Roberts v R
[2020] NZCA 441
•21 September 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA564/2019 [2020] NZCA 441 |
| BETWEEN | SAMUSETA EZRA ROBERTS |
| AND | THE QUEEN |
| Hearing: | 15 June 2020 |
Court: | Courtney, Brewer and Hinton JJ |
Counsel: | L O Smith for the Appellant |
Judgment: | 21 September 2020 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal out of time is granted.
BThe application for leave to adduce fresh evidence on appeal is granted.
CThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
On 13 September 2017 Judge Sainsbury sitting in the District Court at Manukau sentenced Mr Roberts to an effective term of seven and a half years’ imprisonment for a two-month crime spree (as they are inaptly described) including five aggravated robberies.[1]
[1]R v Roberts [2017] NZDC 20833 [Sentencing decision].
Mr Roberts appeals that sentence as manifestly excessive on the basis that the Judge gave insufficient discount for youth and mental health.
At the age of 19 Mr Roberts was deported from Australia to New Zealand. This was in March 2016.
The index offending was committed in May and June 2016. Mr Roberts also committed other offending in the same time frame for which he was sentenced by Judge Fraser in the District Court at Auckland on 4 November 2016.[2] This is relevant as the September 2017 sentence at issue was imposed by Judge Sainsbury on a cumulative basis.
[2]Police v Roberts [2016] NZDC 22610.
Mr Roberts filed two notices of appeal. The second notice, replacing the first, was filed on 10 March 2020, some 18 months out of time.[3] The Crown does not oppose leave being granted given the absence of any prejudice. In those circumstances we grant leave.
Background
[3]Criminal Procedure Act 2011, s 248(2).
The following summary is taken from Judge Sainsbury’s description of the facts of the index offending.
The first charge of aggravated robbery arose on 22 May 2016.[4] Mr Roberts threatened a bakery owner and the owner’s daughter with a screwdriver. He demanded they hand over money. When told there was CCTV, he said “I don’t care about shit, just give me money”. The occupants handed over about $160.
[4]Crimes Act 1961, s 235(c). Maximum penalty 14 years’ imprisonment.
On 27 May 2016 Mr Roberts again committed aggravated robbery when he and an associate robbed two occupants of a car parked in a carpark. He approached the driver’s door and his associate the passenger’s door. Mr Roberts opened the driver’s door and picked up a handbag sitting between the seats. One of the victims tried to hold onto the bag. Mr Roberts dragged that victim out of the car and onto the ground before stomping on the victim’s back, ribs, and buttocks and punching the victim in the face. He took off with the victim’s bag which contained a bank card, cell phone and passport. Meanwhile, Mr Roberts’ associate had taken a wallet, money, cigarettes and another mobile phone from the other victim. Transactions were made using one of the bank cards on 30 May, giving rise to a charge of dishonestly using a document.[5]
[5]Section 228(1)(b). Maximum penalty seven years’ imprisonment.
On 4 June 2016, Mr Roberts converted a motor vehicle that had been left parked on East Tamaki Road.[6] Mr Roberts and two associates then went to the Kathmandu store at Botany Downs in the converted vehicle. They smashed their way into the store, took property with a retail value of $20,000, then sped off in the stolen vehicle. This gave rise to a charge of burglary.[7]
[6]Section 226(1)(a). Maximum penalty seven years’ imprisonment.
[7]Section 231(1)(a). Maximum penalty 10 years’ imprisonment.
That same day Mr Roberts and some of his associates went into a liquor store at Pakuranga after disguising their faces. They demanded cash and alcohol. Mr Roberts ran towards one of the store workers armed with a crowbar. One of his associates gave the impression that he also had a weapon. Mr Roberts assaulted one of the shop workers, stomping on his head two or three times. The offenders took alcohol and cigarettes with a retail value of around $1,500. They demanded that someone else hand over his wallet, which he did. It contained a little under $200 cash. As the offenders were leaving Mr Roberts picked up a full bottle of alcohol and threw it at one of the victims. It smashed over the victim’s right shoulder but did not leave any cuts. This again gave rise to a charge of aggravated robbery.
