R v Mowbray

[2017] NZHC 1817

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2016-063-3777 [2017] NZHC 1817

THE QUEEN

v

ALEXANDER HAYDEN MOWBRAY

Hearing:	2 August 2017
Counsel:	A Gordon for Crown B Foote for Defendant
Judgment:	2 August 2017

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Rotorua

Brian Foote Law, Rotorua

R v MOWBRAY [2017] NZHC 1817 [2 August 2017]

Introduction

[1]      Alexander  Hayden  Mowbray,  you  appear  for  sentence  on  one  charge  of assault with intent to rob.1   The maximum penalty for that offence is one of 14 years imprisonment.

[2]      When you entered a plea of guilty on 28 June 2017, you were convicted and given a first warning under the Three Strikes law.2

The facts

[3]      I now outline the circumstances surrounding the charge.  I have drawn on the summary of facts prepared by the Crown, and on the basis of which you entered your plea of guilty.

[4]      On Saturday 20 October 2016, you were smoking methamphetamine with three associates.  One of them was Mr Joshua Homan.

[5]      A plan was hatched to rob the victim.   The intention was to lure him to a remote location on the pretence of selling methamphetamine to him, and then to rob him.   To do that, you placed a small amount of salt in a plastic bag, to give the impression that you were carrying methamphetamine.  It was agreed that you would approach the victim at the pre-arranged meeting place and offer the bag for sale.

[6]      At the time these discussions took place, you had with you a .303 Winchester lever action rifle, a .22 sawn-off firearm and a 12 gauge single barrel shotgun. Mr Homan had possession of the Winchester lever action rifle.

[7]      A fifth person, female, drove your group to the carpark of the Jubilee Walking Track, situated on Paradise Valley Road.  The firearms were being carried by you as a group.  They were loaded, although I am aware that you take the position that you

did not know they were loaded at the time you left.

1      Crimes Act 1961, s 236(1)(a) and 66(2).

2      R v Mowbray HC Rotorua CRI-2016-063-3777, 28 June 2017 (Minute of Katz J) at paras [1] and

[2].

[8]      At about 10.40pm you and Mr Homan, and two associates, hid in bushes. Each of you had one firearm.  You and the driver left, planning to return when the victim arrived.

[9]      The male victim arrived at the carpark.  He stopped and remained seated in his car.  Some 15 minutes later, you and the female associate who had driven to the carpark with you returned. The vehicle’s headlights were shone at full beam towards the victim’s vehicle.  You then approached that car and got into the front passenger seat, next to him. You offered the bag that the victim thought was methamphetamine and asked for money.   Mr Homan  and  your associates then appeared from the bushes, armed with firearms, and made their way towards the vehicle.  When there, they demanded money from the victim.

[10]     One of your associates shot the victim with the .22 firearm, in the thigh.  He was then struck on the head with the firearm.

[11]     You began to wrestle with the victim.  He escaped.  He ran down Paradise Valley Road.  Mr Homan used the .303 rifle to shoot the victim in the back.  The victim fell and rolled into a drain on the left hand side of the carpark and road.  You and your associates left the scene and drove back into town.

[12]     The victim spent several days in Rotorua Hospital to receive treatment for the gunshot wounds.

[13]     Initially, you were charged with being a party to attempted murder.  I make two observations in relation to the withdrawal of that charge:

(a)      The first is that the charge against you was reduced to one of assault with intent to rob.   I infer from that, that you did not intend, when joining the common enterprise, for anyone to use a weapon in an endeavour to kill.

(b)The second is that Mr Homan was charged with causing grievous bodily harm with intent to rob.  That arose out of the discharge of the

firearm.  In my view, his use of the firearm is a significant factor that distinguishes your situation from that of Mr Homan.

Victim impact statement

[14]     The victim speaks of arranging to meet friends “at the speedway pull in area,” and ending up “getting shot twice by a group of people who wanted to rob me”.  The first shot lodged a bullet in his right thigh.  The second went through the top of his right buttock and out through the right hand side of his groin.  He has scars from entry and exit wounds, and the surgery required to address the shooting.

[15]     The victim usually lives in Australia.   He is not entitled to ACC in New Zealand.  He estimates that he has lost about $10,000 in earnings.  However, he is confident that he will “not have any long term psychological effects from being shot”.  He says he did not know any of those involved in the assault.

[16]     You have sought a restorative justice meeting with the victim.  At present the victim cannot be located so no such meeting can be held.  Nevertheless, I take into account the fact that you have asked for such a meeting.

