R v Armstrong - [2018] NZHC 1351

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-003403

[2018] NZHC 1351

THE QUEEN

v

JOHN ROBERT JUNIOR ARMSTRONG

Hearing: 8 June 2018

Appearances:

B R Smith and Y Olsen for the Crown A Ives for the Defendant

Sentence:

8 June 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:
Kayes Fletcher Walker Ltd, Manukau A Ives, Auckland

R v ARMSTRONG [2018] NZHC 1351 [8 June 2018]

Introduction

[1]Mr Armstrong, you may remain seated until I ask you to stand.

[2] You appear for sentence today having been convicted following trial before a jury of one charge of aggravated robbery1 and one charge of being in possession of an offensive weapon.2 The charge of aggravated robbery carries a maximum penalty of 14 years’ imprisonment.3 The charge of being in possession of an offensive weapon carries a maximum penalty of three years’ imprisonment.4

[3] The offending was committed with two others, Mr Vagaia and Mr Naseri. They pleaded guilty. On 29 May 2018, Venning J sentenced Mr Vagaia to nine years and nine months’ imprisonment,5 and Mr Naseri to four years and eight months’ imprisonment.6

Relevant facts

[4] In early January 2017, you and Mr Vagaia sent various text messages to each other. There were references in the text messages exchanged between you to going “out collecting”.

[5] It was not entirely clear from the evidence presented at trial when the offending in respect of which you have been convicted took place. It seems likely that it was sometime between 3pm and 6pm on 4 January 2017.

[6] You went to the victims’ property. Mr Vagaia was armed with a .22 firearm. You were armed with an army-style knife.

[7] When you arrived at the property, one of the victims, Mr Tupou, was watching television in his lounge. The other victim, his wife, was catching up on some sleep in their bedroom, because their children were out at church with Mr Tupou’s mother.

1      Crimes Act 1961, s 235(c).
2      Section 202A(4)(b).
3      Section 235.
4      Section 202A(4).
5      R v Vagaia [2018] NZHC 1225 at [23].
6 At [29].

[8] Either you, or one of your co-offenders, knocked on the front door. Mr Tupou ignored you, because he thought that you were fundraisers. He got up and went to the bathroom.

[9] When Mr Tupou came out of the bathroom, you were inside the house, standing in a corridor. Mr Tupou noticed the knife that you were carrying. You told him that he should go into the lounge and speak to the person who was there. You used the knife to indicate to Mr Tupou where he should go.

[10] Mr Tupou went into the lounge. Mr Vagaia was in the lounge. Mr Vagaia was holding the firearm. It had a clear plastic banana-shaped magazine and the .22 calibre bullets were clearly visible. Mr Vagaia told Mr Tupou that he was there to collect
$5,000 from him. Mr Tupou had been involved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Armstrong

Details

AGLC: R v Armstrong [2018] NZHC 1351
Case: [2018] NZHC 1351
Decision Date: 8 June 2018

CaseChat Overview and Summary

John Robert Junior Armstrong appeared before the High Court of New Zealand in Auckland, charged with aggravated robbery and possession of an offensive weapon. Armstrong was convicted following a trial and was sentenced on 8 June 2018. The court had to decide the appropriate sentence for Armstrong's involvement in the aggravated robbery, which involved a home invasion with firearms and knives, and his possession of an offensive weapon during the incident. The legal issues included determining the seriousness of the aggravated robbery, the appropriate starting point for sentencing, and whether to impose an uplift for Armstrong's previous convictions. The court considered the premeditation, the number and type of weapons used, the threats of violence, and the impact on the victims. The court also weighed Armstrong's personal circumstances, including his previous convictions, his expressed desire to rehabilitate, and the support from his family.

The court decided on a starting point of seven years and nine months for the aggravated robbery, acknowledging Armstrong's significant but not principal role in the crime. The court decided against an uplift for previous convictions, noting that Armstrong's more recent offending marked a significant escalation. The court applied a six-month discount for Armstrong's demonstrated motivation to rehabilitate and his proactive steps while in custody. The final sentence was seven years and three months for aggravated robbery and one year for possession of an offensive weapon, to be served concurrently. The court hoped that Armstrong would turn his life around for the benefit of his family and community.

Orders