Another aggravated robbery arose on 5 June 2016. Mr Roberts and two associates went to a service station in Botany Downs. They drove their car at the front doors, causing them to break, and entered the store. Again, Mr Roberts was armed with a crowbar. The staff present managed to get into a safe room. Mr Roberts and his associates took the cash register which contained about $200 and fled.
Mr Roberts and a large group of associates returned to the Botany Downs Kathmandu store on 8 June 2016. They pulled up to the rear roller door of the store. Because of the burglary on 4 June, there was a security guard present. Mr Roberts and his associates, using one of their cars, broke through the roller door. They entered the store. Mr Roberts, seeing the security guard, ran towards him and punched him in the head numerous times. The security guard was dazed but managed to escape. Mr Roberts and his associates went into the store, stealing $40,000 or so (retail value) of property. Some but only a minority of this property had been recovered at the time of sentencing. This gave rise to the fifth charge of aggravated robbery.
The final offence for which Judge Sainsbury sentenced Mr Roberts was a robbery.[8] In the early evening of 10 June 2016 Mr Roberts went to a residential address in Manukau, went into the victim’s bedroom in the garage and threatened to kill the victim. He told the victim to “[s]how me your shit and give me your phone”. The victim handed over the phone, valued at about $600. There were other demands made for property, but it was the phone that was stolen.
The District Court sentencing
[8]Section 234. Maximum penalty 10 years’ imprisonment.
Having recited the facts of this offending, Judge Sainsbury referred to the offending for which Mr Roberts had been sentenced to two years’ imprisonment by Judge Fraser in November 2016. This separate offending included robbery, an assault and driving offences. Judge Sainsbury said the separate offending was not dissimilar to the index offending and noted it had taken place during the same period in 2016. The Judge said he intended to impose a sentence cumulative on that imposed by Judge Fraser and noted he needed to ensure the overall sentence was appropriate, having regard to totality.
As no issue is taken with the starting point adopted in respect of the offending, or the Judge’s approach to totality, it is unnecessary for us to detail Judge Sainsbury’s careful approach to setting a starting point. Suffice to say, the Judge noted the aggravating features of each aggravated robbery offence, and, having taken the liquor store robbery as the lead offence, likened that to the example of the robbery of a small retail store given by this Court in the guideline case of Mako.[9] Having also compared the facts of Mr Roberts’ offending to those of three cases considered by this Court, the Judge adopted a starting point of 11 years’ imprisonment, with an uplift to 11 years and six months’ imprisonment to reflect that the offending occurred while on bail. The Judge recorded that he was uplifting by 12 months but in fact uplifted by six months.
[9]R v Mako [2000] 2 NZLR 170 (CA) at [56].
Turning to consider the personal mitigating factor of youth, the Judge noted that Mr Roberts was 19 at the time of the offending, had criminal history in Australia and had been deported as a consequence. The details of that offending were unclear. The Crown did not seek an uplift in that respect but the Judge noted it bore on the extent to which a discount for youth was appropriate. The Judge accepted, on the basis of Churchward v R,[10] that incomplete cognitive development, susceptibility to impulsive actions and lack of understanding of consequences meant “youth should be taken into account”.[11]
[10]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
[11]Sentencing decision, above n 1, at [40].
As to the role of mental illness in Mr Roberts’ offending the Judge said:
[30] Where this offending is clearly linked, and it is apparent in the pre‑sentence report and in the material that I have been referred to in the submissions, is that during this time Mr Roberts had developed a severe methamphetamine addiction and offending was very much driven by that. Further, his situation was that he had recently been deported from Australia. It meant that he arrived in New Zealand with no support; most of his family are in Australia and he was simply left to his own devices. At age 19 coming from a background where he had problems with the law in Australia and clearly some difficulties coping and managing to live in a pro-social way, it is not surprising that he has ended up where he is.
