R v Hall - [2008] NZCA 207

IN THE COURT OF APPEAL OF NEW ZEALAND
CA113/2008
[2008] NZCA 207
THE QUEEN
v
CURTIS RICHARD HALL
Hearing:24 June 2008

Court:William Young P, Gendall and Ronald Young JJ
Counsel:N G Cooke for Appellant

M E Ball for Crown

Judgment:4 July 2008 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of imprisonment is quashed and a sentence of 8 months’ home detention on conditions in para [25] of this judgment is substituted.

REASONS OF THE COURT
(Given by Gendall J)
[1]       On 4 March 2008, the appellant was sentenced to two years, three months’ imprisonment and ordered to pay reparation of $290.00 on one charge of aggravated robbery after being found guilty by a jury on 14 December 2007. He appeals the sentence of imprisonment on the basis that the proper sentence was one of home detention.
Facts
[2]       The appellant and a colleague, Steven Martin, decided to rob a video store at Mt Maunganui on the evening of 5 April 2006. Both were aged 18 years, and impecunious. They devised a plan to rob the store using a knife as a weapon.
[3]       Martin was disguised and the appellant’s role was to act as the getaway driver, with Martin to enter the premises, to confront the shop assistant and obtain money.
[4]       The appellant and Martin watched the store waiting for the public to depart. Afterwards, the appellant waited in the vehicle with the engine running whilst Martin, disguised and in possession of the knife, threatened the female assistant at the store and took $290.00 cash from the till. The appellant and Martin then drove off at speed.
[5]       Martin pleaded guilty to the crime and was sentenced on 1 June 2006 to two years, eight months’ imprisonment. He had some prior convictions, including receiving, theft, wilful damage, breach of bail (two) and driving while disqualified. As well, on 1 June 2006 (ie when sentenced for aggravated robbery) he was also appearing for sentence on a charge of breach of community work. The appellant elected trial by jury but was convicted on 14 December 2007.
The sentencing decision
[6]       Judge Ingram, as the trial Judge, concluded from the evidence that the appellant did not obtain a real or significant share of the somewhat meagre proceeds obtained from the crime. He referred to the appellant, then aged 20 (although 18 at the time of the offence) and who had no prior convictions, as presenting a difficult issue when it came sentencing. The Judge referred to the significant effect the crime had on the victim in the store, and to the generally favourable Probation Officer’s report.
[7]       The Judge had called for a report as to the suitability of home detention. The Crown however had submitted that such a sentence was inappropriate in the absence of a guilty plea, and that there was nothing exceptional about the appellant’s case in being a getaway driver in an aggravated robbery.
[8]       The Judge then turned to consider the…

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 Hall

Details

AGLC: R v Hall [2008] NZCA 207
Case: [2008] NZCA 207
Decision Date: 4 July 2008

CaseChat Overview and Summary

In the case of R v Hall, the Court of Appeal of New Zealand considered an appeal against a sentence of imprisonment imposed on the appellant, Curtis Richard Hall. The appellant was found guilty of aggravated robbery and sentenced to two years and three months’ imprisonment. The appeal focused on the appropriateness of the sentence, with the appellant arguing that the correct sentence should have been one of home detention. The case involved the appellant and his colleague robbing a video store using a knife as a weapon. The appellant's role was to act as the getaway driver. The trial judge, Judge Ingram, concluded that the appellant did not obtain a significant share of the proceeds from the crime and that the appellant, with no prior convictions and being 18 years old at the time of the offence, presented a difficult sentencing issue. Despite acknowledging the suitability of home detention, the trial judge felt constrained by the precedent set in R v Mako to impose a prison sentence. The Court of Appeal found that the trial judge's hands were indeed tied by the Mako guidelines at the time of sentencing but noted that the decision in R v Hill allowed for the imposition of home detention even where a proper prison sentence was two years, three months. The Court of Appeal concluded that the seriousness of the offending did not exclude home detention in favor of a more punitive prison regime. The appellant's age, personal circumstances, absence of previous convictions, motivation to address rehabilitation, and low risk of reoffending were all factors that supported a sentence of home detention. The appeal was allowed, the sentence of imprisonment was quashed, and a sentence of eight months’ home detention was substituted.

The Court of Appeal also considered the disparity in sentences between the appellant and his co-offender, Steven Martin, who had pleaded guilty and received a sentence of two years and eight months’ imprisonment. The Court noted that Martin was eligible for parole after nine months and had presumably been released. In contrast, the appellant had been subject to strict bail conditions before trial and remained in custody until the determination of his appeal. The Court concluded that the total sanctions imposed on the appellant, including the proposed sentence of home detention, were broadly commensurate to that imposed on Martin. The Court of Appeal imposed a sentence of eight months’ home detention with specific conditions, including residence at a specified address, a 24-hour curfew, abstention from alcohol and illicit drugs, and participation in any required rehabilitation programs. The order for reparation was confirmed.

Orders