S v Police HC Whangarei CRI 2006-488-47

[2006] NZHC 1301

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-488-47

BETWEEN  S

Appellant

ANDPOLICE Respondent

Hearing:         26 October 2006

Appearances: C M White for the appellant

A Paterson for the respondent

Judgment:      26 October 2006

(ORAL) JUDGMENT OF POTTER J

Solicitors:           Crown Solicitor, P.O. Box 146, Whangarei

C M White, P.O. Box 783, Whangarei

S V POLICE HC WHA CRI 2006-488-47  26 October 2006

Introduction

[1]      S   appeals against a sentence of four years six months imposed by the District Court on 6 July 2006 on a charge of aggravated robbery to which he entered a guilty plea.  Judge Harvey also substituted a sentence of three months imprisonment for 100 hours of community work, being the sentence imposed on Mr S   for a number of dishonesty offences.   That sentence was made cumulative on the sentence of four and half years.  That aspect of the sentencing is not appealed, as was confirmed in Court today by Mr White counsel for Mr S  .

[2]      Mr S   was sentenced together with his co-offender Stephen Dean Yates who was sentenced to six and a half years imprisonment, he also having pleaded guilty to aggravated robbery.

Factual background

[3]      I can usefully summarise the factual background from the sentencing notes of the District Court Judge.   The aggravated robbery charge arose out of an incident which occurred on 2 December 2005 at around 6.40 p.m.   The appellant with Mr Yates and two females went to an address at 48 Oruru Road, Mangonui.  The two men got out of the motor vehicle and entered the property.  Property was removed from inside the house.  In the course of this an 18 year old occupant came out of a caravan at the address.   He was approached and threatened.   Apparently at the depositions  hearing  the  complainant  said  that  it  was  Mr  Yates  who  did  the threatening and used violence towards him.  This young man was taken to the side of the house against his will.  He was made to sit down and Mr S   was told to keep an eye on him.   Mr Yates apparently returned from time to time, threatened the young man and assaulted him with a drill and a drill bit and made threats to his family.  The young man’s head was covered so he could not observe what was going on.   While all this happened a large amount of property was removed from the address.

[4]      The Judge observed that there was not a great detail of planning involved in this offending.   However, he said, neither was it random.   The  purpose  of  the offending was apparently to extract payment for a debt said to have been owed to Mr Yates’s father.  The Judge said he was prepared to accept that Mr S   may not have known that this was the precise purpose of the visit at the time.  But he said he was quite satisfied in relation to the young occupant from the caravan, that he was literally held in one place and that it must have been a very frightening experience for him.

Grounds of appeal

[5]      The grounds of appeal submitted for Mr S   are that the starting point of six years taken by the sentencing Judge was too high, the reduction of 18 months for identified mitigating factors gave insufficient weight to those factors, and a parity argument,  that  the  reduction  of  18  months  for  the  mitigating  factors   was unreasonable in terms of parity with the sentence for Stephen Yates.

Starting point too high

[6]      Mr White for the appellant referred to [58] of the tariff judgment in R v Mako [2000] 2 NZLR 170 (CA) which the Judge applied as the judgment of the Court of Appeal which governs sentencing in relation to the offence of aggravated robbery.

[7]      [58] of Mako refers to forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted.  The Court said that such offending would require a starting point of seven years or more and went on to say:

Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[8]      The Judge considered that [58] of Mako was applicable but noted that this was not offending by night but at about 6.30 p.m. in the evening.  He also noted that

the offending involved invasion of a private property and that in terms of [58] a starting point up to ten years could be considered.  In relation to Mr Yates the Judge took a starting point of seven years, the disparity being to recognise particularly, the more limited involvement of Mr S   in the offending.

[9]      The  Courts  have  always  treated  as  a  seriously  aggravating  feature  the invasion of a private dwellinghouse.   The Judge was quite correct to make the observations he did in that respect.  His adoption of a starting point of six years in respect of Mr S   after acknowledging the feature of this being a day time rather than a night time robbery, cannot be criticised.

Insufficient weight give to mitigating factors

[10]     The Judge in giving a reduction of 18 months for Mr S  ’s early guilty plea and his genuine remorse which the Judge accepted, allowed a discount of about

25 per cent.  Mr White submitted that in addition to the guilty plea and the genuine remorse  there  were  other  mitigating  factors  the  Judge  should  have  taken  into account, namely absence of previous convictions for violent offending, Mr S  ’s limited involvement in the offence in terms of both the offending and the planning and preparation, and the steps he took to lessen the impact of the offence on the victim.

[11]     I do not regard those as mitigating factors.   Mr S   has a number of previous convictions (26 in all I believe) which although not for violent offending represent a serious list of previous convictions.  The absence of previous convictions for violent offending is the absence of an aggravating factor rather than a mitigating factor.

[12]     As to his limited involvement in the offence, this was taken into account by the Judge quite properly in adopting a lower starting point of six  years for the sentencing of Mr S  , than the seven years adopted for Mr Yates.

[13]     In relation to the steps taken to lessen the impact of the offending on the victim, Mr White wished to place some emphasis on [46] of Mako which states that

the victim  impact  is  of  considerable importance in  assessing the seriousness  of aggravated  robbery offences.    While  that  is  so,  I accept  the  submission  of  Ms Paterson for the Crown that the observations of the Court in Mako relate rather to aggravating  features  where  the  treatment  of  victims  is  involved.    The  Judge correctly, in my view, observed in relation to Mr S  ’s involvement:

Mr S   it is important as far as you are concerned because I do not accept that you can simply stand there today and put all the blame for this on Mr Yates.  You are an adult and you assisted.  You assisted by staying around beside the house and making sure that the young man did not become involved and also to make sure that Mr Yates and to a lesser extent the girls, could continue what they were doing.

[14]     Mr S   pleaded guilty as a party to involvement in this offending.   The Judge reflected that in the statement I have just quoted from his sentencing notes. That Mr S   may have wished to afford some protection for the young victim in the course of the offending does not provide a ground for further minimising his clear involvement as a party in this offending.  The Judge properly took his lesser role into account.

Parity argument

[15]     The argument for Mr S   is that the reduction in sentence allowed to Mr Yates for his guilty plea of about 25 per cent was about the same as that allowed to Mr S   and yet there were more mitigating factors in relation to Mr S  .  I have already referred to the matter of mitigating factors.

[16]     In relation to parity I note that for Mr Yates the Judge not only took a higher starting point of seven years, but he increased that starting point appropriately for aggravating features of the offender, namely Mr Yates’s history of serious violent offending and other related matters.  The Judge in respect of Mr Yates then reached an adjusted starting point of eight years six months before he applied the reduction for the guilty plea to reach a final sentence of six years six months.  In the result, the sentence imposed on Mr Yates was two years longer than that imposed on Mr S  .

[17]     The Crown referred to the judgment of R v Rameka [1973] 2 NZLR 592 (CA) where the Court stated in relation to appeals based on disparity of sentence, that it will only be in special cases that disparity as a ground of appeal against sentence will succeed and only when the disparity appears unjustifiable and is gross. For the reasons given, I do not consider that the disparity here was either unjustifiable or gross when the Judge’s approach and the end sentences are considered.

Conclusion

[18]     For an appeal to succeed, the appellant must show that the sentence imposed was manifestly excessive or was clearly wrong.   The sentencing Judge has a discretion in the matter of any discount he may allow for mitigating circumstances. Both the starting point and the allowance for mitigating factors given by the Judge in the case of Mr S   were well available to him.

[19]     The appeal must be dismissed.