…
[41] A further factor is that of mental illness. The information is provided today through the forensic liaison nurse noting that there is a forensic history. The exact nature of it cannot be ascertained at this point. There had been discussions to whether it would be better for the sentencing to be put off. Mr Roberts was keen to proceed today, perhaps against the very good advice of Mr Cassidy it would seem. But what I can take from the information before me is that there appears to be a history of mental illness. Mr Roberts has been on medication for psychosis. Unfortunately it seems at the time of this offending he had stopped taking his medication.
[42] It is difficult for me to know whether this is a situation of psychosis exacerbated by methamphetamine use or methamphetamine induced psychosis. But there does appear to be certainly some basis that there is underlying mental illness. It is difficult, I think, for me to give a discount on the basis of diminished responsibility without more detailed information. But I do think that the issue of mental illness does need to be factored in. In terms of the youth discount, it can be looked at as adding to the weight of argument about impulsive action, lack of understanding of consequences.
The Judge concluded by deducting two years for youth and mental illness (a little over 17 per cent) and then a guilty plea discount of 25 per cent. The Judge then expressly rounded down (by about six weeks) to an end sentence of seven years’ imprisonment on the basis that “people who have been brought back from Australia through deportation [are] effectively left in the community to their own resources without appropriate supervision or support”.[12] While the Judge made clear he did not see the deportation or related challenges as excusing Mr Roberts’ offending, he considered it “hardly surprising” that Mr Roberts “fell into drug use and into crime” following his forced return here while “young with an overlay of mental health issues”.[13] The effect of the rounding down brings the discount up to over 18 per cent.
[12]At [45], citing Police v Roberts, above n 2, at [1].
[13]At [46].
The Judge refused to impose a minimum period of imprisonment under s 86(2) of the Sentencing Act 2002 for essentially the same reasons that he had awarded youth and mental health discounts. While agreeing that Mr Roberts’ offending was serious, such that concerns of denunciation, deterrence and community protection needed to be given weight, the Judge said he did not “believe that even a young person with a bad history has no prospect of rehabilitation”.[14] So as to prioritise that purpose of sentencing he did not accede to the Crown’s request for a 50 per cent minimum period of imprisonment.
[14]At [50]–[51].
While the end sentence was seven years’ imprisonment, taking account of the already existing two-year prison sentence and considerations of totality, the Judge imposed a cumulative sentence of five years and six months’ imprisonment in respect of the liquor store robbery as the lead offence. The total sentence Mr Roberts would serve in respect of all the 2016 offending was therefore seven years and six months’ imprisonment.[15]
Analysis
[15]At [53].
Counsel for Mr Roberts on appeal, Mrs Smith, submits that the aggregate discount awarded by the Judge in respect of Mr Roberts’ youth and mental health was insufficient, such that the sentence was manifestly excessive. Mrs Smith says that the youth discount alone should have been approximately 20 per cent and a discrete further discount should have been awarded for mental health of somewhere between 12 and 30 per cent.
The appellant says the Judge should have ensured there was further evidence to properly assess the mental health discount before proceeding to sentencing. He seeks leave to adduce further evidence including an affidavit from himself, a letter from Dr Chua and an extensive affidavit from Dr Duggal, both forensic psychiatrists.
We begin by noting that it is permissible for a Judge to consider youth and mental health together, providing each mitigating factor is properly allowed for in the process.[16] However, to address the argument on appeal we consider each factor separately.
Youth
[16]P (CA479/2015) v R [2016] NZCA 128 at [34].
Youth is relevant to sentencing in several ways. These include young offenders’ incomplete neurological development; associated poorer judgment and greater impulsivity than adults, which can lessen the culpability of their offending; the fact that younger offenders not yet hardened into a life of criminality have a greater capacity for rehabilitation, which can be imperilled by the imposition of a severe custodial sentence early in life; and the greater harshness of imprisonment on young offenders.[17]
[17]Churchward, above n 11, at [77]].
Mr Roberts was only 19 when deported from Australia and when he committed the offending. He had no family or any real support here other than a brother who came back to help him. A discount for youth was clearly warranted. We agree with the Judge that the discount would be tempered by the previous offending in Australia. It would also be tempered by the scale of the 2016 offending in total. A sustained sequence of offending such as occurred here cannot be described as impulsive or naive.
