Richards v The Queen

[2014] NZHC 1519

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000014 [2014] NZHC 1519

BETWEEN

TODD ARCHIE RICHARDS

Appellant

AND

THE QUEEN Respondent

Hearing:	30 June 2014
Appearances:	J Mooney for appellant B Sweetman for respondent
Judgment:	2 July 2014

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Todd Archie Richards, pleaded guilty to:

(a)       one charge of aggravated robbery pursuant to s 235(b) of the Crimes

Act 1961; and

(b)charges of possession of cannabis and possession of a utensil (methamphetamine pipe) (ss 7 and 13 Misuse of Drugs Act 1975), driving  whilst  disqualified  and  driving with  excess  breath  alcohol (third or subsequent) (ss 32 and 56 Land Transport Act 1988) and breach of bail (s 38A Bail Act 2000).

[2]      Mr Richards was sentenced by Judge Roberts in the District Court at New

Plymouth on 21 May 2014 to an overall term of imprisonment of three years and

RICHARDS v R [2014] NZHC 1519 [2 July 2014]

nine months.1    The Judge arrived at that sentence on the basis of a starting point sentence of four and a half years for the aggravated robbery charge plus an uplift of six months to take account of the other charges to which Mr Richards pleaded guilty and the fact that his aggravated robbery offending occurred whilst he was on bail for that other offending.  The Judge then applied a 25 per cent discount for Mr Richards’ early guilty pleas.

[3]      Mr Richards now challenges his sentence of three years and nine months as being manifestly excessive.  He says the starting point (four and a half years) for the aggravated robbery offending was too high, and that he should have been granted some concession by reference to an offer of reparation he made involving assistance from his mother.

Mr Richards’ offending – the facts

[4]      On Friday 21 March 2014 Mr Richards and two associates, Mr Rowan Pratt and Ms Codie Featonby, were in a vehicle driven by Ms Featonby at a local petrol station.  Whilst they were there, Wayne Kevin Smith, the victim of the subsequent aggravated robbery, withdrew $300 in cash from an ATM machine on the forecourt of the service station.

[5]      Mr Smith  left  the  service  station  on  foot.     Mr Richards,  Mr Pratt  and Ms Featonby left by car.  A short time later Mr Pratt got out of the vehicle, taking with  him  a  40  cm  long,  solid,  timber  chair  leg.    Shortly  thereafter  Mr Pratt approached Mr Smith from behind and struck him a hard blow to the back of his head using the chair leg.  The initial blow opened up a large gash which began to bleed heavily.  Mr Pratt struck Mr Smith twice more on the head before Mr Smith turned round and confronted him.  A struggle ensued.  During that struggle, Mr Pratt hit Mr Smith several more times with the chair leg.   At some point in the attack, Mr Pratt lost control of the chair leg and Mr Smith and he fell to the ground fighting.

[6]      At this point Mr Richards joined in, punching Mr Smith several times to the head and kicking him once in his side or back.

[7]      Mr Richards  and  Mr Pratt  then  rifled  through  the  pockets  of  Mr Smith’s clothing, taking from him his Vodafone cell phone, the $300 in cash from the ATM machine and a packet of Pall Mall cigarettes.

[8]      Mr Richards and Mr Pratt were driven from the scene by Ms  Featonby. Mr Smith managed to walk home, and was taken to hospital by his partner.

[9]      Mr Smith’s injuries included a large wound to the side of his head requiring four staples, numerous lumps and bruises all over his head, a sore neck, two black eyes, burst blood vessels in his left eye, blurred vision and six loose teeth.

[10]     Mr Smith’s victim impact statement records the serious ongoing effects these events have had on him.

The challenged sentencing decision

[11]     Judge Roberts’ sentencing decision is to be assessed in the context of the approach that the Crown took to that factual narrative, as confirmed to me during the appeal hearing by Ms Sweetman for the Crown and Ms Mooney for Mr Richards, and as reflected in the charges faced by Mr Richards and his associates, Mr Pratt and Ms Featonby.

[12]     The Crown accepts that when Mr Pratt initially assaulted Mr Smith, Mr Pratt did not intend to rob Mr Smith.  As I understand matters, this approach is based on Mr Pratt’s acknowledgement that, on the day in question, he had been out “to give someone the bash”.  As explained to me by Ms Sweetman, Mr Pratt originally faced a charge of injuring with intent to injure with respect to that assault.

