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, above n 1, at [4] and [13].

4 At [13].

5 At [13].

6      R v Mako [2000] 2 NZLR 170 (CA).

7      R v Southee, above n 1, at [10] and [12]–[13].

8 At [13].

9 At [14].

10     At [15]–[21].

11 At [22].

reductions were calculated as a percentage of 74 months, being the starting point plus the uplift for prior offending.12

[8]    The sentence was reduced by a further six months for time spent on EM bail.13 This resulted in an end sentence of three years and six months’ imprisonment.14

Parties’ positions

Mr Southee

[9]    Ms Gray, for Mr Southee, provides five ways in which the sentencing Judge is said to have erred. First, she submits that the starting point was too high because of the Judge’s unjustified departure from R v Mako, Mr Southee’s conduct being distinguishable from Mr Koroheke’s and Mr Southee’s not knowing that Mr Koroheke had a firearm. Second, Ms Gray argues that the uplift for prior offending was too high given that Mr Southee has no previous convictions for aggravated burglary.

[10]   The third and fourth challenges are to the reductions for Mr Southee’s s 27 report and guilty plea, which Ms Gray says were too low. Lastly, Ms Gray submits that the sentence was inconsistent with Mr Koroheke’s sentence, which was only 11 months longer despite his increased culpability in the aggravated robbery and additional firearms charges.

Crown

[11]   Ms Fiennes, for the Crown, first submits that the starting point was not too high as it was not inconsistent with R v Mako, significant differentiation between the co- offenders was not necessary and it was open to the Judge to find that Mr Southee knew of the firearm. Second, she says that the uplift for prior offending was within the available range and proportionate given Mr Southee’s previous convictions for burglary and other dishonesty offending.

12 At [22].

13 At [23].

14     At [25] and [26].

[12]   Third, the Crown contends that the reductions for personal mitigating factors were within range given Mr Southee’s recidivism, failed attempts at rehabilitation and the fact that he pleaded guilty 17 days before trial when the evidence against him was relatively strong. Lastly, Ms Fiennes points to the co-offenders’ comparable starting points for aggravated burglary, arguing that this, being the relevant figures in parity assessments, was appropriate.

Approach on appeal

[13]   The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.15

[14]   In order to succeed, Mr Southee must show that there was an error in the sentence reached and that a different sentence should have been imposed.16 The Court will not intervene where the sentence is within the range available to the sentencing Judge.17 The Court will intervene only if the sentence is manifestly excessive.18

[15]   In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing:19

(a)first, calculating the adjusted starting point by incorporating aggravating and mitigating features of the offence and considering similar offending for consistency; and

(b)second, incorporating aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

15     Filivao v R [2024] NZCA 103 at [30].

16     Criminal Procedure Act 2011, s 250(2).

17     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

18     Ripia v R [2011] NZCA 101 at [15].

19     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

[16]   R v Mako is the guideline judgment for aggravated robbery offending.20 It remains applicable, with the Court of Appeal citing it as recently as July 2023.21

Was the starting point too high?

[17]   R v Mako provides extensive guidance on setting starting points for aggravated robbery offending by identifying applicable aggravating factors and providing examples of combinations of aggravating factors and their corresponding starting points.22 R v Mako identified 15 aggravating factors.23 The following are relevant to the present offending:

(a)The degree of planning and preparation: as the sentencing Judge identified, this robbery was premeditated, as evidenced by the use of a motor vehicle to travel to and from the shop, disguises, gloves and the bag for carrying the stolen goods.

(b)The number of participants: there were two offenders.

(c)Disguises: the offenders wore full-faced balaclavas.

