R v Barton

[2018] NZHC 1558

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-085-2143

[2018] NZHC 1558

THE QUEEN

v

JADE RICHARD BARTON

Hearing:	27 June 2018
Appearances:	J M O’Sullivan for the Crown C J Tennet for the Defendant
Judgment:	27 June 2018

SENTENCING REMARKS OF COOKE J

Introduction

[1]Mr Barton, you appear for sentencing on the following charges:

(a)two charges of aggravated robbery;1

(b)one charge of aggravated wounding;2

(c)one charge of kidnapping;3 and

1      Crimes Act 1961, ss 235(b) and 66; maximum penalty 14 years’ imprisonment.

2      Sections 191(1) and 66; maximum penalty 14 years’ imprisonment.

3      Sections 209(b) and 66; maximum penalty 14 years’ imprisonment.

R v BARTON [2018] NZHC 1558 [27 June 2018]

(d)one charge of possession of a knife.4

[2]This morning I will:

(a)set out your alleged offending;

(b)outline the appropriate starting point for that offending;

(c)explain any adjustments that may be made to that starting point; and

(d)give you your final sentence.

Your offending

[3]        You pleaded guilty to the first offence committed by you at Petone beach. The statement of facts provided in relation to that offence is largely consistent with the evidence given about it at your trial. In the evening on 8 August 2017, you and your co-defendant Mr Samson approached two individuals at Petone Beach. You said: “Don’t shout, if you shout I will punch you in the face, just give us everything you have in your pockets”. You then told one of the victims to hand over his gold bracelet or he would get stabbed. While saying this, you put your hand in your right pocket suggesting you had a knife. The other victim then tried to run away, but was stopped and dragged back by Mr Samson. Once the two victims had handed over their possessions, you said: “Don’t move from this place and don’t shout. If you do I will smash your neck on the log and kill you.” You then left the scene in a vehicle. You and Mr Samson then purchased various items from five petrol stations and a liquor store with a bank card you stole from one of the victims.

[4]        Later, in the early morning on 9 August 2017 the second set of more serious offences occurred. You and Mr Samson pulled up near a taxi at the bottom of the Ngauranga Gorge. You identified the taxi driver as your next victim. The taxi driver was then assaulted, including a blow or blows to the head rendering him unconscious and causing serious lacerations to his head and face. He also suffered bruising to his arms and cracked ribs.

4      Section 202A(4)(a); maximum penalty three years’ imprisonment.

[5]        Mr Samson then removed the camera from the front of the taxi. The taxi driver was  then put  into the boot  of the taxi.  You  then led the way in your  car  while   Mr Samson followed in the taxi with the taxi driver in the boot. Mr Samson then drove the taxi around the Wellington district for the next two hours with the taxi driver in the boot. The taxi was finally parked up in Newlands.

[6]        At this stage, a number of items from the taxi that belonged to the taxi driver were taken, including a money dispenser containing coins, a manual credit card machine, a black wallet containing bank cards, an iPhone and a bag. The boot was left open, and then Mr Samson drove away. Based on the jury’s verdict I accept that you had no role in the action of setting fire to the driver’s seat at this time.

[7]        All of the victims in this case have suffered significant trauma as a result of your actions. All three are immigrants or visitors to this country and your actions undermine the values that we seek to identify for our country.

Starting point

[8]        Mr Barton, I take your aggravated robbery charge in relation to the taxi driver as the lead charge for the purpose of sentencing. I will consider all your offending in reaching my starting point for this offence, as the other charges formed part of the aggravated robbery and it would be artificial to separate them. It is also fair to say that the aggravated robbery on Petone Beach was connected in time with the taxi driver robbery, and was part of your joint offending with Mr Samson at this time, and it is legitimate to consider them as one continuous period of offending. That was certainly the Crown’s case at your trial.

[9]        The Court of Appeal’s decision in R v Mako is the leading sentencing guideline judgment for offending involving aggravated robbery.5 In that case, the Court provided a series of examples of starting points tailored to particular situations, and also identified several features that generally affect culpability in aggravated robbery cases. The following of those features were present in your offending:

5      R v Mako [2000] 2 NZLR 170 (CA).

(a)Number of participants6 – you were accompanied in your offending by a co-offender, probably two.

