Ross v Police

[2015] NZHC 1633

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000136 [2015] NZHC 1633

BETWEEN

CAMERON ANTHONY ROSS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 July 2015
Appearances:	Hannah Kim for the Appellant Zoe Hamill for the Respondent
Judgment:	15 July 2015

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 15 July 2015 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

ROSS v NEW ZEALAND POLICE [2015] NZHC 1633 [15 July 2015]

Introduction

[1]      On 1 May 2015, the appellant, Cameron Anthony Ross, was sentenced by Judge Andrée Wiltens in the Manukau District Court to three years and nine months’ imprisonment after having pleaded guilty to one charge of aggravated robbery.1

[2]      He now appeals that sentence on the grounds that the learned District Court Judge erred in declining to give him credit for his efforts towards rehabilitation, family support and various mitigating personal circumstances.

The offending

[3]      Shortly before midnight on Friday, 29 November 2013 the complainant was seated alone in his car in the carpark at McDonald’s, Albany eating the food he had just  purchased.    His  car was  a  hi-spec Nissan  Skyline  valued  at  approximately

$70,000, fitted with a number of expensive after-market accessories.

[4]      Mr Ross’ female accomplice called out to him and asked for a ride to the bus depot.  The complainant agreed and she got into the front passenger seat.   Just as they were about to leave, the accomplice said “Oh, wait for my mate” at which point Mr Ross appeared and clambered into the back seat.

[5]      The complainant had driven only about a kilometre before Mr Ross said he needed to go to the toilet.   The car was stopped at which point Mr Ross leaned forward, produced a firearm from inside his jacket, and pointed it directly at the complainant.  He told him to get out of the car.  The complainant asked if he could retrieve his mobile phone but Mr Ross told him to leave it.  The complainant got out of the car while the gun remained trained on him.  Mr Ross got into the driver’s seat

and drove away.

1      Crimes Act 1961, s 235(b). The maximum penalty is 14 years’ imprisonment.

[6]      Mr Ross was apprehended on 3 December 2013 and two days later the car was recovered with some damage and items missing from it.2

[7]      Unsurprisingly, the complainant was shaken by the incident.  He believed he was going to die when the gun was brandished at him.  He was very proud of his car and understandably angry at it being taken from him at gunpoint.

Personal circumstances

[8]      Mr Ross is 38 years old.  He has close associations with the Tribesmen gang. He has a lengthy record of previous convictions.  His early offending was primarily of a nuisance and anti-social nature including wilful damage, property offences and drug offences.   He does, however, have previous convictions for possession of a weapon, assaulting Police, escaping from custody and breach of bail.

[9]      He has completed a nine and a half  year sentence, having been recalled following breaching conditions of his home detention and, as a consequence, spent an additional year in the Auckland Maximum Security Prison.

[10]     His  personal  circumstances  are  discussed  in  three  documents;  the  pre- sentence report, a therapeutic letter from Serco documenting his engagement with counselling and a report made pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act  2003 (“the CP(MIP) Act”).   These documents reveal the following:

(a)       Pre-sentence-report

The pre-sentence report refers to self-identified causal factors being alcohol and poor decision making arising out of grief from losing his father.   The report refers to depression and an attempted suicide in

2014.  Mr Ross is assessed as posing a high risk to the community and

for further offending based on his “criminal history, current matters,

2      In the course of the hearing it was believed the car remained unrecovered. However, I record my gratitude to Ms Kim, for Mr Ross, who filed a post-hearing memorandum attaching a witness statement from a Police officer who located the car at a North Shore motel on 5 December 2013 and inspected the vehicle with the owner to identify damage and items missing.

poor problem solving and his cognitive distortions”.   The probation officer observed he had nine previous convictions for aggravated robbery and seven breaches for non-compliance.   In a 2012 pre- sentence report he was described as a “manipulative offender who had entrenched anti-social behaviour”.  Despite Mr Ross reporting he felt able to manage his drug use, the author of the report noted regular consumption remained a concern given Mr Ross reported he used both methamphetamine and cannabis weekly with the only barrier to his drug abuse being his ability to finance it.

