Rickus v The Queen
[2021] NZCA 435
•3 September 2021 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA727/2020 [2021] NZCA 435 |
| BETWEEN | GYPSY RICKUS |
| AND | THE QUEEN |
| Hearing: | 15 June 2021 |
Court: | Clifford, Thomas and Muir JJ |
Counsel: | H T Young for Appellant |
Judgment: | 3 September 2021 at 2.30 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Gypsy Rickus was sentenced to six years and three months’ imprisonment for his involvement in a kidnapping and aggravated robbery, following his acceptance of a sentence indication based on a summary of facts and charges as negotiated between the Crown and his counsel.[1] Four years later he has filed an appeal against sentence and requires an extension of time in order to do so. He says the sentence indication proceeded on an incorrect basis, given he disputed one aspect of the summary of facts and that the discounts for youth and totality were inadequate.
Extension of time
[1]R v Rickus [2016] NZDC 25503. The sentence also included charges of unlawfully taking a motor vehicle, driving while disqualified, breach of release conditions and common assault.
An application for an extension of time must be granted if it is in the interests of justice to grant the extension, after taking into account all the relevant circumstances.[2] Relevant circumstances include whether the delay is adequately explained and whether there are compelling reasons to extend time.[3] Also relevant is the seriousness of the charges, the strength of the proposed appeal, the effect on others, prejudice to the Crown, and whether fresh evidence has come to light.[4]
[2]R v Lee [2006] 3 NZLR 42 (CA) at [97], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.
[3]Oketopa v R [2020] NZSC 75 at [18]. See also Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].
[4]R v Lee, above n 2, at [99]; and R v Ellis [2019] NZSC 83 at [15].
Given the extent of the delay and the absence of a compelling explanation for it, Mr Rickus’s application rests squarely on what he says is the strength of his appeal.
Background
We begin by explaining the background and the circumstances which resulted in the sentence Mr Rickus now seeks to challenge.
In the late afternoon of 23 March 2016, a 21-year-old man was approached on the street by Mr Rickus, a 16-year-old co-defendant and an older male (who was never identified). They engaged him in conversation and asked if he had a phone. Although he denied it, his cellphone rang and one of the offenders demanded it from him. Fearing for his safety, the victim handed it over. Mr Rickus then asked if the victim had a vehicle and, on being told he did, said that, if the victim took him to his vehicle, Mr Rickus would give him back his cellphone. Mr Rickus said the victim should come with him to Whanganui. Still fearing for his safety, the victim agreed.
Mr Rickus was the only one of the three offenders who accompanied the victim all the way to his house and, once there, he took the victim’s cellphone charger and keys to his van. He then directed the victim to drive the van and they picked up the other two offenders. Then began the trip to Whanganui.
The person who sat in the passenger seat (and there is some uncertainty about who that was but it may well have been the older unidentified offender), placed a handgun on the seat next to the victim, told the victim it was loaded and that, if he did anything stupid, he would be shot in the head.
They all travelled to Whanganui, spent some time at a house there and returned to Palmerston North in the early hours of 24 March. The victim was then directed to drive around the city, past various service stations as the three offenders discussed where to commit a robbery. The victim was directed to park outside a Mobil service station and wait in the van, which he did as he was too scared to leave. By this stage, it was around 4.15 am. The three offenders confronted the sole service station attendant when he was in the forecourt. They had disguised themselves by covering their heads, faces and hands. The older offender was holding a weapon described by the attendant as a “cosh” (a club or baton). He demanded the attendant open the cash register. Mr Rickus and the co‑defendant took money from the cash register, as well as some tobacco products, with a total value of just over $6,000. The victim was instructed to drive away quickly. He was upset but told to “keep his mouth shut or he would be in trouble with the police”. They told him he could not leave.
All four remained at a house until later that morning when Mr Rickus and the co-defendant took the victim to Wellington and spent most of the day at an address there. Eventually they returned to Palmerston North, where the victim managed to escape. By this stage it was around 5.15 am on the morning of 25 March. Mr Rickus and his co-defendant left using the victim’s van but were later apprehended by the police.
