R v Glintmeyer

[2024] NZHC 1639

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-209-153

[2024] NZHC 1639

THE KING

v

FLYNN JAMES GLINTMEYER

Hearing:

20 June 2024

Appearances:

D L Elsmore for the Crown

P H B Hall KC and E Huda for the Defendant

Judgment:

20 June 2024

SENTENCING REMARKS OF HARLAND J

Introduction

[1]    What we are going to now Mr Glintmeyer is I am now going to focus my attention on you because this is all about you now. So, I am going to address my remarks to you and, as I said at the outset, you can remain seated until right at the end after I have addressed you, I will ask you to stand when I impose the sentence.

[2]    Mr Glintmeyer, you have pleaded guilty to two charges of aggravated robbery1 and one of wounding with intent to cause grievous bodily harm.2 Your offending occurred on 9 and 10 July 2022, when you were 17. You are now 19. My task today

1      Crimes Act 1961, s 235(c); maximum penalty 14 years’ imprisonment.

2      Section 188(1); maximum penalty 14 years’ imprisonment.

R v GLINTMEYER [2024] NZHC 1639 [20 June 2024]

is to sentence you in respect of this offending. A term of imprisonment is inevitable. The question for me is how long that term should be.

[3]    There is a process I must go through before I impose sentence on you, and I begin by acknowledging not only you but your family members who are present.

The offending

[4]I am going to start now by outlining the relevant events, that is what happened.

[5]    On the evening of Saturday 9 July 2022, you and three of your friends were at an address in Christchurch. You used a Facebook profile you owned to organise a cannabis transaction with the first victim. You arranged for her to park at a particular street.

[6]    As arranged, at about 11.00 pm, the victim drove to the meeting place. You and two of your friends approached her car, all wearing full face masks. You were holding a knife and one of your associates was holding an imitation Glock pistol. When you reached the car, the associate that was not carrying a weapon spoke to the victim from the driver’s side of the car and demanded she hand over her car keys and money. Your co-defendant, who was holding the imitation pistol, got into the passenger seat and pointed the pistol at the victim. Your unarmed co-defendant leaned into the car through the driver’s window and took the keys from the ignition, setting off the car alarm. You then came up to the car and stabbed the victim in her right thigh. Your co-defendant, who was in the passenger seat and had presented the pistol at her, struck her on the head with the pistol and took a $20 note and cannabis from the car. All of you then ran away.

[7]    The next day, on Sunday 10 July 2022, you and three of your friends, including one who had been involved in the incident the day before, were in touch with each other via Snapchat. All of you made arrangements to commit a second robbery. You sent texts and audio messages to each other, talking about how you had committed the previous night’s robbery and discussed what you were planning to do in relation to the second robbery.

[8]    Again, you met at a friend’s address. You used a second Facebook profile you owned to contact an associate of the second victim to organise for the purchase of cannabis. The second victim’s associate directed him to drive to a specific meeting place, which he did.

[9]    You and three others approached his car. You were all wearing full face masks. Your co-defendant, who had presented the Glock pistol the previous night, the imitation pistol, also had it on this occasion. He entered the second victim’s passenger door with the imitation Glock pistol and pointed it at the second victim’s head. You and your two other friends walked up to his door and opened it. One of your co- defendants began hitting the second victim, and your co-defendant, who had pointed the imitation pistol at the second victim, began to hit him on the head with it.

[10]   The victim managed to grab his backpack and run from his car. You and your co-defendants then drove away in his car with his cell phone, which he had left in the car in his hurry to escape from you and your co-defendants.

[11]   Both victims were physically injured as a result of what you and your co- defendants did. The first victim, who was nine months’ pregnant at the time, received a deep stab wound to her right thigh. The second victim received abrasions to the back of his head and face. His vehicle was later recovered by a member of the public, but his cell phone was missing.

Victim impact statements

The first victim

[12]   Part of a sentencing process is to take into account the impact of your offending on your victims, and I am now going to talk about that.

[13]   Both victims provided victim impact statements to me which I have read carefully.

