R v Mowbray - [2019] NZHC 820

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2016-063-3777

[2019] NZHC 820

THE QUEEN

v

ALEXANDER HAYDEN MOWBRAY

Hearing: 15 April 2019

Appearances:

A J Gordon for the Crown S I Mills for the Defendant

Judgment:

15 April 2019

SENTENCING REMARKS OF JAGOSE J

Solicitors:
Gordon Pilditch, Rotorua Lance Lawson, Rotorua

R v MOWBRAY [2019] NZHC 820 [15 April 2019]

[1] Mr Mowbray, you pleaded guilty to a charge of assault with intent to rob on 28 June 2017.1 You received a first warning under the ‘three strikes’ regime at that time. You were sentenced by Heath J on 2 August 2017, to a term of six years and one month’s imprisonment. The Judge declined to impose a minimum period of imprisonment (“MPI”).

[2] You appealed both your conviction and sentence to the Court of Appeal. While your appeal against conviction was unsuccessful, your appeal against sentence was allowed.2 It was allowed on the basis sentencing had taken place when there were apparently disputed facts. Inconsistent references to those facts in the Judge’s sentencing notes may have resulted in a greater level of culpability being attributed to you than was warranted. And there may have been other errors.3

[3] The Court of Appeal was satisfied you ought to be resentenced in this Court. It ordered filing of an agreed summary of facts; alternatively, a disputed facts hearing may have been required. The summary of facts has been agreed. That is the basis on which I will sentence you now.

[4] The Crown relies on its previous sentencing submissions, which recommended a ten-year starting point, with little room for meaningful discounts. Your counsel, Scott Mills, recommends a starting point of six years, ultimately to be discounted to a term of less than four years.

The offending

[5] On 20 October 2016, you and your co-defendant, Mr Homan, were at your home. Two other associates were with the two of you. The associates said they had a plan to rob the victim, by luring him to a remote location on the pretence of selling him methamphetamine. You joined the plan, and together with Mr Homan put salt into a plastic bag to give it the appearance of methamphetamine. You were to offer the victim the ‘methamphetamine’.

1 Crimes Act 1961, ss 236(1)(a) and 66(2). The maximum penalty is one of 14 years’ imprisonment.
2 Mowbray v R [2018] NZCA 560.
3 At [37].

[6] The group of you had three firearms: a .303 Winchester lever action rifle (which Mr Homan had), a sawn-off .22, and a 12-gauge single barrel shotgun. You had seen the sawn-off .22, because one of the associates had it with him inside your house. When you all left the address to implement the plan, you became aware of the other firearms. All had been loaded earlier in the night.

[7] A fifth person drove you to the Jubilee Walking Track carpark, situated on Paradise Valley Road…

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 Mowbray

Details

AGLC: R v Mowbray [2019] NZHC 820
Case: [2019] NZHC 820
Decision Date: 15 April 2019

CaseChat Overview and Summary

In the case of R v Mowbray, the defendant, Alexander Hayden Mowbray, pleaded guilty to a charge of assault with intent to rob, which occurred on 20 October 2016. Mowbray and his co-defendant, Mr Homan, along with two associates, planned to rob a victim by luring him under the pretence of selling him methamphetamine. Mowbray participated in the plan by packaging salt in a plastic bag to make it look like methamphetamine. The group was armed with three firearms, all of which were loaded. Mowbray did not carry or discharge a firearm during the incident, but he approached the victim and offered him the bag containing salt. The victim was shot by Mr Homan and one of the associates after he fled his vehicle. Mowbray was initially sentenced to six years and one month’s imprisonment by Heath J, but the sentence was later appealed and set aside by the Court of Appeal. The case was then remitted to the High Court for resentencing.

The primary legal issues the court had to address were determining an appropriate starting point for Mowbray’s sentence, adjusting that starting point based on personal circumstances, and applying a discount for his guilty plea. The court also had to consider whether to impose a minimum period of imprisonment (MPI) to protect the community.

The court first assessed the starting point for Mowbray’s sentence, taking into account the aggravating factors of premeditation, use of lethal weapons, extreme violence, and serious injury. The court found that Mowbray’s involvement, while less direct than Mr Homan’s, was still significant. The court then adjusted the starting point based on Mowbray’s personal circumstances, finding that a discount of 20% was appropriate due to his offer to engage in restorative justice, despite it not being carried out. Finally, the court applied a 15% discount for Mowbray’s guilty plea, resulting in a final sentence of five years and five months’ imprisonment. The court decided against imposing a minimum period of imprisonment, given Mowbray’s lower risk assessment compared to Mr Homan and the nature of Mowbray’s participation in the crime.

In summary, Mowbray was sentenced to five years and five months’ imprisonment for his involvement in the assault with intent to rob, with no minimum period of imprisonment imposed. The court considered the aggravating factors of the crime, Mowbray’s personal circumstances, and his guilty plea in arriving at the final sentence.

Orders