Smith v The the King
[2022] NZHC 2782
•27 October 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2022-463-112
[2022] NZHC 2782
BETWEEN RANGIMARIE LESLIE SMITH
Appellant
AND
THE CROWN
Respondent
Hearing: 26 October 2022 Appearances:
W Nabney for the appellant L Evans for the Crown
Judgment:
27 October 2022
JUDGMENT OF CAMPBELL J
[Appeal against Sentence]
This judgment was delivered by me on 27 October 2022 at 12.00 pm
Registrar/Deputy Registrar
SMITH v THE CROWN [2022] NZHC 2782 [27 October 2022]
Background
[1]Rangimarie Smith pleaded guilty to one charge of robbery.1 On 15 July 2022,
Judge T R Ingram sentenced her to two years and three months’ imprisonment.2
[2]Ms Smith appeals. She says that the Judge erred by:
(a)adopting a starting point that was too high;
(b)imposing an excessive uplift for her previous convictions;
(c)giving insufficient credit for her guilty plea; and
(d)giving insufficient credit for personal mitigating factors.
The offending
[3] On 23 April 2021, Ms Smith and two associates were in a car. They drove to a supermarket carpark in Taupō, where they parked the car. Ms Smith and one associate got out of the car and approached a BMW parked opposite the entry to the supermarket. The pair loitered around the BMW for a short period, glancing inside, before returning to their car.
[4] The trio moved their car next to the BMW. They waited inside their car. After about 15 minutes, the victim emerged from the supermarket with a trolley and attempted to put her groceries inside the BMW.
[5] Ms Smith then got out of the waiting car and lunged at the victim, attempting to attack her. The victim ran around the BMW towards the supermarket entrance. Ms Smith and an associate chased and caught the victim. They both attacked her. Ms Smith’s associate repeatedly punched the victim in the face.
[6] Ms Smith wrestled the victim’s handbag from her grip. It contained approximately $1,800 in cash, her keys, bank cards, makeup and other items.
1 Crimes Act 1961, s 234. Maximum penalty of 10 years’ imprisonment.
2 R v Smith [2022] NZDC 13370.
Ms Smith also attempted to take a bag of the victim’s groceries. The victim managed to take the groceries back from Ms Smith.
[7] The trio then drove away. Soon thereafter, Police stopped one of Ms Smith’s associates in the car. The victim’s handbag, car keys and $320 in cash were recovered.
The charge and resolution
[8]Ms Smith was charged with aggravated robbery in April 2021.
[9] Ms Smith applied for that charge to be dismissed under s 147 of the Criminal Procedure Act 2011. That application was dismissed on 22 April 2022.
[10] Ms Smith then proposed to the Crown that she would plead to a reduced charge of robbery. The proceeding resolved on that basis. Ms Smith pleaded guilty on 29 April 2022. This was not long before her trial was scheduled to commence.
[11]The Crown subsequently reduced the charge to one of robbery.
District Court sentencing
[12] Judge Ingram said that on the basis of the summary of facts, Ms Smith’s offending was “clearly an aggravated robbery” but that she was simply charged with robbery and he was sentencing her “on the basis that [it] is a robbery and not an aggravated robbery”.3 The Judge said that the leading authority was R v Mako,4 which made it clear that street robberies “generally fall in the range of 18 months to three years, but where actual violence is used more than three years can routinely be imposed”.5
[13] The Crown and defence had submitted that an appropriate starting point was two years.6 The Judge was in no doubt that a starting point of something more than that was required.7 This was because Ms Smith’s offending was planned and