In his victim impact statement, the victim spoke of the traumatic effect of the incident on him. He had been badly burnt as a child, causing him significant disability. He had moved to Palmerston North in an effort to gain independence but had only been there a week at the time of the incident. He was physically and mentally exhausted after what happened and too scared to leave the house. He believed the threats which he said Mr Rickus made to him about killing him and assaulting him. He described feeling terrified. His mother said the victim had previously suffered a brain injury and the incident resulted in his threatening suicide. He was diagnosed with post-traumatic stress disorder. She described the victim as previously well‑adjusted and happy but by sentencing, “a mess”. The whole family was affected.
The service station attendant was relatively sanguine about the aggravated robbery, although said he felt very threatened at the time.
The procedural history
Mr Rickus and his co-defendant were jointly charged with kidnapping, unlawfully taking a motor vehicle, and two charges of aggravated robbery (one in respect of the victim’s cellphone and one in respect of the robbery of the service station). The Crown agreed to take part in a sentence indication on three only of those charges, meaning there was no charge relating to the taking of the cellphone. Mr Rickus maintained he had no knowledge of the presence of the handgun. Partly as a result of that, the sentencing indication hearing was adjourned to enable Mr Rickus’s then lawyer, Ms Younger, to agree a summary of facts with the Crown.
Advice at the time
In her affidavit filed for the purposes of the appeal, Ms Younger describes Mr Rickus as “adamant” in his desire for a sentence indication hearing. Ms Younger focused on obtaining an amended summary of facts which Mr Rickus “could live with”. As a result, the Crown summary of facts was amended as follows (amendments shown by italics):
[16] This offender was holding a handgun which he later placed on the seat next to the complainant. He told the complainant that the handgun was loaded and if he did anything stupid he would shoot him in the head. The defendant denies any knowledge that this occurred.
The fact the kidnapping victim had low intellectual functioning because of a brain injury was not included in the summary of facts. Furthermore, the period of detention on the kidnapping charge was agreed to be reduced from 48 hours to 24 hours.
Ms Younger says this was the best possible resolution of the issue. The Crown would not concede there was no gun because the victim was clear about that in his statement to the police. Ms Younger saw the amendment as giving her at least the opportunity to argue that Mr Rickus did not remember or know there was a gun in the van, which she did. Ms Younger says Mr Rickus understood, despite what was said in the summary of facts, that the Judge could come to her own conclusion about Mr Rickus’s knowledge of the presence of the gun and hold him accountable for his co‑offender’s actions.
The summary of facts in relation to the aggravated robbery was also amended to say that it was the older offender only who made demands of the service station attendant, and held the weapon.
Ms Younger describes Mr Rickus as “adamant” in his instructions to proceed with the sentence indication on the amended summary of facts. She had no concerns about his understanding of the choices available to him, nor was she under any mistaken understanding as to what were his instructions.
Sentence indication
On 10 October, Judge Edwards gave a sentence indication on charges of aggravated robbery, kidnapping and unlawfully taking a motor vehicle. It also included charges to which Mr Rickus had already pleaded guilty: two breaches of release conditions, driving while disqualified, and an assault committed on another prisoner during the remand period at Linton Prison. The Judge recorded the allegations as set out in the agreed summary of facts, including that Mr Rickus denied any knowledge of the handgun.
The aggravated robbery charge was taken as the lead offence. The Judge identified the aggravating features as the degree of premeditation, the use of disguise, the presence of a weapon, the number of offenders, the kidnapping of the victim as the driver, the vulnerability of the victim given the time and unlikelihood of others being present, and value of the property stolen. The Judge referred to R v Mako on the robbery of retail premises, noting the case fell into the category warranting a starting point in the region of five years’ imprisonment.[5] The fact Mr Rickus was not the one with the cosh did not reduce his culpability. The Judge did not accept the submission that the older offender was the driver of the offending, noting the primary role played by Mr Rickus in the kidnapping, much of which took place in the absence of the older offender.
