R v Homan

[2017] NZHC 532

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-063-003777 [2017] NZHC 532

THE QUEEN

v

JOSHUA HOMAN

Hearing:	23 March 2017
Appearances:	A J Gordon for Crown B J Foote for Defendant
Judgment:	23 March 2017

SENTENCING REMARKS OF GILBERT J

Solicitors:

Gordon Pilditch, Rotorua

B J Foote, Rotorua

R v HOMAN [2017] NZHC 532 [23 March 2017]

Introduction

[1]      Joshua Homan, you appear for sentence having pleaded guilty to one charge of causing grievous bodily harm with intent to rob.  The maximum penalty for this offence is 14 years’ imprisonment.

Facts

[2]      On the evening of 20 October 2016, you were smoking methamphetamine with three others.  Together, you formulated a plan to rob the victim, a 23-year-old male who was holidaying in New Zealand.  The plan was to lure him to a remote location on the pretence of selling him methamphetamine. You would then rob him.

[3]     A small amount of salt was put in a plastic bag to represent the methamphetamine.   It was agreed that one of your associates would approach the victim at the pre-arranged meeting place and offer the bag for sale.

[4]      You took possession of a .3030 Winchester lever-action rifle.  Two others in your  group  were  also  armed,  one  with  a  .22  sawn-off  firearm  and  one  with  a

12 gauge single-barrel shotgun. All of these firearms were loaded that evening.

[5]      At about 10.40 pm, a fifth associate drove the four of you to a car park serving a walking track situated on the outskirts of Rotorua.   You and your two armed associates hid in the bushes while the other two left in the vehicle to wait for the victim to arrive.  When the victim arrived about 15 minutes later, your associates returned and shone their car headlights on full beam directly at the victim’s car.  The driver remained in the car while the other associate got into the front passenger seat of the victim’s car and offered him the bag containing the salt in exchange for money.

[6]      You and your other two associates then came out from the bushes, armed with the firearms.  You approached the victim’s car together and demanded money. The associate with the sawn-off .22 placed this firearm through the open driver’s side window and demanded that the victim hand over his “loot”.  He then shot the victim in the thigh and hit him on the head with the firearm.

[7]      The associate in the front passenger seat then began to wrestle with the victim.  However, the victim managed to escape from the vehicle.  As he ran away, he screamed that you could take his vehicle. At this point, your associates yelled out “shoot him, shoot him”.

[8]      As the victim was running away, you shot him in the back with the .3030 rifle you were carrying.  The victim fell to the ground immediately and rolled into a drain to the side of the car park and road.  Without checking on the victim, you and your associates got into your vehicle and drove back into town.

Victim impact statement

[9]      The victim was hospitalised for four days and required two operations.  He suffered a gunshot wound to his right upper thigh where the bullet remains lodged. The shot you fired went through the victim’s right buttock and exited through his groin.  Although most of the fragments of this shot were surgically removed, some remain. The victim continues to suffer considerable pain in his pelvis and now walks with a pronounced limp.  The victim has also suffered loss of income as a result of his injuries, he estimates approximately $10,000.

Pre-sentence report

[10]     Mr Homan, you are 25 years of age.   Your mother and two of your three sisters remain supportive of you.  You do not have a strong relationship with your father who was imprisoned for a lengthy period during your childhood.

[11]     You have not previously been sentenced to imprisonment.  Indeed, you have very  few  previous  convictions.    The  first  of  these  was  for  wilful  damage  and speaking threateningly in January 2011 when you were aged 19.   You received a suspended  sentence  for  these  offences.    The  second  prior  offending  was  for dangerous driving and driving with excess breath alcohol in June 2012.  You were sentenced to 70 hours’ community work and disqualified from driving for six months for these offences.

[12]     Your present offending is associated with your drug abuse.  You informed the probation officer that you were first given methamphetamine by an uncle when you were 16 or 17 years old.  Your mother considers that you have a methamphetamine addiction.  Although you have been in relatively regular employment since you left school aged 16, you state that you have lost many job opportunities as a result of failing random drug tests.

[13]     The probation officer assesses you as having a high risk of causing harm to others based on your current offending and having a medium risk of re-offending.

Starting point

[14]     In setting the appropriate starting point, I take into account the following aggravating features of your offending which are relevant to my assessment of your overall culpability:

(a)       the attack was planned and involved a degree of premeditation;

(b)five people participated in the attempted robbery, three of whom were armed with loaded firearms;

(c)      the victim, who had just been shot in the leg at point-blank range and struck on the head with the firearm, was plainly terrified and was attempting to run away when you shot him in the back.  This was not only cowardly and gratuitous, it was cruel;

(d)      you saw the victim fall and roll into the drain after you shot him.

Your decision to leave him in such a remote location at that time of the night without checking on him or seeking assistance for him was callous; and

(e)      given the presence and use of loaded firearms, the consequences could have been lethal.  As it was, the victim sustained serious injuries that may have a lasting impact on him.

[15]     The Crown submits that the appropriate starting point is between nine and

11 years’ imprisonment.  Your counsel Mr Foote agrees and submits that a starting point of ten years’ imprisonment should be adopted in your case.

[16]     The Court of Appeal’s guideline judgment in R v Taueki provides assistance in setting the appropriate starting point in cases involving serious violent offending such as this.  I consider that your offending falls at the lower end of band 3 in Taueki for which a starting point of no less than nine years’ imprisonment is indicated. Taking into account all of the circumstances of your offending as I have outlined, I agree with counsel that the appropriate starting point in your case is ten years’ imprisonment.

Personal factors

[17]     There are no personal aggravating factors that would require an uplift to the starting point.

[18]     Mr  Foote  submits  that  you  should  be  given  credit  for  remorse.    This submission is based on a statement  you made to the probation officer that  you expressed “some remorse” for your part in the offending by stating “I was wrong … I did it, now I have to pay for it”.  While it is to your credit that you have accepted full responsibility for your part in this offending, this will be reflected in the discount for your guilty plea.  I do not consider that you are entitled to any additional discount for genuine remorse.

Guilty plea

[19]     The Crown accepts that you are entitled to the full 25 per cent discount to reflect your early guilty plea.  This means that your adjusted end sentence is reduced by two years and six months to one of seven years and six months’ imprisonment.

Minimum period of imprisonment

[20]     Unless a minimum period of imprisonment is imposed, you will be eligible for parole after you have served one-third of your sentence, being two years and six months’  imprisonment.    I  accept  Ms  Gordon’s  submission  that  this  would  be

insufficient to meet the purposes of sentencing set out in s 86(2) of the Sentencing Act 2002, namely to hold you accountable for the harm done to the victim and the community by your offending; denouncing your conduct; and deterring you and others from committing this type of offending.  I also take into account the need to protect the community given the probation officer’s assessment that you have a high risk of causing harm to others.

[21]     In R v Hanna, the Court of Appeal observed that serious cases of aggravated robbery are very likely to meet the criteria for a minimum period of imprisonment:1

[20]     To identify a case of aggravated robbery as sufficiently serious to come near the top of the 7-10 year range in R v Mako but then to find that the case was not sufficiently serious to justify a minimum period of imprisonment is prima facie a wrong exercise of the discretion under s 86(2). Whilst the imposition of a minimum period of imprisonment is not to be automatically applied, even in the most serious category of case, the more serious the offending the greater the likelihood that the “sufficient serious criterion will be met indicating the need for the exercise of the statutory discretion in favour of a minimum non-parole period”.

[21]     Significant  aggravating  factors  will  accordingly  attract  both  a lengthy term of imprisonment as well as the imposition of a minimum period of imprisonment, its length turning on their extent. The imposition of the minimum  term  in  these  circumstances  is  the  exercise  of  the  judicial discretion having regard to the legislative intent of s 86 of the Sentencing Act.

[22]     In my view, this reasoning applies in your case.   Serious cases of causing grievous bodily injury with intent to rob can be compared with serious aggravated robbery cases for which the same maximum penalty of 14  years’ imprisonment applies.   In my assessment, a minimum period of imprisonment is necessary to reflect the very serious nature of your offending, to emphatically denounce it, and to deter others from engaging in this sort of conduct.  However, having regard to your age, your lack of any relevant prior convictions and your prospects for rehabilitation, I accept Mr Foote’s submission that it is not necessary to impose a 50 per cent minimum term.  Instead I will impose a minimum term of three years’ imprisonment which  I  consider  to  be  the  least  restrictive  outcome  appropriate  in  all  of  the

circumstances.

1      R v Hanna CA201/04, 7 October 2004 (per Goddard J for the Court).

Sentencing

[23]     Mr Homan please stand.

[24]     On the charge of assault with intent to rob, I sentence you to seven years, six months’ imprisonment.   You are to serve a minimum period of three years’ imprisonment.

[25]     Please stand down.

M A Gilbert J