(d)The number and types of weapons and how they are brandished, and whether any firearms are unloaded: Mr Koroheke carried a pistol, which he actioned during the robbery and pointed at the victim’s head. It is unclear whether the pistol was loaded, but as the Crown submits, its actioning suggests that it either was loaded, or that Mr Koroheke intended to demonstrate to the victim that it was. I note here the Court of Appeal’s guidance that while unloaded firearms give rise to less danger, “the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any less risk that victims might react in

20     R v Mako, above n 6.

21     See Te Ao v R [2023] NZCA 327 at [22].

22     R v Mako, above n 6.

23     At [36]–[51].

ways dangerous to themselves or others believing they are in mortal danger.”24

(e)The target premises or persons, relevant to the potential gain, and the number of members of the public who are affected: the target premises was a small business. The Court of Appeal held that small businesses are vulnerable and targeted frequently, which gives rise to the need for deterrence.25 This sentiment was echoed by the sentencing Judge.26 Due to the time of the offending, there was minimal chance of contact with other members of the public and only the shop’s owner was affected.

(f)The vulnerability of the victims: as the sentencing Judge held, the victim was aged 71 years and, despite being incredibly active for her age, was diminutive.27

(g)The use of violence: Mr Koroheke used violence in dragging the victim across the shop floor and pointing the pistol at her head. Mr Southee employed more limited violence in initially grabbing the victim and covering her mouth which caused her to drop to the floor, however I note the sentencing Judge’s comment that the latter action was a real offence against the victim due to her Muslim culture.28 The Court of Appeal held that “actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably higher rating in overall seriousness.”29

(h)The presence of threats and intimidation: Mr Koroheke made serious threats of violence and his possession of the firearm amounted to significant intimidation. It does not appear that Mr Southee made threats, however his initial grabbing the victim and covering her mouth

24     R v Mako, above n 6, at [39].

25     R v Mako, above n 6, at [42].

26     R v Southee, above n 1, at [10].

27     R v Southee, above n 1, at [6].

28     R v Southee, above n 1, at [13].

29     R v Mako, above n 6, at [43].

to prevent her from screaming contributed to the intimidation of the victim.

(i)The property stolen and the extent of any recovery: $3000 worth of cigarettes was stolen.

(j)The impact on the victim: the sentencing Judge highlighted how the robbery has left the victim permanently scarred, with the shop sitting empty since the offending.30 The Court of Appeal held that the impact on the victim is “of considerable importance in assessing the seriousness of aggravated robbery offences.”31

[18]   R v Mako also provided examples of common combinations of aggravating factors and their corresponding starting points. The parties referred to these, which I reproduce below:32

[54] […] The robbery of commercial premises where members of  the  public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.

[…]

[56] A further example can be given taking another  combination  of  features typical of many aggravated robberies. This envisages 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. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[19]   The Judge adopted starting points of six years for Mr Koroheke and five years and nine months for Mr Southee.33

30     R v Southee, above n 1, at [6]–[9].

31     R v Mako, above n 6, at [46].

32     R v Mako, above n 6, at [54] and [56].

33     R v Southee, above n 1, at [5] and [13].

[20]   Ms Gray submits that Mr Southee’s starting point should have been five years in accordance with the example in Mako at [56] of a robbery of a small retail shop. That rests on Mr Southee’s treatment of the victim being distinguishable from Mr Koroheke’s. Mr Koroheke’s assault of the victim (dragging her along the floor by the arm) was more violent, she argues, and he pointed an actioned firearm at her.

[21]   The Crown argues that these submissions artificially compartmentalise the offending by ignoring the fact that the two offenders were acting in concert, relying on the following passage in R v Mako:34

[…] there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.

[22]   The Mako example differs from the facts here, as the shopkeeper was confronted by more than one person with their faces covered and there was actual violence. The shopkeeper was confined and assaulted and confronted by two offenders. I consider the Judge was correct in adopting the six year starting point for Mr Koroheke and the reduced starting point for Mr Southee appropriately reflects his involvement. He initially grabbed the victim put his hand over her mouth to prevent her from screaming on two occasions. Although he did not throw her to the ground, he was a participant in the infliction of fear and intimidation of the victim.

