R v Clement

[2013] NZHC 1422

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-16440 [2013] NZHC 1422

THE QUEEN

v

TROY ASHLEY CLEMENT

Appearances:           A R Longdill for Crown

K J McCoy for the Prisoner

Sentenced:               14 June 2013

SENTENCING NOTES OF PRIESTLEY J

Counsel:

A R Longdill, Crown Solicitor, Auckland. Q Duff, Barrister, Auckland.

K J McCoy, Barrister, Auckland.

R v CLEMENT [2013] NZHC 1422 [14 June 2013]

[1]      Troy Ashley Clement, I am sentencing you today on your conviction for aggravated robbery under s 235(c) of the Crimes Act 1961.  A jury found you guilty of that charge on 2 May 2013 at the end of your four day trial.  You were acquitted on two counts of indecent assault and a further count of threatening to kill.  I do not intend to take the circumstances of that alleged offending into account when I sentence you.  It would be wrong in principle for me to do so.

[2]      As you know, aggravated robbery carries a maximum penalty of 14 years imprisonment.

[3]      There were two victims, both young female German tourists, aged 18 at the time.  For the purposes of sentencing I shall call them Fräulein von S and Fräulein L. The offending took place in Albert Park on the night of 29 September 2012.  It is commendable that you came to trial so quickly.

[4]      Your two victims were at the start of a lengthy overseas holiday and had only been in New Zealand for two days.   They were staying in back-packers accommodation.   They ventured forth to look for night-club entertainment.   They were walking through Albert Park at around 11 pm. You walked past them on one of the many sloping paths in the park, stopped and engaged them in conversation. They then voluntarily accompanied you over a low rock retaining wall and up a steep slope  for some  five or six  metres  to a grove  of trees.   There the conversation continued.   You then suddenly produced a knife which you held to the throat of Fräulein von S, who was seated beside you, and demanded money.  Fräulein von S, fearing for her life, urged Fräulein L to comply with your demands.   During the course of this confrontation you punched Fräulein von S in the face which resulted in small chips on the edge of her upper front incisor teeth. You also punched Fräulein L twice in the face, causing her nose to bleed.   You then ran away, taking a small amount of money with you which had been taken from the bags of both of your victims. The total amount was in the vicinity of $15.00.

[5]      For some reason best known to the Crown, the aggravated robbery count you faced related solely to your victim Fräulein L.   There was no count relating to Fräulein von S.  I must sentence you in respect of one conviction only, but clearly

your offending was aimed at both of your victims.  Holding the knife to the throat of one was  a powerful reason for the other to  comply with  your demands.   Both suffered financial loss, distress, and injury.

[6]      I need to say something about the jury’s verdicts in case this matter goes further.  Both counsel in their closing addresses, and I in my summing up, made it very clear to the jury that the Crown case depended totally on the evidence and credibility of the two victims.  It was common ground between counsel that, on the basis of the victims’ stories, the ingredients of all four charges you faced (aggravated robbery, two of indecent assault, and one of threatening to kill) were made out. Threatening to kill, of course, like attempted murder, is a notoriously difficult charge to prove and seldom is the Crown able to prove all its ingredients beyond reasonable doubt.  But your acquittal on the two indecent assault counts was surprising. As trial Judge, having since given the matter some anxious thought, I am totally satisfied the jury were correct in convicting you of aggravated robbery.   I do not see that conviction as being perverse or totally inconsistent with your acquittals.  The jury panel comprised 10 women.  Five of the jury panel were school teachers or involved in  the  education  sector.     An  additional  feature  of  the  trial  was  the  rather unsatisfactory nature  of  the  evidence  given  by  the  officer-in-charge  and  certain criticisms of the police relating to forensic evidence.  In this case there was no DNA matching  from  your  two  victims  which  could  be  sheeted  home  to  you.    My conclusion is that, despite the unified approach of counsel and trial judge, a combination of the foolishness of your two victims, venturing out alone at night in a park in a strange city, dressed as they were, and the total absence of any DNA evidence, led to the jury collectively entertaining a reasonable doubt on the two indecent assault charges.