[5]R v Mako [2002] 2 NZLR 170 (CA) at [56].
The Judge uplifted the starting point of five years by three years to reflect all of the offending against the victim of the kidnapping (including unlawfully taking the motor vehicle). She noted the kidnapping was over a period of 24 hours, that the victim was unwittingly involved in an aggravated robbery, had to drive to and from Wellington, repeatedly said he wanted to leave and that the kidnapping came to an end only when he managed to escape.
The Judge considered that the kidnapping covered the period after the aggravated robbery of the service station but said what happened beforehand had to be reflected in the overall uplift. The Judge specifically addressed the fact Mr Rickus did not recall the presence of the handgun or threats of violence towards the victim but did not accept that could have happened in the confines of a van without Mr Rickus being aware of it. She disregarded the suggestion that Mr Rickus was acting at the direction of the older offender, observing that he was not present when the kidnapping first occurred, during the drive to and from Wellington, and that it was Mr Rickus alone who went with the victim to his house to get the van. She also referred to the victim impact statement, recording the victim’s vulnerability and the impact on his family.
The Judge uplifted the combined starting point of eight years by four months, to reflect the other offending, being particularly concerned about the assault on another prisoner, with a 25 per cent discount for a guilty plea on those charges.
The Judge noted Mr Rickus was 19 years old and had a reasonably limited history but observed that any discount for age and prospects of rehabilitation had to be balanced against the fact the offending was committed while Mr Rickus was on bail and subject to prison release conditions. That, she said, must reduce any allowance for his youth. The Judge declined a discount because of Mr Rickus’s offer to attend restorative justice, noting that the victim of the kidnapping was not prepared to attend as he remained fearful of the defendant. She also questioned how genuine Mr Rickus’s remorse was.
The Judge indicated a discount of 20 per cent if guilty pleas were entered to the trial charges. The result was an indicated sentence of six years and eight months’ imprisonment.
Finally, the Judge observed the end sentence after discounts would have to be looked at on a totality basis.
What happened following the sentence indication
Ms Younger’s advice to Mr Rickus was that there was significant risk, should he be convicted at trial, that the starting point would be increased to a much higher starting point than that taken at the sentence indication hearing on the basis of the agreed summary of facts. There would be more charges, all the allegations would be included in the summary of facts and there would be no credit for a guilty plea. The starting point after a jury trial could be as high as nine to ten years. She listed the risk factors for Mr Rickus in what she describes as “the disclaimer” which he signed. The disclaimer recorded Mr Rickus’s instruction that he accepted the sentence indication and, while the sentence might reduce further to take account of any remorse and totality, he was happy with a sentence of six years and eight months’ imprisonment.
Sentencing
In sentencing, the Judge followed the same format as her sentence indication. She tempered somewhat her comments about Mr Rickus’s youth and limited history and gave him a discount by reducing the eight-year starting point in respect of the aggravated robbery and kidnapping charges by six months. She then applied a 20 per cent discount in respect of Mr Rickus’s guilty plea, leaving an end sentence of six years’ imprisonment. She uplifted that by three months in respect of the other charges after allowing a full discount for the guilty plea on those charges.
The Judge then said she stepped back and considered the issue of totality, which she described as being whether the total length of the sentence was out of proportion to the overall offending and Mr Rickus’s role in it. She did not consider any further reduction was required.
The final sentence was six years’ imprisonment on the kidnapping and aggravated robbery charges, with three months cumulative in respect of the other charges.
Mr Rickus was still happy following sentencing, telling Ms Younger he was “stoked”.
Did the sentence indication proceed on an incorrect basis?