[14]   The first victim is a mother. Because of what you did, she was not able to walk properly for four days. She was taken to hospital initially and remained there for eight or nine hours. Four days after the stabbing, she went into labour.

[15]   This victim was understandably scared for her life. She did not know whether the gun was real or whether it was loaded. She describes just trying to protect her baby and grabbing the gun barrel to pull it away. She also describes trying to lift her legs up to protect her baby. When you and your co-defendant were reaching into the car and trying to get the keys, she thought she was going to die.

[16]   But it is not only the physical harm and trauma she suffered on that evening. In her victim impact statement, she outlines that the assault has affected her in very many other ways. She has struggled to leave her house and go out by herself. When she gets into her car, she locks herself in it. She has become more vigilant when she is out and about, and she becomes upset when she thinks about what happened to her. Showing remarkable compassion, she says “I want the young men [and that includes you] to learn from what they have done and do something with their life, better themselves. I would like them to find better influences.”

The second victim

[17]   The second victim was shocked by the situation that evolved. He described having to walk home after being dispossessed of his vehicle and cell phone, all the while fearing he might pass out. His neighbour took him to A&E that evening.

[18]   This victim describes being confused for at least a couple of weeks after the incident due to shock, being hit in the head multiple times and the difficulties he experienced trying to navigate life without a vehicle or phone. The bruising and other injuries he received to his head and face took several weeks to heal. Overall, he spent about five weeks without a car, which prevented him from visiting his elderly parents who, prior to that, he was seeing at least once a week. And understandably, his ability to undertake everyday tasks such as shopping and the like were severely limited.

[19]   In terms of the long term impact on this victim, he describes being considerably more cautious going out when it is dark. He doesn’t want to remain living in Christchurch.

[20]In relation to you and your co-defendants, he said this:

If there is anything I want to say to the young men, it is if you do the wrong thing comfortably and you get away with it for a while you will end up getting the wrong result. If you do the right thing it may feel like you are getting nowhere but, in the end, you will get the right result. I hope these young men learn from the mistakes they have made but I do believe, if there is a dangerous person, then they need to be taken out of society.

[21]As I mentioned at the outset, at the time of this offending, you had just turned

17. Your co-defendants were under the age of 17 and were therefore dealt with in the Youth Court. And they both received Youth Court supervision orders and other things they were required to do. Although it might seem unfair to you that, because of a matter of months, you are now before this Court rather than in the Youth Court, the law requires that that is where you are now. But I do take into account, as you will see later on, the fact that there is what we call a disparity between the outcome for you because of your age and that which your co-defendants received.

Starting point

[22]   Mr Glintmeyer, I now need to outline what the starting point for your sentence should be. And again, there is a particular process I have to follow. So, you need to bear with me. This involves addressing similar cases where offending of this kind has occurred and comparing starting points adopted by Judges in those cases. That is because the starting point I adopt must be fair.

[23]   As you will no doubt be aware, all three of the charges to which you have pleaded guilty carry a maximum term of 14 years’ imprisonment.

[24]   I agree with the lawyers that the aggravated robbery and wounding charge on 9 July 2022, is the most serious and should attract, what I call, the base starting point. The second charge will attract an uplift from the starting point I adopt. But it is important and I do recognise that both robberies occurred within a short timeframe.

[25]   The first point to note is that the robberies were aggravated by the fact that they were committed by you and at least two others. On both occasions, the victims were outnumbered. There is no real dispute that both incidents bear similar features in relation to their planning, preparation and the vulnerability of the victims because, in part, they were outnumbered, but also because the offending occurred at night, there was actual violence, threats and intimidation and these were a characteristic of both sets of offending.

[26]   In relation to the first aggravated robbery, you were armed with a knife, a potentially fatal weapon, which you used to stab the first victim, a heavily pregnant woman. As well, both you and your co-offenders masked yourselves which would have added to the frightening nature of what you did. In relation to both robberies, I find they were clearly planned and took place against victims who were vulnerable due to the fact they were confined within their vehicles. These aggravating factors are also relevant to the wounding charge.

