Roberts v The Queen
[2021] NZHC 2128
•16 August 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-73
[2021] NZHC 2128
BETWEEN AIDEN ROBERTS
Appellant
AND
THE QUEEN
Respondent
Hearing: 16 August 2021 Appearances:
R Laybourn for Appellant
D McWilliam for Respondent
Judgment:
16 August 2021
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 16 August 2021 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Rotorua
ROBERTS v R [2021] NZHC 2128 [16 August 2021]
[1] Mr Roberts pleaded guilty in the District Court to a charge of aggravated robbery.1 On 20 May 2021 Judge P G Mabey QC sentenced him to three years imprisonment.2 Mr Roberts appeals against sentence on the ground that errors in formulating the sentence led to an end sentence that was manifestly excessive.
Background
[2] Mr Roberts entered his guilty plea on the basis of an agreed summary of facts. This recorded that on 10 February 2019 Mr Roberts was one of three persons who were travelling in a motor vehicle in the Tauranga area. They came across a motor vehicle being driven by the complainant, who suffered from mental health issues that rendered him vulnerable. The complainant was known to one of the female passengers in Mr Roberts’ car. At some stage during the journey the two vehicles came to a stop and Mr Roberts’ female associate got into the front seat of the complainant’s vehicle. She then told him to follow the vehicle in which Mr Roberts and his other associates were travelling.
[3] Both vehicles went to a service station. By this stage the female who was travelling in the complainant’s vehicle had removed his cellphone to prevent him from making contact with anyone. At the service station Mr Roberts got into the complainant’s vehicle and told him to drive to Papamoa. During the journey Mr Roberts helped himself to some of the complainant’s personal items. The other vehicle followed the vehicle in which Mr Roberts and the complainant were travelling.
[4] At some stage during the journey Mr Roberts told the complainant to stop his vehicle. He then told him to get out of the driver’s seat and, when the complainant refused, Mr Roberts produced a knife and threatened to cut him. Not surprisingly, the complainant complied with Mr Roberts’ instructions. Mr Roberts then got into the driver’s seat of the complainant’s vehicle and told the complainant he was going to take all his property.
1 Crimes Act 1961, s 235(b).
2 R v Roberts [2021] NZDC 12080.
[5] The complainant then obeyed Mr Roberts’ instructions to transfer money from his bank account to Mr Roberts’ bank account using his cellphone. The two vehicles then travelled to a shopping plaza, where the complainant was directed to use money from his bank account to buy things that Mr Roberts and his colleagues wanted. The group then drove to a post office agency where they made an unsuccessful attempt to transfer the complainant’s vehicle into Mr Roberts’ name.
[6] The incident ended when Mr Roberts dropped the complainant off. He and his associates then drove off with the complainant’s vehicle. The vehicle was later recovered but the incident resulted in the complainant losing his cellphone and charger, his driver’s licence, a car stereo, a GPS unit, a vaping device and money transferred out of his bank account. When spoken to by the Police Mr Roberts said he had been intoxicated and was no more than a bystander.
The sentence
[7] Mr Roberts entered his guilty plea following a sentence indication given by the Judge on 26 February 2021. This indicated a starting point of four years imprisonment with a discount of 15 per cent to reflect any guilty plea.
[8] When Mr Roberts was sentenced his counsel sought to establish further mitigating factors on Mr Roberts’ behalf. He provided the Judge with a cultural report prepared under s 27 of the Sentencing Act 2002. Mr Roberts’ counsel accepted the report did not establish a link between the present offending and a background of social and cultural deprivation. However, his counsel submitted the report corroborated Mr Roberts’ claim that at the time of the offending he was under the influence of drugs and subject to long standing drug addiction.
[9] The Judge applied a further discount of ten per cent to reflect the matters contained in the cultural report as well as partial compliance with strict EM bail conditions and an offer to pay reparation in the sum of $1,000 to the complainant. The Judge said he had no confidence that Mr Roberts would pay any reparation that might be ordered. When added to the discount of 15 per cent for guilty plea, the additional discount reduced the starting point of four years imprisonment to a sentence of three
years imprisonment. The Judge imposed that sentence without further deduction and ordered Mr Roberts to pay reparation in the sum of $1,000.
Grounds of appeal
[10] In support of the appeal Mr Laybourn contends the Judge failed to give Mr Roberts adequate discount to reflect his genuine remorse and the time he spent subject to restrictive EM bail conditions. He also failed to apply a discount to reflect the causative factors arising out of Mr Roberts’ background of social and cultural deprivation.
Decision
Remorse
[11] A discount is available on sentencing to reflect genuine remorse going beyond the acceptance of responsibility inherent in a guilty plea.3 Whether or not such a discount is given is very much a matter of discretion for the sentencing judge and requires a “a proper and robust evaluation of all the circumstances”.4
[12] In the present case Mr Roberts wrote a letter to the Court expressing his remorse in some detail. The issue of remorse was also raised in the pre-sentence report. This recorded that Mr Roberts’ recollection of the offending was “a bit of a blur” due his consumption of methamphetamine that day. He said things were not pre- planned and had got out of hand. Mr Roberts also said he did not intend to hurt the victim and felt sorry for what he and his co-offenders had done to him. In addition, he wanted to write a letter expressing his remorse to the victim and offered to attend a restorative justice conference if the victim was willing to participate. After describing these observations in his sentencing remarks the Judge expressed some doubt as to whether they were genuine.5
[13] It was obviously open to the Judge to provide Mr Roberts with a discount to reflect his remorse but he was not bound to do so unless satisfied the remorse was
3 Sentencing Act 2002, s 9(2)(f).
4 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
5 R v Roberts, above n 2, at [16].
genuine. However, Mr Roberts’ expressions of remorse need to be measured against the fact that this is his fourth conviction for offending involving violence and he has already served a sentence of imprisonment imposed in November 2019 for such offending. More importantly, the pre-sentence report records that Mr Roberts disputes the fact that he threatened the victim with a knife. He said he did not think he had threatened the victim to that extent. This indicates a lack of acceptance of full responsibility for, and insight into, his offending. I consider these factors justified the Judge being sceptical as to whether Mr Roberts’ expressions of remorse were genuine. I do not consider he was bound to provide Mr Roberts with a discrete discount for remorse.
