R v Royal

[2009] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/2008
[2009] NZCA 65

THE QUEEN

v

JOHN ROYAL

Hearing:23 February 2009

Court:Chambers, Gendall and Allan JJ

Counsel:P J Kaye for Appellant

A Markham for Crown

Judgment:10 March 2009 at 4 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Allan J)

[1]       Following a jury trial in the Manukau District Court, the appellant was found guilty of aggravated robbery.  On 3 June 2008 he was sentenced by Judge Treston to nine years six months imprisonment.  He now appeals against that sentence.

Factual background

[2]       In the early hours of Sunday 10 September 2006, six members of a Pakuranga family were asleep in their home when they were disturbed by three masked offenders who smashed their way through the front door.  Two of the intruders carried firearms and the other had a sledgehammer.  They were dressed in imitation police clothing, including bulletproof vests, and claimed to be members of the Armed Offenders Squad.

[3]       Family members, the youngest of whom was a 13 year old girl, were herded together in a bedroom, where they were bound and gagged with tape brought to the scene by the offenders.  One stood guard with a shotgun, which he racked from time to time in order to intimidate the victims.  A second offender searched the house and took approximately $2000 in cash, together with a cell phone.  The third offender, carrying a pistol, took a middle aged male occupant into the kitchen where an element of the stove was turned on, and instructions given that the victim should sit on it.  He refused to do so and subsequently was threatened and punched to the floor, where he received kicks to the head and body.  Money and valuables were demanded.  The offender took a knife from a kitchen door and slashed his victim’s upper body and thighs, so causing cuts to his clothing and to his body.  Fortunately the invasion was noticed by neighbours, who called the police.

[4]       The appellant was not one of the three intruders.  Instead, he was standing guard in a vehicle parked some distance up the road.  As the police approached, the appellant advised the offenders by mobile phone and initially drove his vehicle in a manner that was intended to prevent the police from reaching the victims’ address.  He then undertook a sharp U-turn, and accelerated away from the scene in an attempt to lure police away from his co-offenders.  Two patrol cars did pursue him, and he was eventually apprehended. 

[5]       A third patrol car remained at the victims’ address.  As the offenders ran from the house, one pointed a shotgun at an officer.  All three intruders got into a second vehicle and left the scene.  Although this vehicle crashed a short distance away, the three occupants managed to escape before the police arrived.  Their identity was discovered only at a later date.  The stolen money has not been recovered.

[6]       At trial the appellant’s defence was that he had no knowledge of the robbery, but was innocently undertaking “burn-out” manoeuvres in the street.  He claimed that his subsequent driving behaviour, which both obstructed and distracted the police, was the result of panic on his part.

The appellant’s argument

[7]       Mr Kaye contends that a sentence of nine years six months imprisonment was in all the circumstances manifestly excessive.  He argues that:

a)the starting point of 10-12 years adopted by the sentencing Judge was too high;

b)insufficient weight was accorded to the appellant’s limited role in the offending;

c)inadequate attention was paid to the appellant’s youth (he was aged 19 years at the time of the offending);

d)the sentence imposed was too high when compared with those imposed on his co-offenders.

The Mako guidelines

[8]       In R v Mako [2000] 2 NZLR 170, this Court endeavoured to provide starting point guidelines for sentencing judges in cases of aggravated robbery. In doing so the Court emphasised the flexibility of the guidelines and stressed the importance of determining each case on its own facts. The Court suggested in Mako that it would be appropriate, and indeed necessary, to take into account such factors as the degree of planning and preparation entailed, the number of participants and their deployment, the use of disguises and other means of concealing identity, the number and types of weapons and how they were brandished, the character of the premises or persons targeted, the presence of members of the public at the scene, the extent of any violence, the nature and value of any property stolen and the degree to which recovery was effected, the existence of associated offending such as vehicle conversion, the detention or abduction of victims and hostage taking, the impact of the offending on victims, the presence of indications of organised gang crime, deterrence, and multiple offending involving separate incidents.