3 At [8].
4 R v Mako [2000] 2 NZLR 170 (CA).
5 R v Smith [2022] NZDC 13370 at [8].
6 At [9].
7 At [9].
involved a “significant wait”, the assault was “prolonged” and Ms Smith’s part in the offending was “very significant”.8 The Judge therefore considered that a starting point of two years and six months’ imprisonment was “the very lowest it could be assessed at”.9
[14] Judge Ingram then turned to uplifts and discounts. The Judge imposed an uplift of six months for Ms Smith’s vast number of prior convictions, which ran to ten pages and included a substantial number of dishonesty offences and violent offences.10 The Judge said it took a long time for Ms Smith’s plea to be negotiated and entered to the reduced charge, so an appropriate credit for her guilty plea was no more than 10 per cent.11 The Judge accepted that Ms Smith was entitled to some credit for her personal circumstances outlined in a s 27 report and for a letter of remorse.12 However, he said that the courts had tried to assist Ms Smith with her difficulties, and she had simply reverted to type every time.13 Given that, he could not allow more than a 15 per cent discount for personal circumstances and remorse.14
[15] The Judge said this resulted in an end sentence of two years and three months’ imprisonment.15
[16] I note that there was an error in the Judge’s application of the discounts. The Judge’s discounts totalled 25 per cent. These discounts should have been applied to the starting point of two years and six months’ imprisonment.16 Instead the Judge applied them to the three-year combination of the starting point and the uplift for previous convictions. This error favoured Ms Smith by increasing her discount by one and a half months.
8 At [9].
9 At [9].
10 At [10].
11 At [11].
12 At [12].
13 At [12].
14 At [12]–[13].
15 At [13].
16 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
Principles governing sentence appeals
[17] For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.17 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.18
Grounds of appeal
[18]Mr Nabney, for Ms Smith, advanced four grounds of appeal:
(a)that the Judge erred by adopting a starting point that was too high;
(b)that the Judge imposed an excessive uplift for previous convictions;
(c)that the Judge gave insufficient credit for the guilty plea; and
(d)that the Judge gave insufficient credit for personal mitigating factors.
[19] Mr Nabney advised that, if I were to allow the appeal, Ms Smith was not seeking that home detention be considered.
Did the Judge err by adopting a starting point that was too high?
[20]The first issue is whether the Judge adopted a starting point that was too high.
[21] Mr Nabney submitted that the starting point of two years and six months’ imprisonment was too high given that Ms Smith was being sentenced for robbery rather than aggravated robbery. He submitted that Ms Smith’s offending is comparable with that in Prince v Police,19 in which a starting point of two years’ imprisonment was adopted.
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
18 At [36].
19 Prince v Police HC Auckland CRI-2008-404-283, 16 February 2009.
[22] While the Mako guidelines should not be applied strictly to cases involving robbery, they can be adapted for such use, so long as arithmetical adjustments are not made mechanically to fit the differing maximum penalties.20 Here the Judge expressly stated that he was sentencing Ms Smith on the basis that she was convicted for robbery, not aggravated robbery.
[23] As Judge Ingram said, in Mako the Court of Appeal said that, depending on the circumstances, the starting point for a street robbery (involving either a weapon or offenders acting together, though without the occurrence of actual violence) would be between 18 months and three years. The Court added that “actual physical enforcement” might well require a higher starting point.21
[24] Ms Smith’s offending had several aggravating factors that made it a fairly serious “street robbery”. There was significant planning. There were three offenders. The assault was prolonged. There was a reasonably significant loss of property. Actual violence occurred.
[25] Given those factors and Ms Smith’s prominent role in the offending, had Ms Smith been sentenced for aggravated robbery, I consider a starting point above three years’ imprisonment would have been in line with Mako. Allowing for Ms Smith being sentenced for robbery, I consider the Judge’s starting point of two and a half years was within range, albeit at the high end.
[26] I consider Ms Smith’s offending to be more serious than that of the defendant in Prince v Police.22 Mr Prince and his co-offender approached a couple in South Auckland.23 His co-offender attempted to grab the woman’s handbag.24 She resisted.25 Her male companion endeavoured to assist her.26 At that point
20 Heteraka v R [2013] NZCA 339 at [24] citing R v Ha'apai CA294/05, 2 May 2006 at [25].
21 R v Mako [2000] 2 NZLR 170 (CA) at [59].
22 Prince v Police HC Auckland CRI-2008-404-283, 16 February 2009 at [3].
23 At [3].
24 At [3].
25 At [3].
26 At [3].
Mr Prince intervened and punched him several times.27 He then grabbed the handbag and ran away.28 The pair were then picked up by a waiting vehicle.29
[27] Lang J noted the Crown’s concession that Mr Prince’s culpability could not be distinguished from that of his co-offender, despite him being “the person who actually inflicted blows on the victim’s male companion”.30 The starting point for his co-offender’s offending was two years’ imprisonment.31 Lang J thus adopted a starting point of two years’ imprisonment.32
[28] Ms Smith’s offending had a greater degree of premeditation than Mr Prince’s. She was involved in observing cars parked in the supermarket carpark, inspecting a particular car and then waiting some time before robbing the owner. She was one of two attackers overpowering a lone victim. The property taken was of not insignificant value. These factors justify a higher starting point than that in Prince.
[29] For these reasons, I conclude that the starting point of two years and six months’ imprisonment was within the available range, albeit at the high end.
Did the Judge impose an excessive uplift for previous convictions?
[30] Mr Nabney’s next argument was that the Judge imposed an excessive uplift for previous convictions. He submitted that Ms Smith’s prior violence convictions are historic. He further submitted that imposing an uplift of six months constituted 20 per cent of the starting point. He submitted three months would be appropriate.
[31] The basis for an uplift for previous convictions is threefold. Previous convictions bear upon character and culpability, are an indicator of the risk of reoffending and call for the imposition of a deterrent sentence that protects
27 At [3].
28 At [3].
29 At [3].
30 At [7].
31 At [6]-[7]. See also Stewart v Police HC Auckland CRI-2008-404-284, 13 November 2008.
32 At [8].
society.33 Any uplift must bear a reasonable relationship to the sentence for the prior convictions and the starting point for the index offending.34
[32] Ms Smith has an extensive history of previous offending. I accept that her previous conviction for aggravated robbery dates back to 2007 and her other violence convictions are of similar vintage. But those are not the only relevant convictions.35 She has a consistent history of property offending over the past 20 years, including receiving stolen property, shoplifting, theft and burglary. She has 26 convictions for offending of this sort. Many have been met with the imposition of short sentences of imprisonment.
[33] Ms Smith’s history of prior offending engages all three bases for an uplift. The escalating seriousness of the index offending relative to her history bears upon culpability. Short sentences of imprisonment have not curtailed her pattern of offending. The risk of reoffending is obvious. A deterrent sentence is warranted.
[34] That said, given that Ms Smith’s previous violent offending is somewhat historic, I consider an appropriate uplift to be four months, rather than the six months imposed by the Judge.
Did the Judge give insufficient credit for Ms Smith’s guilty plea?
[35] Mr Nabney’s third submission was that the 10 per cent credit for Ms Smith’s guilty plea was insufficient.
[36] I disagree. Ms Smith’s guilty plea was relatively late. Though it was not on the morning of trial, it came after an unsuccessful application for a s 147 discharge. Resolution was then proposed (by Ms Smith) on the basis of the reduced charge of robbery. The Crown’s acceptance of a plea to a lesser charge “can be a concession
33 Reedy v Police [2015] NZHC 1069 at [19].
34 Tiplady-Koroheke v R [2012] NZCA 477 at [24].
35 See Jones v R [2021] NZCA 402 at [33] where the Court of Appeal said that “an uplift for prior offending will only be warranted if it indicates some tendency to commit the particular type of offence for which the offender is before the court”.
in itself”.36 I consider that Ms Smith would receive a double benefit from her plea to the reduced charge if she were to receive any more than a 10 per cent credit.
Did the Judge give insufficient credit for personal mitigating factors?
[37] Mr Nabney’s fourth ground of appeal was that the Judge gave insufficient credit for Ms Smith’s personal background, outlined in a s 27 report.
[38] Ms Smith certainly experienced serious difficulties in her childhood and upbringing, including exposure to family violence and substance abuse. These have since been present throughout much of her life. I accept that there is some causal nexus between this upbringing and the current offending.
[39] Judge Ingram also accepted this and accepted that some allowance had to be made to reflect Ms Smith’s background. He was, in my view, right to limit the allowance to 15 per cent. The causal nexus between Ms Smith’s background and her offending was not as direct as it is in some cases, and Ms Smith has shown no willingness to change.
Summary
[40] In my view the starting point of two years and six months’ imprisonment was within range. An uplift of four months was warranted for the previous convictions. A total discount of 25 per cent (of the starting point) was appropriate for Ms Smith’s guilty plea and background. This produces an end sentence of two years and two and half months’ imprisonment.
[41] This is only half a month less than the sentence imposed by the Judge. I therefore cannot conclude that the Judge’s end sentence was manifestly excessive.
Result
[42]The appeal is dismissed.
36 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
Campbell J
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