St John v The King

[2025] NZHC 602

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-000070

[2025] NZHC 602

BETWEEN

DAMIEN MOSES ST JOHN

Appellant

AND

THE KING

Respondent

Hearing:	11 March 2025 via AVL from Wellington
Appearances:	S A Saunderson-Warner for Appellant C Flatley for Respondent
Judgment:	21 March 2025

JUDGMENT OF CULL J

[1]    Damien St John was sentenced to two years and five months’ imprisonment in the District Court,1 after he pleaded guilty to a charge of aggravated robbery.2 Mr St John appeals the sentence on the basis it was manifestly excessive, because of an unduly high starting point and insufficient credit given for personal mitigating factors. He submits that a short-term prison sentence is appropriate and a sentence of home detention should be substituted.

Facts

[2]    Sentencing proceeded on the basis of an agreed summary of facts. On 24 May 2022, the victim, Mr X (who is intellectually disabled and vulnerable) engaged with the co-defendant, Mr Y,3 whom he had known since school, at the Waterloo Hotel in

1      R v St John [2024] NZDC 26644.

2      Crimes Act 1961, ss 235(b) and 66 (maximum penalty of 14 years’ imprisonment).

3      Name anonymised; order in place pursuant to s 202 of the Criminal Procedure Act 2011.

ST JOHN v R [2025] NZHC 602 [21 March 2025]

Dunedin. Mr Y gave Mr X a $5 note, which Mr X put in a pokie machine. Mr X won

$500. As Mr Y had supplied the note that was used, he felt he deserved half of the winnings ($250). Mr X went home with his winnings. Later, Mr St John went with Mr Y and other associates to Mr X’s community housing facility. Mr X was inside, along with another individual. The group banged on the ranchslider door with such force that the lock failed. The group moved into the house towards Mr X’s room, as Mr Y yelled threats. The defendants began kicking the bedroom door. The damage to the door was such that the group could enter the bedroom. The victims had retreated to an ensuite.

[3]    The defendants, including Mr St John, banged and kicked the ensuite door. The door shattered. Mr St John did not enter the ensuite, but others did. Knives were produced, and the victims were punched and kicked. Mr St John did not participate in the physical violence. The group then took property and left. Mr St John did not take any property. Mr X suffered bruising, lacerations, and the second victim a broken thumb. There has been significant emotional impact.

[4]    Mr St John’s fingerprints were found on the outside of the front door to the house and on a fragment of the broken ensuite door. Mr St John was charged one month after the offending in June 2022. He elected trial by jury but pleaded guilty and was sentenced on 1 November 2024.

Sentencing decisions

Co-offender’s sentence

[5]    The Judge sentenced Mr St John’s co-offender, Mr Y, in February 2024.4 It is unclear what starting point was adopted for Mr Y, who was a principal offender. The Judge had given a sentence indication that he would have adopted a starting point of five years and two months and in sentencing Mr Y “resile[d] slightly from that, in that both Counsel agreed … that you did not have a knife.”5 The Judge had given the sentence indication on the basis that Mr Y did have a knife. However, the starting point for Mr Y’s sentence is not specified, apart from the Judge stating that “the

4      R v [Y] [2024] NZDC 4935.

5      R v [Y], n 4 at [22].

starting point, however, was and would be, for any other person charged with aggravated robbery, a term of imprisonment.” Because of Mr Y’s significant health challenges, the Judge found it would be “unjust to impose what otherwise would have been a mandatory sentence [of imprisonment]”.6 The Judge said a “term of imprisonment would have been inevitable” if not for the “compelling” health background.7 Without nominating a starting point, the Judge said:

Where I get to is, applying the credits, I come to an end sentence of what would have been 22 months’ imprisonment.8

[6]Mr Y was sentenced to 11 months’ home detention.9

Decision under appeal

[7]    The Judge accepted that Mr St John did not assault the victims, but considered Mr St John bore “a degree of responsibility” for the violence inflicted by the group, as it was “something the group must have contemplated”.10 As the Judge said, usually the sentence of a co-offender is of assistance,11 but he acknowledged that “unfortunately, and leading to some uncertainty”, the starting point for Mr Y was not specifically recorded, nor could the notes be located.12 The Judge proceeded in respect of Mr St John on “the best sense” of his “recollection” that the starting point for Mr Y was four years and nine months.13 He considered he was “bound to adopt” this.14