(b)Type of person targeted7 – taxi drivers working alone at night are inherently in a vulnerable position. Additionally, the kidnapping took place while the victim was unconscious.

(c)Actual and threatened violence8 – the taxi driver was struck on the head and face with sufficient force to render him unconscious, and resulting in severe injuries. You also threatened to kill the victims at Petone Beach.

(d)Amount of property stolen9 – the value of the stolen property from the taxi was approximately $350. The gold bracelet you stole from one of the victims on Petone Beach was a family heirloom, and while it was returned, it had been damaged.

(e)Associated offending10 – in the course of your offending you wounded and kidnapped the taxi driver.

(f)Victim impact11 – all three victims were traumatised by your offending. In particular, the taxi driver was hospitalised for two weeks, had a severe headache for a month and had to wear a back brace for two months and has been unable to return to work because of your actions. The enduring impact on him is something that I put significant weight upon.

(g)Special need for deterrence12 – there is a particular need for deterrence in relation to offending against taxi drivers, given the vulnerable circumstances they work in.

6 At [37].

7      At [40]; and Sentencing Act 2002, s 8(1)(g).

8      At [43]; and Sentencing Act 2002, s 8(1)(a).

9      At [44]; and Sentencing Act 2002, s 8(1)(d).

10 At [45].

11     At [46]; and Sentencing Act 2002, s 8(1)(d).

12 At [50].

(h)Multiple offending involving separate incidents13 – your offending involved two separate incidents, one on Petone Beach and one involving the taxi driver.

[10]      An additional aggravating factor of your offending was the particular cruelty of locking the taxi driver in the boot of the vehicle, and driving around with him in there for what turned out to be a prolonged period of approximately two hours.14

[11]      One of the examples in Mako specifically deals with aggravated robbery of taxi drivers. The Court said:15

Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between 4 and 5 years would be appropriate.

[12]      The aggravated wounding, which forms a crucial part of the taxi driver incident, is also similar to an example given in R v Taueki, the sentencing guideline judgment for serious violent offending, where the Court said:16

… where the attack features the use of a weapon (such as a fence paling found at the scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim.

[13]      Both of these cases suggest a starting point of around five years’ imprisonment is appropriate for different aspects of your offending, so a starting point higher than that is necessary to encapsulate the totality of your offending, which is plainly more serious.

[14]      To ensure consistency in sentencing, I have also referred to cases involving similar offending, particularly where kidnapping was involved:17

(a)In R v Wyatt, a starting point of seven years and three months’ imprisonment was upheld on appeal for charges of aggravated robbery,

13 At [51].

14     Sentencing Act 2002, s 8(1)(e).

15     R v Mako, above n 5, at [57].

16     R v Taueki [2005] 3 NZLR 372 (CA) at [37].

17     Sentencing Act 2002, s 8(e).

kidnapping, threatening to kill, and other lesser dishonesty charges. The offending involved the abduction and theft of a victim at knifepoint. The victim was later pushed into the boot of his vehicle and driven some distance while inside.18

(b)In R v Taikato, a starting point of six and a half years’ imprisonment was adopted for aggravated robbery and kidnapping, while a separate uplift was given for possession of a firearm. The offender stole from the victims and forced them to drive him to an ATM at gunpoint. He also punched one of the victims in the head when he tried to escape.

He let the victims go before stealing the car.19

(c)In Hoko v R, a starting point of six years’ imprisonment was adopted on appeal for aggravated robbery and kidnapping, where no actual violence was involved and where the kidnapping consisted of tying the victim’s hands to the gearstick before the offender left the scene.20

(d)In Moffatt v R, a starting point of six years’ imprisonment was upheld on appeal for kidnapping, robbery and assault with intent to injure. The offender kicked and punched a victim in the head and body, then drove him back to the gang’s headquarters. He was then thrown into an empty bedroom, from which he eventually escaped through a window.21

(e)In R v Hewitt, a starting point of five years and nine months’ imprisonment was adopted for aggravated robbery and kidnapping, alongside lesser assault and dishonesty charges.22 The offender stole various items from the victim and forced her to drive at knifepoint. He then punched her in the face and pushed her out of the car before stealing it.