[9]       In Mako the Court observed at [58] that:

Forced entry to premises at night by a number of offenders seeking money, drugs, or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.  Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[10]     More recently, in R v Fenton [2008] NZCA 379, this Court rejected an argument that the repeal of the home invasion provisions had removed the basis for the ten year starting point in cases of home invasion.

[11]     It is common ground that the sentencing Judge in this case took into account the guidance provided in Mako, to which he expressly referred.  Mr Kaye’s argument is that, having appropriately considered the Mako principles, the Judge nevertheless failed to accord them proper weight.

The starting point

[12]     The Judge accepted the Crown submission that the appropriate starting point in accordance with Mako was between ten and 12 years imprisonment, but he did not select a finite starting point.  We think that, as a matter of logical inference, he must have had a starting point of, or about, 11 years imprisonment in mind, given his subsequent discussion of mitigating factors.  Mr Kaye proceeded on that footing for the purposes of argument before us.

[13]     Both counsel referred to R v Fenton, Mr Kaye submitting that there were factual parallels between that case and this.  There, a group of offenders, including the appellant, attacked a farm property, intending to obtain cash and cannabis.  Two of the offenders were armed, one with a softball bat and another with a machete.  The group arrived at about 7 am and confronted the senior male of the household, who in the ensuing struggle was struck about the head with the softball bat.  Eventually he managed to lock himself in a bathroom, but one of the offenders repeatedly struck the door with the machete.  In making good his escape through a window, the victim injured himself.  An adult female victim locked herself in the toilet.  The couple’s 14 year old daughter was tied up with tape in her bedroom, and the house was searched.  The offenders took electronic items and cannabis plants.

[14]     The appellant in Fenton was aged 19 years and had no serious criminal history.  He was not the instigator of the incident, was not armed and was not involved in the violence.  His role consisted of removing the stolen property and fetching from the car the tape used to bind the teenage victim.

[15]     In Fenton, this Court upheld a starting point of ten or 11 years, and an ultimate sentence of eight years imprisonment, emphasising that the appellant’s role was far from passive.

[16]     A starting point of ten years imprisonment was also upheld by this Court in R v Mokaraka [2002] 1 NZLR 793, where the appellant and four others had entered the home of three elderly women and a middle aged man in the mistaken belief it was a tinnie house. One of the offenders was carrying a knife. The occupants were detained and a man assaulted as the offenders demanded drugs. The house was ransacked; items of personal property were taken. The occupants were highly traumatised.

[17]     We are satisfied that the selection of a starting point in the order of 11 years imprisonment was appropriate in this present case for the principal offenders.  This was a sustained intrusion into a private home at night, involving a vicious assault upon the senior male occupant, and the detention of a family in the very place where they were entitled to feel safe.  As is to be expected, all of the victims have been seriously affected by what occurred.  Indeed, the primary target of this invasion, the senior male occupant who was the subject of a vicious knife attack, has returned to China.  Most of the Mako factors applied.  A starting point of the order of 11 years imprisonment cannot in our view be faulted, at least for the principal offenders.

[18]     But Mr Kaye argues that the appellant ought not to be classed with those who actually entered the house and committed the robbery.

The appellant’s role

[19]     Mr Royal did not enter the target premises.  He was not therefore directly involved in the detention of the occupants, or the violence inflicted by his co-offenders, or the taking of property.  But, as in Fenton, he cannot be described as a mere passive bystander.  He had an important role in this enterprise; that of look-out and decoy.  Moreover, he took active and partially successful steps to obstruct the police in the execution of their duty, by telephoning his co-offenders to warn them of the police’s approach, by using his vehicle to block police access to the property, and then by driving away at speed in a bid to attract police attention.

[20]     This Court has repeatedly pointed out that those who play a role similar to that of the appellant in the present case cannot expect to be treated as less culpable than those more directly engaged.  For example, in R v Wongchiu CA171/87 2 December 1987, we observed as a general principle that the criminal responsibility of those who drive a getaway vehicle is not less than that of their companions who actually enter premises and commit a robbery there.

[21]     In R v Mahaki and Te Moni CA309/97 8 April 1998, the Court said:

Conviction as a party presupposes a sufficient knowledge of the proposed offence, or type of offence.  In the more sophisticated robberies a number of persons may be involved, some playing supporting roles at locations away from the main action.  Again, we do not wish to encourage any notion that remoteness from the scene of armed robberies is any guarantee of immunity from the kind of sentence imposed on secondary parties more closely connected with the central event.

