Regan v R
[2012] NZCA 227
•1 June 2012
| t |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA17/2012 [2012] NZCA 227 |
| BETWEEN PETER JOHN REGAN |
| AND THE QUEEN |
| Hearing: 17 May 2012 |
| Court: Randerson, Winkelmann and Keane JJ |
| Counsel: M L Wotherspoon for Appellant |
| 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 is not in dispute that he was able to speak in a commanding voice which left the teller intimidated and shocked. She took $905 and handed it to him.
The victim impact statement from the teller makes plain that she was left distressed and that the incident caused her to lose confidence in her work.
Sentence
In sentencing Mr Regan, the Judge identified deterrence, denunciation and protection of the community as the significant purposes which the sentence must serve. He took into account that this was the burglary of commercial premises, there was an element of premeditation and harm to the victim. In fixing a starting point he accepted Crown counsel’s submission that there was an analogy to be drawn with R v Mako,[2] a case dealing with the sentences for aggravated robbery, and also referred to a number of other cases in which starting points of two years had been adopted for the offence of demanding with menaces.[3]
[2] R v Mako [2000] 2 NZLR 170 (CA).
[3] Zheng v Police [1997] BCL 1241.
He then adopted a starting point of two years’ imprisonment, which he uplifted by one year for previous convictions. He said the guilty plea could have been entered at an earlier point and therefore applied a reduction of only 20%, arriving at a final sentence of two years, five months imprisonment.
Starting point
Mr Regan says that the starting point was set too high in light of the existing authorities. Counsel for the Crown submitted that the starting point was appropriate. The nature of the offending justified an analogy being drawn with the sentencing approach in Mako. In particular the offending involved targeting a bank for theft of money. Mr Regan’s intention was plainly to make off with a considerable sum. Deterring such offending by Mr Regan and others in the community justified a stern approach in this particular case.
We consider that the decision in Mako provides little assistance in terms of appropriate sentencing range, as the discussion in that case focussed on sentencing for aggravated robbery, which has a different maximum sentence.[4] Although some of the same policy considerations identified in Mako apply to sentences for both aggravated robbery and demanding with menaces, it would be wrong to approach this sentence through the lens of Mako and the application of mathematical formulas to arrive at a pro-rated sentencing range.
[4] A maximum sentence of 14 years imprisonment: Crimes Act 1961, s 235.
Having reviewed relevant sentencing decisions that deal with demanding with menaces we are satisfied that the starting point adopted by the Judge was set too high. Of particular assistance is the decision of this Court in Opetaia v R[5], an authority which the sentencing Judge did not have before him. In that case Mr Opetaia and an associate, dressed in gang regalia, confronted a bar tender. They demanded protection money of $1,200 per month saying “we are masters of this land. We own this territory”. Mr Opetaia’s associate grabbed the complainant by the shirt and threatened to damage the store if their demands were not met. The complainant handed over approximately $5.00 in coins to Mr Opetaia who spent it in gambling machines as he left the premises. In that case a starting point of two years was upheld on appeal.
[5] Opetaia v R [2011] NZCA 621.
Ms Walker submitted that Mr Regan’s offending was as serious as the offending in Opetaia because of the amount of money taken by the appellant, and because of what could be presumed to be his criminal intent to make away with a substantial sum of money given that he targeted a bank. We accept that these are things to be weighed in the mix. We also accept that there is a significant public interest in deterring thefts from banks. Nevertheless we are satisfied that Mr Regan’s offending was less serious than that of the offender in Opetaia. His conduct involved no actual violence or even the explicit threat of violence. He acted alone, without the support of an associate and without the added menace of claimed gang affiliations. The immediate victim of Mr Regan’s offending, the teller, was in a bank, standing behind a counter, and thus physically separated from the appellant, and had the benefit of the bank’s various security systems. We contrast that with the position of the victim in Opetaia.
