R v Steinmetz
[2004] NZCA 18
•15 March 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA384/03
BETWEENTHE SOLICITOR-GENERAL OF NEW ZEALAND
Appellant
ANDBENJAMIN DAVID STEINMETZ
Respondent
Coram:Glazebrook J
John Hansen J
Ronald Young JAppearances: A Markham for the appellant
G J King for the respondent
Judgment:15 March 2004
JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J
Introduction
[1] The respondent pleaded guilty to one count of aggravated robbery and was sentenced in the Wellington District Court on 9 September 2003 to two years’ imprisonment. He was granted leave to apply for home detention.
[2] The Solicitor-General seeks leave to appeal the sentence on the basis it is manifestly inadequate pursuant to s 383(2) of the Crimes Act 1961.
[3] The appeal was filed 10 days out of time. The appellant seeks leave for time to be extended.
Facts
[4] At approximately 5.00 a.m. on 19 December 2002 the complainant was in sole charge of the Mobil Service Station at Paraparaumu. The respondent along with his co-offender ran into the store. Both offenders covered their faces to prevent identification. The appellant was wielding an imitation air pistol which he pointed at the complainant, instructing him to comply with his demands. The co-offender, who carried a knife, leaned over the counter and took money from the open till after the complainant opened it in accordance with instructions from the respondent.
[5] The respondent then walked around the counter and forced the complainant to lie on the floor. He removed the remaining large denomination notes from the till and took four Vodafone pre-pay phone cards. As the two offenders left the station, the respondent picked up two cigarettes. The total value of goods taken was $337.
[6] They crossed the road and ran up a walking track, discarding caps, the knife, the pistol and a set of house keys on the way. Having been tracked by a police dog, on 20 December 2002 search warrants were executed at their houses. The stolen phone cards were found at the respondent’s property.
[7] When spoken to by the police, he admitted the offending, saying he was intoxicated and had consumed significant drugs including methamphetamine. After some 10 months, and following depositions, he ultimately pleaded guilty and was sentenced to two years’ imprisonment with leave to apply for home detention. It is clear that the Judge was heavily influenced in his decision by the support received for Mr Steinmetz, from relatives and from the Probation Service, to enable him to address his long-standing drug addiction.
Appeal Out of Time
[8] Section 388 of the Crimes Act specifies the time limits for the hearing of appeals:-
388. Time for appealing
(1) Where a person convicted desires to appeal to the Court of Appeal against his conviction or sentence, or to obtain the leave of that Court so to appeal, [or where the Solicitor-General desires to obtain the leave of the Court of Appeal to appeal against the sentence passed on the conviction of any person on indictment,] he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within [28 days] after the date of conviction or ([if the convicted person is] not sentenced on the date of conviction) at any time after the conviction, but not later than [28 days] after the date of sentence. [ ]
(2) The time within which notice of appeal or notice of application for leave to appeal may be given may be extended at any time by the Court of Appeal.
[9] In this case the expiry date for the filing of the notice of appeal was the 7th October. It was not filed until the 17th October. We were advised by the Crown that the file was not received until the 8th October. The only explanation proffered from the bar is that the prosecutor was awaiting the sentencing notes.
[10] Ms Markham advised that what occurred in this case was an aberration and the general practice adopted was for prosecutors to send the file to the Solicitor-General’s office timeously, notwithstanding that sentencing notes were not available.
[11] Furthermore, in this case it is apparent that no efforts were made to alert the respondent or his counsel that an appeal was likely. On the 21st October 2003 Mr King wrote to the Solicitor-General, copied to the Manager of this Court, stating that he had been advised by the Legal Services Agency that a notice of appeal had been filed. Mr King had acted for Mr Steinmetz throughout. Mr King complained that he had no prior indication that a Solicitor-General’s appeal was being considered or filed. No indication had been given by the Crown Prosecutor after the sentencing that such a step would be considered.
[12] It is clear that there is a discretion to grant extensions of time, but equally, as this Court has recognised, there are limits upon the grant of such extensions. In R v Knight [1998] 1 NZLR 583 at 587, Richardson P, in delivering the decision of this Court, said:-
Extension of time for appeal: the statutory yardstick
Section 388 does not specify the principles or criteria to be applied in determining applications for extension of time for appeal. The time “may be extended” and “at any time” by the Court. But the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” (R v Hawkins [1997] 1 Cr App R 234 at p 239).
[13] Mr King submits, especially in the circumstances of this case when no effort was made to notify counsel or the respondent of the appeal, that the explanations advanced fall short of the “interests of justice” as envisaged in Knight. There is nothing special in the circumstances of the appellant’s case to justify the effluxion of time.
[14] On the other hand, Ms Markham submitted that such indulgences are frequently granted to accused persons to allow them to pursue appeals. Of course that raises Bill of Rights considerations that are not present here.