[27]   You accept full responsibility for organising and planning both robberies. That is to your credit. It is clear to me that you were the most blameworthy of the group, although the presentation of the imitation pistol by one of your co-defendants and his actions were also extremely serious. And I can well understand your lawyer’s submission that that offender’s culpability or blameworthiness was also significantly high.

[28]   The leading case regarding aggravated robbery outlines several scenarios where certain starting points of imprisonment should be adopted.3 Your case does not fit easily into any of the scenarios provided but, when cross-referenced to the leading case dealing with grievous bodily harm offending, as well as other aggravated robbery cases,4 the lawyers agree that a starting point for the first offending, that is the first aggravated robbery and wounding with intent to cause grievous bodily harm, should be a term of six years’ imprisonment.5 They referred me to various cases to support this submission, acknowledging that none are on all fours with what you did.6 I agree

3      R(CA446/99) v Mako [2000] 2 NZLR 170 (CA).

4      Bullen v R [2017] NZCA 615.

5      R(CA384/04) v Taueki [2005] 3 NZLR 372, 30 June 2005.

6      Hewitt v R [2018] NZCA 374; Hoko v R [2017] NZCA 484; Lakatani v R [2008] NZCA 507;

with their assessment and adopt a term of six years’ imprisonment as the starting point for charges one and two.

[29]   Where the lawyers disagree is how I should treat the second aggravated robbery. The Crown consider it should attract a five-year starting point, which would lead to a total starting point of 11 years’ imprisonment, but that this should be adjusted for totality to 10 years’ imprisonment.

[30]   Your lawyer submits an uplift of two years would adequately account for this but accepts that, if that aggravated robbery was a single charge, it would attract a starting point of around five years’ imprisonment.

[31]   When sentencing for multiple offences, sentencing Judges, such as me today, must not only consider each offence individually but also assess your overall blame for what happened and then decide what sentence is appropriate for the totality of your conduct.7 Put simply Mr Glintmeyer, I must stand back and assess whether the starting point for your sentence is proportionate to the seriousness of your offending.

[32]   Your offending, as I noted, was grave and violent. However, I note the offending had a notable connection in time with the events taking place over the period of two days. I have decided a six year starting point would be justified for the lead offence, as I have already outlined, and a five year starting point for the second aggravated robbery would also be justified. But I also consider that a two year totality credit, in light of what I have said, should also apply. This is because crushing sentences are generally to be avoided, particularly for young people and, in my view, an 11-year starting point would be wholly disproportionate to your offending.8

[33]I adopt a starting point of nine years’ imprisonment.

Enoka v R [2012] NZCA 157; Ross v Police [2015] NZHC 1633; R v Robertson [2018] NZHC 1557; R v Barton [2018] NZHC 1558.

7      R v Bradley [1979] 2 NZLR 262 (CA); R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632 (CA); R v Dodd [2013] NZCA 270 at [32]–[33].

8      Ngamoki v R [2022] NZCA 171 at [30].

Mitigating matters

[34]I now turn to discuss the mitigating matters that relate to you personally.

[35]   The first and most important mitigating matter is to allow a deduction for your guilty pleas. Your lawyer has submitted 25 per cent should be adopted because you pleaded guilty to the charges at a reasonably early stage once various legal matters had been dealt with between the lawyers and another Judge. Although I accept this, I have reached the view that the plea was not reached in relation to all charges at the very earliest opportunity.

[36]   After a charge amendment, you entered guilty pleas on 13 October 2023 to all charges. The reasons for the subsequent charge being amended were largely out of your hands and I recognise that. But, nonetheless, I have decided a 20 per cent discount is appropriate.9

[37]   Further deductions are sought to reflect your age, upbringing and mental health issues, as well as the fact that you have no previous convictions. And I am now going to address each of these matters, some of which might be difficult for you to hear but I need to go through them nonetheless.

