R v Crawford - [2009] NZCA 479

IN THE COURT OF APPEAL OF NEW ZEALAND
CA451/2009
CA474/2009
[2009] NZCA 479
THE QUEEN
v
SONNY CRAWFORD
MARK STEVEN NICOLLE
Hearing:13 October 2009

Court:Hammond, Ronald Young and Fogarty JJ
Counsel:J M Miller and S A Thistoll for Crawford

R M Gould for Nicolle
J Murdoch for Crown

Judgment:16 October 2009 at 10 am

JUDGMENT OF THE COURT

The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        On the evening of 28 August 2008 the two appellants robbed the victim, an intoxicated alcoholic, in his room at a Wellington boarding house. After conviction by a jury of aggravated robbery and, with respect to Mr Nicolle, possession of a knife after the robbery, Mr Crawford was sentenced to four years and nine months’ imprisonment, and Mr Nicolle was sentenced to four years and five months’ imprisonment.
[2]        In this appeal both appellants say the sentence was manifestly excessive. They both say Judge Harrop mischaracterised the offending in terms of R v Mako [2000] 2 NZLR 170 (CA), Mr Crawford raises disparity arguments and Mr Nicolle says the Judge should have given a larger deduction for his personal circumstances.
The facts
[3]        The appellants and the victim were residents of a boarding house in Wellington. Mr Nicolle and the victim had been drinking for three days before the offending. During 28 August the victim invited the two appellants into his room and they began drinking. Mr Crawford then pushed the victim onto his bed and Mr Nicolle held a steak knife, which was about six inches long, to the throat of the victim. He had found the knife in the victim’s room.
[4]        The appellants rolled the victim onto his front and searched his pockets. Mr Nicolle held the victim down while Mr Crawford took the wallet out of his jacket and $130 cash together with some tablets.
[5]        Mr Crawford then removed the victim’s EFTPOS card from his wallet and demanded the PIN number. The victim disclosed the PIN number. Mr Crawford left the room with the EFTPOS card while Mr Nicolle stood by the door and stabbed the steak knife into the wall to make it clear that the victim could not leave.
[6]        Mr Crawford was unable to obtain any cash with the EFTPOS card and returned to the victim’s room. The victim was struck on the head, knocked to the ground and kicked. Mr Crawford stomped on the victim’s nose with his boot. The two appellants then led the victim across the road to the petrol station in an attempt to gain access to the victim’s other bank accounts. The victim was able to have a petrol pump attendant ring the police and the appellants ran off.
Discussion
[7]        The appellants’ first ground of appeal is that the Judge mischaracterised the offending as equivalent to a home invasion or worse. The appellants say that in terms of Mako this was more like a street robbery with a starting range of between…

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 Crawford

Details

AGLC: R v Crawford [2009] NZCA 479
Case: [2009] NZCA 479
Decision Date: 16 October 2009

CaseChat Overview and Summary

In the case of R v Crawford, the appellants, Sonny Crawford and Mark Steven Nicolle, were convicted of aggravated robbery and Nicolle was additionally convicted of possession of a knife during the robbery. The incident occurred in the victim's room at a boarding house in Wellington on 28 August 2008. Both appellants were sentenced to imprisonment terms of four years and nine months for Crawford and four years and five months for Nicolle. They appealed against the severity of their sentences, arguing that the sentences were manifestly excessive and that the sentencing judge mischaracterised the nature of the offence. Crawford also raised issues regarding disparity in sentencing, while Nicolle argued that the judge should have provided a larger deduction for his personal circumstances. The court was required to determine whether the sentences imposed were appropriate, particularly in light of the arguments about the characterisation of the offence and the considerations given to the appellants' personal circumstances.

The Court of Appeal examined the arguments presented by the appellants, focusing on whether the judge correctly classified the offence as more akin to a home invasion rather than a street robbery, as suggested by the appellants. The court noted that the offence occurred in the victim's home, which the victim had invited the appellants into, making it a breach of trust. The court found that the judge's classification was justified, given the violent and prolonged nature of the attack, the use of a knife, and the significant impact on the victim. The court also evaluated the sentences in light of the guidelines set out in R v Mako, concluding that the starting point of four years and six months was within the appropriate range. The court found no error in the judge's consideration of the appellants' personal circumstances, particularly noting the judge's recognition of Nicolle's remorse and efforts towards rehabilitation, which warranted a four-month reduction in sentence. The court upheld the judge's discretion in distinguishing between the appellants and concluded that the sentences imposed were appropriate.

The appeals were dismissed, and the original sentences were upheld. The reasoning of the sentencing judge was affirmed, and the court found no basis to interfere with the sentences imposed.

Orders