Rickit v Police HC Auckland CRI 2004-404-462

[2005] NZHC 1751

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-404-462

MICHAEL KEVIN RICKIT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 May 2005 Appearances: S Patel for Appellant

A Dowgray for Respondent Judgment: 26 May 2005

JUDGMENT OF SIMON FRANCE J

Counsel:

Mr S Patel, Barrister, P O Box 194, Auckland Solicitors:

Crown Solicitors, Auckland

RICKIT V POLICE HC AK CRI 2004-404-462 [26 May 2005]

[1]    The appellant appeals against a sentence of three years nine months imprisonment, and a minimum non-parole period of half that term. The appellant pleaded guilty to:

a)robbery of an ANZ Bank (10 years);

b)demanding money with intent to steal it from an ASB teller (7 years); and

c)demanding money with intent to steal it from an HSBC teller (7 years).

Facts

(a)First demanding of money

[2]    The appellant entered an HSBC branch on 18 December 2003. He had a t-shirt wrapped around the top of his head as a disguise. He produced a note which read “Give me the cash, don’t be a fool, I am armed, I will kill you”. After initialling seeking to comply, the teller was able to activate security screens and the appellant ran away.

(b)Robbery

[3]    Later on the same day, the appellant went to an ASB branch. He produced a note which said “Give me the money”. The note has been lost. The teller thinks she recalls the word gun. The appellant obtained $540.

(c)Second demanding of money

[4]    On 8 January the appellant went into an ASB branch. He presented a withdrawal slip on the back of which was written “I am armed with a pistol, act normal and you will live or else I will shoot U and your friends!!!”.

[5]The teller went to a supervisor and the appellant left.

[6]    The appellant has a previous conviction for robbery, seemingly as a party of some sort.

Reports

[7]    The Probation Service Report records that Mr Rickit was raised by his mother, his father having died when he was very young. He left school at 17, and began working in cafes and restaurants as a chef ever since. He was unemployed in the time prior to the offending. He is presently 23 years old. He has remained close to his family. He has a current relationship of four years, and a young son from that. The report notes that the appellant was under pressure for money both from family, and from hire purchase. He is assessed as being at a low level of re-offending due to a commitment to effect lifestyle changes.

[8]    The Victim Impact statements from two of the tellers show that they have been affected, but that these are diminishing as time goes by.

Sentencing remarks

[9]    Deohbakta DCJ identified the relevant facts and history. His Honour noted the prevalence of this offending and the need for deterrence. The case of R v  Cassidy was referred to. Mitigating factors identified were guilty plea, and age. It was noted no weapon was involved and the money was not large.

[10]   Mr Rickit was sentenced to three years nine months on the robbery, and two years six months concurrent on the demanding money. A minimum parole period of “half the time” was imposed on the robbery because there had been repeated attempts at robbing the bank.

[11]   Conviction and discharges were entered on miscellaneous summary matters, and outstanding community work sentences cancelled.

Submissions on appeal

[12]Both aspects of the sentence are challenged.

[13]   Concerning the lead sentence, the following points are emphasised: the absence of weapons, the lack of planning, the lack of threat to public safety, the small amount of money taken, the early guilty pleas, and the comparatively sparse previous criminal record, as well as positive prospects.

[14]   Focus was placed on R v Cassidy (CA 254/02, 17 October 2002). I will address that in my reasons, but the limits of a Solicitor-General appeal as a precedent must be emphasised. It seldom gives guidance on what is the upper limit of a sentencing range.

[15]   Concerning the minimum non-parole period, the challenge is to whether the circumstances were “sufficiently serious” for a period at all, and if so, it is submitted 50% was too long. It is noted that no minimum period was sought by the Crown,  and accordingly no submissions were addressed to the Court concerning its imposition. Mr Patel submits that the applicable test is the prior test of “sufficiently serious” with a focus on the culpability of the offender. Measured against this test it is submitted there is nothing that supports a need to mark the offending out.

[16]   The Crown, noting R v Chadderton (CA 345/04, 6 December 2004), accepts that the appropriate test for the minimum non-parole issue is the pre-July 2004 test  of “sufficiently serious”. The lack of opportunity to be heard is accepted, but it is submitted that it was open to the Judge to impose a minimum non-parole period.  The factors mentioned in support are previous offending, number of offences, and the fact that the offending was committed on bail. The need for deterrence merited a lengthier parole period.

[17]   Concerning the lead sentence, the Crown submits it was within range. Emphasis is placed on the threatened use of violence, the relevant previous convictions (one robbery by assault and one demanding with intent to steal), the fact that the appellant was both on bail and serving a sentence of community work, and

the number of charges. The Crown submits that the sentence imposed is consistent with Cassidy. The Crown’s analysis is a starting point of three years six months to four years, with two years for aggravating factors which give a total of five years six months less mitigation.

Decision

(a)      Lead sentence

[18]   In terms of bank robberies these are at the lower end of the scale. The circumstances were not particularly threatening, and the yield was negligible. The seriousness is, in my view, increased by the terms of the note. If one chooses to talk of guns and death, then it will have consequences when assessing the seriousness of the offending. That said, the actual danger to the safety of the public and the tellers was at the lower end.

[19]   The focus on Cassidy has merit, in that some of the offending here was very similar to that under consideration in that case. Accordingly, guidance can be taken as to the appropriate approach. The Court there looked at the equivalent Mako range for aggravated robbery and then discounted that range to reflect the fact that it was robbery simpliciter.

[20]   The robbery in question in Cassidy was an offender who entered a bank and handing over a note which said that he had a bomb. He demanded cash and $10,000 was obtained. The Court’s analysis was that this was a five to six year Mako  robbery; this could then be adjusted to four years six months to five years for a robbery simpliciter. Lesser Mako aggravated robberies that were committed by Cassidy were subjected to the same analysis. Starting points of four years six  months to five years were similarly adjusted to 3.5 years to 4 years for robbery simpliciter.

[21]   Taking such an approach I consider the starting point for Mr Rickit’s robbery was 3.5 years to 4 years. On top of that matters of aggravation that would increase this are the fact that he was both on bail and subject to sentence, and also the fact

that there are two further attempts to rob (the demanding charges) that must be reflected in the lead sentence. The second of these two offences was committed  three weeks after the robbery and so there was plenty of time to reflect on his previous conduct. I could accept the events of 18 December were a stupid response to his personal situation, but this “explanation” is somewhat weakened by re- offending three weeks later.

[22]   When it was considered a four year staring point is available before these matters of aggravation are taken into account, and when it is considered that the mitigation available is the early guilty plea and improving prospects, it is apparent that a sentence of three years nine months was within discretion. For quite similar equivalent offending in Cassidy, a sentence of three years was imposed. Mr Patel placed weight on this, but this submission does not take into account the following:

a)the three year term in Cassidy did not include any totality factor for other offending. Here the lead sentence must also reflect the culpability of two other attempts;

b)the three year term in Cassidy is the minimum sentence available;

c)there was better mitigation available in Cassidy.

[23]I am satisfied that the sentence imposed was within discretion.

Minimum non-parole

[24]   As a general rule, I consider that such a term should not be imposed unless Counsel for an accused has had an opportunity to be heard on the matter. In the present case I am sure this was just an oversight. However, it means that I should consider it afresh rather than from an appellate standpoint.

[25]   Once I indicated that viewpoint, Ms Dowgray very properly took the position that the Crown had not sought a minimum term originally, and there was no reason to change that stance. Accordingly, I quash the minimum non-parole period.

Simon France J