[38]   As I have mentioned, you were only 17 when you committed these offences. This means that you were and I consider you still are but, at the time, you were a young person for the purposes of the Oranga Tamariki Act and a child by international standards.10 I agree with your lawyer that, at the age of 17, you had endured more hardship than many do in a lifetime. You were bullied relentlessly at school, later sexually abused by a person you trusted, and had another close friend die in a shooting in your presence. I can understand how those matters would be extremely traumatic for you and particularly, to let you know in relation to your friend, I was the Judge that presided over that trial. So I understand with full knowledge of the facts how awful that would have been. But, on top of that, you found out that a close family member had also been sexually abused and your mother was battling a brain tumour.

9      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

10     Oranga Tamariki Act 1989, s 2(1); United Nations Convention on the Rights of the Child, article 2.

[39]   Perhaps unsurprisingly, you developed a drug habit to try and deal with stress. On occasion, you experienced hallucinations, suicidal thoughts and, it seems, became desensitised to violence.

[40]   The Provision of Advice to Courts report and the report from the psychiatrist have both helped me considerably to understand your background and the difficulties you were facing at that time. You have experienced tragically a number of grief and trauma issues that were largely unaddressed at the time of your offending. The psychiatrist assesses you as presenting with several personality and substance abuse disorders. And there is extensive evidence to indicate that you meet the criteria for a diagnosis of post traumatic stress disorder (PTSD). Importantly, the psychiatrist sees PTSD as a key factor in your substance abuse disorder, the lifestyle you were leading at the time you offended and the problems you were experiencing with violence.

[41]   I mention these not to shame you but because they provide a context that is very important to understanding what you did when you committed these offences and, given your age, they are important to highlight and it is important to say also that you need significant help to overcome your difficulties.

[42]   But the good news is you have the support of your family and you have shown, and I commend you for this, considerable insight into the reasons you behaved as you did. You have some very good goals, including wanting to be employed and, more particularly, you want substance abuse and other counselling to help you overcome and cope with the difficult experiences you have had in the past. It is a very good thing that you have decided to engage in interventions to help you with these things.

[43]   Your lawyer submitted a discount could be justified for your age, upbringing and mental health factors. He submitted there is little public interest in imposing a stern sentence on you, a young offender who has been heavily and adversely impacted by events largely out of your control. I agree with him and I have decided to deal with each factor separately and clearly.

Youth Credit

[44]   First dealing with the credit for your youth. And this is where I need to address some legal matters but briefly.

[45]   An offender’s age is a statutorily prescribed mitigating factor.11 The Court of Appeal in a case called Churchward v R affirmed that age-related mental differences, the effect of imprisonment on young people and the capacity of young people to rehabilitate are relevant to sentencing.12 Discounts between 10 and 30 percent are commonplace for this factor.13

[46]   Additionally, the Court noted that offending by a young person is “frequently a phase which passes fairly rapidly”, meaning that a well-balanced reaction is needed to avoid alienating a young person from society. And it is necessary to acknowledge that criminal convictions at this stage of a person’s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society later in life.14 Further, in that case, it was noted that young offenders should not be regarded as “beyond help even after serious offending unless there is no escape from that conclusion”.15 But to balance this, the Court also noted that, where the offending is grave, public safety, denunciation and deterrence factors may mean the scope to account for youth is restricted.16 In other words, a deduction for youth is not simply automatic.17

[47]   But regarding you Mr Glintmeyer, and bearing in mind parity and other matters as well, I have concluded that a 15 per cent credit is appropriate to reflect your youth and the prospect that you can be rehabilitated and your willingness to be rehabilitated.

11     Sentencing Act, s 9(2)(a).

12     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]. See also R v Karlytsky [2009] NZCA 230 at [18]–[24] and Waikato-Tuhega v R [2021] NZCA 503.

13     Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].

14     Churchward v R, above n 12, at [78].

15     At [88], citing R v Cuckow CA312/91, 17 December 1991 at 10.

16     At [84], citing R v Rapira [2003] 3 NZLR 794 (CA) at [122].

17     R v LB [2020] NZHC 94 at [42].

Background

[48]   I now address your background. Those close to you have been victims of sexual abuse. Your mother notes the first instance of this, when you were aged 13 years of age, is when you began to display poor behaviour. Around this age is also when you began using a significant amount of cannabis and drinking. Your attitude in life in general, as well as your behaviour and substance abuse, worsened when your close friend was shot at the party in Christchurch in November 2021. You became “angry at the world” and only occasionally lived with your mother due to the complications caused by your acting out at home. You gradually lost touch with your pro-social friends and spent more time with anti-social ones.