[13]     Mr Richards, and Mr Pratt also face charges of aggravated robbery jointly by reference  to  their  participation  in  the  robbery  of  Mr Smith  that  occurred  after Mr Richards had come to the scene, that robbery being aggravated by their presence together  and  by  Mr Richards’  assault  on  Mr Smith.    Hence,  and  importantly, Mr Richards’ aggravated robbery charge, although this was not immediately apparent to me, does not allege any culpability on his part for Mr Pratt’s assault with the table leg  on  Mr Smith.     The  Crown  contends,  and  for  Mr Richards  Ms  Mooney

responsibly acknowledges, that Mr Richards’ and Mr Pratt’s robbery offending is also aggravated – in this sentencing context – by Mr Smith’s vulnerability.  In this context I note, finally, that Ms Featonby’s role in all this is reflected in the charge she faced of being an accessory after the fact to the robbery offending.

[14]     In other words and in summary, the Crown proceeds on the basis that the overall  offending  was  not  a  joint  enterprise.    That,  in  my  view,  is  of  some importance: if the offending overall had been a joint enterprise, by reference to Taueki,2  the degree of violence inflicted on Mr Smith would, for the offending as a whole,  have  attracted  a  starting  point  sentence  considerably  in  excess  of  that identified by the Judge for Mr Richards.  I also note, moreover, that Ms Sweetman indicated  that  the  Crown’s  position  regarding  Mr Richards  may  not  have  been

explained as clearly to the Judge as it was to me.

[15]     It would appear some confusion was caused at the sentencing hearing by the fact that Mr Pratt failed to appear, so that he was not sentenced at the same time as Mr Richards.    I  was  advised  by  Ms  Sweetman  that  as  a  result  of  the  Crown prosecutor having reviewed the file, Mr Pratt now faces a charge of causing injury with intent to cause grievous bodily harm in place of the original charge of injuring with intent to injure.   Mr Pratt has yet to be sentenced on either charge but has pleaded to and been convicted of the charge of aggravated robbery.   Mr Pratt has, apparently raised the plea of autrefois acquit (previously acquitted) to the grievous bodily  harm  charge,  given  his  conviction  for  aggravated  robbery.    That  matter remains outstanding.  On the basis of the approach taken by the Crown, as outlined to me, it is difficult to see the basis for such a special plea but, as the matter remains outstanding, I make no further comment.

[16]     Against that background the key element of the Judge’s reasoning was that:

(a)      Taking account of Mr Pratt’s assault on Mr Smith, the Taueki factors, and Mr Richards’ participation in the robbery, a starting point of four and a half years was called for.  The Judge reached that conclusion on the basis of identifying five Taueki aggravating factors and, therefore,

what he called “a band 3 placement”.   I infer, on the basis of the Crown’s explanation to me, that that would have been a starting point sentence  for  Mr Pratt  rather  than  Mr Richards.     Band  3  Taueki sentencing encompasses serious offending and attracts starting point sentences, subject to the overall Taueki assessment methodology, of nine to 14 years.

(b)The Judge then uplifted that starting point by a further six months to take account of Mr Richards’ previous convictions, the fact that this offending occurred whilst he was on bail and the drug, driving and breach of bail charges he was already facing.

(c)       Finally the Judge allowed a full 25 per cent discount on account of

Mr Richards’ guilty pleas.

[17]     Hence the end sentence of three years and nine months’ imprisonment.

Case on appeal

[18]     The case on appeal can be put fairly simply.

[19]     For Mr Richards, Ms Mooney’s submissions were that:

(a)       On the basis of Mr Richards’ involvement, as acknowledged by the

Crown, the four and a half year starting point was too high.

(b)As regards Mr Richards, the Judge had been wrong to regard this as offending that attracted the Taueki culpability bands.  Rather, this was violent offending, as anticipated in Mako,3 which properly attracted a starting point in excess of three years.

(c)       Given the violence inflicted on Mr Smith by Mr Richards, Mr Smith’s

vulnerability  and  the  involvement  of  more  than  one  offender,  a

starting point  sentence of four  years  –  as  argued  for by both  the defence and the Crown at Mr Richards’ sentencing, was appropriate.

(d)Moreover,  Mr Richards  had,  with  the  financial  assistance  of  his mother, offered to pay his share of financial reparation to Mr Smith. The Judge had been wrong to take no account of that offer because the money was to be provided by his mother.

(e)      Ms Mooney had no challenge to the six month uplift for the balance of matters.   On that basis, an end sentence in the vicinity of three years and six months is called for.