[7]      As Ms Longdill correctly pointed out when I was having a dialogue with her on this aspect, there is a degree of speculation involved in that.   But speculation although it is, it strikes me as being a reasonably respectable rationalisation of the jury’s verdicts.

[8]      For my part, as trial Judge,  I was satisfied the two victims were giving truthful evidence as it related to the robbery.  I was also satisfied that your fanciful

story, given at the police interview, that the two women had robbed you at knife point, was properly rejected by the jury.

[9]      I return now to the sentencing process.  Victim impact statements have been provided in respect of both your victims.  One victim returned to New Zealand to give evidence.  The other gave evidence by videolink from Stüttgart.  Both of them referred to the shadow which your offending cast across their overseas holiday. They became apprehensive about going out and speaking to people.  Although they had  purchased  camping  equipment,  they  were  too  scared  to  camp  anywhere overnight.  Nor were they keen to share rooms with other people.  As a result their trip became more expensive and less enjoyable.

[10]     Both women required minor hospital treatment.   Fräulein von S retains a small (barely noticeable) linear scar on her neck where you held the knife.  She did, however, have cuts on her fingers which needed stitching.  Both women, who gave evidence extremely well and, as I have said, credibly, were nonetheless distressed by having to give evidence against you at your trial.   It is abundantly clear from the evidence the jury heard from police officers that immediately after the offending the victims were both extremely distressed.  In fact terrorised would be a fair description of how Fräulein L felt at the time.

[11]     I turn now to your personal circumstances. You are 29 years old, of European ethnicity.  You were educated on the North Shore and you are the eldest of three. When you left school at 16 you undertook some computer technology courses.  Your employment record has been patchy. You emigrated to Australia in 2008 and entered into a relationship.  Your partner remains in Australia although says she will come to New Zealand. You and she now have three pre-school children.

[12]     It was clear from your interview with the police that you are a cannabis user, but say you have used it infrequently in recent times because of lack of money.  You are currently a sickness beneficiary, having been involved in a fight which led to fractures of your cheekbone and, so you say, your skull.  You have been diagnosed by someone as having acute anxiety disorder for which medication was prescribed. That of course is not assisted by cannabis use.

[13]     You  are  described  by  your  partner  as  being  in  a  good  relationship  and supportive of her and the children.   I have received and read letters to that effect from both your partner and a friend. You maintain your innocence. You are assessed as being at a low risk of re-offending, given your age and your pattern of previous offending.   I accept that assessment.  You have little support in New Zealand and your  grandparents  are  not  prepared  to  make  their  address  available  for  home detention purposes.

[14]     The presentence report recommends supervision or community work.   But given the tariffs for aggravated robbery, that is an unrealistic assessment, as your counsel accepts.

[15]     You have $1,865.00 of outstanding fines, which includes a fine of $150 for possessing cannabis, imposed approximately a month after your offending.   Your other convictions are traffic or liquor related and insignificant which I do not intend to take into account or weigh as an aggravating factor.

[16]     Relevant Sentencing Act purposes and principles must include holding you accountable for the harm caused to your victims, denunciation and deterrence, and, as your counsel submits, imposing the least restrictive sentence.

[17]     Aggravating factors for your offending include the use of a weapon, your use of violence by assaulting both women, the vulnerability of your victims who were alone at night in a park, the clear premeditation, the fact that there were two victims not one, and the impact on your victims to which I have already referred.   Your victims were both tourists.   New Zealand, unlike some countries which spring to mind, has a tradition of hospitality and friendliness towards tourists, not exploitation, trickery, and robbery.  The deterrence factor is relevant here when reaching a start point.  And I note, Mr Clement, that on your own evidence at the police interview you were well aware that these two women were tourists because you had spoken to them about their recent arrival and had claimed some personal association with Germany.

