R v Hutchinson

[2019] NZHC 2884

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-003875

[2019] NZHC 2884

THE QUEEN

v

THOMAS PHILLIP HUTCHINSON

Hearing:

6 November 2019

Counsel:

DMA Wiseman for Crown

SNB Wimsett and ST Patia for Defendant

Judgment:

6 November 2019

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Auckland. SNB Wimsett, Auckland.

R v HUTCHINSON [2019] NZHC 2884 [6 November 2019]

Introduction

[1]    Mr Hutchinson, you are for sentence on a series of offences in April last year: aggravated robbery; robbery; two unlawful takings of vehicles (a car and a motorbike); and two thefts. The most serious, as you probably know, is the aggravated robbery charge. It carries a maximum penalty of 14 years’ imprisonment. You committed these offences with Mr Ivan Carr, whom I sentenced approximately six weeks ago.1 You disputed facts in relation to the aggravated robbery, which is why I could not sentence you then. You gave evidence this morning as did the two victims of the aggravated robbery. I summarise this testimony.

[2]    Mr Dhwanit Shah was the driver of the Armourguard van on 5 April 2018. He said his role was to be vigilant. He said the robber was completely covered and holding a large knife.  He said the robber presented that at his colleague Mr Patel.  Mr Shah said the knife was really large and sharp. He emphasised its size. Mr Shah was cross-examined by your lawyer, Mr Wimsett. Mr Wimsett suggested there was no knife and that Mr Shah was either mistaken or perhaps  even lying about  that.  Mr Shah was clear there was a knife.

[3]    Mr Patel was the immediate victim of the robbery. He was the person returning to the van with the cash box. He said a robber confronted him holding a big knife or perhaps a screwdriver. He said the implement, whichever it was, was 400 mm long. He said the robber yelled at him to get on the ground. Again, Mr Wimsett put to this witness he was either mistaken or lying. Mr Patel was clear the robber had either a knife or a screwdriver. He said the incident was very scary.

[4]    You, Mr Hutchinson, gave a different account. You said you were not disguised but you were wearing a hooded sweatshirt. You said you did not have a weapon and you had to lean out of the car to get the cash box rather than confront the victim with a knife. You also said this offence was not premeditated. You said you and Mr Carr had intended to commit some crime, but you had not decided to rob the Armourguard cash van.

1      R v Carr [2019] NZHC 2335.

[5]    I am sure this aggravated robbery was premeditated. I am also sure you had a knife. I accept it is reasonably possible you were disguised with only a hooded sweatshirt, nothing more.

[6]    I am sure your offending was premeditated because the trial evidence put this beyond doubt. It clearly showed you and Mr Carr following the Armourguard van for some time. It was obvious your interest was in that van. You also used a stolen car and a related safe point. That Mr Carr rammed the Armourguard van at the exact point Mr Patel returned with the cash box implies this was the result of premeditation, not coincidence.

[7]    I am sure you had a knife because Mr Shah was clear you did. He watched you, at this point, through the windscreen. He said it was a feature of his role to be vigilant. Mr Shah also described the knife in some detail. Mr Shah’s evidence is supported by the evidence of Mr Patel. His inability to distinguish between a knife and screwdriver is unsurprising given he was the person you threatened—and his fear.

[8]    I find you are an unreliable historian in relation to this incident except for one thing. You say you were wearing only a hoodie. That account is not inconsistent with the account given by Mr Patel and Mr Shah.

[9]    I sentence on the bases I have just explained. This brings me to the facts more generally.

Facts

[10]   On 1 April 2018, you and Mr Carr took a Subaru in Takapuna. You both intended to use it in an aggravated robbery a few days later—the one I have just been speaking about.

[11]   On 3 April, you and Mr Carr snatched a handbag sitting next to a woman on a park bench. It and its contents were worth $500. You both stole another bag out of a nearby car in Birkenhead. It contained a gold ring worth $200, and presumably, greater sentimental value. The two of you then came into the city and stole a motorbike from Britomart worth $10,000. None of this property was recovered.

