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…

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 [2017] NZHC 1817
Case: [2017] NZHC 1817
Decision Date: 2 August 2017

CaseChat Overview and Summary

Alexander Hayden Mowbray was sentenced by the High Court of New Zealand for one charge of assault with intent to rob. The court heard that Mowbray and three associates had planned to lure the victim to a remote location under the pretence of selling methamphetamine to him, intending to rob him. Mowbray was armed with a.303 Winchester lever action rifle, a .22 sawn-off firearm, and a 12 gauge single barrel shotgun. The court found that while Mowbray did not fire any shots, he played a significant role in the planning and execution of the robbery, including placing salt in a plastic bag to imitate methamphetamine and engaging in an assault on the victim. The court considered the seriousness of the offence, the premeditated nature of the attack, and the injuries caused to the victim, which included gunshot wounds to the thigh and buttock. The court also took into account the victim's impact statement, which detailed the physical and financial harm suffered, as well as Mowbray's cooperation with the police and his request for a restorative justice meeting with the victim. The court sentenced Mowbray to six years and one month in imprisonment, without imposing a minimum term, to allow the Parole Board to assess the risk he posed to the community after serving one-third of his sentence.

The legal issues the court had to decide involved determining the appropriate starting point and sentence for Mowbray's offence, considering the aggravating and mitigating factors, and applying the principles and purposes of sentencing, particularly denunciation, accountability, and deterrence. The court had to balance Mowbray's culpability and the seriousness of the offence against the mitigating factors, such as his cooperation with the police, his request for a restorative justice meeting, and the lack of previous relevant convictions. The court also had to consider the sentence imposed on Mowbray's co-offender, Mr Homan, who was sentenced to seven years and six months in imprisonment, with a minimum term of three years. The court's reasoning and outcome reflect a careful consideration of the facts of the case, the principles of sentencing, and the individual circumstances of the offender.

Orders