[8]    The Judge found that the presence of knives, the forced entry, and the “sheer number of people involved” supported the starting point set for Mr Y, and reflected the “vulnerability of [the] victim and home invasion type offending.”15 The Judge agreed with counsel that a 12-month adjustment from Mr Y’s starting point would be

6 At [34].

7 At [38].

8 At [36].

9      R v St John, above n 1, at [39].

10     R v [Y], above n 4 at [36].

11     Sentencing Act 2002, s 8(e).

12     R v St John, above n 1, at [21] and [22]. A complete copy was made available to this Court, as discussed at [5] and [6], following the appeal hearing.

13 At [22].

14 At [41].

15 At [34].

required to reflect Mr St John’s lesser role in the offending. A starting point of three years and nine months was set.

[9]    The Judge did not uplift on account of prior matters, finding that would be “disproportionate”.16 Mr St John’s criminal history consists of driving-related offending, burglary, and breaching court release conditions. The Judge gave a reduction of 10 per cent for Mr St John’s guilty plea, which he described as “a late plea…in the face of…overwhelming evidence,”17 and 10 per cent for background factors. He gave a further discount of 10 per cent for Mr St John’s rehabilitative potential and 5 per cent for time spent on restrictive bail. This resulted in an end sentence of 29 months’ imprisonment (two years and five months).18

[10]   The Judge noted the end sentence was short of the threshold where a sentence of home detention could be contemplated, but did not consider that the sentence could be commuted to home detention in any event.19

Parties’ positions

[11]   For Mr St John, it is submitted that the sentencing process was “problematic” and “went wrong”. There were four grounds advanced on appeal. They were:

(1)   The Judge erred in adopting the wrong starting point for the principal co- offender, before adjusting it for Mr St John;

(2)   The Judge gave insufficient recognition to the lesser role Mr St John played adopting a 12 month adjustment from the incorrect co-offender’s starting point instead of the lesser starting point proposed by the appellant;

(3)   The Judge failed to give a discrete five month credit for compliance with restrictive bail and curfews;

16 At [36].

17 At [37].

18 At [41].

19 At [42].

(4)   The Judge failed to give adequate reductions in respect of Mr St John’s personal circumstances, namely his guilty plea, the change in his personal circumstances and the effect of parental incarceration on his young child.

[12]   The Crown accepts that there was confusion in the sentencing methodology because of the “reverse engineer[ing]” of Mr Y’s sentence but says the “starting point used here was sound, regardless of the process which was used to arrive at that starting point”. The Crown does not accept any further discounts are warranted.

Analysis

The starting point

[13]   It is accepted that the Judge was mistaken in adopting a starting point based on his recollection of Mr Y’s starting point, before deducting 12 months’ imprisonment to arrive at the starting point for Mr St John’s offending. The Judge did not remember or know the starting point that was actually adopted for the co-offender. This uncertainty arose both as a result of the Judge re-adjusting Mr Y’s starting point from a sentencing indication,20 and the absence of the sentencing Judge’s remarks in November 2024.

[14]   Counsel for Mr St John submit there is a mathematical error in the Judge’s calculation of the starting point for Mr St John, where the Judge said in relation to the co-offender:21

I adopted a starting point of four years and nine months for him before affording credits totalling 60 per cent resulting in the end sentence of 11 months’ home detention.

[15]   Counsel submit that for the co-offender’s sentence to result in an end point of 22 months’ imprisonment (commuted to 11 months’ home detention), 60 per cent had to be discounted from 55 months, not 57 as the Judge adopted for Mr St John. I accept that this calls into question the correctness of Mr Y’s 57 month starting point, which was adapted for Mr St John’s sentence.

20     Which was given in late 2023, with sentencing occurring in early 2024.

21     R v St John, above n 1, at [22].

[16]   The Crown also accepts that the Judge “reverse engineered” the co-offender’s sentence and was mistaken.

