R v Wyatt

[2009] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND

CA406/2009
[2009] NZCA 464

THE QUEEN

v

NICHOLAS BRIAN WYATT

Hearing:29 September 2009

Court:Robertson, Chisholm and Priestley JJ

Counsel:P F Gorringe for Appellant

B D Tantrum for Crown

Judgment:8 October 2009 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal

[1]        The appellant had pleaded guilty to six charges he faced in the Hamilton District Court.  He was convicted of threatening to kill, kidnapping, aggravated robbery, using an Eftpos card for pecuniary advantage, unlawfully taking a motor vehicle, and theft.  Because the appellant’s criminal history raised preventive detention as an option, his sentencing was remanded to the High Court at Hamilton.  Ronald Young J imposed sentences in June 2009: HC HAM CRI 2007-019-9805 10 June 2009.

[2]        The Judge saw the case as finely balanced so far as preventive detention was concerned.  Because of the appellant’s age the Judge opted for a lengthy finite sentence.

[3]        Using the kidnapping charge for the lead sentence the Judge imposed a term of seven years and three months imprisonment.  The aggravated robbery and threatening to kill counts were met by terms of four years and three years imprisonment respectively.  The three lesser charges involving dishonesty resulted in sentences of six months’ imprisonment.  All terms of imprisonment were to be served concurrently.  The Judge imposed a minimum period of imprisonment of four years.

[4]        This appeal challenges the seven years three month term.  There is no challenge to a minimum term of imprisonment being imposed which, the appellant contends, should be adjusted downwards if his appeal succeeds. 

Background

[5]        The appellant’s offending in November 2007 was serious.  In the early hours of the morning the victim was adjusting his car speakers in Cobham Drive, Hamilton.  The appellant and his co-offender approached him.  The appellant placed a knife at his throat, and ordered him into the vehicle.  The co-offender too was holding a knife.  The appellant held a knife at the victim’s throat and forced him to drive from Hamilton towards Cambridge, repeatedly threatening to kill him if he did not comply.

[6]        In a secluded area the appellant was forced, again on pain of death, to reveal his Eftpos card PIN number.  The victim was then pushed into his vehicle’s boot and told he would be killed if he made a noise.  The appellant drove the car to Cambridge where money was withdrawn from the victim’s account.

[7]        The appellant next drove the victim’s car towards Raglan at excessive speeds and pulled into a parking area off the highway.  The victim was extracted from the boot and led up a walkway.  He believed he was going to be killed and buried in the bush.  The appellant and his co-offender then bound the victim’s hands and legs and pushed him down a slope into the bush.  The two offenders drove the victim’s car back to Hamilton where a number of items were removed from it.

[8]        The effect of this offending on the victim was considerable.  He was in terror and fearful of his life.  He was unable to sit his final examinations at university and left New Zealand for a period to try and settle himself.  He returned and completed his degree but the undoubted effect of the offending was to delay his graduation.

[9]        The appellant’s guilty pleas came late.  He was committed for trial in April 2008.  There was to be a trial in late September.  His counsel withdrew five days before its start because the appellant indicated he wished to represent himself.  In the event guilty pleas were entered in November and December 2008.  It was not until March 2009 that the appellant accepted a summary of facts. 

[10]      Relevant to this appeal is the fate of the appellant’s co-offender.  He pleaded guilty to the same charges at a much earlier stage.  He was 17 at the time of the offending and was of good character.  The District Court Judge adopted a start point of seven years imprisonment which was reduced, on the lead charge of kidnapping, to three years and ten months to reflect the mitigating factors of the co-offender’s age, remorse, and early guilty pleas.

[11]      The appellant’s situation contrasts significantly.  He was 22 at the time of the offending.  He has a lengthy criminal history which includes previous convictions for aggravated robbery and kidnapping in 2001, for which he was imprisoned for four years.  Alarmingly (undoubtedly relevant to the lower courts’ consideration of preventive detention) he has a history of sexual offending.  At the time of the offending he was the subject of an extended supervision order which he had already breached.  The appellant’s pre-sentence report referred to his continued serious offending, and his non-compliance with various orders.  His risk of re-offending was assessed as high.

The sentencing

[12]      Ronald Young J referred in his sentencing notes to the term of imprisonment imposed on the appellant’s co-offender and its relevant start point.  He considered, in the context of a finite sentence, that a start point “in the region of somewhat more than” seven years’ imprisonment would be appropriate.  He weighed the appellant’s youth and the fact that he was very young when some of his earlier serious offending had taken place.  He referred to the aggravating features of the use of knives, the presence of another, a lengthy kidnapping, threats to kill, and the abandonment of the victim.  From a start point of just over seven years the Judge uplifted the start point to eight years, and uplifted by a further 12 months, to nine years, to reflect the appellant’s previous convictions and the fact that the offending had taken place whilst he was subject to an extended supervision order. 

[13]      From the nine year figure the Judge factored in an approximate 20 per cent reduction to reflect the guilty pleas, thereby reducing the sentence to one of seven years three months.

Discussion

[14]      Mr Gorringe advanced one submission for the appellant.  It was that there was a disparity between the sentences imposed on the appellant and his co-offender.  The District Court sentence was derived from a start point of seven years.  The start point deployed by Ronald Young J (before the uplift) was eight years.  Mr Gorringe was at pains to stress that he was not submitting that the Judge’s start point was manifestly too high.  Rather he submitted, on the basis of R v Rameka [1973] 2 NZLR 592, 594 (CA) that this was a special case where the Court might have regard to disparity if such disparity appeared unjustifiable and gross. He further submitted, on the authority of R v Lawson [1982] 2 NZLR 219, 223 (CA), that the difference in end sentences, which the adoption of different start points had caused, might be inconsistent with the perception that justice had been administered even-handedly. A reasonably minded independent observer might conclude that something had gone wrong.

Decision

[15]      We do not consider there is anything in counsel’s disparity submission.  As this Court observed in R v Rameka (at 593-594) intervention will only occur in situations where the disparity appears unjustifiable and is gross. Despite their joint involvement in serious offending there are a number of critical differences between the appellant and his co-offender. The co-offender was effectively a first offender. The appellant had an appalling list of convictions. Guilty pleas came much earlier in the co-offender’s case. The appellant has previous convictions for aggravated robbery and kidnapping. He was subject to an extended supervision order.

[16]      Quite correctly, Mr Gorringe did not challenge either the uplift applied by the Judge to the start point or the discount for mitigating factors.  If anything, the Judge’s uplift to reflect aggravating factors could have been greater and his discount smaller.

[17]      We see no principled basis to interfere with the sentence.  Nor do we consider that the eight year start point adopted by the Judge, contrasted with the seven year start point applied to the co-offender (of which the Judge was aware), brings the alleged disparity anywhere close to the territory where an appellate court should intervene.

Result

[18]      For these reasons the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington