor” was the collapse of Mr James’ relationship with his partner. So, while Mr James’ “formative background is important context to his offending, the fact he was capable of living crime-free and moving past his difficult upbringing is telling”.24 Brewer J held the appropriate discount was five percent only.

[26]   In summary, the most important  mitigating  feature  in  the  mix  was  not  Mr Pritchard’s past, rather his prospect of rehabilitation given his apparent ability to put his past behind him.25 A 20 percent discount sufficiently recognised this aspect in the context of closely associated but less germane mitigating features.

[27]   Remorse can attract a discrete sentencing discount. Whether it does is “a question of fact and judgement”.26 Attendant circumstance must be evaluated in a “proper and robust” way.27  A sentencing Court need not accept a “belated” expression

20 Mr Pritchard has a conviction for careless use of a vehicle, but this has no relevance. Mr Pritchard also had a conviction for burglary, but this was quashed on appeal before he was sentenced by Judge Aitken: Pritchard v Police [2020] NZHC 3363. Mr Pritchard is to be retried on this charge. It is elementary Mr Pritchard is entitled to the presumption of innocence in relation to this charge.

21 R v Pritchard, above n 2, at [18].

22 James v R [2020] NZHC 2134.

23 At [22].

24 At [22].

25     The mix could also be analysed through the lens of Mr Pritchard’s otherwise good character to the age of 30, but the applicable discount would not change.

26     Moses v R [2020] NZCA 296 at [24].

27     Martel v R [2018] NZCA 305 at [24].

of remorse.28 Remorse need not be extraordinary to qualify (for a discrete discount), but it does require something more than bare acceptance of responsibility inherent to a guilty plea.29 Associated discounts tend to be modest.30

[28]   As Ms Oxnam observes, some things favoured discrete discount for remorse. Mr Pritchard attended a Pasifika Wellbeing programme. Detail of that is not before me, but I assume Mr Pritchard did well. The Judge accepted Mr Pritchard was “genuinely remorseful”. Indeed, she added, “it is not often the Court can be confident of that”.31

[29]   However, as Ms Reid observes on behalf of the Crown, the letter the Judge described as Mr Pritchard’s “apology to the bank” was in fact written by him to the Judge, and largely contained his personal circumstances.32 On one view, the letter was more (mitigatory) plea than apology. Ms Reid also highlights the belated nature of the guilty pleas. As observed, these came only three days before trial.33 Despite this, the Judge afforded Mr Pritchard a 20 percent discount for his pleas. The Judge did so because closed-circuit television imagery from the banks was not disclosed until close to trial.34

[30]   Guilty-plea discounts are a function of time and circumstance, including the strength of the prosecution case.35 While Mr Pritchard was unquestionably entitled to timely disclosure of the prosecution case, he did not need disclosure to know he had robbed the banks. The point here is that the primary rationale for guilty plea discounts is the offender’s acknowledgement of responsibility, and what this implies. This is in part why prompt guilty pleas attract more discount than late ones. However analysed, Mr Pritchard’s pleas were late and the evidence strong.36   It is of course possible    Mr Pritchard refrained from pleading guilty promptly only because of legal advice.

28     Martel v R, above n 27, at [24].

29     Moses v R, above n 26, at [24].

30     Pollard v R [2018] NZCA 244 at [37] and McArthur v R [2013] NZCA 600 at [13]–[14].

31     R v Pritchard, above n 2, at [19].

32 At [19].

33     The Crown amended the first charge of robbery and withdrew a money laundering charge.

34     As will be recalled, Mr Pritchard was not disguised.

35     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

36     This is not a case in which the (modest) plea arrangement affects the guilty-plea discount analysis.

However, there is no evidence to sustain the proposition. Furthermore, a defendant’s plea to a criminal charge is ultimately for the defendant, not their legal representative.

[31]   More orthodox plea discount would have been 10 or 15 percent. This makes it unnecessary to determine if the Judge erred in relation to remorse, for, Her Honour’s benevolence in relation to the guilty pleas addresses any potential error, given, as observed, remorse-discount is typically modest.

[32]   This leaves Mr Pritchard’s restrictive bail conditions. A defendant’s time on electronically monitored bail may warrant a sentencing discount. Unsurprisingly, considerations include the period of time the offender was on electronically monitored bail; the restrictiveness of the conditions; and the offender’s compliance with them.37 The Court of Appeal has said “there is no absolute right to a discount” in this context, and much turns on the sentencing Judge’s assessment.38 It is not uncommon for a Court to treat a year of restrictive conditions of electronically monitored bail as warranting a six-month deduction.39 But as observed, everything turns on the facts.

[33]   The Judge wrongly said the 24-hour curfew period lasted seven months, when in fact it lasted 16. But, the Judge understood, correctly, the entire period of electronically monitored bail was 21 months. The Judge also understood Mr Pritchard complied with his conditions of bail, save one possible slip.40 The nine-month discount is little removed from that which would result from the commonly employed formula referred to above. Most importantly, the area is highly discretionary. For these reasons, I am unpersuaded of error.

[34]   It follows jurisdiction for home detention was not reached on the available discounts, and that sentence was not open to the Judge to consider. This conclusion may not necessarily dispel Mr Pritchard’s sense home detention was tantalisingly close, in turn fuelling a sense of injustice. Given this, it is worth reflecting on the five-year starting point, something Mr Pritchard did not challenge.

37     Sentencing Act 2002, s 9(3A).

38     BB (CA732/12) v R [2013] NZCA 139 at [15].

39     For example, Kaukasi v R [2016] NZCA 328.

40     R v Pritchard, above n 2, at [22].

[35]   The offending was premeditated. Mr Pritchard carried a pistol.41 He threatened to kill staff. The target premises were banks. Members of the public were present. Most significantly, Mr Pritchard robbed three banks. These features added  to the gravity of the offending ala Mako. That case makes clear multiple robberies “must be accorded full response on totality principles”.42

[36]   In R v Peri,43 the defendant robbed one bank with a firearm. He stole $5,050. Like Mr Pritchard, he acted alone. But unlike Mr Pritchard, he was disguised. Duffy J adopted a six-year starting point. In R v Lauena,44 the defendant robbed one bank of

$7,200. He was carrying an imitation firearm that looked real. The defendant was disguised. It appears he acted alone. Lang J adopted a six-year starting point.

[37]   All this suggests a starting point of not less than seven years’ imprisonment was required, in turn revealing Mr Pritchard’s sentence as lenient.

Reparation

[38]   The Judge ordered reparation of $9,000. Police seized cash of $5,000 from or in relation to Mr Pritchard, hence this sum was immediately available. The Judge apprehended Mr Pritchard’s family would sell the BMW in part purchased with proceeds of the offending, see [6], and this would discharge the balance.

[39]   Ms Oxnam told me this has not proved possible and the car is now unroadworthy. She invited me to quash the reparation order. Ms Reid offered an affidavit in response from the officer in charge, Detective Shaun Galbraith.45 He says the car has a current warrant of fitness and is registered to Samantha Selwyn, a relative of Mr Pritchard.

41 Mr Pritchard argued in the District Court the pistol was an imitation one only. The Judge rejected this submission; see [8] of the sentencing remarks. The two aggravated robbery charges alleged use of a “pistol” as “an offensive weapon”. And the uncontested summary of facts referred to a “gun”. The point was not pursued on appeal.

42     R v Mako, above n 4, at [51].

43     R v Peri [2015] NZHC 3221.

44 R v Lauena [2018] NZHC 483.

45 Ms Reid described the affidavit as “unsworn” at the hearing, but the copy on the court file appears to have been sworn 14 June 2021 (before a Deputy Registrar of the District Court).

[40]   Sections 38A and 72 of the Sentencing Act 2002 permit a sentence of reparation to be revisited in certain circumstances. Application is made to the sentencing Court, in this case, the District Court. This route is more appropriate than an appeal, particularly when Mr Pritchard has not adduced any evidence about the car.

Result

[41]The appeal is dismissed.

……………………………..

Downs J