R v Angelich
[2018] NZHC 2429
•14 September 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-090-2987
[2018] NZHC 2429
THE QUEEN v
MARCO BOROTA ANGELICH
Hearing: 14 September 2018 Appearances:
B Northwood for the Crown G Newell for the Defendant
Judgment:
14 September 2018
SENTENCING NOTES OF GORDON J
Solicitors: Crown Solicitor, Auckland Counsel: G Newell, Auckland
R v ANGELICH [2018] NZHC 2429 [14 September 2018]
Introduction
[1] Mr Angelich, you appear today for sentence after having pleaded guilty to the following charges:
(a)One charge of aggravated burglary;1
(b)One charge of assault with a weapon;2 and
(c)Two charges of common assault, one of those being a representative charge.3
[2] The charge of aggravated burglary carries a maximum penalty of 14 years’ imprisonment.4
[3] Mr Northwood, for the Crown, submits that the end sentence should be one of imprisonment.
[4] On your behalf, Mr Newell submits that a sentence of home detention may be available.
[5]I begin by outlining the facts of your offending.
Factual background
[6]Mr Angelich, you are a good friend of the victim’s older brother.
[7] The victim was 17 years of age at the time of the offending. A couple of weeks before the offending, he had told his family he was gay and he was in a relationship with an older male. He had recently moved out of the family home to live with his partner.
1 Crimes Act 1961, s 232(1)(a).
2 Section 202C(1)(a). The maximum penalty is five years’ imprisonment.
3 Section 196. The maximum penalty is one year’s imprisonment.
4 Section 232(1).
[8] At about 9:30 am on 6 June 2017, the victim returned to the family home in Ranui. As he was getting out of his vehicle, you ran up the driveway holding a knife in your hand. The knife was about 20 centimetres long.
[9] You first pushed the victim up against the garage door. The two of you then went inside the house. Once inside, you started to stab a picture frame belonging to the victim. You then started kicking and punching the victim, and threw him to the ground.
[10] You held the knife to the victim’s right wrist and told him to go back outside and to get into your vehicle. You continued to punch the victim while walking to the vehicle. The victim felt he had no choice but to get into your vehicle.
[11] Your accomplice was waiting in the vehicle. During the drive, you put on boxing gloves and you continued to punch the victim. You told him that you did not approve of his relationship, and that you were upset and mad that he was gay. You took the victim’s mobile phone and removed the sim card, putting it in your own mobile phone (I note that the victim’s mobile phone has since been returned to him).
[12] You drove over the Harbour Bridge to an unknown address on the North Shore. You, your accomplice and the victim went into the house. Another unknown male was already in the house. You put cannabis in a bong and told the victim to smoke it with all of you. He complied. You and your accomplices hassled the victim for being gay and for being in a gay relationship. After a few hours, you returned the victim to his father’s workshop in Avondale, telling him not to say anything about what had happened. Nevertheless, the victim told his mother and father.
[13] Nearly a week later, at about 3 pm on 12 June 2017, the victim was at his friend’s address in Ellerslie. The victim and his friend were inside a bedroom at the address when a person dressed in a black hoody with the hood up and wearing a white face mask entered the room. You were that person.
[14] You grabbed the victim’s friend, hit him in the side of the face and then again in the neck. You then told the victim to get his things and get in the car. That is when the victim recognised your voice.
[15] You then stole the victim’s television by taking it outside. You returned moments later holding a long black firearm in your hand. You pointed the firearm at the victim and demanded that he leave the address. Instead, he ran from the address to his own vehicle. As he sat in his vehicle, he saw you walk out of the address carrying his Xbox. He again recognised you as you removed the face mask you had been wearing.
[16] On 15 June 2017, you were stopped by the Police while driving in West Auckland. The Police found a black gas-powered revolver and a white face mask in your vehicle.
[17] You initially denied the aggravated burglary incident, claiming that you had been working at the time of the offending. You admitted confronting the victim at his home on 6 June 2017, but claimed that he came happily to your vehicle and did not resist. You said that you read to him from your bible.
Approach to sentencing
[18]Mr Angelich, setting a finite sentence involves three steps.5
[19] I must first set a starting point to take account of the facts of your offending, and then adjust it up or down taking into account your personal circumstances. The last step is to consider what discount you should receive for your guilty pleas.
[20] I also note that throughout this process, I will have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002.
5 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[21] I must, therefore, impose a sentence that will hold you accountable for the harm done to the victim, promote in you a sense of responsibility for that harm, denounce your behaviour, and deter you and others from committing similar offending.
