Robertson v The Queen
[2011] NZCA 517
•3 October 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA91/2011 [2011] NZCA 517 |
| BETWEEN HARLEY DAVID ROBERTSON |
| AND THE QUEEN |
| Hearing: 26 September 2011 |
| Court: Harrison, Fogarty and Simon France JJ |
| Counsel: A M Schulze and G C Burt for Appellant |
| Judgment: 3 October 2011 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Harley Robertson appeals against a sentence of two years and seven months imprisonment imposed upon him in the High Court at Rotorua on 4 February 2011 following his plea of guilty to one charge of causing grievous bodily harm with intent to injure.[1]
[1] R v Follas HC Rotorua CRI-2009-077-1497, 4 February 2011.
Mr Robertson had participated in a group attack on a young man. The principal offender, Mr Bolt, pleaded guilty to a charge of attempted murder. The Crown accepted that Mr Bolt’s three co-offenders – Messrs Robertson, Wilson and Follas – participated in secondary capacities. All three pleaded guilty to the same lesser charge.
Mr Schulze submits that the sentence imposed on Mr Robertson was manifestly excessive: in particular that the starting point adopted was too high; that the sentence was disparate with the sentence imposed on Mr Wilson; and that an insufficient allowance was made for Mr Robertson’s plea of guilty.
Background
The relevant facts are not in dispute, and are summarised in this passage from the notes of the sentencing Judge, Priestley J, as follows:
[8] The offending was part and parcel of incidents in Tokoroa in mid-September 2009. There had been previous drinking involving Mr Bolt. There was some suggestion by Mr Bolt that the parties should go to Tokoroa to “get some niggers”. I accept, having listened to counsel, that that degree of premeditation cannot properly be sheeted home to these three prisoners. The stated reason for going to Tokoroa was to acquire money from a money machine with which, so Ms Ewen submits, the parties intended to purchase drugs. In the vicinity of the money machine the victim and three others were seen. Mr Bolt and the prisoner Mr Follas got out of the vehicle to challenge the four youths to a fight. Mr Robertson, for his part, went to the money machine. Mr Wilson, who I accept had a day or two beforehand injured his arm and foot, both which parts of his anatomy were in a plaster cast, and who needed crutches, stayed in the vehicle. The victim and his friends ran away, being understandably fearful of being attacked. After a short chase on foot, which involved Mr Follas alone of these three, the chase was abandoned. The group then drove around Tokoroa in an attempt to find the four they were pursuing. They were spotted. There was a deliberate change in direction of the vehicle driven by Mr Bolt. The pursued group broke up. The victim, who at this stage was running across a reserve, attempted to climb a residential fence but his jersey was caught. The vehicle drove into the victim, colliding with the fence with some force. The vehicle in question was no mere saloon car but a four wheel drive vehicle. At that point all three prisoners got out of the vehicle. Mr Wilson, because of his disabilities, was not able to leave the scene with any speed. In part, what seems to have led to the three leaving the vehicle were the dreadful actions of Mr Bolt who produced a claw hammer and began to hit the prone victim around his head.
Appeal
(a) Starting point
Mr Schulze’s first submission is that the starting point of three and a half years imprisonment adopted by Priestley J when sentencing Mr Robertson was manifestly too high.
Wylie J had sentenced Mr Bolt following his plea of guilty on 28 October 2010.[2] The charge of attempted murder carries a maximum sentence of 14 years imprisonment. The Judge adopted a starting point of ten and a half years. He made substantial allowances for Mr Bolt’s age – 19 years – his remorse and his plea of guilty (encompassing an additional unidentified factor which was accepted by the Crown). Together they justified a discount of 30 per cent. Mr Bolt’s end sentence was seven and a half years imprisonment.
[2] R v Bolt HC Rotorua CRI-2009-077-1497, 28 October 2010.