[12]   As I have explained, on 5 April a little after 1 pm, you and Mr Carr robbed an Armourguard cash van outside a shopping mall in Milford. This robbery was, as I have stressed, premeditated. You used the Subaru you had taken four days earlier.  Mr Carr was the driver; you the knife-wielder. You and he followed the van in the Subaru while it made its rounds in Milford. The closed-circuit television evidence made that quite clear. Once at the mall, Mr Carr reversed the Subaru into the cash van, hitting it. You quickly got out. You were wearing your hooded sweatshirt pulled down. As I have said, you confronted the Armourguard employee with a large knife. You told him to get to the ground. He did so. You took the cash case. The two of you left in the Subaru, driven by Mr Carr. You later abandoned it. Together, you stole

$34,000. The cash was not recovered. The car was.

[13]   I move forward three and a half weeks. After 9 pm on 29 April 2018, you and Mr Carr went to a motel in Takapuna. You went to commit robbery. The two of you had agreed to meet this night; I infer for this reason. Mr Carr had covered his face with the hood of his jacket and was wearing gloves. He went into one of the units with a small axe. You did not know he had a weapon, but you did know he would rob the occupants. That was the whole point.2 Mr Carr terrorised the victims and robbed them of property worth more than $6,500. You waited outside. You were the look out. You and Mr Carr then fled. None of this property was recovered. This robbery, as I have said, was premeditated too.

Aggravating factors

[14]   There are several aggravating features—things that make your offending worse:

(a)The offending was premeditated save perhaps for the bag snatchings. The aggravated robbery at Milford was well planned.

(b)It involved a dangerous weapon.

2      Mr Carr pleaded guilty to aggravated robbery on the basis he used a weapon.

(c)It also involved vulnerable victims and a busy shopping centre, in daylight. Risk of harm was high.

(d)You committed these offences while you were on bail for unlawfully getting in a car.

(e)The motel robbery was something like a home invasion. But, I repeat you did not know Mr Carr had a weapon.

(f)Property of more than $50,000 remains unrecovered.

Starting point

[15]   I adopted a six and a half-year starting point for the aggravated robbery when sentencing Mr Carr. I said a seven and half-year starting point was “easily reached” for all his other offending between 1 and 5 April, albeit Mr Carr also twice used a stolen credit card to buy things in this period.3 You did not commit those two offences. However, what I said then remains true: the surrounding offending was far from trivial; it caused harm to several victims. For example, the owner of the stolen motorbike was uninsured. And, that bike was his pride and joy.

[16]   You contend a lower start point is required because you did not have a knife and Mr Carr was sentenced on the assumption one was used. I have already rejected this. You also say you played a lesser role than Mr Carr. You essentially say he led you astray. I am sure you participated voluntarily. I am also sure your role was not materially lesser than Mr Carr’s. You wielded a knife in a well-planned robbery. This action speaks for itself. I adopt a seven-year starting point for the aggravated robbery and your other, early April offending.

[17]   I adopted a six-year starting point for Mr Carr in relation to the motel robbery. The Crown says I should adopt a four-year starting point for you. You largely agree. I say “largely” because you suggest a three and a half-year starting point. You emphasise you are for sentence on this charge on robbery and you had no knowledge

3      R v Carr, above n 1, at [31].

Mr Carr had a weapon. I have already explained I accept these features. I adopt a four-year starting point because you played an important role in what was a premeditated and frightening offence.

[18]   Mr Hutchinson, if I added these figures together, the starting point would be 11 years’ imprisonment. The law requires a more nuanced approach through operation of a principle called totality. The totality principle has two competing aspects. The first requires a Judge to ensure the sentence reflects the combined seriousness of all offences. The second requires a Judge to ensure the sentence is not disproportionality severe. The Court of Appeal has said the first aspect is particularly important when an offender commits more than one robbery, and stressed the maximum penalty applies to each offence.4

[19]   The Crown says your overall starting point should be 10 years’ imprisonment. You say it should be seven years’ imprisonment. I adopt nine. The aggravated robbery is a bad example of its kind, and the motel robbery also serious. You committed both offences within a single month. And you committed other offences too. A lower starting point would not capture the overall gravity of your offending.