[15] She also accepted that in this case, if the normal procedure had been adopted and the file forwarded to Crown Law immediately by the prosecutor, a pro forma appeal could have been filed. It is clear that the sentence is sufficiently out of line with others for this offence that the Crown should have been alerted to the need to file a pro forma application.
[16] In our view, given the failure to follow normal procedure, coupled with the failure to communicate with the respondent or his counsel, the interests of justice do not require time to be extended, and it is refused. While there may be rare occasions when evidence is not required to explain delay, normally an affidavit should be filed in support of the leave application.
The Sentence
[17] Just because we have refused an extension of time, it should not be thought that we concur in the sentence imposed by the learned District Court Judge.
[18] However, in the circumstances it is appropriate to comment briefly.
[19] The Crown’s complaint is that the standard application of the decision of this Court in R v Mako [2000] 2 NZLR 170 would have led to a sentence much greater than the two years imposed. It is submitted on behalf of the Crown that the learned District Court Judge was too readily swayed by the hopes for rehabilitation expressed by the respondent, the Probation Officer, and the respondent’s aunt.
[20] In R v Mako (supra) at paragraph 56 the Court said:-
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.
[21] This case must be considered at the upper end of the example given in the paragraph just cited. The complainant, in sole charge of a service station in the early hours of the morning, was particularly vulnerable. He was confronted by not only the respondent but a co-offender armed with a knife. Both had their faces covered to disguise their identities. To this must be added that the respondent, at least, was affected by alcohol and methamphetamine, and a sentencing Judge cannot ignore the increased offending occasioned by the consumption of methamphetamine and the recognition to this given by Parliament in its re-classification as a Class A drug.
[22] Another relevant decision of this Court is Solicitor-General v Lam [1997] 15 CRNZ 18. This was a Solicitor-General’s appeal in relation to four persons facing sentence for aggravated robbery. Of relevance to the present case is the position of one Tuhura. Tuhura, in concert with another, formed a plan to commit a robbery of a liquor store. They took an air pistol owned by the co-offender’s father and disguised themselves with a hood made from clothing. Tuhura donned the hood and entered the premises with the pistol, which was unloaded. He approached the proprietor and ordered him to empty the till. A sum of $264.25 was taken. Tuhura was aged 21 and since leaving school he had held several short-term jobs but was currently unemployed. He had a history of cannabis use and was abusing the drug heavily at the time of the offending. He had four minor previous convictions, of which two were traffic-related, the others for breaching community service and offensive behaviour. Notwithstanding his good record and the sentencing Judge’s finding that there was a need for rehabilitation, that he had co-operated with the authorities and a suspended sentence would have a strong deterrent effect, this Court determined that a sentence of at least three and a half years was appropriate. However, given it was a Solicitor-General’s appeal, a sentence of three years was substituted for a term of two years’ imprisonment that was suspended.
[23] Mr King, on behalf of the respondent, referred to the decision of Neazor J in R v Bint (High Court, Wellington Registry, CRI2003-485-102, unreported judgment of 10 December 2003). In that case Bint was addicted to methamphetamine and the facts of the aggravated robbery were similar to those confronting the Court in the present case. In the District Court Bint had been sentenced to two years’ imprisonment and granted leave to apply for home detention. Leave to apply for home detention was refused. Neazor J noted that Bint was a first offender and determined that in the circumstances of that case it was appropriate to reduce the two year sentence to 15 months.
[24] We fail to see how this assists the respondent. The reality is that he has a significant record. There are numerous convictions for burglary, escaping from lawful custody, drug offences, possession of an air gun, theft, and, importantly, in September of 2001, he was sentenced to 18 months’ imprisonment for a burglary that apparently involved a firearm.
[25] It is also apparent that the sentencing Judge was impressed by the fact that Steinmetz had stayed out of trouble while on bail. It now transpires that while on bail he committed three receiving offences for which he has been subsequently dealt with. At the time he was sentenced by the learned District Court Judge he had not been charged with those offences, and, if we were determining this appeal on the merits, we would not consider it appropriate to take those matters into account in determining the appropriate sentence.
[26] However, even without taking those into account, we are satisfied that the sentence imposed was manifestly inadequate. Given the circumstances of this case as outlined above and the respondent’s very substantial record for one so young, a starting point of at least four and a half years needed to be taken. Any allowance for a guilty plea could not be significantly high as it was some 10 months after arrest and after depositions before the respondent pleaded guilty. Allowing for the supportive probation report and references, we consider in the circumstances of the respondent the maximum allowance that could be made would be one of 18 months. That would leave an effective sentence of three years, well in excess of that imposed by the learned District Court Judge.
[27] We are driven to the conclusion that the Judge had determined that the respondent should be given the opportunity of undertaking an Odyssey House programme and has tailored his decision accordingly. The starting point was too low, but, even if it had been correct, an allowance of 50% for the guilty plea and the other factors in this case is too high.
[28] It follows that if this matter had been determined on its merits the sentence would have been increased.
Solicitors:
Crown Law Office, Wellington, for appellant
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