Priestley J succinctly identified the culpability of each of the three secondary parties as follows:
[14] Having said all that, I accept that the most grievous offending, the attack on a defenceless young man, on the ground, with a hammer to his skull, was not something which the three of you premeditated or indeed, as your immediate reactions showed, anticipated. Counsel, I think, are on firm ground when they say in assessing your culpability I should limit it somewhat to your being parties to the initial chase, the subsequent hunt in a vehicle, and of course the running over of your victim by the vehicle driven by Mr Bolt. That for me is a quite difficult exercise, but clearly you must be dealt with in a much more lenient fashion, because of your overall culpability and given certain distinctions between the three of you, than the court dealt with Mr Bolt.
The charge of causing grievous bodily harm with intent to injure carries a maximum sentence of seven years imprisonment. In the High Court the Crown Solicitor proposed a starting point for Mr Robertson and his two co-offenders of between three and four years; Mr Schulze suggested a starting point of between two and a half and three years. Priestley J referred to two authorities in this Court. But, recognising that neither was directly relevant, he fixed a starting point of three and a half years. That was necessary to take account of relevant aggravating factors including:
[30] ... the pack mentality, the use of a car as a weapon, the pursuit of the victim, and the injuries he sustained (for which purposes I do not include the injuries inflicted with the hammer).
Priestley J acknowledged also that further adjustments were necessary between Messrs Robertson, Wilson and Follas to reflect what he described as their slightly different levels of culpability. Mr Follas remained at the base starting point of three and a half years. Mr Wilson was allowed a reduction of seven months to reflect his lesser culpability.
Priestley J fixed Mr Robertson’s adjusted starting point by adopting this approach:
[42] From a start point of three and a half years imprisonment I reduce that by two months to reflect your lesser culpability at the outset, referred to by your counsel. I must, however, uplift by three months to reflect the fact that in less serious but similar circumstances you have already been convicted for the same offence. I intend to give you a discount of six months to reflect your guilty plea. I also intend to extend further credits to you for your remorse and your youth.
Mr Schulze relies upon the fact that Mr Robertson and his other two co-offenders were not charged as principals. They had no actual involvement in the assault. It was common ground that they participated by giving Mr Bolt verbal encouragement to drive the vehicle after the victim and his friends. Their assistance was not intended to extend to Mr Bolt’s actions in hitting his victim’s head with a hammer.
Mr Schulze emphasises that Mr Bolt’s intention was significantly more serious than that of his co-offenders; and that the secondary aiding or abetting took place within an extremely short timeframe. He submits that Priestley J placed undue emphasis on actions by Mr Robertson and his two co-offenders before and after the actual assault. He draws by analogy on the sentencing guidelines imposed by this Court in R v Taueki.[3]
[3] R v Taueki [2005] 3 NZLR 372.
We are not satisfied that Priestley J erred. Sentencing in a case like this involves an overall evaluation of culpability. Priestley J’s approach reflects care and thought. He accepted the factual distinction which Mr Schulze emphasises. He limited his assessment of Mr Robertson’s culpability to his participation in Mr Bolt’s actions leading to and running over the victim.
The unusual facts presented the Judge with a difficult sentencing exercise as he acknowledged. On a comparative basis, his starting point adopted for Mr Robertson and his co-offenders was about one third of that adopted by Wylie J for Mr Bolt. While Mr Bolt’s attack on the victim went beyond the scope of Mr Robertson’s encouragement, what happened immediately before did not.
It is necessary to keep in mind the circumstances of the offence to which all three co-offenders pleaded. A 15 year old boy was fleeing, chased by four young men in a four wheel drive vehicle. Although not necessarily a factor to be visited on all the offenders, undoubtedly the reason the victim was initially targeted was racial. When the vehicle finally caught up with him, it drove at the victim who was stuck on a fence. It ran over him. The grievous bodily harm caused was multiple broken ribs, a punctured lung, and other serious chest injuries.
The effects of these injuries combined with the later hammer attack to the head were such that surgeons doubted the young man would survive. Given the weapon was a vehicle and the victim ended up with such serious injuries, it is an offence which could have supported, for a principal offender, a starting point near the maximum. In our judgment the starting point adopted for the secondary parties of three and a half years imprisonment, being 50 per cent of the maximum penalty, was well within range.