Personal aggravating factors

[20]   You have a long criminal history, including for violence. In 2013 you demanded with menaces. You used a weapon. You also possessed a firearm. You were given a two-year, three-month prison sentence. You committed assaults in 2017, 2003 and 1999. In 2009 you threatened to kill. You  assaulted Police the same year. In 1997 you wounded with intent to cause grievous bodily harm. You were given a two-year prison sentence. You have many other convictions too. These include convictions for burglary, fraud, theft and unlawful takings, and being in an enclosed yard. The Crown says your history requires an uplift of six months. You accept as much. This produces an adjusted starting point of nine and a half-years’ imprisonment.

4      R v Mako [2000] 2 NZLR 170 (CA) at [51].

Mitigating factors

[21]   You are 39. You describe yourself as part-Maori. You have three children; two teenagers and an 11-year-old. So, a reasonably young family.

[22]   You are or were a patched member of the Headhunters gang. I put things this way because you say you have relinquished or handed in your patch. I hope this is so because gangs promote crime. You say you have turned a corner. You also say you are “deeply ashamed” of your criminal past. You have completed at least nine courses in prison since June last year. So, you appear to be using your time profitably. You say you are sorry for your offending in a letter to me, in which you also acknowledge the harm of drugs. All this implies possibility of reform.

[23]   The pre-sentence report, however, is pessimistic. It says you deny being connected to the Headhunters, while acknowledging participation in their events. It says you have problems with alcohol and methamphetamine—but minimise their impact. It describes you as “ambivalent” about rehabilitative programmes, including culturally based ones. It says your risk of harm to the community is high. So too risk of re-offending. And, it considers your offending is getting worse, not better.

[24]   You say you have made progress since the report was written, and I should discount the sentence by five percent given your efforts. The picture is confused. Aside from your completion of prison courses, your assessment constitutes a self-report, and one at odds with the Corrections’ one.

[25]   Mr Hutchinson, I give you the benefit of the doubt. I reduce the starting point by five percent given possibility of reform.

Guilty pleas

[26]   You pleaded guilty seven days before trial. You say a 20 percent discount is justified despite this as your lawyer had difficulty in communicating with you because you were moved between prisons, and because the robbery charge came late. I accept you experienced these difficulties, but I am not persuaded you should have discount beyond 10 percent.

[27]   You were charged with all but the motel robbery on 24 May 2018. You were charged with that robbery 8 April 2019. You pleaded guilty 16 July 2019. It follows that while your plea to the motel robbery was reasonably prompt, your plea to the other charges was not. Large discounts are not fair to those defendants who do plead guilty promptly—and irrespective of the strength of the Crown case.

[28]   Your conviction for the motel robbery was inevitable as you were caught on closed-circuit television footage outside the motel. The imagery, which was played at Mr Carr’s trial, clearly showed your face. You disputed using a knife in the aggravated robbery. This meant both victims had to testify this morning. Ten percent is appropriate, which is the same discount I gave to Mr Carr and another offender.

[29]   This produces a sentence of just over eight years’ imprisonment, which I reduce to eight years to avoid messy math.

Minimum period of imprisonment

[30]   The Crown seeks a minimum period of 50 percent. It notes you were the knife-wielder in a planned aggravated robbery and you helped commit another unrelated robbery as the lookout. It observes correctly, your offending is serious.

[31]   I agree your offending would ordinarily warrant a minimum period of about 50 percent. But, I do not impose one. The Parole Board is better placed to assess when you should be released. Your alleged change of heart is again relevant. If you are sincere—and make progress in prison—you may be released early. Otherwise, you may serve all of your sentence.

Reparation

[32]   The Crown seeks reparation of $10,000 for the stolen motorbike. I decline to order this. You could not pay it.

Sentence

[33]   Mr Hutchinson, please stand. On the aggravated robbery charge, I sentence you to eight years’ imprisonment. On the robbery charge, four years’ imprisonment.

On the unlawful taking charges, 18 months. On the two thefts, six months. You will serve all these sentences at the same time. The result is an eight-year sentence. I impose no minimum period.

[34]You may stand down, thank you.

……………………………..

Downs J