[22]     More recently still in Mako we said at [64]:

As this Court made clear in Smart 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.

[23]     The appellant drove to the scene in his own vehicle.  The remaining offenders travelled in a separate car.  There is no evidence that the appellant had actual knowledge of the weapons carried by his co-offenders.  That circumstance was expressly taken into account by the sentencing Judge.  But the character of this enterprise, involving an invasion of a private home late at night, carried with it the inherent prospect of violence, possibly involving weapons.  The risk that violence might ensue once the targeted home had been invaded must be taken to have been voluntarily assumed by the appellant. 

[24]     In fact, some allowance was made by the sentencing Judge for the somewhat limited role played by the appellant in comparison with his co-offenders.  Although no separate assessment was articulated, we are satisfied that the Judge did appropriately consider and take into account the role played by the appellant.

Youth

[25]     At the time of the offending the appellant was aged 19 years.  Youth is routinely taken into account for sentencing purposes.  Young offenders often end up before the criminal courts by reason of their lack of life experience.  Most have a limited record of prior offending.  Many are able to offer a range of mitigating factors which suggest that rehabilitation and re-integration considerations ought to be at the forefront of the court’s approach.

[26]     But this was a young man with no fewer than 17 prior convictions for burglaries committed in 2005 and for which he was sentenced to a term of imprisonment (albeit with leave to apply for home detention), towards the end of that year.  The present offending occurred not long after the completion of that earlier sentence.  In other words, the appellant was already a recidivist offender.  In our view, only limited emphasis could be placed on his age at the time of the offending.

Parity

[27]     Mr Kaye submits that, in comparison with the penalties imposed on his co-offenders, the appellant’s sentence of nine and a half years imprisonment is out of line.  A co-offender, with whom the appellant was tried, was one of the intruders.  He was disguised and carried a weapon.  That co-offender received a sentence of ten years imprisonment.  Another co-offender pleaded guilty and was sentenced to eight years imprisonment.  He was also an intruder.  Mr Kaye submits that each of those co-offenders was more culpable than the appellant, in that each entered the home of the victims, each carried weapons, and each was involved in the terrorising of the victims, and in particular the male occupant who suffered injuries.

[28]     Little assistance is to be derived from the sentence imposed on the co‑offender who pleaded guilty.  An ultimate sentence of eight years imprisonment following a guilty plea is consistent with the selection of a starting point in excess of ten years imprisonment, in line with the starting point selected here by Judge Treston.

[29]     Neither do we regard the penalty imposed upon the appellant as being out of line with that imposed at the same time on his co-offender, Mr Te Tai.  The Judge expressly noted that the latter was an intruder, and therefore more closely involved with the deployment of weapons inside the house.  He expressly referred also to the clothing worn by the three intruders, including Mr Te Tai – ballistic helmets, gas masks, body armour, and dark clothing.  The Judge distinguished the appellant’s role from that of Mr Te Tai, and although noting (correctly) that it was appropriate to adopt the same starting point, he indicated that he would make an allowance for the slightly lesser role actually played by the appellant.  Having done that, he referred to the need to make an allowance for the appellant’s previous convictions as an aggravating factor.  The appellant’s record was significantly worse than that of Mr Te Tai.

Overall assessment

[30]     We infer that the Judge adopted a starting point of 11 years imprisonment, from which it would have been appropriate for him to deduct one year in respect of the youth of both the appellant and Mr Te Tai.  But further adjustments were needed for the appellant.  An understandable approach would have been to deduct 12 months from the starting point for the appellant’s less central role in the offending, but to add back six months in order to reflect the appellant’s poor previous record and the fact this offending occurred so soon after the completion of an earlier sentence.

[31]     Although the sentencing Judge did not make a separate arithmetical allowance for each of these factors, he did refer to them.  We are satisfied that the sentence imposed on the appellant was right in principle and within the available range.

Result

[32]     For the foregoing reasons, the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington