R v Walker

[2009] NZCA 56

IN THE COURT OF APPEAL OF NEW ZEALAND

CA435/2008
[2009] NZCA 56

THE QUEEN

v

JESSE LAWRENCE WALKER

Hearing:24 February 2009

Court:Chambers, Gendall and Allan JJ

Counsel:G Boot for Appellant

A R Burns for Crown

Judgment:6 March 2009 at 11 am

JUDGMENT OF THE COURT

Appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       This is an appeal against an effective term of five years’ imprisonment imposed upon the appellant in the District Court at Tauranga, following upon his guilty pleas to counts of burglary, unlawful conversion of a motor vehicle and three counts of aggravated robbery. Judge Ingram sentenced the appellant to concurrent terms of five years’ imprisonment on the aggravated robbery charges and to two years’ imprisonment on each of the charges of burglary and unlawful conversion of a motor vehicle. 

[2]       It is contended on his behalf that the sentence imposed of five years’ imprisonment was manifestly excessive because the Judge adopted too high a starting point of seven years and failed to make proper allowance for mitigating features. 

Background

[3]       On 1 January 2008 the appellant, in the company of a co-offender, Lance Bush, broke into a residential dwelling in Hamilton when the owners were overseas.  The extent of the property taken from the dwelling is not clear, but the owner’s motor vehicle was converted by the appellant and his co-offender to their use.  It was driven to the Mount Maunganui area.  Later that day, at about 11.00pm, the car was being driven by Mr Bush and the appellant was a passenger in it.  It stopped so that the appellant could accost a woman in the street.  He was armed with a knife, demanded money, and took her handbag from her shoulder.  He returned to the vehicle, which was driven away.  He then accosted two different female complainants in the streets of Mount Maunganui, about 15 minutes later.  Again the vehicle drew up beside the victims and the appellant confronted the women armed with the knife, and demanded their handbags.  He obtained these despite some brief resistance from one complainant. 

[4]       So in the space of 24 hours the appellant and his co-offender committed one burglary, car conversion and three aggravated robberies in the streets of Mount Maunganui at a holiday time.  They were apprehended by the police later that day after a pursuit through a congested area, when the vehicle was driven at speed and incriminating materials thrown from it.

[5]       The appellant initially denied any offending.  He pleaded not guilty but eventually changed his plea to one of guilty on 16 May 2008 after he had been committed for trial at a preliminary hearing and after his co-offender had pleaded guilty. 

[6]       The appellant was then aged 18 and had over 70 previous convictions.  The Judge recognised as a mitigating factor the fact that the appellant had participated in a restorative justice conference and had a personality disorder, which made his life more difficult than otherwise may have been the case.

[7]       When imposing sentence, the Judge referred to R v Mako [2000] 2 NZLR 170 (CA) and the factors relevant to this case such as preparation, night time offending, the use of a weapon, the targeting of members of the public, and the substantial impact of these attacks upon the victims. The psychological and probation officer’s reports, which the Judge had, signified that the appellant was at a very high risk of re-offending. The Judge viewed the offending as “extremely serious”, involving a spree lasting for about five or six hours. The Judge viewed as aggravating factors the fact that the burglary was of a dwelling house, that the appellant was subject to a Court sentence at the time, and the vulnerability of the victims.

[8]       The Judge took the aggravated robberies as the lead offences.  He said a proper starting point for one of those crimes was three years based on Mako.  He then added a year for each of the two other aggravated robberies.  The Judge then viewed the burglary and car conversion crimes together with the very poor criminal record of the appellant as requiring an uplift of a further two years.  In his view, seven years reflected the total culpability of the criminal acts of the appellant, inclusive of an allowance for past offending.  Thereafter, the Judge allowed a discount of two years to cover what he said were the mitigating features, including the guilty pleas.  This resulted in the imposition of the lead sentence of five years’ imprisonment.

Discussion

[9]       Mr Boot, for the appellant, did not challenge the Judge’s methodology.  Nor could he;  the structure of the Judge’s sentencing was impeccable.  Rather, Mr Boot challenged the figures the Judge adopted.  In particular, he submitted:

(a)That five years was too high as a starting point for the three aggravated robberies;

(b)That the burglary, the car conversion, and the appellant’s criminal record, while justifying an uplift, did not warrant a two year uplift;

(c)That insufficient credit was given for mitigating factors other than the pleas of guilty;  and

(d)That the discount for the guilty pleas was insufficient.

Aggravated robberies

[10]     We are not persuaded that the starting point adopted by the Judge for the three aggravated robberies at five years was too high in terms of Mako.  The appellant did not act alone.  He armed himself with a knife which he used to threaten.  The victims were vulnerable females in public streets at night.  There were three robberies.  All these features took the offending out of the range (18 months to three years) suggested in Mako for a single street robbery.

