Southee v The King - [2024] NZHC 1653

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-100

[2024] NZHC 1653

BETWEEN
AARON GARY SOUTHEE

Appellant

AND

THE KING

Respondent

Hearing: 13 June 2024

Appearances:

K Gray for Appellant

C L Fiennes for Respondent

Judgment:

21 June 2024

JUDGMENT OF CULL J

[1] Mr Southee appeals his sentence of three years and six months’ imprisonment1 on one charge of aggravated robbery, to which he pleaded guilty.2 He contends that the sentence is manifestly excessive.

Background

[2] Sentencing proceeded on the basis of an agreed summary of facts, which are as follows.

[3] At about 7.30 am on 13 June 2022, the victim, aged 71, unlocked the doors of her dairy. She made her way back into the shop when Mr Southee and a co-offender, Mr Koroheke, entered behind her. Both offenders were wearing full-face balaclavas and gloves.

1 R v Southee [2024] NZDC 7879.
2 Crimes Act 1961, s 235; maximum sentence 14 years’ imprisonment.

SOUTHEE v R [2024] NZHC 1653 [21 June 2024]

[4] Mr Southee grabbed the victim and put his hand across her mouth to stop her from screaming. The victim dropped to the floor and Mr Southee moved behind the shop’s counter. Mr Koroheke took out a pistol and actioned it by pulling back the slide, before dragging the victim across the floor by her arm into a corner. Mr Koroheke demanded that the victim give him the keys to the cigarette cabinet, pointed the pistol at her head and screamed at her to shut up.

[5] Mr Koroheke removed the keys from the victim’s pocket and threw them to Mr Southee. Mr Southee opened the cabinet and placed several packets of cigarettes into a black bag. The offenders then departed in a vehicle.

The sentencing decision

[6] In setting a starting point, the sentencing Judge found that the robbery was planned3 and that Mr Southee had assaulted the victim by putting his hand across her mouth, which was particularly offensive in the victim’s Muslim culture.4 The Judge did not determine whether Mr Southee knew Mr Koroheke possessed a firearm, observing that this did not significantly affect Mr Southee’s culpability.5 The Judge appeared to depart from the tariff case of R v Mako,6 commenting that she had to balance this older decision with the increasing number of dairy robberies and the need for deterrence.7 She set a starting point of five years and nine months’ imprisonment.8

[7] The Judge imposed an uplift of five months for prior offending.9 The Judge gave a 25 per cent reduction for Mr Southee’s personal circumstances, background, history, personal issues and attempts at rehabilitation, noting that he would not give a significant credit as Mr Southee had had a lot of support and opportunities to change.10 A 10 per cent reduction was given for Mr Southee’s guilty plea as it did not come at the earliest opportunity, with his instead waiting “until the tenth hour”.11 These

3 R v Southee

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Southee v The King

Details

AGLC: Southee v The King [2024] NZHC 1653
Case: [2024] NZHC 1653
Decision Date: 21 June 2024

CaseChat Overview and Summary

In this case, Aaron Gary Southee appeals his sentence of three years and six months’ imprisonment for aggravated robbery, to which he pleaded guilty. The primary contention is that the sentence is manifestly excessive. The appeal hinges on several legal issues: whether the starting point for the sentence was too high, if the uplift for prior offending was justified, if the reductions for personal mitigating factors and the guilty plea were appropriate, and if the sentence was inconsistent with that of his co-offender.

The court found that while the starting point was appropriate, the uplift for prior offending was excessive. The court noted that Southee’s history of burglary and other dishonesty offences did not establish a tendency to commit aggravated robbery, and thus an uplift of one month was more appropriate. Additionally, the court identified a miscalculation in the reductions for personal mitigating factors, which were calculated based on an inflated starting point. However, the overall 26-month discount for these factors was deemed acceptable, especially considering Southee’s expressions of remorse. The court also found that the sentence was consistent with that of the co-offender when comparing their respective starting points for the aggravated burglary.

The appeal was allowed, and the original sentence was set aside. A revised sentence of three years and two months’ imprisonment was imposed, incorporating the corrected uplift for prior offending and maintaining the original reductions for personal mitigating factors and time spent on electronic monitoring bail.

Orders