(b)      Serco report

The Serco report noted Mr Ross identified himself as a member of the Tribesmen  gang  but  noted  this  view  had  softened  with  Mr Ross indicating  he  had  decided  to  leave  the  gang.    The  report  noted Mr Ross  had  responded  well  to  motivational  approaches  and  had drafted a “good life” relapse prevention plan.

(c)       Section 38, CP (MIP) Act report

The s 38 report also referred to Mr Ross’ anti-social behaviour from early adolescence.   This, apparently, had at its genesis an occasion when  he  was  aged  11  and  was  abused  by  a  stranger.     As  a consequence he has had ongoing difficulties trusting others and descended into substance abuse.  The report observed that Mr Ross’ “thinking and view was entirely around the street and drug culture”. It considered he appeared to suffer from a significant personality disorder, anti-social type but also noted his desire to provide for his children in the future.

[11]     At sentencing Mr Ross provided a letter of apology to the victim in which he expressed his remorse and spoke about the progress he had made with his counsellor in understanding the feelings of his victim.  Mr Ross’ partner and the mother of the couple’s two young children also wrote a letter in support in which she spoke of her

hopes and aspirations for her partner on his release.   She stressed that while she wished to support him she also recognised that any support would be dependent on him taking steps to turn his life around.  She spoke of the couple’s intention to move to Levin where they would enjoy the support of her extended family as they made a new start.  Mr Ross’ grandfather also wrote in support.

District Court decision

[12]     Mr Ross received a sentencing indication from Judge Andrée Wiltens on

9 February 2015.3   His Honour, relying on R v Mako,4 took a starting point of three years’ imprisonment for the offending.  He then gave a 12 month uplift to account for Mr Ross’ prior offending.   On that basis, his Honour observed Mr Ross could expect a discount of three months for an immediate guilty plea and gave a final sentence indication of three years and nine months’ imprisonment with a minimum period of imprisonment (“MPI”) of two years.

[13]     Three months later on 1 May 2015, following a plea of guilty, Mr Ross was sentenced.  Judge Andrée Wiltens referred to Mr Ross’:

“awful  record  in  terms  of  previous  convictions;  24  convictions  for dishonesty, 16 for drugs and 9 additional for robbery and aggravated robbery and  on  8  occasions  [he  was]  found  to  be  in  possession  of  offensive weapons.”

[14]     As the Judge noted, the length of sentences imposed on Mr Ross had steadily increased.

[15]     His Honour had regard to Mr Ross’ letter of apology and the other letters

written in his support.  However, he concluded:

“The  overall  considerations  in  terms  of  sentencing  here  need  to  be deterrence, holding you accountable for your conduct and, significantly, protecting other members of the community from you, because you are a menace, and you demonstrate it time and time again.”

[16]     As a consequence, the Judge concluded that Mr Ross’ personal circumstances did not warrant a discount beyond that already allowed for and recognised in his plea of guilty.

[17]     At sentencing, Judge Andrée Wiltens did not impose the MPI referred to in his earlier sentence indication.  Without the MPI Mr Ross will become eligible for parole after 15 months of his sentence and as he had spent 18 months in custody on remand by the time of sentence he was eligible for parole at the time sentence was imposed.  I was advised from the bar by Ms Kim, for Mr Ross, that Mr Ross remains in custody.

Approach to appeal

[18]     Section 250(2) of the Criminal Procedure Act 2011 (“the CPA”) provides that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[19]     In any other case, the Court must dismiss the appeal.5

[20]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6  Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s

approach to sentence appeals.7

5      Criminal Procedure Act 2011, s 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

7      At [33], [35].

[21]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:8

(a)      there must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”;

(b)to establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court;

(c)      it is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[22]     The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles.   Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.9

Appellant’s submissions

[23]     Ms Kim submits that Judge Andrée Wiltens erred by not considering the rehabilitative steps taken by Mr Ross whilst in custody.    She also submits that insufficient weight was given to Mr Ross’ mitigating circumstances particularly his strong family support and compliant attitude.  In oral argument before me Ms Kim was critical of the Judge in not making any reference to Mr Ross being the victim of sexual abuse at the hands of a stranger; a circumstance which the s 38 report suggested was influential in the development of Mr Ross’ anti-social behaviour from a young age.