EM bail
[14] Mr Roberts was subject to restrictive EM bail conditions for a period of approximately three and a half months after his arrest. He breached his bail conditions on several occasions before finally removing his electronic bracelet and absconding. He was arrested two weeks later and remanded in custody. The Judge said he could give Mr Roberts some credit for the time spent on EM bail but this was limited. Credit for this factor was included in the global discount of ten per cent the Judge applied to reflect mitigating factors other than the guilty plea. Mr Laybourn says the Judge erred in not applying a greater discount.
[15] I do not accept this submission. A credit may undoubtedly be given to reflect time spent subject to restrictive EM bail conditions.6 The extent to which a credit is given is very much a matter of judicial discretion but, where a discount is applied, it is typically around 25 to 30 per cent of the time spent on EM bail. Had the Judge applied a discount it would therefore have been no more than four to six weeks.
[16] I consider the issue is rendered academic in the present case because Mr Roberts never adhered to the terms of his EM bail. He initially breached his bail conditions and then absconded, thereby requiring the Police to expend considerable effort to find and arrest him. I consider Mr Roberts’ response to the grant of EM bail
6 Sentencing Act 2002, s 9(2)(h).
was sufficiently poor to justify the Judge declining to give him any discount for this factor.
The cultural report
[17] Mr Laybourn submits the Judge erred by not giving Mr Roberts credit to reflect the factors identified in the following passage of the s 27 report:
Aiden is of New Zealand Maori descent, but was born and raised in Australia until he was about 14 years of age. Living away from New Zealand during his formative years has left Aiden without knowledge of his culture. He does not have a strong cultural identity and, although his family and many of his friends are Maori, he has not explored his culture or identified what value this may have for him.
There is evidence that there is a causative link between Aiden’s recent offending and the disadvantage that he experienced as [a] child. Physical abuse is the most consistent form of family violence predicting violent offending. Although Aiden does not have an extensive history of violence, there have been recent incidents which he has been responsible for. He openly admits that these have been exacerbated by his methamphetamine use.
Despite Aiden being able to avoid anti-social behaviour, criminal offending and substance use for most of his life, over the past two years Aiden’s life has unravelled and become chaotic. Aiden was distressed and then depressed after his separation from his long-term partner, [LK], and did not seem to have the coping strategies or emotional regulation skills needed at this point in his life. Poor mental health often stems from an insecure identity and unsatisfactory relationships. Perhaps a lack of integration with whanau, culture and society has led to his fragmented and self-centred behaviour (including recent drug use) as well as an absence of purpose or responsibility.
The limited whanau support that was available to Aiden after he left prison, in February 2020, added to the chaos in his life. The family member with whom he was living was not suitable, in the sense that Aiden continued to use methamphetamine and associate with Black Power members. Aiden admits that joining a gang was far less than ideal, but asserts that he had very few options.
(Emphasis added)
[18] Mr Laybourn submits Mr Roberts’ counsel erred in conceding at sentencing that there was no causative link between the present offending and the factors identified in the passage set out above. He contends the Judge ought to have applied a discount to reflect the fact that this factor established the causal link necessary to justify an additional discount.
[19] I consider it arguable that there was a causative link between the present offending and the factors identified in the s 27 report. I use the word “arguable” because the present offending does not form part of a pattern of cyclical domestic violence of the type that Mr Roberts witnessed and was subject to during his upbringing. Furthermore, the offending was obviously primarily driven by his recent consumption of methamphetamine.
[20] However, even if a greater discount may have been available to reflect these factors it needs to be remembered that the ultimate question in the present context is whether the end sentence is manifestly excessive. It is not open to an appellant to challenge individual components of a sentence unless they result in a sentence that is manifestly excessive.
[21] This issue becomes relevant because of the starting point of four years imprisonment that the Judge selected. The governing authority for the starting point to be selected in cases involving aggravated robbery remains R v Mako.7 In that case the Court of Appeal observed:
[57] Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between 4 and 5 years would be appropriate.
[22] The offending in the present case involved the prolonged kidnapping of a vulnerable complainant by several persons. It also involved the use of threats by Mr Roberts backed up by the production of a weapon. The victim obviously took the threats seriously. The offending culminated in the theft of the victim’s property, including his vehicle. All of these are aggravating factors.
[23] The present case is obviously different to the aggravated robbery of a taxi driver. However, I consider the vulnerability of the victim in the present case was broadly equivalent to that of a taxi driver working alone at night. The victim was alone in his vehicle and had no realistic prospect of resisting Mr Roberts and his
7 R v Mako [2000] 2 NZLR 170.
associates or escaping from them. His vulnerability was exacerbated by the fact that he suffers from mental health issues caused by a head injury. As in the example given above, Mr Roberts presented a weapon but no physical injury was caused to the victim. The aggravating factors of Mr Roberts’ offending would have entitled the Judge to select a starting point of at least four years six months imprisonment. This would offset any additional discount that may have been available to reflect the causative factors identified in the s 27 report. I am therefore satisfied the end sentence of three years imprisonment was not manifestly excessive.
Result
[24]The appeal against sentence is dismissed.
Lang J
2