Regan v R - [2012] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2012

[2012] NZCA 227

BETWEEN PETER JOHN REGAN
Appellant

AND THE QUEEN
Respondent

Hearing: 17 May 2012

Court: Randerson, Winkelmann and Keane JJ

Counsel: M L Wotherspoon for Appellant
N E Walker for Respondent

Judgment: 1 June 2012 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed. The sentence of two years five months imprisonment is quashed and a sentence of 14 months imprisonment substituted.

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REASONS OF THE COURT

(Given by Winkelmann J)

The appellant, Mr Regan, pleaded guilty to one count of demanding with menaces under s 239(2) of the Crimes Act 1961. He was sentenced to two years, five months imprisonment by Judge David Harvey in the District Court.[1] Mr Regan appeals against that sentence on the grounds that the starting point was excessive, the uplift for previous convictions was too high, and the discount for mitigating factors was inadequate.

Background facts

[1] R v Regan DC Auckland CRI-2011-004-11356, 12 December 2011.

The appellant has spent much of his adult life in prison. He has 170 prior convictions spanning 33 years. He has over 100 dishonesty offences in one form or another, the most serious of which are for five aggravated robberies and one charge of demanding with intent to steal committed between 1985 and 1995. Some of his previous offending involved him handing over a note to bank staff demanding money. Before this last offending, his most recent convictions were in 2007, for demanding to steal, shoplifting, using a document for pecuniary advantage, and driving offences. For these offences he was sentenced to imprisonment.
At the time of the offending the subject of this appeal he had been out of prison for 18 months, and for most of that time, subject to parole conditions. He reoffended within seven weeks of the end of his parole period.
It is not in dispute that alcohol and drugs have been the drivers of much of Mr Regan’s offending throughout his life, including the present offence. During the 18 months of his parole he made progress with addressing this addiction, attending AA meetings. He was able to form a stable relationship and had found employment.
The immediate background to the present offending was stress caused by a short separation from his partner. He began drinking, and this developed into a three day drinking binge during which he lost his wallet and his cell phone. In the hours immediately preceding this offending, and in a single session, he took all of his prescription medication which included Tramadol and Diazepam.
In this heavily intoxicated state he walked into bank premises in Queen Street, Auckland, and approached a teller’s station. The teller in attendance was an 18 year old who was on her first day at work. Mr Regan mumbled something about money, and when the young teller asked him to repeat himself, he demanded the money in the till, telling the teller to move to it. Although heavily intoxicated, it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regan v R

Details

AGLC: Regan v R [2012] NZCA 227
Case: [2012] NZCA 227
Decision Date: 1 June 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Peter John Regan, appealed against the sentence of two years, five months imprisonment imposed on him by Judge David Harvey in the District Court. Mr Regan had pleaded guilty to one count of demanding with menaces under section 239(2) of the Crimes Act 1961. The appeal was based on the grounds that the starting point was excessive, the uplift for previous convictions was too high, and the discount for mitigating factors was inadequate.

The court considered the appellant's extensive criminal history, with 170 prior convictions spanning 33 years, and over 100 dishonesty offences, including five aggravated robberies and one charge of demanding with intent to steal committed between 1985 and 1995. The court acknowledged that alcohol and drugs had been the drivers of much of Mr Regan's offending throughout his life, including the present offence. However, the court found that the starting point adopted by the Judge was set too high. The court held that a more appropriate starting point was 18 months imprisonment, as the offending was less serious than that of the offender in Opetaia v R, an authority which the sentencing Judge did not have before him.

The court also found that the uplift for previous convictions was excessive. The court considered that an uplift of six months for previous convictions was appropriate, taking into account the appellant's progress in addressing his addiction and the support of his partner in his rehabilitation efforts. The court further held that a reduction of six months should be made to reflect the reparation paid by the appellant and his remorse. Finally, the court held that the appellant should have received the full 25 per cent discount for the early guilty plea.

The court allowed the appeal against sentence, quashed the sentence of two years, five months imprisonment, and substituted a sentence of 14 months imprisonment. The court held that an appropriate starting point for this offending was 18 months, with a six month uplift for previous convictions. There should then have been a six month deduction to reflect the reparation paid by the appellant and his remorse. By applying a 25 per cent discount for the early guilty plea, the effective sentence was 14 months imprisonment.

Orders