[22] I must also take into account the gravity and seriousness of your offending, the effect of your offending on the victim, the need for consistency with appropriate sentencing levels and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[23] I am satisfied that cumulative sentences of imprisonment are appropriate.6 The offending on 12 June 2017 was different in kind. It involved an aggravated burglary and an assault on the victim’s friend.
[24] What this means is that I will assess a starting point for the charges relating to the incident on 12 June 2017. Based on totality considerations, I will then uplift that starting point to reflect the offending on 6 June 2017 to ensure that the overall starting point is not wholly out of proportion to the gravity of your overall offending.7
[25] In setting a starting point for the incident on 12 June 2017, I take the aggravated burglary charge as the lead offence.
[26] Mr Northwood, for the Crown, submits that I should adopt a starting point in the vicinity of four years’ imprisonment for this charge and the accompanying common assault charge.
[27] On your behalf, Mr Newell submits that a starting point within the range of three years and three years and six months’ imprisonment is available.
[28] There is no tariff case for aggravated burglary. But it is well-accepted that the principles contained in the tariff case for aggravated robbery, namely R v Mako,8 apply
6 Sentencing Act 2002, s 84(1).
7 Section 85(2).
8 R v Mako [2000] 2 NZLR 170 (CA).
to aggravated burglary as well as to aggravated robbery.9 In Mako, the Court of Appeal identified various features which should be used to assess the seriousness of the offending.
[29] In order to decide on the starting point, I must identify the relevant aggravating features of your offending. By reference to s 9(1) of the Sentencing Act and the factors identified by the Court in Mako, I identify the following aggravating features of your offending:10
(a)Home invasion11 – it is significant that you unlawfully entered the victim’s friend’s residential address in Ellerslie. The Court of Appeal, in Arahanga v R, noted that burglary of a “domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants”.12
(b)Breach of trust13 – I regard it as significant that your relationship with the victim is akin to family. The victim describes how you are a very close family friend and he says that he has known you since he was a boy. You were often at his family home. You even describe the victim as like a little brother.
(c)Effect of the offending14 – as the Court stated in Mako, “[t]he property stolen and the extent of any recovery naturally bear upon the offending”.15 Here, you stole both a television and an Xbox from the victim. Neither of those items has been recovered. The victim says he is about $600 out of pocket, but he does not seek reparation. I also acknowledge the impact of the offending on the victim. I have read his victim impact statement, and he describes how the offending has had a big effect on his life. He is continuously worried about his safety. Your
9 R v Watson CA224/03, 24 October 2003 at [27]; R v Drewett [2007] NZCA 48 at [15]; Archbold v R [2015] NZCA 493 at [9].
10 R v Mako, above n 8.
11 Section 9(1)(b).
12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
13 Section 9(1)(f).
14 Section 9(1)(d).
15 R v Mako, above n 8, at [44].
actions also caused divisions in his family and it has taken time for him to be able to communicate with some of those family members again.
(d)Premeditation16 – the Crown submits, and I accept, that this offending involved a high degree of premeditation. You clearly targeted this address because the victim was there. Furthermore, you were wearing a disguise when you entered the address. As the Court stated in Mako, “[d]isguises and other means of concealing identity and facilitating flight generally suggest premeditation and planning”.17 Also, after leaving with the television, you returned carrying a revolver. The use of disguises and the bringing of a weapon to the scene illustrate that you planned this offending.
(e)Actual violence and use of a weapon18 – alongside pointing a revolver at the victim in the course of the offending, you hit the victim’s friend in the side of the face and then again in the neck. As to the gun, even if it was not a lethal weapon, at the very least the comments of the Court of Appeal in Mako are applicable:
[39] … It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any less risk that victims might react in ways dangerous to themselves or others believing they are in mortal danger.
(f)Hate crime19 – the offending was plainly at least partially motivated by your hostility towards the victim for being gay. This is shown by your homophobic statements to the victim during the offending on 6 June 2017. I consider that this offending, six days later, was motivated, at least in part, by that continuing attitude.
[30]There are no mitigating features of the offending.
16 Section 9(1)(i).
17 R v Mako, above n 8, at [37].
18 Section 9(1)(a).
19 Section 9(1)(h).
[31] The Court in Mako provided examples of general scenarios which may assist with setting a starting point in the context of an aggravated robbery. The two of most relevance are:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.
[32] Obviously, the current offending does not fit neatly within either of these scenarios. But it contains several of the aggravating features referred to in each. As a result, the scenarios provide some assistance generally as to what type of starting point this offending might attract.