[20]     For  the  Crown,  Ms  Sweetman  acknowledged  that,  on  the  basis  of  the approach being taken by the Crown, the Judge may have been wrong to analyse Mr Richards’ (as opposed to Mr Pratt’s) offending in terms of Taueki factors.  But the combination of the actual violence inflicted on Mr Smith during the joint robbery, together with Mr Smith’s extreme vulnerability, justified the starting point sentence of  four  years  and  six  months.    As  for  the  offer  of  reparation,  Ms Sweetman acknowledged  the  Judge  may  have  been  wrong  to  discount  that  offer  entirely because  of  the  involvement  of  Mr Richards’  mother.     Nevertheless,  in  the circumstances any further discount for that offer could not be large and did not result in Mr Richards’s sentence falling outside the available range.

Analysis

[21]     Given the uncertainties in the way it would appear the Crown presented its case, this was a difficult sentencing exercise for the Judge.  In my view, what was required was a very clear statement by the Crown from the outset as to whether or not the offending as a whole was charged as a joint enterprise.  If it was not, then that needed to be reflected more clearly – at least by my assessment – in the various summaries of fact and written submissions.

[22]     Be  that  as  it  may,  and  on  the  basis  of  clarification  provided  to  me  by Ms Sweetman and Ms Mooney, I have an appropriate basis for considering this appeal.

[23]     On the basis that the Crown accepts that Mr Pratt’s initial, and very violent, assault on Mr Smith was not itself part of the aggravated robbery, and that the robbery began on Mr Richards’ arrival, I agree that the subsequent violence is not so serious as to attract a Taueki culpability assessment.  But that is not determinative of this appeal.  In an appeal of this nature, the challenge has to be to the end sentence, not the Judge’s methodology.   If the end sentence is within range, the fact that an incorrect approach may have been used to derive that end sentence will not impugn

the outcome.4

[24]     Mr Richards acknowledges that a sentence of three years and six months (approximately) would be the appropriate end sentence and, on that basis, says that his sentence of three years and nine months was manifestly excessive,

[25]     When I consider matters in the round, I am not persuaded by that proposition.

[26]     I accept that the level of violence Mr Richards inflicted on his victim did not, on the basis of the way the Crown approached this matter, call for a Taueki approach to the criminality involved.  I note immediately that that assessment would not apply to Mr Pratt.  At the same time, I agree with the Crown that the vulnerability factor here is high.   It is, in my assessment and contrary to Ms Mooney’s submission, higher than in Falanai where a similar level of violence was used on a person who

was vulnerable by reason of their intoxication.5   Whilst Mr Richards maintains that

he did not witness Mr Pratt’s assault on Mr Smith and hence joined in what he thought was an ongoing scuffle, it is difficult to accept that he was not aware of the fact  that  Mr Pratt  left  the  vehicle  armed  with  a  table  leg  looking  for  trouble. Mr Richards’ offending took advantage of the very serious violence that Mr Pratt had visited on Mr Smith.  Whilst I accept that the four and a half year starting point is stern, in these unusual circumstances I do not consider it to be out of range.

[27]     Moreover, by my assessment, the Judge’s six month uplift was a relatively benign  response,  not  only  to  the  drug,  traffic  and  breach  offending  for  which

4      See for example Swinton v Police [2014] NZHC 298 at [21] and Piu v Police HC Hamilton CRI-

2011-419-42, 9 August 2011 at [18]-[23].

5      R v Falanai [2013] NZHC 3239.

Mr Richards was to be sentenced, but also to the fact that this offending occurred whilst Mr Richards was on bail and his troubling record.

[28]     In  sentencing  Mr Richards,  the  Judge  noted  that  there  was  no  previous driving  whilst  disqualified  offending.6     In  fact,  Mr Richards’  record  notes  a conviction in April 2012 for a third or subsequent driving whilst disqualified, and therefore there would appear to be a number of similar offences.   Likewise, the Judge also noted that there were no convictions of any significance for violence.  I note that Mr Richards has a March 2013 conviction for assault with intent to injure,

and a number of assault charges both in the adult and youth courts.  The repeated offending whilst on bail, and the failure to meet bail conditions, very obviously called for an increase to the otherwise appropriate sentence by reference to the need to personally deter Mr Richards, and to protect the public from his offending.

[29]     In my view, therefore, the Judge could well have imposed a greater uplift by reference to those matters and one that would, taking account of any guilty plea, offset any extent to which the four year and six month starting point might possibly be considered to have been in error because of the application of Taueki factors.

Outcome

[30]     I therefore dismiss Mr Richards’ appeal against his sentence.

“Clifford J”

Solicitors:

Nicholsons, New Plymouth. C&M Legal, New Plymouth.

6      R v Richards, above n 1, at [11].