Conclusion

[17]   The starting point for Mr St John, on the Judge’s calculation and approach to sentencing, is two months higher than intended. I accept that the 12 month reduction should have been made from 55 months, resulting in an adjusted starting point of 43 months, which should be corrected on appeal.

Was the 12 month adjustment for the lesser role inadequate?

[18]   Mr St John’s Counsel submit that insufficient recognition was given to the lesser role Mr St John played. The Judge subtracted 12 months, but decoupled this from the suggested starting point. Counsel submits that the 12 month adjustment had been proposed if the starting point was in the vicinity of 34 months. Where the starting point was 57 months, a 12 month subtraction to reflect ‘actual culpability’ was inadequate. They say that the analysis should begin afresh and that 37 months is the suitable starting point.

[19]   I consider Deo v R, where Mr Deo waited outside while his co-offenders broke ranch slider doors to get into the house, threatened the victims with a knife and a pipe, and took a number of items from the house, to be slightly worse. In that case, the Court of Appeal did not consider Mr Deo’s starting point of four and a half years’ imprisonment was too high.22 Unlike Mr Deo, Mr St John was involved to the extent he broke down the ensuite door, although I acknowledge he did not assault the victims.

[20]   Counsel for Mr St John rely on Holmes v R,23 where the starting point for a co- offender’s aggravated burglary was 18 months lower than that adopted for the principal offender. Counsel seeks a similar adjustment here. I disagree. Each sentence must be reached on its own facts.

22     See Deo v R [2012] NZCA 484, as cited in Sulusi v Police [2020] NZHC 3314.

23     Holmes v R [2010] NZCA 47.

[21]   This was serious offending and although Mr St John was not the principal offender, did not have a weapon, and did not receive or seek any money from the victim, he was part of the mob that broke down two doors to reach the victims, who were attacked, frightened and injured. I accept that Mr St John did not inflict any injury but he participated in a very frightening event for two very vulnerable victims.

[22]   I consider the starting point of three years and seven months (43 months) appropriately reflected Mr St John’s culpability.

Bail allowance

[23]   Although the Crown supports the Judge’s credit of five per cent for Mr St John’s compliance with his bail conditions, it is unclear what the precise deduction means, although Counsel suggested that the deduction amounted to two months.

[24]   I am unable to accept the Crown’s submission. The Judge acknowledged that Mr St John had been “on restrictive bail for an extended period, including being subject to a curfew.”24 The Judge concluded that that warranted credit in the amount of five per cent. The orthodox position, particularly where there has been compliance with restrictive bail conditions for an extended period is to give some credit for the time on bail.25

[25]   I consider that a discrete three month credit for compliance with restrictive bail in these circumstances should have been applied.26

Personal circumstances

[26]   There are three aspects to this ground. Mr St John submits that the guilty plea discount of 10 per cent was inadequate, that there was no credit given for the parental incarceration factor and the effect on his young daughter, and the Judge failed to take into account Mr St John’s change in circumstances and his prospects of rehabilitation into the community. He seeks a 15 per cent credit for his guilty plea to properly

24     R v St John, above n 1, at [39].

25     Kreegher v R [2021] NZCA 22 at [49].

26     See the discussion in Te Ao v R [2023] NZCA 327 of a 3–5 month range for 12 months’ compliance with bail.

recognise that proceeding to trial for this matter would have incurred greater resource and greater harm to the victim than usual because of the victim’s intellectual difficulties.

[27]   The Crown resist this submission, stating that 10 per cent for a guilty plea was appropriate. The guilty plea was late, despite the strong evidence of Mr St John’s handprint being obtained from the door, close in time to the offending. Rather than credit being given for saving the vulnerable victim from giving evidence, the Crown submit that delay in pleading guilty was an aggravating factor for the vulnerable victim awaiting trial.

[28]   I note the Judge gave a credit of 20 per cent to Mr Y for his plea of guilty in February 2024. That was eight months before Mr St John was sentenced on his plea of guilty and there is a considerable discrepancy in the relative circumstances of the pleas,27 particularly as the co-offender was known to the victim from school days and was the instigator of the offending. While it is arguable that the recognition for Mr St John’s plea should be more aligned to the discount given to Mr Y, I am not persuaded that a discount greater than 10 per cent is warranted. The lateness of the plea is relevant, and I find no error in the Judge’s assessment of the discount.

