R v Mudford

[2022] NZHC 2222

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-019-273

[2022] NZHC 2222

THE QUEEN

v

TROY MUDFORD

Date of hearing:

1 September 2022

Appearances:

B T Vaili for the Crown

C D Bean for Mr Mudford

Date of sentence:

1 September 2022

SENTENCING NOTES OF JAGOSE J

Solicitors:

Hamilton Legal, Hamilton Bean Law, Hamilton

R v MUDFORD [2022] NZHC 2222 [1 September 2022]

[1]                 Mr Mudford, on your guilty pleas to one representative charge of each robbery1 and assault with a weapon,2 van Bohemen J entered convictions against you in this Court on 4 July 2022.3 The Crown offers no evidence on the balance of its charges against you, and I dismiss them.

[2]                 I am now to sentence you on your convictions. In sentencing you, I must accept as proven all facts essential to your guilty pleas.4 The Crown suggests a starting point of seven-and-a-half years’ imprisonment for robbery, uplifted by one year to include assault with a weapon. Your lawyer, Charles Bean, recommends three years’ imprisonment, uplifted by six months for the assault and another three months for offending while subject to release conditions, and then there are issues about discounts from those numbers. I am not bound by the lawyers’ views. I have to come to my own decision on the appropriate sentence for your convictions. I must satisfy myself of that sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.

Background

[3]I briefly address the background to your offending.

[4]                 After an encounter late the previous day, you and your two co-defendants co-ordinated to confront the two men and two women victims of your offending in their car at an isolated rural property at Hamilton’s Rotokauri in the early hours of Sunday, 16 January 2021. You punched one man to his jaw and stole the victims’ jewellery, handbags and phonecards, demanding they reset their cellphones. Later, having kept the victims until dawn in a house on the property, you hit the other man on the back of his head with a hammer.

[5]                 I have victim impact statements from three of the victims, who say your offending against them caused them severe anxiety and distress, including of the associated publicity, leading to two losing wages, job, home and custody of their child

1      Crime Act 1961, s 234(1): maximum penalty, 10 years’ imprisonment.

2      Crimes Act 1961, s 202C(1)(a): maximum penalty, five years’ imprisonment.

3      R v Mudford HC Hamilton CRI-2021-019-0273, 4 July 2022 at [4].

4      Sentencing Act 2002, s 24(1)(b).

and relocating to the central North Island to be closer to family, and the third becoming seriously introverted and overly vigilant by reason of the risk you presented to her life.

[6]                 You have eight prior convictions from 2018 and 2020, largely for dishonesty offending, all but one resulting in brief imprisonment sentences. Your present offending occurred while you were subject to release conditions, having only been released from prison a month earlier.

Personal circumstances

—PAC report

[7]                 The Department of Corrections’ pre-sentence report notes you turned 20 years of age the month prior to your offending. You are motivated to move on from your default antisocial conduct, which saw you estranged from your Cambridge family, by the prospects of regaining contact with your son and obtaining employment. While in prison you have taken first steps towards those goals, which appear successful in reducing the number of alerts recorded against you in recent months. Still, you will need substantial support on release into the community, not least if to avoid backsliding into your old ways.

—other correspondence

[8]                 I have read your note to me, Mr Mudford, this morning. I note you saying that you are working on being a better person and to make changes to better your life to avoid putting yourself in the situations like that which led to the present sentence.

—s27 report

[9]                 You have asked I hear Waata Heathcote on your background and its contribution to both your offending and your rehabilitation. Mr Heathcote says you are defined by your father’s gang affiliation and violent attitude, leading to your drug addiction and prison from a young age. He notes your disconnection from your family and culture, not helped by your family’s other challenges. He says you are sorry for your careless and foolish conduct, and to the victims. He thinks there is opportunity for intervention now, to allow your realisations to become realities.