[18]     I am not able to identify any mitigating factors.  Your counsel referred, in his submissions, to the lack of any serious violence but that, with respect, is not a mitigating factor.  Rather it is the absence of an aggravating factor.

[19]     The Crown has referred me to the Court of Appeal tariff judgment of R v Mako,1 and a sentence of Venning J in R v Gladstone.2   The Crown urges a starting point of between 4-4½ yrs imprisonment with no further adjustment.

[20]     Your  counsel’s  written  submissions  submitted  that  the  violence  against Fräulein von S is not relevant but I disagree with that submission.  The violence you inflicted on her was causative of the capitulation of Fräulein L who is specified in the count.    Mr Duff,  who  was  responsible for the  written submissions,  realistically accepted a start point of not more than 3½ years should be taken and urges a degree of leniency given the predicament of your family with whom you wish to be re- united and the undoubted fact that this offending is out of character.  Mr McCoy, in his oral submissions today, however, urged on me an even more lenient sentence and submitted I should give consideration to home detention.  I reject that submission. A sentence of home detention would be totally inappropriate for this type of offending.

[21]     The relevant offending is not completely analogous to the various examples found in the Court of Appeal judgment of Mako.3    One example in [57] involves robbery of taxi drivers, generally at night, who are vulnerable, where a weapon or physical violence is employed but no serious injury caused.  The Court suggests a start point of four to five years. The other example, in [59], is a street robbery where property is handed over and where a knife or similar weapon is produced, coupled

with menacing conduct although no actual violence occurs.   The Court of Appeal there suggests a start point of between 18 months and three years but observes that “actual physical enforcement” might justify a higher start point.

[22]     Gladstone4  involved a robbery by three intoxicated men where an unlocked camper van, inside which two tourists were sleeping, was opened, and approximately

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

2      R v Gladstone HC Gisborne CRI-2003-016-6805, 5 August 2005.

3      Ibid.

4      Above n2.

$30 taken.  Then the robbers returned and began to punch the tourists involved, took further property and threatened one tourist with a knife.  Venning J adopted a start point of 4½ years imprisonment.  Your counsel distinguishes that result on a number of grounds including the high degree of violence, repeat offending, and breaking and entering a camper van.  Those distinctions are valid but merely point to a lower start point.

[23]   Both your victims were vulnerable, Mr Clement.   There was clearly premeditation.   A knife was deployed and not just held in your hand but placed against Fräulein von S’s throat.   Both young women were clearly terrified.   Your punching them was unnecessary, gratuitous, and cowardly.

[24]     I accept this offending was out of character.  I certainly do not accept that you are innocent.  The story you fabricated to the police was fanciful.  As you will be aware, neither you nor I can go behind the jury’s verdicts.   Indeed had you been convicted on the other three counts you would be looking at a heavier sentence.

[25]     In addition to your offending being out of character, I also accept you have family responsibilities and imprisonment will, if your relationship lasts, impact heavily on your partner and young children.

[26]     I consider the appropriate start point is one of four years imprisonment.   I would be perfectly entitled to impose a four year sentence on you without more, but I am prepared to discount that by two months, not because there are any valid mitigating factors but because I consider a somewhat merciful sentence should be imposed on you to assist you with your rehabilitation.

[27]     Stand up please.

[28]     On the count of aggravated robbery, therefore,   I sentence you to three years and 10 months imprisonment.  I recommend to both the prison authorities and the Parole Board that you be required to participate in drug assessment and drug counselling programmes, and life skills courses.   Your conduct that night, Mr Clement, was very odd.  I rather think your craving for cannabis led you astray.  You

are not an unintelligent man and you need to use your time in prison to reflect on your predicament and acquire the motivation and skills to lead a productive life from henceforth.

[29]     Thank you. Take him down.

.......................................…

Priestley J