Uplift for burglary, car conversion, and prior record

[11]     Mr Boot did not dispute an uplift was warranted on account of these factors, but submitted the Judge’s uplift was too great.  We do not agree.  Houses are particularly vulnerable to burglaries in the Christmas holiday period, with the consequence that deterrence assumes even more importance than at other times of the year.  Further, cars are very susceptible to conversion at that time, as the owners of them are frequently away at holiday homes or overseas, as indeed the victims of this burglary and car conversion were.  In addition, Mr Walker had an appalling record for one so young.  He had 72 previous convictions, commencing when he was 14 years old.  He had already been convicted for two aggravated robberies, two aggravated assaults, three burglaries, 26 vehicle-related offences, 12 theft-related offences, and one offence of possessing an offensive weapon, among others.  It was absolutely clear that prior sentences had done nothing to discourage him from further offending.  In those circumstances, the Judge was fully justified in concluding that a higher sentence was warranted on deterrence grounds.  In our view, a two year uplift on account of these three factors was within acceptable limits.

Mitigating factors other than the guilty pleas

[12]     Mr Boot submitted that the two year discount the Judge allowed was inadequate even for the guilty pleas, let alone the other mitigating factors. 

[13]     The Judge treated all mitigating factors together.  We appreciate it is still common to do that.  But, as this Court has explained now in a number of cases, it is preferable if judges separate the discount for the guilty plea from the discount for other mitigating factors: see, for instance, R v Fonotia [2007] 3 NZLR 338 at [50]‑[51]. The principal advantage of that approach is that the offender sees precisely the benefit he or she derived from pleading guilty. It also enables defence counsel to confidently advise accused persons that, if they plead guilty, they will be given a discrete and measurable discount solely because of that plea.

[14]     In this case, Mr Boot suggested there were three other factors justifying a discount.  The first was the appellant’s youth.  A man who has amassed 72 prior convictions is not a candidate for a “youth” discount. 

[15]     Secondly, Mr Boot suggested a discount was warranted on the grounds of remorse.  A discount for remorse is, to some extent, automatically built in as part of the discount for a guilty plea.  A guilty plea is, after all, viewed by the courts as an acknowledgement of wrongdoing by the offender, possibly a first step on the road to rehabilitation.  Only exceptional steps displaying remorse justify a further discount.  We do not see such exceptional steps in this case.

[16]     Thirdly, Mr Boot suggested that Attention Deficit Hyperactivity Disorder (ADHD) had played a major role in the appellant’s offending.  It may have; but clearly the appellant has to take responsibility for his excessive use of alcohol and illicit drugs and his failure to take his prescribed medication as directed.  The prime cause of this offending was not ADHD but methamphetamine (P).  The appellant admitted he had used P both prior to the offending that day and on the previous day.  No doubt the offending was committed under the influence of P and to provide cash to feed his pernicious habit.

[17]     In our view, the three factors Mr Boot has highlighted, taken together, would not have warranted more than a six to 12 month discount. 

Discount for guilty pleas

[18]     We are now down to, say, six years to six and a half years.  For reasons we shall give shortly, we do not consider a discount for the guilty pleas of more than 25% was warranted.  If one takes the six years, an end point of four and a half years results.  If one takes six and a half years, the end point is five years two months.  Whichever one adopts, one is in the same ballpark as the Judge.  His end sentence cannot be said to be manifestly excessive.

[19]     Why do we pick 25%?  This Court has not yet delivered a guideline judgment on discounts for guilty pleas, but recent decisions point to the fact that, unless there exist good reasons to the contrary, an accused can expect a 30-33% discount for a guilty plea entered at the earliest opportunity; a 25% discount for a guilty plea entered at about the time of committal for trial at the preliminary hearing; and a 10% discount where a guilty plea is given very late, say at the Court door at commencement of trial.  See, for example, R v Fonotia (above); R v Hannagan CA396/04 18 July 2005; R v Growden & Ors CA67/05, 84/05, 133/05, 174/05 25 October 2005; R v Andersen [2007] NZCA 288; R v Proctor [2007] NZCA 289; R v Patrick [2008] NZCA 115 and R v Sabuncuoglu [2008] NZCA 448.

[20]     That is in line with the Revised Definitive Guideline for Reduction in Sentence for a Guilty Plea issued on 20 July 2007 by the UK Sentencing Guidelines Council. This guideline mandates a sliding scale of discounts for guilty pleas, from one-third where the guilty plea was entered at the first reasonable opportunity, to one-quarter where a trial date has been set, and to a recommended maximum of one-tenth for a guilty plea entered at the “door of the Court” or after the trial has begun. 

[21]     Mr Boot submitted the Judge had been wrong to say it had been “a relatively long time before [the appellant’s] plea was entered”.  The Judge’s comment was entirely justified, however.  The appellant first appeared in Court on 2 January 2008.  He did not plead guilty until 16 May 2008, following depositions.  In those circumstances, the maximum discount is the 25% indicated.

Conclusion

[22]     In the end the sentence of five years’ imprisonment was reached in a careful and measured way by the Judge, who did not err in any respect.  It could not be said the sentence is manifestly excessive and it follows that the appeal is dismissed.

Solicitors:
Gavin Boot Law, Hamilton for Appellant
Crown Law Office, Wellington