Youth discounts vary widely and are often combined with other related factors, as the Judge did here, such that comparison with other cases is difficult.
We consider a reasonable parallel can be drawn with Hemopo v R.[18]This Court considered a discount of approximately 11 per cent appropriate from a nine-year starting point for a 19-year-old offender with previous convictions for violence and drug offending who was being sentenced in respect of a single charge of aggravated robbery. The Court agreed any larger discount for youth and rehabilitative prospects was inappropriate given Mr Hemopo’s already significant criminal history.[19]
[18]Hemopo v R [2016] NZCA 242.
[19]At [19]–[20].
Ms Hoskin, counsel for the respondent, referred us to two further cases.
In Molia v R, Mr Molia and his co-offender robbed a dairy with a slug pistol.[20] Even though he was only 18 at the time this was Mr Molia’s eighth offence as an adult, having been convicted of wilful damage on five occasions and two burglaries, all within a narrow period of time. This constrained the availability of a youth discount, but a discount of 15 per cent was allowed in light of what the Court regarded as Mr Molia’s nonetheless strong rehabilitative prospects.[21]
[20]Molia v R [2013] NZCA 512.
[21]At [19].
In Tukaki v R, which we consider more comparable, Mr Te Rangi had along with two others used a shotgun to steal $16,000 from a tavern, assaulting staff and patrons.[22] At the age of 19, the appellant had already accrued 28 convictions as an adult, the majority of which were for burglary and other dishonesty offences. Given this lengthy track record, and his complete lack of remorse and insight, the Court held that a discrete discount for youth was not necessary. Instead, removal of the six-month uplift on the starting point imposed in the District Court was appropriate.[23]
[22]Tukaki v R [2013] NZCA 411.
[23]At [16]–[18].
Mrs Smith relies on R v Feleti.[24] An 18-year-old offender, convicted of the manslaughter of his colleague in a spontaneous outburst, was awarded a 25 per cent discount for youth and remorse. Toogood J divided this into separate discounts of 20 per cent for youth and five per cent for remorse but clearly intended these to be related to each other.[25] Furthermore, the Judge was strongly influenced by Mr Feleti’s rehabilitative prospects and demonstration of insight.
[24]R v Feleti [2019] NZHC 94.
[25]At [44].
Feleti is clearly distinguishable. Toogood J considered it significant that the manslaughter was entirely out of character for Mr Feleti. Mr Feleti had taken steps to rehabilitate and was at a low risk of reoffending. The manslaughter involved a single, spontaneous, wanton act illustrating the impulsivity of youth.
Conversely Mr Roberts has a history of offending which suggests he is already somewhat hardened into a life of criminality. He is assessed at a medium to high risk of reoffending, and was regarded by pre-sentence report writers as insincere and superficial in his statements of remorse and insight. We are particularly concerned that Dr Duggal notes Mr Roberts has left both courses he has attempted to engage with, saying he did not need them. Moreover, as noted, Mr Roberts engaged in a sustained pattern of offending over time, not a single impulsive, albeit devastating, attack.
Clearly a youth discount is less appropriate in Mr Roberts’ case than in Mr Feleti’s. The same is true by comparison to Molia given Mr Molia was assessed as having strong rehabilitative prospects which are not evidenced here.Though Mr Roberts’ offences display the poor judgment characteristic of many youth offenders, this is not a case in which his youth significantly reduces the call for denunciation, deterrence or community protection in sentencing.[26]
[26]Churchward, above n 11, at [84]. See also Mako, above n 8, at [65]; and Tukaki, above n 14, at [19].
Rather, by comparison to Hemopo and Tukaki, an appropriate discount for youth could not exceed ten per cent.
Mental health
Broadly speaking, a mental disorder not amounting to exculpatory insanity is potentially relevant to sentencing in three ways.[27] First, if causative of the offending, it may reduce the moral culpability (if not legal responsibility) of the offender in terms of the first stage of sentencing. This is because mental illness can impair the rational choice made to offend. [28] Second, for the same reason, it may also bear on the weight to be given to the deterrent aspect of sentencing at stage one.[29] Third, the disorder may mean that an otherwise appropriate sentence would be disproportionately severe because of consequential impairment in coping with prison life, being a mitigating circumstance personal to the offender.[30]
[27]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].