[24]     She submits the Judge erred in finding that the appellant was not remorseful. In this regard, Ms Kim emphasises that Mr Ross not only expressed remorse in his letter of apology to the victim but his remorse is also apparent from a reading of the s 38 report.

[25]     For these reasons Ms Kim submits the Judge erred in his assessment of the facts.  She submits the decision to adopt the indicated sentence of three years and nine  months’ imprisonment  resulted  in  an  end  sentence  which  was  manifestly excessive and inappropriate having regard to the information before the Judge.  She submits a 5 per cent discount should have been applied to Mr Ross’ expressions of remorse as well as a further discount of between 10 and 15 per cent in recognition of Mr Ross’ efforts towards rehabilitation, his mitigating personal circumstances and his strong family support.

[26]     On this basis, Ms Kim submits that an end sentence in the vicinity of three

years’ imprisonment would have been more appropriate.

Respondent’s submissions

[27]     Ms Hamill, for the Crown, submits it was open to the Judge not to impose a discount   for   personal   mitigating   features   having   regard   to   the   particular circumstances of Mr Ross’ offending.  She submits that the Judge had proper regard to Mr Ross’ personal mitigating features before concluding the appellant’s recidivist offending and  the need  for accountability,  deterrence and  community protection mandated against a discount in the circumstances.

[28]     She submits that no error in principle arises from that approach and as the Court of Appeal has frequently observed, a sentencing Judge is entitled to place little weight on expressions of remorse or rehabilitative efforts in circumstances of recidivist offending,10 and where deterrence or community protection is the principal sentencing concern11.   Frequently this principle has been recognised in cases of serious drug offending where deterrence and denunciation are emphasised.12

[29]     Furthermore,  Ms  Hamill  submits  that  the  pre-sentence  reports  identify Mr Ross as presenting a high risk of re-offending and harm to the community and although he has remained drug free whilst on remand in custody, both the pre-

sentence report and the s 38 report refer to an ongoing pre-occupation with drug use

10     R v Ngamo [2009] NZCA 512 at [9]; R v Lambert CA456/05, 4 April 2006 at [25].

11     R v Walker [1973] 1 NZLR 99 (CA).

and a history of unsuccessful interventions in that regard.  Taking all these matters into account together with Mr Ross’ significant criminal history and current offending, a deterrent approach was called for.

[30]     Finally, Ms Hamill submits that the offending can be characterised as falling between the scenarios set out by the Court of Appeal in Mako13; the aggravated robbery of taxi drivers where the use of a weapon may attract a starting point of four to five years and a street robbery where a weapon is produced and the victim is required to hand over money or property following which a starting point of 18 months to three years may be appropriate.

[31]     Ms Hamill submits that having regard to those bands a starting point closer to four years’ imprisonment would have been available to the Judge followed by the uplift which was imposed on account of his previous convictions.

[32]     The Crown thus concludes that the starting point was lenient and the end sentence cannot be described as manifestly excessive.

Analysis

[33]     The relevant tariff case for aggravated robbery is Mako.  As already noted by the  Crown,  the  Court  of Appeal’s  decision  identifies  a  number  of  aggravating features which are relevant to the sort of offending engaged in the present case. These include the use of weapons (including the type of weapon), the number of offenders, the value of the property stolen and whether or not it is recovered.

