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 in Rotorua’s Ngongotaha Valley. At approximately 10:40 pm, Mr Homan and the two associates exited the car and hid in the bushes. They took the firearms. You and the driver left in the car, intending to return once the victim arrived.

[8]    The victim – who had made arrangements to meet his friends at the location – arrived shortly after. He remained seated in his vehicle. You and the driver returned some 15 minutes later. Your car’s headlights were shone on full beam directly at the victim’s car. You approached the victim, got into the front passenger seat of his vehicle, and offered the victim the bag containing the salt in exchange for money.

[9]    At this point, Mr Homan and the other two associates emerged from the bushes, holding the firearms. One associate put his gun (the .22) through the open driver’s side window, demanding the victim hand over his “loot”. He shot the victim in the thigh and hit him in the head with the gun.

[10]   The victim escaped his vehicle and told you all you could take it. He ran towards Paradise Valley Road. With the associates’ encouragement, Mr Homan shot the victim in the back using the Winchester rifle. The victim fell immediately and rolled into a drain. The group of you were all then driven back into town.

Victim impact statements

[11]   In his statement dated 9 December 2016, the victim details the significant injuries he suffered as a result of the offending. One gunshot went into the top of the victim’s thigh. The other shot went through the top of his right buttock and exited through the right side of his groin. He was in hospital for four days and had two surgeries. The bullet from the first shot fired remains lodged in his upper thigh. Surgeons were able to remove pieces of the second bullet, but fragments remain.

[12]At the time the statement was made, the victim had suffered a loss of about

$10,000, given he was unable to work. Physically, he suffered a great deal of pain, especially in the mornings. A potential crack in his pelvis caused him to limp. But he believed he would make a full recovery, both physically and psychologically.

Personal circumstances

—pre-sentence report

[13]   Your pre-sentence report is dated 25 July 2017. I have no update. The report writer assessed your risk of reoffending, and risk of harm to others, as medium. An assault on you in jail is noted.

[14]   The report canvasses details of your life. You were 25 at the time of the offending. Your family were supportive of you, as is demonstrated by affidavits filed now by your grandmother and sister. You acknowledged your drug and alcohol issues. You believed you were by then sober, and your offending was a “huge wake up call”. You had smoked cannabis since the age of 14 or 15, and had tried methamphetamine. Further, your reported suffering from anxiety and depression, for which you were taking medication daily. You had engaged with Community Mental Health in the past, and a suicide attempt is noted.

[15]   You were assessed as displaying some signs of remorse. You were suffering nightmares in which you relived the offending. You were willing to engage with restorative justice, and you would like to “fix” things if you could.

[16]   You also had attended counselling while in prison. The counsellor reports you have been diagnosed with post-traumatic stress-disorder as a result of the separate event.

Approach to sentencing

[17]   Sentencing involves a three-stage process.4 With reference to relevant cases, I first decide the starting point your offending attracts. I then adjust that up or down to

4      R v Taueki [2005] 3 NZLR 372 (CA), 21 CRNZ 769 and Hessell v R [2010] NZSC 135, [2011] 1

take into account your personal circumstances. Finally, a discount applies to reflect your guilty plea.

[18]   I must consider the applicable purposes and principles of sentencing.5 You are to be held accountable for the harm you have done by your offending. Your sentence is to promote in you a sense of responsibility for and acknowledgement of that harm. It is to denounce your conduct and to deter you and others from similar offending. I should protect the community from you.

[19]   I am to take into account the gravity and seriousness of your offending, the effect of your offending on the victim, and the need for consistency with appropriate sentencing levels, taking into account any restorative justice processes that have occurred. I must impose the least restrictive sentence that is appropriate in the circumstances.

Sentencing parity

[20]   At the outset, I consider the sentence imposed by Gilbert J on your co- defendant, Mr Homan, on 23 March 2017.6 Mr Homan shot the victim in the back as he attempted to flee from his attackers. He similarly pleaded guilty to one charge of assault with intent to rob, causing grievous bodily harm.

[21]   The Judge considered there were five aggravating features of the offending: the attack was planned and involved a degree of premeditation; five people participated in the attempted robbery, three of whom were armed; the offending was especially cruel given the victim was running away; it was also particularly callous, as the group left without checking on the victim; and, given the presence and use of loaded firearms, the consequences could have been lethal.

[22]   A starting point of ten years’ imprisonment was adopted, the Judge placing Mr Homan’s offending at the lower end of Band 3 of R v Taueki, the tariff case for grievous

NZLR 607.