[33] I now turn to examine your offending against previous case law to assist with setting a starting point.
[34] Mr Northwood relies on three cases, namely Archbold v R,20 Kahotea v Police21 and R v Shirley.22
[35]I have also considered the following cases: R v Kahu,23 R v Gibbons24 and
R v Patrick.25
Analysis
[36] The offending in Archbold and Gibbons is more serious. In Archbold, the Court of Appeal stated that a starting point of four years and six months’ imprisonment
20 Archbold v R, above n 9.
21 Kahotea v New Zealand Police HC Tauranga CRI-2011-470-18, 15 August 2011.
22 R v Shirley [2009] NZCA 216.
23 R v Kahu [2017] NZHC 983.
24 R v Gibbons HC Auckland CRI-2009-090-9224, 27 July 2010.
25 R v Patrick [2008] NZCA 115.
was stern in a case involving serious violence and premeditation. There, the victim was punched and hit over the head with a coffee table. Similarly, in Gibbons, there were multiple offenders, a sawn-off shotgun was used and the victims were told it was loaded.
[37] In this case, I do not consider that there was serious violence. Nor was there a loaded firearm. But the offending was clearly premeditated and it has the extra element of being motivated, at least in part, by your homophobic attitudes.
[38] In that respect, I regard this case as comparable generally with Kahotea. Although there were more offenders in that case, this offending has the extra elements of involving some form of physical violence and the motivation I have referred to.
[39] In my view, a starting point of three years and six months’ imprisonment on this charge is appropriate.
Uplift
[40] Mr Northwood submits that I should apply an uplift in the region of 12 to 18 months’ imprisonment to reflect the offending on 6 June 2017.
[41] Mr Newell, on the other hand, submits that a further uplift of six to nine months’ imprisonment is appropriate.
[42] The offending on that date involved one charge of assault with a weapon and one charge of common assault (as a representative charge).
[43] Mr Northwood relies on the case of Daniels v R.26 In that case, the appellant was convicted of charges of injuring with intent to injure, assault with a weapon and aggravated burglary. The appellant and his two associates had driven to the victim’s home. The victim was known to one of the associates. Once the victim saw them, there was a verbal altercation before the victim retreated into his house. The offenders followed him. The appellant was carrying a claw hammer. The offenders then
26 Daniels v R [2015] NZCA 295.
assaulted the victim. When the victim ran away, the offenders gave chase and pulled him from a fence. He was then kicked and punched in the head. The appellant also struck him multiple times on the body and shoulder area with the hammer. The victim suffered significant physical injuries.
[44] The Court of Appeal identified the aggravating features as the number of offenders, the use of the weapon and the bringing of it to the scene, and the effect of the offending on the victim.27 It held that a starting point of four years and six months’ imprisonment was appropriate for the aggravated burglary charge.28
[45] In this respect, the Court differed from the approach of the District Court Judge who took a starting point of two years and six months’ imprisonment on that charge. The Judge then uplifted that starting point by 18 months to reflect the charge of assault with a weapon, and then applied a further uplift of six months in respect of the charge of injuring with intent to injure. This resulted in the same starting point of four years and six months’ imprisonment.
[46] I consider that an uplift for this offending of six months’ imprisonment is appropriate. This was not serious violence. That is reflected in the charge of common assault which attracts a maximum penalty of one year’s imprisonment. The assault with a weapon did not involve an actual use of the knife so as to injure the victim, but rather it was a threatened use. Where your culpability lies in respect of this offending is your motivation for the offending. You constantly berated the victim for being gay throughout the offending. You told him in the vehicle that you were upset and mad that he was gay, and that you disapproved of his relationship.
[47]That brings the overall starting point to four years’ imprisonment.
Personal circumstances
[48] I now need to consider your personal circumstances to see whether I should adjust the starting point.
27 At [26].
28 At [37].
Pre-sentence report dated 7 August 2018
[49] Mr Angelich, I now refer to matters personal to you by reference to the pre- sentence report. You are currently 24 years of age. You are living in Tauranga and you report attending Church on a regular basis. You are employed full time as a GIB fitter.
[50] You have the support of your family, as well as the support of the victim’s family. The victim’s father says that he sees you as a son. There is a voiced desire for you to continue to be involved with the family.
[51] The report writer stated that you were open in your discussion with her and you presented as sincere around wanting to address the harm you caused.