[23]   I consider that the facts here reach the ‘bad case’ threshold identified in Mako at [56], warranting a starting point of six years. The elements that warrant a starting point of four years are all present: it was a robbery of a small retail shop with a weapon, no customers were likely to be present and the offenders’ faces were covered. All of the additional elements that would each individually take the starting point to five years are present: the shopkeeper was confined and assaulted and confronted by multiple offenders and a more than small sum of money was taken. Further, additional aggravating factors were present: there was actual violence, a pistol was used and the victim suffered significant psychological harm. For these reasons, I consider the present offending was a ‘bad case’ of the type contemplated in R v Mako, and the Judge was correct in adopting the six-year starting point for Mr Koroheke.

34     R v Mako, above n 6, at [64].

[24]   Further, I find that the reduced starting point of five years and nine months for Mr Southee appropriately reflects his involvement. The two were acting together in executing the aggravated burglary. Both wore full-face balaclavas and gloves, and they arrived and left together in the same vehicle. Mr Koroheke entered with the pistol and Mr Southee held the bag to put the cigarettes in. I also note that Mr Southee’s PAC report records that his involvement in the robbery consisted of taking the cigarettes and driving the vehicle.

[25]   For these reasons, I find that Mr Southee’s culpability was appropriately reflected in his starting point being three months less than Mr Koroheke. Five years and nine months’ imprisonment was within the available range. This ground of appeal fails.

Was the uplift for prior offending too high?

[26]   The five-month uplift equates to 7% of the starting point. Ms Gray submits that the uplift was not justified as Mr Southee has no previous convictions for aggravated robbery. She also drew my attention to the Judge’s sentencing of Mr Koroheke, where a three-month uplift was imposed for a previous burglary conviction. The Crown points to Mr Southee’s 13 previous convictions for burglary, the most recent committed in 2019, and nine convictions for theft, receiving, shoplifting and using a document for pecuniary advantage. He has also been convicted for common assault.

[27]   In Jones v R, the Court of Appeal held that an uplift for prior offending will be warranted if it indicates some tendency to commit the particular type of offence for which the offender is before the court.35 In that case, the Court found that the appellant’s criminal history, which included a common assault conviction and various dishonesty convictions, did not establish a tendency to commit aggravated robbery.36 This is likely because robbery and aggravated robbery have the element of violence which is not present in other dishonesty offending.37

35     Jones v R [2021] NZCA 402 at [33].

36     At [32]–[33].

37     Crimes Act, ss 234(1) and 235.

[28]   In R v Casey, the Court of Appeal discussed how previous convictions may still warrant an uplift where they go to the character of the offender:38

It is necessary to take [previous convictions] into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character.

[29]The Court of Appeal passed similar comments in Orchard v R:39

Previous convictions are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.

[30]   Mr Southee’s convictions are not for aggravated robbery. He does however have a significant history of burglaries and other dishonesty offending. I consider the uplift of five months was too high, as the Judge did not consider whether Mr Southee had a tendency to commit this particular type of offending, being aggravated robbery. Nevertheless, his considerable history of burglary and other dishonesty offending does reflect part of the ingredients for this offending, namely breaking in and committing offences of dishonesty. I consider an uplift of one month is appropriate, bearing in mind that he has already been punished for these previous offences and that they do not contain elements of violence.

[31]This ground of appeal succeeds.

Miscalculation of personal mitigating factors

[32]   As noted, Moses v R requires sentencing judges to calculate percentage discounts for personal mitigating factors as a proportion of the adjusted starting point.40 Prior offending, being a personal aggravating factor, is not factored into the adjusted starting point, instead being considered at the second stage of sentencing.

[33]   The sentencing Judge appears to have factored the uplift for prior offending into the adjusted starting point, and then calculated discounts for personal mitigating

38     R v Casey [1931] NZLR 594 (CA) at 597, cited in Johnston-Walters v R [2011] NZCA 367 at [28].

39     Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39], cited in Irwin v R [2020] NZCA 181 at [16].

40     Moses v R, above n 19, at [46].

factors as a proportion of that inflated starting point.41 This led to greater discounts, totalling 35 per cent of 74 months (26 months) instead of 35 percent of 69 months (24 months).

[34]   Notwithstanding this miscalculation, the discount of 26 months for Mr Southee’s s 27 factors and guilty plea stands, for the reasons I give below. Most significantly, it makes up for a discount that was not given for remorse.