Sentencing of co-offender

[17]     On 23 March 2017, Mr Homan was sentenced on one charge of causing grievous bodily harm with intent to rob.  He was someone who had discharged the firearm and shot the victim.  In sentencing Mr Homan, Gilbert J took a starting point of 10 years imprisonment and applied a credit of 25% to reflect an early guilty plea. The end sentence imposed was one of seven years six months imprisonment.  The Judge took the view that a minimum term of imprisonment was required to give effect to the sentencing goals of deterrence, denunciation and accountability.   A

minimum term of three years was imposed.3

3      R v Homan [2017] NZHC 532, at paras [14], [16], [19] and [22].

Principles and purposes of sentencing

[18]     This was a planned and unprovoked attack on a victim. Although you did not shoot, you were aware that others in your group were armed with firearms.

[19]     Your situation differs from that of Mr Homan, in that you did not use a firearm  at  the  scene.    You  did,  nevertheless,  play  an  important  role  in  putting together the package for sale, to make it look as if you were selling methamphetamine, and ensuring that the victim remained in his car while others approached him from the bushes. You also engaged in an assault on him.

[20]     The primary goals for sentencing in a case such as this must be denunciation, accountability and deterrence.   The most significant aggravating factor is that you were going to the scene with a group, who had firearms, and serious injuries were caused. The way in which the events unfolded resulted from a premeditated decision to go to rob the victim in circumstances where he was plainly vulnerable.

[21]     Although it does not strictly apply to a charge of assault with intent to injure, I accept Ms Gordon’s submission that the Court of Appeal’s judgment in R v Taueki4 is relevant to sentencing.  In light of the aggravating factors to which that case refers, I would have placed your offending on the cusp of Bands 2 and 3.5    Band 2 will generally  be  applicable  to  cases  in  which  two  or  three  aggravating  factors  are present, whereas Band 3 normally encompasses three such factors.6    Those factors are helpful in identifying the culpability involved in any form of assault on a victim. It applies to a case in which the maximum penalty is one of 14 years imprisonment which is the same as applies in this case.

[22]     In my view, the type of offending that occurred in this case was not too dissimilar from a concerted street attack in which weapons are used, and injuries inflicted, although the injuries are not serious and lasting.7    Having regard to those

factors, and the different nature of the charge you are facing, I choose a starting point

4      R v Taueki [2005] 3 NZLR 372 (CA).

5      Ibid, at para [34](b) and (c).

6      Ibid, at paras [38] and [40].

7      Ibid; compare paras [39](a) and [41](a).

of nine years imprisonment.  That I consider achieves parity with the offending of

Mr Homan.

[23]     Although you have a number of previous convictions, all are relatively minor and not relevant to the current offending.  I give no uplift to reflect those.

[24]     I turn to consider the credit for mitigating factors.   I have considered  a number of general issues to which counsel have referred me in written, as well as oral, submissions.  I deal with those issues together, before considering the extent of credit that should be allowed for the guilty plea.

[25]     You co-operated when questioned by the Police about your involvement in the events giving rise to the charge.  That and more general pre-sentencing factors8 mean I am prepared to give a credit of 20%.  I round that to one year and 10 months. Before taking account of your guilty plea, that reduces the starting point to one of seven years and two months imprisonment.

[26]     Mr Foote, on your behalf, did seek a further credit to reflect the time you spent on electronically monitored bail between 3 March and 20 June 2017.   That period ended when you took the bracelet off and absconded.  In those circumstances, I am not prepared to give any credit for the time you spent on bail.  The absconding is not regarded as an aggravating factor for sentencing purposes.

[27]     You first came before the Court on 28 November 2016.  Your plea of guilty was entered on 28 June 2017, after you had been arrested from your absconding on electronic bail.  There is no good reason why the plea could not have been entered earlier.

[28]     In my view, you are not entitled to the full credit that would otherwise be available.  In  my view, a credit of 15% should be given for the plea.  I round that to

13 months imprisonment.  That brings the end sentence to one of six years and one

month’s imprisonment.

8      Including the request for a restorative justice meeting: see para [16] above.

Minimum period of imprisonment

[29]     I now discuss the question of a minimum period of imprisonment.  Gilbert J imposed a minimum period of imprisonment on Mr Homan of three years.   That amounted to 40% of the end sentence of seven years and six months imprisonment.

[30]     Ordinarily, a person who is sentenced to a term of imprisonment of more than two years will be eligible to apply for parole after serving one-third of that sentence. The Court has a discretion to increase the amount of time that must be served, up to two-thirds of the period, if the ability to apply for parole after one-third would not reflect the sentencing goals of denunciation, deterrence and accountability.  That is the context in which I consider whether a minimum period should be imposed.

[31]     Given the lack of previous relevant convictions, the factors in relation to the credits I have given, the absence of any acts on your part that involved the firing of a gun and the family support that you plainly have, I do not consider a minimum term of imprisonment is required.

[32]     In my view, your’s is a case in which it will be preferable for the Parole Board to consider what risk you pose to the community after you have served one- third of your sentence.  The impression that you can make on the Parole Board is for you to do after you have served that amount of time.

Result

[33]     Mr Mowbray, I sentence you to a period of imprisonment of six years and one month.

[34]     Please stand down.

P R Heath J