[34]     From the catalogue of scenarios reviewed in Mako the most relevant in the present circumstances are captured in the following paragraphs:

“[56]    A further  example  can  be  given  taking  another  combination  of features typical of many aggravated robberies.  This envisions a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway.  The shopkeeper is confronted by one person with the face covered. There is no actual violence.  A small sum of money is taken.  The starting point should be around four years…

13     R v Mako above n 4 at [44] and [45]; see also R v Lakatani [2008] NZCA 507 at [30].

[57]      Another form of offending of disturbing frequency is the robbery of taxi drivers.  These offences, generally at night, commonly involve violence to the 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 four and five years would be appropriate.

[…]

[59]      At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs.  Depending upon the circumstances the starting point would be between 18 months and three years.  Actual physical enforcement might well require a higher starting point.”

[35]     I agree with Ms Hamill that Mr Ross’ offending shares similarities to the robbery of a store or a taxi.  However, in my view, it is markedly more serious than the examples listed in Mako due to the use of a firearm and also because of the high value of the items taken.  Furthermore, Mr Ross had the assistance of an accomplice. In  my view a  starting  point  even  in  excess  of four  years could  not  have been criticised as excessive.

[36]     Ms Kim, wisely in my view, has not challenged the correctness of the starting point adopted by the Judge.   However, an analysis of how the starting point is calculated is a useful exercise because it plainly demonstrates the starting point was well within the available range.

[37]     Furthermore, again wisely in my view, Ms Kim does not challenge the uplift applied by the Judge in recognition of Mr Ross’ prior offending.  The Judge could readily have arrived at a sentence of five years’ imprisonment following the uplift. Again,  this  exercise  demonstrates  that  the  sentence  imposed  by  the  Judge  is incapable of challenge on this ground.

[38]     Ms Kim also does not challenge the discount for the plea of guilty.   And neither could she.

[39]     The only question, and the issue which lies at the heart of this appeal, is whether a discount should have been given for remorse, personal circumstances and

efforts at rehabilitation and, thus, whether the failure to give such a discount lead to a sentence which was manifestly excessive.

[40]     It is plain from the Judge’s sentencing notes that he did not ignore the efforts which Mr Ross has made and in particular his expressions of remorse.  The Judge made reference to Mr Ross’ grandfather’s letter which he adopted in support of his conclusion that:

“… it is very easy to write a letter and say sorry.  It means nothing, as your grandfather points out in his correspondence, until you demonstrate a change in your behaviour once you are released.”

[41]     The Judge was entitled to give limited credence to the expressions of remorse and it was open to him to decline to apply a discount beyond that recognised and implicit in the plea of guilty.   Remorse discounts are often declined  where the remorse is not considered genuine, particularly in the context of recidivist offending, and  where  a  discount  for  a  guilty plea  also  takes  into  account  the  defendant’s acceptance of responsibility.14   As such it is often the case there will be no basis to permit an additional and discrete discount for remorse.

[42]   While a discount may be given where the defendant has engaged in rehabilitative measures prior to sentencing, such an approach is not mandatory.  It is very much within the discretion of the sentencing Judge whether such a discount is warranted in the circumstances of the case.

[43]     Finally, while a discount may be available in recognition of a defendant’s efforts towards rehabilitation, mitigating personal circumstances and strong family support, this is a factor properly left for the Judge’s assessment and may be refused if the defendant has an extensive criminal history.

Conclusion

[44]     I  am  satisfied  that  Judge  Andrée  Wiltens  was  entitled  not  to  give  any additional discount for these factors.  I am thus not satisfied he erred.

14     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]-[46].

[45]     Furthermore, in terms of s 250(2) of the CPA even if this analysis is wrong, I am satisfied that the final sentence fell well within the sentencing Judge’s discretion and a different sentence should not be imposed.  In the circumstances of this case the Judge could well have applied a considerably higher starting point than that which was actually fixed so that even if the discounts urged by Ms Kim were applied the starting point would still have more than counter balanced the discounts available.

Result

[46]     The appeal against sentence is dismissed.

Moore J

Solicitors:

Ms Kim, Auckland

Crown Law, Wellington