Were the deductions for personal factors and the guilty plea too low?

Section 27 factors

[35]   Ms Gray submits that the Court should have given a larger reduction for personal mitigating factors identified in Mr Southee’s s 27 report. She points to the sentencing Judge’s comments that a significant credit was not available for these matters.42

[36]   The Court of Appeal held that 30 per cent is at the upper end of reductions available for personal background matters, with 15 per cent being usual in cases where a causal link is made out between offending and seriously disadvantaged personal backgrounds.43 While I accept that Mr Southee’s background had some causative effect on his offending, in that socioeconomic depravation and the normalisation of violence predisposed Mr Southee to his methamphetamine addiction, I consider that his background could not be described as “seriously disadvantaged”.

[37]   The sentencing Judge referred to Mr Southee’s failed attempts at rehabilitation, noting that Mr Southee has repeatedly chosen methamphetamine, despite having the opportunities and support to change.44

[38]   In light of Mr Southee’s unfortunate but not “seriously disadvantaged” background and limited rehabilitative potential, I consider the 25 per cent discount was within the available range.

41     R v Southee, above n 1, at [21] and [22].

42     R v Southee, above n 1, at [20].

43     McMillan v R [2022] NZCA 128 at [148].

44     R v Southee, above n 1, at [19]–[20].

Guilty plea

[39]   As the Crown observes, Mr Southee’s trial was set down for the week of 20 November 2023 and he pleaded guilty on 3 November 2023. The Judge’s characterisation that Mr Southee “waited until the tenth hour” to submit his guilty plea is accurate.45 He had ample opportunity to plead guilty from when the firearms charges were withdrawn. A 10 per cent discount was certainly open to the Judge.

[40]This ground of appeal fails.

[41]   As I found above, the sentencing Judge calculated discounts for these personal mitigating factors as a proportion of an inflated starting point that was uplifted for prior offending. As I have found that these percentage discounts were within the available range, I would ordinarily recalculate these discounts as a proportion of the starting point, which would lower the discount from 26 months to 24 months. However, as held above, the 26-month discount for these factors stands because of Mr Southee’s expressions of remorse recorded in his s 27 report, his PAC report, the letter of remorse he wrote to the victim, and his offer to attend restorative justice. A discount was not given for remorse at his sentencing.

Parity with co-offender

[42]   As well as aggravated burglary, Mr Koroheke faced charges for the unlawful possession of 21 firearms and accompanying ammunition. His end sentence was 53 months, 11 months higher than Mr Southee’s end sentence of 42 months. Mr Gray submits that this small increase for additional serious charges indicates inconsistency between the sentences, which tends to bring the administration of justice into disrepute.46

[43]   However, as the Crown submits, the figures to be compared are the co- offenders’ respective starting points. End sentences are not comparable as they are adjusted for personal factors and these adjustments are necessarily different between offenders.

45     R v Southee, above n 1, at [22].

46     Ms Gray relies on R v Lawson [1982] 2 NZLR 219 (CA) at 223.

[44]   As I found above, the co-offenders’ respective starting points for the aggravated burglary were within the available range and appropriately reflected their culpability. This ground of appeal fails.

Revised sentence

[45]   Having addressed Ms Gray’s challenges to the sentence, Mr Southee’s revised sentence is made up as follows:

(a)the starting point is five years and nine months imprisonment;

(b)the five-month uplift for prior offending is substituted for an uplift of one month;

(c)the    26-month    discount    given    for    Mr    Southee’s   background, rehabilitative potential, remorse and guilty plea stands;

(d)the six-month reduction for time spent on EM bail stands.

[46]   This results in a substituted end sentence of three years and two months’ imprisonment.

Result

[47]The appeal is allowed.

[48]The sentence of three years and six months’ imprisonment is set aside.

[49]A sentence of three years and two months’ imprisonment is imposed.

Cull J

Solicitors:

Kirsten Gray, Christchurch, for Appellant Crown Solicitor, Christchurch, for Respondent