[49]   Unsurprisingly, given the trauma you have experienced, you have since 2019 had contact with mental health services following your admissions of thoughts involving self-harm and harm to others.

[50]   You have been unable to retain a job or see through the educational initiatives you have enrolled in, although I read that you are clever.

[51]   While not the same suite of what we refer to as criminogenic factors that were displayed in the case that deals with this, it is a case called Berkland v R,18 you have certainly experienced adversity at a young age. There appears to me to be a clear link between the sexual abuse and violence you have witnessed and suffered personally, and the anxiety and tendency to violent outbursts that you have demonstrated. Your offending presents as a symptom of your lack of ability to participate in day-to-day life in the same way people who are unharmed by trauma do. With regard to Berkland v R as well as Waikato-Tuhega v R, I consider a discount of ten per cent should be applied to reflect your background and the role it provided as a context to your offending. And I note that this credit also includes your lack of criminal history.

18     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [156].

Mental health

[52]   Now dealing with mental health which is another separate issue. As I have already said, the report indicates there is “extensive evidence” for a diagnosis of PTSD, because of the tragedy, violence and abuse you have suffered and seen others suffer throughout your life.

[53]   In a case called Dickey v R, the Court of Appeal has acknowledged that young people, such as you, who commit serious offences, often exhibit other characteristics that tend to mitigate their blameworthiness for their offending and, in your case, this includes experiences of abuse, mental illness and childhood trauma.19 Discounts as high as 30 per cent have been applied but, noting the facts of the case of Dickey I have referred to and the serious mental disorder present in that case, I do not find that to be an appropriate credit in your case.20 In R v Ross, this Court granted a 15 per cent credit to an offender who was 18 at the relevant time and, like you, suffered from mental illness and family tragedy far too soon in life.21 Having considered a range of cases, and the clear connection between your mental circumstances and the offending, I consider a 15 per cent discount is appropriate in your case.22

[54]   That means a total of 60 per cent deduction is, in my view, appropriate for the various mitigating factors that are raised in your case. The result of that, taken from the starting point of 108 months, is 43.2 months, which I round down to 43 months. For clarity, I consider that end sentence to be one that appropriately reflects the offending and the factors relevant to you. Your end sentence is therefore one of three years and seven months’ imprisonment. In my view, an end sentence of this length is required to serve the principles of denunciation, deterrence and public safety.23

Result

[55]Could you now stand please Mr Glintmeyer.

19     Dickey v R [2023] NZCA 2 at [86].

20     R v Wright [2001] 3 NZLR 22 (CA).

21     R v Ross [2023] NZHC 2477 at [30].

22     R v Whiu CA195/07, 20 December 2007; R v Tuia CA312/02, 27 November 2002.

23     Sentencing Act 2002, s 7.

[56]   Mr Glintmeyer, the victims of your offending both want you to learn from what you have done and do something with your life. You have expressed a willingness to get help. There will be opportunities provided to you in prison to get the help you need.  It will be up to you whether you take advantage of these opportunities.  While I have imposed a sentence of imprisonment, it is not, in context, a lengthy one. This is by no means the end for you and if you choose and are appropriately supported to do so, you are young enough to make something of your life and move on from this as your victims hope you do.

[57]   I now formally sentence you in respect of the charges to which you have pleaded guilty as follows. And because I have found it difficult to distinguish between the two offences and because the end result is as it is in respect of all charges, you are convicted and sentenced to a period of three years and seven months’ imprisonment. Both sentences on all charges are to be served concurrently, that means at the same time. And I direct that a copy of the psychiatric report prepared for sentencing is to be provided to Corrections to assist with your management and rehabilitation while in custody.

[58]Thank you. You may stand down now.

Harland J

Solicitors:

Crown Solicitor, Christchurch

P H B Hall KC, Barrister, Christchurch E Huda, Barrister, Christchurch.