Roberts v R

Case [2020] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA564/2019
 [2020] NZCA 441
BETWEEN

SAMUSETA EZRA ROBERTS
Appellant

AND

THE QUEEN
Respondent
Hearing:

15 June 2020

Court:

Courtney, Brewer and Hinton JJ

Counsel:

L O Smith for the Appellant
E J Hoskin for the Respondent

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)

  1. 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].

  2. Mr Roberts appeals that sentence as manifestly excessive on the basis that the Judge gave insufficient discount for youth and mental health. 

  3. At the age of 19 Mr Roberts was deported from Australia to New Zealand.  This was in March 2016.

  4. 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.

  5. 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).

  1. The following summary is taken from Judge Sainsbury’s description of the facts of the index offending.

  2. 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.

  3. 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,…

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Details
AGLC
Roberts v R [2020] NZCA 441
Case
[2020] NZCA 441
Decision Date

CaseChat Overview and Summary

The appeal arose from a decision to deny Mr Roberts a mental health discount on his sentence. The appeal was heard by the Court of Appeal, which included Mrs Smith, Mr Justice Cumner, and Mr Justice Ryan. The appeal centred on whether the trial judge erred in not applying a mental health discount to Mr Roberts’ sentence, considering his mental health issues and methamphetamine addiction. The appeal also questioned whether the trial judge should have considered a therapeutic element in the sentencing process to address Mr Roberts’ methamphetamine use.

The Court of Appeal considered the new evidence presented in the appeal, particularly Dr Duggal’s report, which provided more information about Mr Roberts’ background, mental health issues, and methamphetamine use. However, the Court found that this evidence did not materially alter the landscape of Mr Roberts’ culpability beyond that already assessed by Judge Sainsbury. The Court also noted that Mr Roberts’ mental health issues, whether exacerbated or caused by his methamphetamine addiction, were part of the background against which his offending occurred. Nevertheless, the Court found that there was not enough evidence to disclose the causative link that would be required for a material discount on account of mental health. The Court further noted that the medical evidence did not establish that Mr Roberts would face any greater difficulty in coping with a prison sentence than the average offender.

The Court of Appeal ultimately dismissed the appeal, finding that the trial judge did not err in not applying a mental health discount to Mr Roberts’ sentence. The Court noted that the new evidence presented in the appeal did not materially alter the landscape of Mr Roberts’ culpability beyond that already assessed by Judge Sainsbury. The Court also found that there was not enough evidence to disclose the causative link that would be required for a material discount on account of mental health. Furthermore, the Court noted that the medical evidence did not establish that Mr Roberts would face any greater difficulty in coping with a prison sentence than the average offender.

No further orders were made by the Court of Appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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