[52] However, the report writer stated that you displayed little insight into your offending. You minimised your offending and instead placed blamed on the victim’s behaviours and relationships. You normalised the use of violence in the context of what you considered to be “brotherly discipline”. This is concerning.
[53] While you accept reading from the bible to the victim, you denied that this was because the victim is gay. You did acknowledge, however, that seeing videos of the victim with his male partner angered you.
[54] As a result, the report writer assessed you as at a high risk of harm due to the nature of the offence. She expressed concern for the safety of the victim. She also assessed you as at a medium risk of reoffending due to your history of offending.
Previous good character
[55] Mr Newell submits that a discrete discount should be granted for your good character.
[56] You have a limited criminal history. Four of your five prior convictions relate to driving a motor vehicle. The other is for minor cannabis-related offending. These are all unrelated to the current offending.
[57] Mr Northwood rightly accepts that an uplift for those convictions is not appropriate. But he submits that you cannot rely on an entirely unblemished criminal history.
[58] I accept, as the Court of Appeal has acknowledged, that “previous convictions may bear on the issue of character”.29 In my view, however, your limited and unrelated criminal history does not preclude you from receiving a discrete discount. I discount the sentence by three months, or just over five per cent, for this factor. This results in a sentence of three years and nine months’ imprisonment.
Restorative justice and remorse
[59] You participated in a restorative justice conference with the victim on 16 August 2018. I have received a restorative justice report dated 18 August 2018.
[60] The report presents a somewhat different picture at least in some respects from the pre-sentence report prepared just over a week earlier. It records that you are sorry for your offending. You mentioned how you had discussed the victim’s relationship with his family, and how you all expressed concern over the background of the victim’s partner. Contrary to the summary of facts, which you accepted on your guilty pleas, you denied that it was, in your words, a “gay thing”.
[61] The report also records that you are participating in a programme called the Hamilton Abuse Intervention Project (HAIP).
[62]I must take into account any outcomes of restorative justice processes.30
[63] Mr Newell submits that you have expressed genuine remorse for your offending. He notes your participation in the restorative justice conference, and he says you are participating out of your own initiative in the HAIP’s programme. You travel from Tauranga to Hamilton weekly to participate in that programme.
29 Beckham v R [2012] NZCA 490 at [84].
30 Sentencing Act, s 8(j).
[64] I consider that a discount of just over 10 per cent for your participation in the restorative justice conference, the remorse that you showed during that conference and your efforts at rehabilitation is appropriate. That is a discount of five months, resulting in a sentence of three years and four months’ imprisonment.
Guilty plea
[65]Finally, I address the discount for your guilty pleas.
[66] You were originally charged on 16 June 2017. A trial date was set for 23 July 2018. You entered your guilty pleas on 17 July 2018 after an amended charge notice was filed on 11 July 2018.
[67] A defendant is entitled to a reduction in sentence for a guilty plea.31 But any reduction cannot exceed 25 per cent.32
[68] Mr Newell submits that a discount of 20 per cent is appropriate to reflect your guilty pleas which were entered on the amended charge notice.
[69] Mr Northwood, on the other hand, submits that your pleas cannot properly be classed as early when entered so close to trial. He submits that a discount in the region of 15 to 20 per cent is appropriate.
[70] The previous charge notice included an extra charge of common assault and, significantly, a charge of kidnapping. Against that is the fact that your pleas were entered one week before the trial.
[71] Nevertheless, I consider that in all the circumstances a discount of eight months, or 20 per cent, is appropriate. That results in an end sentence of two years and eight months’ imprisonment.
31 Hessell v R, above n 5, at [73].
32 At [75].
Result
[72]Mr Angelich, would you please stand.
[73]The end sentences in relation to the incident on 12 June 2017 are as follows:
(a)On the charge of aggravated burglary, you are sentenced to two years’ imprisonment.
(b)On the charge of common assault, you are sentenced to three months’ imprisonment.
[74] These sentences are to be served concurrently with each other but cumulative on the sentences in respect of the incident on 6 June 2017. In respect of that incident, the end sentences are as follows:
(a)On the charge of assault with a weapon, you are sentenced to eight months’ imprisonment.
(b)On the charge of common assault, you are sentenced to three months’ imprisonment.
[75] These sentences are to be served concurrently with each other but cumulative on the sentences in respect of the incident on 12 June 2017.
[76] Mr Angelich, that means that your end sentence is two years and eight months’ imprisonment.
[77]I also make an order for the destruction of the gas-powered revolver.
[78]Mr Angelich, you may stand down.
Gordon J
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