[29]   I consider that a 10 per cent discount for a guilty plea is appropriate in the circumstances.

[30]   In relation to Mr St John’s change of circumstances and the factor of his incarceration as a parent of a young daughter, the Judge had a pre-sentence report, which he acknowledged was very positive, placing the prior offences in perspective, including the burglaries dating back to 2014. The Judge acknowledged that Mr St John has support, stable employment and had recently become a father, and that he was at medium risk of re-offending and at medium risk of harm. The Judge gave 10 per cent for his background and 10 per cent for the positive works that he has undertaken, his steady employment since he moved to Tauranga, and his proven ability to move on from this type of offending.

27     See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70].

[31]   While I consider that the 10 per cent reduction for his background and 10 per cent for his rehabilitative efforts were appropriate, Mr St John’s positive steps to rehabilitate himself, the three years since this offending and his responsibility as a father with a very young child,28 support the conclusion that a further 10 per cent is appropriate to encourage Mr St John’s positive steps to become an integrated and productive member of the community. He now has the pro-social support from his family in Tauranga.

Conclusion

[32]   I find that the appropriate starting point for this offending is 43 months. From that starting point I make the following deductions: 10 per cent for a guilty plea, 10 per cent for background, 10 per cent for rehabilitation, 10 per cent for parental incarceration factors together with a reduction of three months in respect of bail compliance.

[33]   This brings the end sentence to 23 months, which makes home detention available to Mr St John.29 Home detention should be treated as a real alternative to imprisonment.30 This is a case where consideration of s 16 of the Sentencing Act supports the imposition of a sentence less than imprisonment.31 It is desirable to keep offenders in the community as far as that is practicable.32

[34]   Probation had recommended a sentence of home detention to allow him the opportunity to receive rehabilitative interventions in the community. I consider home detention is appropriate here.

[35]   When a sentence is commuted to home detention, it is generally halved,33 reflecting that those serving short sentences of imprisonment are eligible for parole after half of their sentence, whereas home detention must be served in full.34 Mr St

28     See Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.

29     Sentencing Act, s 15A; R v Vhavha [2009] NZCA 588.

30     R v D (CA253/2008) [2008] NZCA 254 at [60].

31     See Nassery v R [2022] at [32].

32     Sentencing Act, s 16(1).

33     Acknowledging that this is not a “matter of law”: see R v Bisschop [2008] NZCA 229 at [18]– [19].

34     Parole Act 2002, s 86(1). See Stevens v R [2023] NZHC 2021 at [51].

John’s 23 months’ prison sentence should now be converted to 11 months and 2 weeks of home detention.35

[36]   Mr St John has served four and a half months imprisonment. Any such discount for that time served is to be applied after converting the sentence from imprisonment to home detention.36 Mr St John’s time served should be deducted therefore from the sentence of 11 months and two weeks’ home detention, on a one- for-one basis,37 which leaves a home detention sentence of seven months.

Result

[37]The appeal is allowed.

[38]   The sentence of two years and five months’ imprisonment is set aside and a seven month home detention sentence is substituted.

[39]   I direct the sentence be served at the proposed address, subject to the conditions, as set out in the pre-sentence report. Counsel are to urgently advise if any amendment to the address or conditions is required.

Cull J

Solicitors:

J A Westgate, Dunedin, for Appellant Crown Solicitor, Dunedin, for Respondent

35 In line with Buchanan v Police [2024] NZHC 3983 at [58].

36 Hopwood v R [2024] NZHC 3993 at [9]. See also Buchanan, above n 35, citing Mason v Police

[2017] NZHC 126 at [31].

37 Following the approach in Mabey v Police [2024] NZHC 1663 at [37] citing Longman v Police [2017] NZHC 2928 at [9] and Booth v R [2016] NZSC 127, [2017] 1 NZLR 223. See also Kirikino v Police [2023] NZHC 1821 at [19].