5      Sentencing Act 2002, ss 7 and 8.

6      R v Homan [2017] NZHC 532.

bodily harm sentencing.7 A discount of 25 per cent was applied to reflect Mr Homan’s guilty plea, resulting in an end sentence of seven years and six months’ imprisonment. A minimum term of three years’ imprisonment was imposed.

Starting point

[23]   Mr Mills says R v Mako – the guideline judgment for aggravated robbery sentencing – also should be considered.8 This is on the basis a charge of assault with intent to rob causing grievous bodily harm does not require proof of intention to cause grievous bodily harm.

[24]   Neither guideline judgment strictly applies to charges of assault with intent to rob. But those other offences also carry maximum penalties of 14 years’ imprisonment. I accept R v Mako can provide guidance when sentencing for assault with intent to rob, with appropriate adjustment to recognise the element of theft – essential to a charge of aggravated robbery – is absent.9

[25]   In any event, an arithmetic approach is to be avoided. Following the Taueki approach, the gravity of each aggravating factor must still be evaluated. Where, as here, there are multiple offenders with differing levels of involvement, I must assess your own actual culpability.10 Gilbert J considered Taueki provided assistance in setting the appropriate starting point for Mr Homan’s offending.11 I follow the same approach.

[26]   The Court of Appeal in Taueki set out a number of aggravating and mitigating factors which “bear on the assessment of the appropriate starting point and, in the context of grievous bodily harm offending, the appropriate sentencing band.”12 Three sentencing bands were identified, all of which attract a range of starting points.

7      R v Taueki, above n 4.

8      R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272.

9      See R v Whata [2008] NZCA 204 at [17]; Foster v R [2012] NZCA 575 and Wilson v R [2010] NZCA 360 at [32].

10     R v Taueki, above n 4, at [42].

11     R v Homan, above n 6.

12     R v Taueki, above n 4. at [29].

[27]   The Crown here, says four of the aggravating factors listed in Taueki are engaged, namely: use of a lethal weapon; extreme violence; premeditation; and serious injury. On that basis, the Crown submits your offending falls somewhere near the lower end of Band 3 of Taueki and warrants a starting point of ten years’ imprisonment. No distinction is drawn between you and Mr Homan. But, drawing that distinction, Mr Mills says a starting point of six years’ imprisonment is appropriate, placing your offending in Band 2 of Taueki. In contrast to Mr Homan, you did not carry or discharge a firearm. You did not directly assault the victim.

[28]I allow that distinction, but adopt the Court of Appeal’s advice:13

… there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.

Your offending clearly was premeditated. You did not initiate the plan, which was formulated on the night of the offending. But you joined in, packaging the salt and agreeing to approach the victim with the imitation methamphetamine. You played your designated role in implementing the plan. The degree of premeditation is high.

[29]   You were accompanied by four others, two of whom shot the victim. The greater the disparity between the number of the attacking group and the victim, the greater the culpability will be.14 The group aspect is aggravating.

[30]   The victim suffered serious injuries, which continued (and may still continue) to cause him pain. As Gilbert J noted, the group’s decision to leave the victim in a drain in the carpark was particularly callous.15 I do not think your individual offending is as callous as that of Mr Homan’s, who shot the victim in the back as he attempted to flee. The facts do not say you encouraged Mr Homan? to do so. Still, the injuries occurred as a result of the joint enterprise in which you willingly played your role.

[31]   The use of lethal weapons such as guns is a serious aggravating factor.16 According to the agreed summary of facts, you were aware of the three firearms by

13     R v Mako, above n 8, at [65].

14     R v Taueki, above n 4, at [31(h)].

15     R v Homan, above n 6, at [14(d)].

16     R v Taueki, above n 4, at [31(d)].

the time the group embarked on their venture. You did not know the firearms were loaded until they were discharged. You say you did not know the firearms would be used. But the mere presence of three guns should have given you some cause for concern, and reason to disassociate. Obviously, you did not. The presence of firearms remains a weighty aggravating factor.

[32]   In my assessment, your offending itself falls into the lower end of Band 3. The aggravating features of the offending include premeditation, the use of weapons, a group dynamic and serious injury. But in assessing your individual culpability, I place your offending in Band 2. Your culpability is “truly less” than that of Mr Homan’s.17 Still, you were a willing participant in the plan and you pleaded guilty to the same charge. In light of the ten-year starting point adopted by Gilbert J in respect of Mr Homan, I consider a starting point in the vicinity of eight years would be appropriate for you. Such a reduction appropriately reflects your part in the group offending than by reference to other cases involving similar conduct.18

Adjustment for personal factors

[33]   I now turn to consider your personal circumstances to see if the starting point adopted should be adjusted up or down.