Mr Schulze did not challenge Priestley J’s upward adjustment by three months of the starting point for Mr Robertson. This uplift took express account of his conviction in August 2010 on a charge of injuring with intent to injure when he was 17 years of age. He was sentenced to nine months supervision and 200 hours community work. Mr Schulze advised that the offending occurred in the family environment.
The Judge treated that previous conviction as an aggravating factor. But we are not satisfied that an upward adjustment was justified. This Court has accepted the policy that the Judge when sentencing may take into account previous convictions which indicate a predilection to commit a particular type of offence.[4] This power is reflected in Parliament’s identification as an aggravating feature to the extent that it is applicable in the case the number, seriousness, date, relevance and nature of the offender’s previous conviction(s).[5] However, particular care must be exercised to ensure that the power is not used as a punitive measure. An accused person must not be punished twice for the same offending.
[4] See R v Ward [1976] 1 NZLR 588.
[5] Sentencing Act 2002, s 9(1)(j).
In this case, Mr Robertson had offended in the same way only once before. His community based sentence suggests that his offending was not of a particularly serious nature. It could not support a characterisation of Mr Robertson as having a predilection for this type of offending in the interests of deterrence justifying an increase in his sentence. The effect of an upward adjustment of three months was to impose a discrete sentence of that duration for the earlier offence.
However, another factor points in the opposite direction. Mr Robertson committed this offence in September 2009 when on bail on the earlier charge of wounding with intent.[6] That aggravating event would have justified an increase in the starting point of three months. Priestley J did not take it into adverse account against Mr Robertson. In the end these two factors cancel each other out.
(b) Disparity
[6] Sentencing Act 2002, s 9(1)(c).
Mr Schulze’s second ground of appeal is that the starting point adopted for Mr Robertson’s sentence was unduly disparate with the starting point for Mr Wilson.
In sentencing all three co-accused the Judge adopted the same base starting point of three and a half years imprisonment. He made downward adjustments for Messrs Robertson and Wilson of two months and seven months respectively. Both were to reflect their lesser culpability than Mr Follas. Priestley J made a greater allowance for Mr Wilson because he was physically confined by crutches and casts. He would not be able to give Mr Bolt active assistance in the event of a physical altercation with his proposed victim.
Mr Schulze submits that the same allowance should have been made for Mr Robertson. He says there was no reasonable basis for differentiating between the two. On an objective assessment of the circumstances there was no foundation for adopting a five month difference in the respective starting points. He says a reasonable and independent observer would regard the disparity as unjust.
We do not accept Mr Schulze’s submission. We are satisfied that the adjusted starting point adopted for Mr Robertson before aggravating features were taken account was appropriate. Mr Wilson may have been fortunate that the Judge made an allowance for his temporary physical incapacity given that the basis of his participation was like Mr Robertson’s in providing verbal encouragement to Mr Bolt. But the fact that one offender has the benefit of a particular indulgence does not give a co-offender cause for complaint. It is only decisive if the ultimate difference in the two sentences is such that it tends to bring administration of justice into disrepute.[7] That is a matter of degree.
[7] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
The difference adopted by Priestley J in the two starting points was not fully reflected in the end sentences. Mr Wilson was sentenced to two years and three months imprisonment; Mr Robertson to two years and seven months. We are not satisfied that the four month difference in the context of this offending is such as to be inconsonant with the ends of justice.
(c) Guilty plea
The third ground of appeal advanced by Mr Schulze was that the Judge made an insufficient allowance for Mr Robertson’s plea of guilty.
The end adjusted sentencing point adopted by the Judge was three years and seven months imprisonment. He allowed a further discount of 12 months to represent Mr Robertson’s guilty plea, his remorse and his youth – and he was 18 years of age when he committed the offence. This was a discount of nearly 30 per cent. We are not satisfied that it was in any sense inadequate. To the contrary, it could be seen as generous but fair and appropriate. The same can be said of the end sentence.
Result
Mr Robertson’s appeal is dismissed.
Solicitors
Lance Lawson Barristers and Solicitors, Rotorua for Appellant
Crown Law Office, Wellington, for Respondent
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