18     R v Wyatt [2009] NZCA 464.

19     R v Taikato [2018] NZHC 77.

20     Hoko v R [2017] NZCA 484.

21     R v Moffatt CA193/01, 30 October 2001.

22     R v Hewitt [2017] NZHC 1220.

(f)In R v Geros, a starting point of four years’ imprisonment was adopted for two charges of aggravated robbery and two charges of kidnapping.23 This offending mostly involved threatening violence, to force the victims to provide transportation to the offenders. However, one of the victims was also punched and another was made to ride in the boot of the vehicle with a pit-bull dog.

[15]      The Crown submits a that global starting point in the range of nine to 10 years’ imprisonment is appropriate. Your counsel, Mr Tennet, submits that a starting point of six and a half years, with an uplift of six to nine months is appropriate.

[16]      The cases I have referred to justify a starting point in the region of eight to nine years’ imprisonment for the totality of your offending. Your offending is much more serious than most of those cases, where far less danger and cruelty were involved in the kidnapping and where little actual violence was involved. Your offending is most similar to Wyatt, where the kidnapping involved similar levels of danger, except that actual violence was involved in your offending, which demands a higher starting point, especially because of the lasting impact on the victim. There were also two separate incidents involved in your offending.

[17]      To ensure parity in sentencing, I note that your co-offender Mr Samson was recently sentenced with a global starting point of eight and a half years’ imprisonment for both incidents.24 This appears to have comprised six and half years for the aggravated robbery involving the taxi driver with an uplift of two years for the other offending.25

[18]      Mr Samson’s offending involved an additional charge of arson26 and five charges of dishonestly using a document,27 which were not present in your offending. The sentencing Judge referred to the arson charge in relation to two aggravating factors:

23     R v Geros HC Auckland CRI-2006-027-1485, 12 December 2006.

24     R v Samson [2018] NZHC 1500 (sentencing).

25     R v Samson [2018] NZHC 669 (sentencing indication) at [74].

26     Crimes Act 1961, s 267(1)(a); maximum penalty 14 years’ imprisonment.

27     Crimes Act 1961, s 228(1)(b); maximum penalty seven years’ imprisonment.

(a)the risk to life caused by the fire,28 which is not an aggravating factor of your offending; and

(b)the cruelty involved in the fear experienced by the taxi driver when he realised the vehicle was on fire,29 which was additional to the cruelty I have already outlined as being present in your offending.

[19]      The concurrent sentence given for the arson charge was only 18 months’ imprisonment, compared to five years’ imprisonment for the aggravated wounding and four years’ imprisonment for the Petone Breach aggravated robbery.30 It is fair to say that the arson appeared to play a moderate, but not substantial, role in the Judge’s overall assessment of Mr Samson’s offending. Your starting point might justifiably be slightly lower for this reason.

[20]      The sentencing Judge did not refer to the charges of dishonestly using a document in reaching the starting point for Mr Samson. The concurrent sentences for these charges were only six months’ imprisonment. It is fair to say these charges were not a factor in Mr Samson’s sentence. Likewise, the possession of a knife charge you were convicted of, but which Mr Samson was not, does not does not add significantly to the totality of your offending. The Crown sought no uplift in respect of this charge and, in line with the totality principle, no uplift is appropriate. Accordingly, this also does not provide a ground for distinguishing the sentence given to Mr Samson.

[21]      The Crown submits that your starting point should be higher than that adopted for Mr Samson by about one year, to reflect the fact that evidence adduced at trial showed that you were the main instigator of the offending. Mr Samson was sentenced after pleading guilty before trial, and so the starting point adopted for him did not factor in the role he played in the offending. Nevertheless, I accept that a slightly higher starting point might be warranted for you, as I am satisfied from the evidence, including your police interview that you were leading Mr Samson, as well as the third person I find was present.

28     R v Samson, above n 24, at [16](b).

29     At [16](j).

30 At [50].

[22]      I am satisfied that the potential increases and decreases I have referred to are both sufficiently minor, and of a similar nature in magnitude, that it is unnecessary for me to depart from the starting point adopted for Mr Samson. Accordingly, I consider that a starting point of eight and a half years’ imprisonment is appropriate to reflect the totality of your offending, while not offending the totality principle.