—aggravating features

[34]   The Crown does not seek an uplift for your previous convictions. Many of your convictions are for driving offences and assaults, some of which are family violence charges. While your previous offending does involve violence, this is by far the most serious offending you have committed. No uplift is warranted.

—mitigating features

[35]   Mr Mills submits a discount for remorse and an offer to attend a restorative justice meeting is appropriate. You made some expressions of remorse in your pre- sentence report. But there is little evidence of a real and tangible expression of remorse

17     R v Mako, above n 8, at [64].

18     See R v Ngawaka; cf R v McBride [2015] NZHC 385 and R v Kihi HC Hamilton CRI-2008-019- 166, 3 July 2009.

such as may warrant a discount. Your offer of restorative justice – which could not be carried through as the victim could not be located – should be taken into account.19

[36]   Mr Mills says a discount of two months is warranted to reflect time spent on electronically-monitored bail (“EM bail”). You spent approximately three and a half months, between 3 March and 20 June 2017 on EM bail. But, in considering time spent on EM bail, a mandatory consideration is compliance with bail conditions.20 You breached them in absconding from your grandmother’s address where you were supposed to reside. A warrant for your arrest some days later brought you back into custody. I accept, voluntarily.

[37]   You explain that was to escape Facebook threats made to you, ‘knowing where you live’. Your sister and grandmother say you were doing well at the address before the threats. Shortly after you absconded, the house was burgled. You were assaulted in prison on 10 February 2017. You say a cousin of the victim assaulted you in retaliation. I accept this would have enhanced your anxiety about the later threats. But absconding was not an appropriate response. I do not consider a discount is appropriate. I acknowledge Mr Mills has said on your behalf, today, there have been complaints made with the police this arose and before you absconded. I am unable to accept that because it is evidence from the bar, not substantiated.

[38]   Overall, I consider a discount of 20 per cent for personal factors is appropriate. I will issue a separate minute explaining the calculation. That brings the sentence to one of six years and five months’ imprisonment.

Guilty plea

[39]I turn now to consider the discount to be applied for your guilty plea.21

[40]   You first appeared in the Rotorua District Court on 28 November 2016. The amended charge of assault with intent to rob was made available on 12 February 2017. You pleaded guilty on 28 June 2017.

19     Sentencing Act 2002, s 10.

20     Sentencing Act 2002, s 9(3A)(c).

21     Hessell v R, above n 4.

[41]   Mr Mills says the full 25 per cent discount is appropriate. He says the reason for the delay is Crown Law’s decision-making process. Credit given for a guilty plea is in evaluation of all the circumstances in which the plea was entered; when it was entered is only one of those circumstances.22 In these circumstances, as I have discussed and will identify in my minute, I consider a discount of 15 per cent is appropriate (a discount of 12 months, rounding up). This would result in an end sentence of five years and five months’ imprisonment.

Minimum period of imprisonment

[42]   The Crown seeks a minimum period of imprisonment (“MPI”) should be imposed. Gilbert J’s reasoning in imposing a MPI is said to apply equally in your case. The Judge imposed an MPI of three years (which amounted to 40 per cent of the end sentence), given the seriousness of the offending.23

[43]   I am required to consider, notwithstanding the Crown’s acknowledgement that an MPI in your present circumstances is probably now redundant, the idea of an MPI, given your end sentence. I must be satisfied your early release on parole would be insufficient for particular sentencing purposes.24

[44]   Mr Homan was assessed as posing a high risk of causing harm to others; you were assessed as medium risk. Your culpability also is not equivalent to that of Mr Homan; you did not shoot or assault the victim. This is a serious escalation in offending for you. No minimum period of imprisonment is required

Sentence

[45]Mr Mowbray, please stand.

[46]   In relation to your guilty plea on the charge of assault with intent to rob, I sentence you to five years and five months’ imprisonment.

22 At [70].

23 In R v Homan, above n 6, at [22], Gilbert J referred to the comments made by the Court of Appeal in R v Hanna CA201/04, 7 October 2004, that “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”.

24 Sentencing Act 2002, s 86.

[47]You may stand down.

—Jagose J