Approach to sentencing

[10]              I now turn to explain how I will sentence you. I take a two-stage approach: first, to identify a starting point for offending of this type. That involves identifying the offending’s aggravating and mitigating features.5 Second, I take into account all aggravating and mitigating factors personal to you, together with a discount for your guilty pleas, they are all calculated as a percentage of the starting point.6

[11]              I must have regard for the statutory purposes and principles of sentencing.     I must hold you accountable for your offending and for the harm you have caused. Your sentence should be sufficient to denounce your conduct, to deter you and others from committing such offences, and to protect the community. I must consider the gravity (or seriousness) of your offending in comparison with other types of offences, and take into account its effect on the victims. Consistency in sentencing is desirable, but I must take into account anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe”. I must impose the least restrictive outcome appropriate in the circumstances, consistent with appropriate sentencing levels.7 These purposes and principles of sentencing have no ranking.8  My ultimate consideration is if “the sentence is a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.9

Analysis

—starting point

[12]              So, as I said, my first step is to set a starting point for your sentence. I take the robbery conviction as your lead offending.

[13]              There are complications in addressing robbery here: your acceptance of the Crown’s summary of facts prepared for substantially more serious aggravated robbery offending means your robbery offending must be near to the most serious of robbery

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

6      Moses v R [2020] NZCA 296 at [46]–[47].

7      Sentencing Act, ss 7 and 8.

8      Moses v R, above n 6, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].

9 At [49].

cases. Only your personal circumstances then would avoid a penalty near to the 10-year maximum.10  On the other hand, that does not mean I  should just calculate   a comparable deduction from an aggravated robbery sentence.11 Rather, I should sentence you for your admitted robbery, from the perspective of its particular aggravating and mitigating features.12 The distinction between the two can be seen on resentencing for robbery after quashing an aggravated robbery conviction, reducing seven years’ imprisonment to four years and six months.13

[14]              Your offending is aggravated by being premeditated and planned; together with others, although still outnumbered by the victims; occurring at night on private property, to which the victims were invitees and you and your co-defendants were intruders (although none of you was there for any ultimately legitimate purpose, and therefore I reject aggravation as a home invasion); at which the victims’ car was blocked and they were detained from leaving until daylight; accompanied by actual violence; and giving rise to material and lasting impact on the victims. Your offending has no mitigating feature.

[15]              Such is to uplift robbery’s 18-month to three-year baseline to four years’ imprisonment,14 which I take as my starting point for your lead in the group offending. I increase that by six months to account in totality for your assault offending and offending while subject to sentence.

[16]              So my overall starting point for you is four years and six months’ imprisonment. That appropriately engages sentencing’s denunciation, deterrence and community protection purposes.

10     Sentencing Act, s 8(d).

11     King v R [2019] NZCA 413 at [19].

12     Heteraka v R [2013] NZCA 339 at [23]–[24].

13 Piwari v R [2010] NZCA 19 at [31].

14 R v Lunjevich [2012] NZCA 454 at [23], citing R v Mako [2000] 2 NZLR 170 (CA) at [59]; Heteraka v R, above n 12, at [28]; and Piwari v R, above n 13, at [31]. Otufangavalu v R [2010] NZCA 585 at [6], Kelly v Police [2016] NZHC 2233 at [37] and Bell v Police [2016] NZHC 1715 at [23] are generous outliers, explicable by dismissal of their appeals.

—adjustment for personal factors and guilty plea

[17]              I turn to consider uplifts or discounts from that starting point for your personal factors, including your guilty pleas.

[18]              I acknowledge Mr Heathcote’s identification of an opportunity for intervention now from the effects of your background with the expression also of your remorse. Having regard for your criminal history, I will allow an overall 20 per cent discount, which includes a 10 per cent measure for your youth. You are now at the very limits of a youth discount, but it gives real weight to your background’s contribution.15

[19]              I will allow also a 15 per cent discount for your guilty pleas. That recognises the concession inherent in the Crown’s acceptance of the lesser offending.16

[20]              That brings me to an end sentence of two years and 11 months’ imprisonment, rounded down. That additionally engages sentencing’s purposes for your accountability and responsibility.

Sentence

[21]              Mr Mudford, please stand. On your robbery conviction, I sentence you to two years and 11  months’ imprisonment.  On  your  assault  with  a  weapon conviction, I sentence you to twelve months’ imprisonment, to be served concurrently with that for your robbery conviction. That means your total sentence is for two years and     11 months. You may stand down.

—Jagose J

15     Waikato-Tuhega v R [2021] NZCA 503 at [51].

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63].