[28]E(CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70]; and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50].
[29]E(CA689) v R, above n 29, at [70(c)].
[30]Sentencing Act 2002, s 8(h). See generally R v Verschaffelt [2002] 3 NZLR 772 (CA).
The Judge recognised that Mr Roberts had a history of mental illness that was exacerbated by methamphetamine use or possibly triggered by it. He noted the difficulty of giving a discount on the basis of “diminished responsibility” (in the first sense noted above) without more detailed information.[31] He referred to a letter from the forensic liaison nurse dated 12 September 2017 and also to Mr Roberts having been on medication for psychosis, which it seemed he had stopped taking at the time of the offending.
[31]Sentencing decision, above n 1, at [42].
The forensic nurse’s letter referred to clinical notes made between January and July 2017 which recorded Mr Roberts reporting auditory hallucinations but also referred to clinical staff noting inconsistencies in his reporting and a suggestion that the symptoms related rather to “ruminative thoughts”. The same notes record that as at July 2017, despite his claims, Mr Roberts appeared to be functioning well. The nurse’s letter records that Mr Roberts was not experiencing any hallucinations or psychotic symptoms as of 12 September 2017. The Judge made no reference to any of these details.
In an affidavit filed in support of his appeal, Mr Roberts says the forensic nurse’s letter was incorrect in that he had been experiencing auditory hallucinations and other psychotic symptoms for 20 months before sentencing, that is over the time frame of the offending. He says he has been diagnosed by Dr Chua with schizophrenia, re-started on medication and feels completely different including no longer hearing voices. That diagnosis and decision to re-medicate appears to have been in late 2019.
Mr Roberts attaches to his affidavit a one-page letter dated 7 February 2020 from Dr Chua. Dr Chua says that at an earlier assessment, apparently in October 2019, Mr Roberts did not disclose psychotic symptoms, but he subsequently described having paranoid delusions. She concludes that in her opinion Mr Roberts is schizophrenic and suffers from auditory hallucinations, paranoia and referential delusions with associated dysphoric mood (intense feelings of depression, discontent, and anomie). She concludes he also has a co-morbid substance use disorder (namely methamphetamine and cocaine). Dr Chua’s letter says that, following Mr Roberts’ restarting a course of psychotropic medication, he was much improved as at February 2020 and the hallucinations had ceased.
Mrs Smith also sought to adduce a comprehensive affidavit dated 6 March 2020 from Dr Duggal, a forensic psychiatrist employed by the Regional Forensic Psychiatry Service in Auckland. Dr Duggal deposes in considerable detail to his evaluation of Mr Roberts’ mental health based on an interview conducted on 24 February 2020, information related to Mr Roberts’ offending, and Mr Roberts’ clinical history.
Mrs Smith asked Dr Duggal to advise whether Mr Roberts suffered from schizophrenia at the time of the offending. In reply (making no reference to schizophrenia) he deposes that Mr Roberts was “vulnerable to developing serious mental illness on the basis of contracting meningitis during childhood and exposure to methamphetamine by early adolescence”. Dr Duggal notes that Mr Roberts presented with symptoms of psychosis during the period of the offending in 2016, likely induced by methamphetamine use, and demonstrates signs of antisocial personality disorder. However, Dr Duggal seems to agree with the forensic nurse, and other assessments he details, that Mr Roberts’ later self-reporting of symptoms is inconsistent, and that Mr Roberts’ condition is susceptible to effective management through medication.
When asked where he could establish a causative relationship between any mental illness and the offending Dr Duggal answers:
While symptoms of psychosis may have been active during the period of index offending and contributed to impulsivity and impaired judgment, they did not appear to be a direct ‘driver’ of the index offending. By [Mr Roberts’] own admission, the nature of the index offending was predominantly acquisitive in nature and driven primarily by the need to obtain more methamphetamine. Further, methamphetamine use during that time was also highly likely to have affected Mr Roberts’ judgment.