Mr Young now acts for Mr Rickus. In his submission, the sentence indication process was flawed from the outset because the agreed summary of facts did not allow for the disputed fact of whether Mr Rickus knew of the presence of the handgun in the van to be resolved. In his submission, a sentence indication needs to be based on undisputed facts and, if not, then the sentence indication cannot proceed and the defendant either has to continue to trial or plead guilty and seek a disputed fact hearing.
Section 24 of the Sentencing Act 2002 clarifies the law relating to facts on which an offender is to be sentenced.[6] It therefore applies after a plea of guilty has been entered or there has been a finding of guilt, and before sentencing. Section 24(2) provides a procedure for proof of facts which are in dispute, generally referred to as a disputed facts hearing. If a fact is relevant to the determination of a sentence, the Court must indicate the weight it would likely attach to the disputed fact and its significance to the sentence. The prosecutor must then prove beyond reasonable doubt the existence of any disputed aggravating fact and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence that is not wholly implausible or manifestly false. A defendant has the right to request a disputed facts hearing.[7]
[6]Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at 24.02.
[7]Sentencing Act 2002, s 24(2)(b); and Saggers v R [2012] NZCA 591 at [24]–[25].
In contrast, a sentence indication takes place prior to trial (and obviously prior to a guilty plea) but only if the defendant so requests it.[8] If so, the court may give an indication only if satisfied that the information available is sufficient for that purpose.[9] Such information must include:[10]
…
(a)a summary of the facts on which the sentence indication is to be given, agreed on by the prosecutor and the defendant; and
(b)information as to any previous conviction of the defendant; and
(c)a copy of any victim impact statement that has been prepared in relation to the offence concerned under the Victims’ Rights Act 2002.
[8]Criminal Procedure Act 2011, s 61(1).
[9]Section 61(2).
[10]Section 61(3).
That is exactly what happened in this case. The Judge had previously refused to give a sentence indication because she was dissatisfied with the summary of facts. The summary of facts presented at the resumed sentence indication hearing had been amended by agreement between the Crown and defence, and Mr Rickus specifically endorsed the amended summary and signed it, giving his consent for it to be used for the purpose of a sentence indication.
Had Mr Rickus simply pleaded guilty to that summary of facts rather than seek a sentence indication and the case proceeded to sentencing without a disputed facts hearing, then we would agree Mr Rickus would have had a legitimate complaint. In those circumstances, the situation would have been analogous to R v Gatenby.[11] In that case, Mr Gatenby had pleaded guilty to cultivating cannabis but told the police it was for personal use. He appealed his sentence on the grounds that he had not been charged with possession of cannabis for supply, yet the Court placed weight on what it saw as a commercial motive behind the cultivation. This Court referred to the s 24 process requiring the Court to indicate the weight it would likely attach to a disputed fact and then the need for the prosecutor to establish it beyond reasonable doubt.[12] It considered Mr Gatenby’s assertion that the cultivation was for personal use only as dubious but said it could not be rejected out of hand as implausible or manifestly false.[13] While the Judge here clearly regarded Mr Rickus’s protestations of ignorance as implausible, we think, like R v Gatenby, they were dubious but could not totally be disregarded.
[11]R v Gatenby CA511/04, 28 April 2005.
[12]At [13].
[13]At [15].
We accept it was less than ideal that the agreed summary included the comment that Mr Rickus disavowed any knowledge of the handgun. The point, however, is that Mr Rickus had the benefit of receiving the sentence indication. He knew the Judge was not prepared to accept his version of events and she indicated what the sentence would be on that basis. It would have been open to Mr Rickus to reject the sentence indication, enter a guilty plea and request a disputed fact hearing on the issue of his knowledge of the presence of the handgun. He did not. Instead, he decided, following Ms Younger’s careful advice as to the advantages and disadvantages of doing so, to accept the sentence indication and plead guilty to the charges. That was his decision to make.[14]
[14]See Ngamu v R [2018] NZCA 464.
In any event, there can be little dispute that Ms Younger’s advice was sound. She had agreed a summary of facts with the Crown which did not include significantly aggravating factors, as she appropriately detailed in the disclaimer.
For these reasons, we do not accept that the sentence indication proceeded on an incorrect basis.
Were there any errors in the sentence?
Mr Rickus also complains that the discount of approximately six per cent for youth was wholly inadequate, that the starting point on the kidnapping charge was “very high” and that a substantial discount should have been given for totality. As a result of all these factors, he says the sentence was manifestly excessive.
Mr Young points out that Mr Rickus was only 19 years old at the time of the offending and had a relatively light criminal history. In his submission, the end sentence was “a crushing one” to impose on a young man and there should have been a greater discount for youth.
As discussed above, the Judge reduced the discount for youth given that the offending occurred while Mr Rickus was on bail and subject to sentence. At the sentence indication, she said this meant there would be no discount for youth but on sentencing she allowed a further six months in that regard.
We acknowledge the importance of taking into account a defendant’s youth when determining an appropriate sentence. There is growing evidence as to the age‑related neurological differences between youth and adults, particularly in relation to brain development and development of rational thought.[15] A reduction of six months from the original eight-year starting point (amounting to around six per cent) is low. That must be balanced, however, against the uplift which the Judge would otherwise have imposed for offending while on bail and awaiting sentence. Overall, while we can accept that a greater discount was available and could legitimately have been applied, we do not agree that the Judge was in error in taking the approach she did.
[15]See Taiapa v R [2020] NZHC 3355 at [61]–[64]; and Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
And, as we conclude below, given the seriousness of the offending in this case, we do not consider that the end sentence was manifestly excessive.
Turning to the three-year uplift on the kidnapping charge, this Court has said there can be an “infinite variety of circumstances which underlie the crime of kidnapping”,[16] and that there is therefore no tariff or guideline decision in relation to its sentencing. Relevant factors may include the length of detention, the extent of premeditation, the number of offenders, gang involvement and the level of violence involved.[17]
[16]R v Hall CA296/05, 28 February 2006, at [26], citing R v Wharton (2003) CRNZ 109 at [11].
[17]R v Liev [2017] NZHC 2253 at [25].
While other kidnapping cases may involve serious violence that is also often domestic or gang related, the aggravating features of this case involve the length of detention, the number of offenders, the taking of the victim’s van and the victim’s vulnerability. We agree with Mr Eng for the Crown that the kidnapping was serious and prolonged offending which caused a vulnerable victim considerable harm. Mr Rickus had the benefit of the kidnapping charge being limited to the period after the robbery, although the Judge was entitled to take into account the events leading up to it.
In all the circumstances, we are not persuaded that an uplift of three years to the starting point to reflect the kidnapping charge was out of range.
As to totality, again, another Judge might have taken a different approach. The issue, however, is whether the end sentence was manifestly unjust. In all the circumstances, we do not accept it was.
Reason for the need for an extension of time
We observed above that no compelling explanation has been advanced for the late filing of the appeal. Mr Young explains that he began acting for Mr Rickus in relation to parole proceedings after he had been recalled to complete his sentence following his failure to remain at a residential drug treatment programme. Prior to being released onto that programme, Mr Rickus had completed the medium intensity rehabilitation programme and the drug treatment programme while in prison. Mr Young candidly describes Mr Rickus as a young man with a mixture of positive and negative traits and refers us to a December 2019 parole report. This describes Mr Rickus as having suffered an extremely impoverished upbringing in circumstances involving exposure to drug use and many different caregivers. Mr Young says it is tragic that a young man from a challenging background should be subject to such a lengthy period of imprisonment for offending which occurred when he was 19 years old and who will likely have to serve the whole sentence of imprisonment.
While we agree that Mr Rickus’s situation is a most unfortunate one, these issues do not adequately explain the delay or constitute a compelling reason to extend the time for him to appeal his sentence. This is particularly so in circumstances where the appeal is of little merit.
Result
The application for an extension of time to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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