Also of assistance is R v Witute[6]. Mr Witute was in a group of men out on the street at night. Mr Witute initiated the offending by confronting two young men and demanding cigarettes. He snatched a lighter. Another of his party demanded money, and assaulted one of the complainants. Mr Witute was sentenced on a charge of demanding with menaces and a charge of theft. On appeal the sentence of 18 months for demanding with menaces was quashed, and a sentence of six months imprisonment followed by six months supervision substituted. This sentence took into account an early guilty plea, Mr Witute’s youth and rehabilitative prospects which suggests a starting point of around 12 months imprisonment.
[6] R v Witute CA464/00, 21 March 2001.
Because of the amount of money taken by Mr Regan, and his clear intention to make off with a substantial sum, his offending requires a higher starting point than was adopted in Witute, but a lesser one than adopted in Opetaia. For these reasons we accept Mr Regan’s argument that a starting point of two years was too high. We are satisfied that a more appropriate starting point was 18 months imprisonment.
Uplift for previous convictions
We then turn to consider the uplift applied by the Judge. He uplifted the sentence by a full fifty per cent to reflect previous convictions. Ms Walker for the Crown submitted that, while that was stern, it was justified in the circumstances. She submitted that in light of the gravity of the threat which Mr Regan posed as demonstrated by his criminal record, and propensity for similar offending, the uplift was open to the judge to deter Mr Regan and protect the community.
Previous convictions are a relevant aggravating factor, which the Court must take into account to the extent applicable.[7] In Rautahi v R it was said:[8]
The sentencing Court must reconcile two potentially competing principles: the principle that the character of the offender is relevant to the preventative and deterrence purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other.
[7] Sentencing Act 2002, s 9(1)(j).
[8] Rautahi v R [2011] NZCA 351.
In this case, there was good reason to believe that such a substantial uplift was not necessary. Although the appellant had very relevant and significant previous convictions, the pre-sentence report revealed that his offending had largely been driven by his alcohol addiction. To be weighed also in assessing the need for deterrence was the fact that over the 18 months since his release, Mr Regan had made progress in addressing his addiction and had not reoffended whilst on parole. The support of his partner has been critical in the progress he had made, and her continued support provided and continues to provide reasonable prospects for his rehabilitation. In all the circumstances, we consider that an uplift of six months for previous convictions was appropriate.
Reduction in sentence on account of remorse
The sentencing Judge made no mention of the repayment by Mr Regan of the amount he took, nor of the apologies he proffered to the police, the bank and the teller. He identified no countervailing mitigating factor other than the guilty plea, to offset the uplift for previous convictions.
In this case we are satisfied that the appellant’s remorse found real and palpable expression in the repayment of the amount outstanding and in the early apologies he offered. Some allowance in sentence should have been made for it. We are inclined to think that the remorse shown, and voluntary steps to pay reparation offset the uplift for previous convictions. A reduction of six months should therefore be made to reflect remorse.
Discount for guilty plea
We come then to the issue of a discount. The Judge applied a 20 per cent discount for the guilty plea, noting that the plea could have been entered earlier. The Crown concedes that Mr Regan should be treated as having pleaded guilty at the earliest possible occasion. Ms Walker referred to correspondence and dealings between counsel for the appellant and the officer in charge, in which the appellant indicated a preparedness to plead guilty should the charge be reduced from one of robbery to demanding with menaces. We understand this material was not before the Judge at the time of sentencing. As soon as the charge was amended, a guilty plea was entered. In those circumstances, as the Crown has conceded, the appellant should have received the full 25 per cent discount.
Marshalling all of these various matters we come to this. 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 these means we come to a sentence of 18 months before applying a 25 per cent discount for the early guilty plea. If roughly a 25 per cent discount is applied, that leaves an effective sentence of 14 months imprisonment.
For these reasons the appeal against sentence is allowed. The sentence of two years five months’ imprisonment is quashed and a sentence of 14 months imprisonment substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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