Therefore, I was of the view that Mr Roberts’ index offences were primarily driven by the use of methamphetamines in the context of antisocial personality disorder. Mr Roberts’ psychotic symptoms may have contributed to impairing his judgment, but were not likely to be ‘causative’ of his index offending.
(Emphasis in original).
Mrs Smith had also queried of Dr Duggal, and initially raised on the appeal, whether an appropriate sentencing response should include a “therapeutic element” to treat the mental disorder. However, Dr Duggal deposes that Mr Roberts’ condition was unlikely to have met the criteria for “mental disorder” under the Mental Health (Compulsory Assessment and Treatment Act) 1992.[32] The main therapeutic element he would recommend is substance abuse counselling to address Mr Roberts’ methamphetamine use. This point was not of further relevance on the appeal.
[32]Accordingly, Dr Duggal considered it unlikely that Mr Roberts would have been eligible to receive a therapeutic disposition under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
The new reports, particularly that of Dr Duggal, provide a great deal more information as to Mr Roberts’ background, unfortunate mental health issues and heavy methamphetamine use. Absent objection from the Crown, we grant Mr Roberts’ (informal) application to adduce this and the other fresh evidence referred to on appeal.
However, this additional evidence does not materially alter the landscape of Mr Roberts’ culpability beyond that already assessed by Judge Sainsbury and described above.
Mr Roberts’ mental health issues, whether these were exacerbated or were caused by his methamphetamine addiction, are clearly part of the background against which his offending occurred, as stated by Dr Duggal. However, for the same reasons canvassed in his report, there is not enough evidence to disclose the causative link that would be required for a material discount on account of mental health in the first or second categories noted above at [36].
Turning to the third basis for a mental health discount, the medical evidence does not establish Mr Roberts would face any greater difficulty in coping with a prison sentence than the average offender. In fact, Dr Duggal’s report suggests incarceration may benefit Mr Roberts’ health; his methamphetamine abuse disorder is considered to be in remission due to the controlled environment of the prison.
Conclusion
In these circumstances the overall discount allowed by the Judge on account of youth and mental health issues remains appropriate, having regard to the discounts allowed in the other cases noted above.
We also note that for similar reasons of youth and mental health concerns, Judge Sainsbury awarded a full 25 per cent discount for the guilty pleas despite lateness, allowed a further six-week discount on account of the issues around deportation, and declined to impose a minimum period of imprisonment, all of which we agree with for the same reasons. This is not a case where what was expressly described as a discount for youth and mental illness stands alone. Judge Sainsbury has brought the appellant’s personal characteristics to bear throughout his decision.
In addition, the starting point of 11 years was arguably at the lower end of the range and although the Judge said he was uplifting by 12 months for offending on bail, he uplifted only by six months.
For all of these reasons we would not disturb the sentence imposed on the grounds advanced by counsel. We note though that it is clear from Dr Duggal’s report that Mr Roberts has been significantly benefitted by the expert medical attention he has received, much of which must be attributed to the efforts of Mrs Smith.
Change in sentencing methodology
Since the appeal was heard, this Court has delivered its decision in Moses v R.[33] Moses departs from the three-stage approach to sentencing articulated by this Court in Hessell v R and recapitulated in Clifford in favour of a two-stage approach where discounts in respect of personal factors and guilty plea are applied together, not sequentially.[34]
[33]Moses v R [2020] NZCA 296 at [45]–[46]. See also Chai [2020] NZCA 202 at [37]; and Royal v R [2002] NZCA 129 at [29].
[34]Compare R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
Applying the Moses approach and combining the discounts would increase the overall discount by six months from that awarded by the Judge. However for the reasons given above, we consider the end sentence arrived at by the Judge was already generous to Mr Roberts. Therefore applying the Moses methodology would not lead us to the view that the sentence imposed is manifestly excessive such that a different sentence should be imposed.
Result
The application for leave to appeal out of time is granted.
The application for leave to adduce fresh evidence on appeal is granted.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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