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 range of sentences for aggravated robberies discussed in R v Mako [2000] 2 NZLR 170. He acknowledged the sentencing exercise was difficult but concluded the proper starting point was four years’ imprisonment, the same as his co-offender Martin.

[9]       The Judge allowed substantial credit for the lesser part he thought the appellant played in the offending, and a further discount for expression of remorse, reparation offered and prospects of rehabilitation.  In the end he could not realistically reach a final sentence below two years, three months’ imprisonment, through the established discounting process.

Discussion

[10]     Some relevant aggravating features in this case, identified in R v Mako, were:

(a)Some planning and preparation was involved, albeit rudimentary;

(b)One offender was disguised, increasing the degree of fear and intimidation upon the victim;

(c)A knife was used as a weapon, and the Court of Appeal in Mako remarked upon the danger of knives in the hands of nervous, aggressive offenders; and

(d)The fact that, although the target premises, a small video store, does not hold out potential for great reward, they are likely to be staffed by a single person without any sophisticated security system.

[11]     Based upon Mako a starting point of 4 years was unchallengeable.  However, it is obvious the Judge did not feel completely comfortable in taking four years as a starting point, and he went on to say:

The real question is whether or not the Mako guidelines are amenable to re-examination in relation to sentencing for young offenders, in respect of whom a greater range of penalties are now available than were before the Court of Appeal when Mako was decided.  Specifically a sentence of home detention has clearly been brought into existence as a rehabilitative sentence to be imposed on offenders who have good prospects of rehabilitation, in circumstances where a sentence of two years or less is appropriate.

This issue is one which is yet to be worked out at an appellate level.  There is no appellate guidance available for District Court Judges at present.

[12]     The Judge assessed the aggravating features as being use of a weapon, threatened violence, financial loss and emotional harm to the victim, and premeditation.

[13]     The balancing mitigating features included the age of the appellant, the fact that he had not been the prime mover, and expressed remorse (although this might have been better signalled through a guilty plea).  The Judge concluded that the real question was whether or not the appellant, being a young man with good prospects, should be sent to prison.  The Judge said Mako seemed to indicate that prison had to follow and he could not ignore that authority.  He said:

Whilst it would desirable indeed that a sentence of home detention would be imposed in your case, I consider that my hands are tied by the decision of the Court of Appeal in Mako and subsequent authorities.

[14]     Since this sentencing took place, this Court in R v Hill [2008] NZCA 41 determined that where offending had occurred prior to 1 October 2007, there is jurisdiction under s 57, Sentencing Amendment Act 2007, to impose home detention, notwithstanding that a proper prison sentence (if imposed), was two years, three months. That decision was not available to Judge Ingram at the time of his sentencing.

[15]     Clearly the Judge wished to impose home detention and he would have done so if he thought he could.  Had he done so, the sentencing outcome would have been lenient but nonetheless legitimately within his discretion.  Given the youth of the appellant, his previous good record and prospects of rehabilitation, and the fact that the offending was at the lower end of the scale for aggravated robberies, a sentence of home detention would have been proper.  It fell within the sort of situation where social and individual benefits available from such a sentence made it proper.

[16]     We think in this case the seriousness of the offending does not exclude home detention in favour of the more punitive prison regime.  Factors such as the appellant’s age, personal circumstances, absence of previous convictions, motivation to address rehabilitation and a low risk of reoffending are all such that it is in society’s interests, as well as his, that he be given the chance, there being reasons for optimism about his future.  The Judge clearly felt this.

[17]     R v Mako does not prevent non-custodial sentences being imposed for aggravated robbery. The Court of Appeal said at [66] and [68]:

[66]     However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence.  Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery when committed by an immature offender, remains serious violent offending.

….

[68]     A sentence of two years or less is available to the sentencing Judge only if the elements which convert a robbery into an aggravated robbery are present to a small degree or the offender’s participation in the crime and its planning (if any) was very much in a secondary role. …

[18]     There are ample examples of non-custodial sentences being imposed for aggravated robberies, which fall into the lowest category in R v Mako, by young men who have real rehabilitation prospects and are unlikely to reoffend.  Some examples include Helsham v Police HC CHCH CRI-2007-409-147 16 August 2007; Burke v Police HC TAU CRI-2006-470-32 16 November 2006; Waterhouse v Police HC HAM CRI-2007-419-130 29 November 2007.

[19]     We do not see this Court’s decision in R v Salanoa [2008] NZCA 185 as being in any way inconsistent with the view we have reached on the facts of this case. It simply illustrates how cases may be very much on the margin. There a sentence of 2 years, 3 months’ imprisonment for aggravated robbery of a dairy was upheld despite the argument that the offender’s youth, steady employment, lesser role in the premeditation and planning and prospects of rehabilitation justified a sentence of home detention. The Court concluded that the sentencing Judge was properly able to conclude a sentence of home detention was not appropriate given the particular features of the crime (four co-offenders entered premises, armed with a metal pole, knife and hammer), and the circumstances of the appellant (despite his youth he had previous convictions and the sentencing Judge was not confident of rehabilitation prospects or the suitability of the proposed home detention address). Those facts distinguish Salanoa from this case.

Disparity

[20]     We initially had concerns on the question of disparity of sentences between the appellant and Mr Martin.  Apart from their respective roles in the aggravated robbery, there was little of relevance to distinguish them.  On one view a sentence of two years, eight months’ imprisonment for Mr Martin, after a guilty plea, could be seen as obviously disparate from a sentence of home detention for the present appellant.  Given Martin’s youth, and the fact that he was later to give evidence as a prosecution witness in the appellant’s trial, the sentence imposed on him was severe.  Offenders who plead guilty and co-operate with the authorities can receive sentence discounts of up to 60 per cent.  Had such a discount been adopted in Martin’s case, it would have reduced the end sentence to below two years and made it at least theoretically possible (under the sentencing regime then in place) for him to be given leave to apply for home detention.  We say “theoretically” because of his history of non-compliance with court orders.  More importantly though, given our view about the severity of the sentence (in  terms of end point) imposed on Martin, we have reservations whether it should control the sentencing outcome for the appellant.

[21]     On another view, Mr Martin was eligible for parole after nine months and has presumably been released.  In the meantime, this appellant has been subject to limitations arising out of bail conditions which, although of his own making through having elected trial, nevertheless have provided restrictions on his liberty and lifestyle.  The appellant was on bail on strict bail conditions including a curfew prior to trial for 20 months, and following trial he was remanded in custody until sentence on 4 March 2008.  He remained in custody thereafter until 17 March 2008 when he was granted bail by Judge Ingram pending determination of his appeal.  The terms of that bail are restrictive in that the appellant was subject to a 24 hour curfew, although permitted to work with his previous employer.  The Judge said that those bail terms were structured so as:

At least to approximate the conditions that would likely be imposed if a sentence of home detention were to be imposed in due course by the Court of Appeal.

[22]     So, the appellant has been subject to strict bail conditions, akin to home detention.

[23]     A proper sentence is one of home detention.  Judge Ingram acknowledged this, but, understandably, felt authority precluded him from imposing such a sentence.

[24]     On the basis that we impose a sentence of eight months’ home detention, the appellant will:

(a)Have been on bail before trial for 20 months;

(b)Have been in prison following conviction for approximately three months;

(c)As a result of the strict post-sentence bail conditions imposed and the proposed sentence of home detention, in effect be required to serve 11 months’ home detention.

These sanctions in their totality are perhaps broadly commensurate to that imposed on Martin.

[25]     Accordingly, the appeal is allowed and the sentence of imprisonment quashed.  The appellant is sentenced to home detention for a period of eight months on the following conditions:

(a)He is to reside at 60 Wilson Road, North Te Puke, Bay of Plenty and not to move from that address (subject to (b) below) without the prior written approval from his Probation Officer;

(b)He is to be subject to a 24 hour curfew, except that he may travel directly to or from his place of employment for the purpose of undertaking such employment, between the hours of 6am and 3pm Monday to Friday, 6am and 2pm on Saturday, or such other hours as may be approved in writing by the Probation Officer;

(c)He is to abstain from the consumption of alcohol and illicit drugs for the duration of home detention;

(d)He is to attend and complete any individual or group programme considered necessary by the Probation Officer to address his offending behaviour, and is to abide by the rules of any such programme to the satisfaction of the Probation Officer.

[26]     The order for reparation is confirmed.

Solicitors:
Crown Law Office, Wellington