R v Downs

[2004] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA423/03

THE QUEEN

v

RANGI DOWNS

Hearing:17 May 2004

Coram:O'Regan J
Wild J
Doogue J

Appearances:  L C Rowe for Appellant

M F Laracy for Crown

Judgment:19 May 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]        Rangi Downs appeals against a sentence of nine years imprisonment imposed on him subsequent to trial in the District Court for the crime of aggravated robbery with a firearm.  The appeal is brought upon the basis that the sentence is manifestly excessive when viewed in the light of the decision of this Court in R v Mako [2000] 3 NZLR 170.

[2]        The crime was committed at a multi-bay petrol service station at 10 am on a Sunday morning in November 2002.  The appellant approached the service station attendant with some items for purchase.  At that time the service station shop was otherwise empty, although there had been people in it shortly before.  The appellant was wearing a hat and sunglasses but no other form of disguise.  The appellant presented a silver pistol at the attendant.  The attendant thought that the appellant was joking but the appellant said “I’m not joking, give me the money or I will blow your head off”.  As a result the attendant, who was seriously affected by the incident, gave him $500 from the till.  When cross-examined about the weapon the attendant said:

It was a small gun, sort of like a pistol, but it was silver in colour, that is all I saw.

When asked its length he agreed it was approximately eight inches.

[3]        The crime alleged against the appellant was that “being armed with an offensive weapon namely a firearm” he robbed the attendant of the money.

[4]        It was not put in issue at trial that a gun was involved in the incident.  The appellant’s defence was that he was not the offender.

[5]        The appellant, who is now 47 years of age, first submits that he did not have a gun but merely had a ratchet in his hand.  It is difficult for this point to be pursued when the appellant did not give evidence and the service station attendant’s evidence was uncontradicted.  In any event, the weapon was an essential ingredient of the crime charged against the appellant and both the sentencing Judge and this Court have to proceed upon that basis.  The sentencing Judge understandably rejected a submission in the same form at the time of sentence.

[6]        The essential grounds of the appeal are that the Judge took too high a starting point for the sentence of imprisonment imposed and that the overall sentence was manifestly excessive when the circumstances of the offence are taken into account, with too much weight being given to the aggravating features.

[7]        In the District Court Judge Hobbs took a starting point of six years imprisonment, having referred to R v Mako, and in particular paragraph [56] of the judgment.  In his view there were a number of aggravating factors in relation to the offending.  He took the view that the robbery had to be planned, as it involved the appellant obtaining a weapon and attempting, in a limited way, to disguise his appearance.  There was in addition the fact that the appellant had two previous convictions for aggravated robbery.  In August 1985 he was sentenced to five years imprisonment and in November 1995 he was sentenced to a further ten years imprisonment for the aggravated robbery of a store in Taupo.  That sentence was reduced on appeal to eight years.  The appellant was released from sentence in April 2001.  Thus Judge Hobbs took the view that the appellant showed no signs of changing his criminal habits and noted that the probation officer had assessed the appellant as being at high risk of reoffending, with his denials up until the time of trial indicating low motivation to change.

[8]        The Judge could see no mitigating circumstances although he did refer to the glimmer of hope given by a particular report before him that the appellant could be coming to terms with issues which perhaps lay behind his offending, and that age made it perhaps slightly less likely that he would reoffend again in the future.

[9]        Before dealing with the competing submissions in respect of the appropriate starting point for the term of imprisonment to be imposed, it is helpful to set out paragraphs [34], [54] and [56] in Mako which read as follows:

[34]     The range of conduct that can constitute aggravated robbery is very wide.  In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, that will contribute to or detract from the seriousness of the conduct and the criminality involved.  It is the particular combination of these variable features which requires assessment for sentencing in each case.  Once the seriousness of the particular combination of features is assessed and a starting point reached, it will be necessary to consider whether overall the crime is aggravated or mitigated by the offender’s particular personal circumstances such that the sentence to be imposed should be higher or lower than the starting point  We emphasise, to dispel any doubt, that in this context a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.

…

[54]     Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels.  The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years.  Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.  To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

…

[56]     A further example can be given taking another combination of features typical of many aggravated robberies.  This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway.  The shopkeeper is confronted by one person with the face covered.  There is no actual violence.  A small sum of money is taken.  The starting point should be around four years.  Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[10]     The Crown has submitted that the Judge was entitled to take a starting point of six years imprisonment as adopted by him in reliance upon either or both paragraphs [54] and [56] in Mako.  The appellant submits that the starting point should have been four years given the content of paragraph [56] in Mako. 

[11]     We note that the appellant was alone in the robbery, there was only a small sum of money involved, there was no actual violence and no-one was physically harmed.  While it was a commercial premises where members of the public could expect to be present, the appellant had taken no steps to rob the attendant until there was no-one else present.  Apart from the sunglasses the appellant made little attempt to disguise himself.  Although the appellant was armed with a firearm, there is no real evidence of any other preparation.

[12]     When viewed in this light we agree with the submissions for the appellant that this was a relatively unsophisticated and unplanned robbery that on its face was comparable with the type of example identified in paragraph [56] of Mako, as the Judge accepted.  We reject the Crown submission that the case was capable of being evaluated as being within the more serious type of example identified in paragraph [54] of Mako.

[13]     Once we reach that point it is difficult to see how the Judge could be entitled to take six years as his starting point, as this was by no means a bad case of its kind.  Such aggravating circumstances as were implicit in the offending are within those recognised in the ordinary type of case identified in paragraph [56] of Mako.

[14]     We are of the view that the starting point should have been no more than four years imprisonment as we do not accept there were any aggravating features relating to the offending that justify it being treated as a bad case of its kind.

[15]     The question remains of what additional sentence the aggravating circumstances relating to the appellant justified given that there is no suggestion of relevant mitigating circumstances.

[16]     As already noted, the aggravating circumstances relied upon by the Judge were in part those which justified the starting point, namely the obtaining of a weapon and the attempt in a limited way to disguise appearance.  However, the Judge did note that the most important features so far as aggravation were concerned were the two previous convictions for aggravated robbery, with the last of them involving a firearm.  The Judge was also entitled to take into account that on that occasion the sentence of eight years imprisonment had been imposed on appeal:  CA395/95, 8 November 1995.  That was a sentence following a guilty plea where the features of the offending were worse than here, as they involved a loaded, sawn off shotgun.  The appellant confronted a 15 year old shop assistant and at gunpoint ordered him back through the store into the living quarters of the proprietors, who were there with their child and baby, and demanded they open their safe.  He obtained $2,000.  Although the Judge did not refer to other prior offending he would have been aware that the appellant had three prior convictions for possession of a firearm and seven prior convictions for violence.  In addition the appellant had committed the present offence when on statutory parole in relation to his 1995 conviction for the same type of offence.  For the appellant it is acknowledged that the Judge could not have been criticised if he had added two years for the aggravating circumstances relating to the previous offending. 

[17]     We are satisfied these features justified the sentencing Judge adding three years to an appropriate starting point for the ultimate sentence.

[18]     We conclude that the sentence of nine years imprisonment imposed by the sentencing Judge was manifestly excessive and must be quashed and a sentence of seven years imprisonment substituted.

Solicitors:
Armstrong Barton, Wanganui for Appellant
Crown Law Office, Wellington