Adjustments to the starting point

Personal aggravating factors

[23]      You have six previous convictions in New Zealand, mostly for dishonesty offending. The most serious, and most recent of those was a conviction for burglary of over $5000 arising from events in 2012. You also have 26 previous convictions in Australia, which mostly comprise theft and traffic offences. However, I note that in 2013 you were convicted of aggravated burglary, and in 2014 you were convicted of a further burglary. You served time on Christmas Island before you were deported back to New Zealand. The fact that you and Mr Samson are examples of the recent regime of deportation from Australia is a feature of this case.

[24]      Although your offending appears to have been escalating, none of your previous convictions come close to the magnitude of your present offending. In particular, there is no suggestion that serious violence was involved in any of your prior offending. Accordingly, the Crown does not seek an uplift. I agree that none is warranted in the circumstances. It is concerning that you have engaged in an escalation in your offending following your deportation from Australia. I take into account, however, the difficult dislocation that your deportation would have involved.

Personal mitigating factors

[25]      Mr Tennet seeks a discount around 12 per cent to reflect your remorse and your mental health. The pre-sentence report records that while you expressed some remorse for your actions, you placed most of the blame on your co-offender and your drug use. During your police interview you said you did not care about the taxi driver, although you appeared under the influence of drugs during that interview. But your comment is consistent with the fact you did not plead guilty to the majority of your offending. No discount for remorse is warranted in the circumstances.

[26]      The alcohol and drug report notes that you may meet the DSM 5 criteria for PTSD, and substance use disorder and possibly OCD, although the Crown has taken issue with the adequacy of a formal diagnosis. You report beginning to use methamphetamine when you first arrived in Australia. It seems clear to me that your likely disorders played some role in the poor decision making that led you to offend in the way you did. I am giving you a three-month discount to recognise the role that such disorders likely played in your ability to understand the gravity of your actions.

Guilty plea

[27]      You pleaded guilty to one of the charges, but not guilty to the rest. You are entitled to a small discount to reflect this. I am satisfied that a five per cent discount is appropriate in the circumstances, given that the trial still had to proceed in relation to the majority of your offending.

Minimum period of imprisonment

[28]      The Crown submits that an MPI of 60 per cent is appropriate in your case, in order to hold you accountable for the harm done to the victim, to denounce your conduct, to deter similar offending and to protect the community from the risk of re- offending. The Crown submits that your criminal history is a relevant consideration for this purpose.

[29]      I am concerned that your criminal history demonstrates an escalating pattern of a particular kind of offending, and suggests that you are at a high risk of re-offending that might warrant an MPI. The pre-sentence report also assessed your risk of re- offending as high. I note that Mr Samson was given an MPI around 50 per cent.31 In the end, however, I am not persuaded that an MPI is necessary in the present case given the factors I have already taken into account on your sentence. Following the approach of the Court of Appeal in R v Gordon, it seems to me that a MPI should be reserved for cases where the normal sentencing approach does not fully capture the relevant issues of accountability, deterrence, denunciation and protection.32 It should not become routine for serious offending, or be arbitrarily imposed. The standard

31     R v Samson, above n 24, at [48].

32     R v Gordon [2009] NZCA 145 at [15]–[17].

approach under the Parole Act 2002, which has the protection of the community as the paramount consideration, appropriately deals with your circumstances in my view.

Result

[30]Mr Barton, would you please stand.

[31]      I sentence you to seven years and 10 months’ imprisonment for the lead charge of aggravated robbery of the taxi driver.

[32]In addition, I impose the following sentences to be served concurrently:

(a)Two years’ imprisonment for aggravated robbery (the Petone Beach incident);

(b)Five years’ imprisonment for aggravated wounding;

(c)Fifteen months’ imprisonment for kidnapping; and

(d)Three months’ imprisonment for possession of a knife.

[33]      You were already given your first strike warning in relation to this offending on 23 March 2018, and I remind you of that now.

[34]Please stand down.

Cooke J

Solicitors:

Crown Solicitor’s Office, Wellington Public Defence Service, Wellington