St John v The Queen

[2004] NZCA 76

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/03

THE QUEEN

v

SHANE KURTIS ST JOHN

Hearing:24 May 2004

Coram:Hammond J
Laurenson J
Doogue J

Appearances:  I F West for Appellant

B J Horsley for Crown

Judgment:24 May 2004 

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

INTRODUCTION

[1]       On 13 August 2003 the appellant, Mr St John, was convicted following a jury trial in the District Court at Manukau on one count of aggravated robbery under the Crimes Act 1961 (s235(1)(b)).  The conviction carried a maximum sentence of 14 years imprisonment.  On 29 August 2003 Mr St John was sentenced to four years imprisonment by the trial Judge, Judge Harvey.  He now appeals against that sentence on the grounds that it is manifestly excessive.

The facts

[2]       At the time of the offending, Mr St John was 18 years of age.  At about 7 pm on 4 July 2002 he was walking with a group of three friends up Great South Road, in Auckland.  These persons were hungry, and decided to rob a dairy for money.

[3]       Having worked out their plan of action, the group entered the Bellbird Dairy.  Mr St John asked the owner of the dairy for a packet of cigarettes.  He then threatened the owner and told him to hand over money or he would bash him.

[4]       At this time Mr St John was in possession of a hammer, which was stuck into his trousers.  In fairness to Mr St John, this hammer was never brandished at the owner.  Mr St John was however backed up in his threat by the presence of another member of the group, whilst a third person was standing in the door as lookout.

[5]       The owner handed over a till drawer containing more than $40 in cash.  This group then fled with the drawer, a packet of cigarettes, and a packet of chips.  They were later apprehended in a railway carriage.

The sentencing in the District Court

[6]       The sentencing Judge considered that this offending fell within the category of a “dairy burglary” as described in R v Mako [2000] 2 NZLR 170 (CA). The Judge adopted a starting point of four years imprisonment. He noted that although this was not a case where a weapon was used, it nevertheless fell within a confrontation by multiple offenders, including a lookout. There were threats of violence, and there was also the pre-mediated planning.

[7]       The Judge considered that putting the victims through the trauma of a trial that had no merit whatsoever, and not entering a guilty plea on incontrovertible evidence, amounted to an “aggravating circumstance”.  The Judge said the offenders would have received “good credit” for the guilty pleas.  The Judge noted that it had taken only 40 minutes, after reviewing the video evidence, for the jury to return a verdict of guilty.  The Judge considered a further aggravating factor to be the prevalence of this type of offending in South Auckland.

[8]       The only two mitigating factors the Judge could identify were Mr St John’s age and his lack of previous convictions.  However in the Judge’s view, age was no mitigating factor: the group knew what they were doing, they knew it was wrong, they knew they were going to terrorise a shopkeeper, and that they were going to take his money.

[9]       The Judge could see no appropriate reason to depart from the starting point he had identified.  The appropriate final sentence was accordingly one of four years imprisonment.

The probation report

[10]     Mr St John is single.  He lived with his mother and father and three younger brothers, prior to his incarceration.  He enjoys good relations with his family.  Mr St John’s father considered him to be a “good kid”, who was easily led.

[11]     The appellant had worked as a roofer for three months up until his sentencing.  It is to Mr St John’s credit that his employer found him to be hard working, punctual and polite during his work in this business.

[12]     The Probation Service identified the following factors as contributing to Mr St John’s offending.  The service said that “violence propensity is automatically assessed as a contributing factor given the nature of the offending”;  and alcohol and drug use were a distinct contributing factor to this offence.  Mr St John had consumed alcohol throughout the day leading up to the offence.  He felt intoxicated at the time it was committed.  Mr St John had also smoked two joints of marijuana on the day.

[13]     Mr St John said that this enterprise was a collective one and that “everybody was keen to do it”.  However it is plain that Mr St John was the only armed offender during the robbery and was distinctly in the forefront of it.

[14]     Regrettably, Mr St John showed no remorse for the victim and “considered the consequences of his offending only in terms of himself”.

[15]     Mr St John was described by his father as “a bit of a follower” and the service said “imprisonment is not considered as the ideal because of his impressionable nature”.  Nevertheless, given the seriousness of the offending, imprisonment was recommended.

The submissions for the appellant

[16]     Mrs West’s able submissions were put under two heads.

[17]     The first was that the starting point of four years imprisonment identified by the Judge was too high.  Although R v Mako identified a four year starting point for dairy robberies, Mrs West submitted that offending of that kind concerned a scenario in which weapons and disguises were used.  Mrs West submitted that the starting point should have been around three years.  And she noted that in the District Court Crown counsel had submitted that a starting point of three and a half years was appropriate.

[18]     The second ground of appeal is that the Judge erred in making no allowance for Mr St John’s youth and lack of previous convictions.  In that respect, Mrs West drew our attention to s9(2) of the Sentencing Act 2002, which specifically requires both of those two factors to be taken into account.  Mrs West also placed strong emphasis on the possibility of rehabilitation, based on the appellant’s employment subsequent to the offence.

[19]     As a subsidiary point, Mrs West submitted that the Judge should not have considered the defence of this charge as an aggravating factor.

The Crown submissions

[20]     Mr Horsley submitted that the Judge made no error in adopting a starting point of four years imprisonment.  He said that the starting point for a robbery of a dairy with a weapon was expressed in R v Mako to be four years.  He noted that this Court has said that if that was coupled with multiple offenders, then a starting point of five years would be appropriate.

[21]     Mr Horsley submitted there is no obligation on the sentencing Judge to impose a sentence no greater than that sought by the Crown.  He said the Crown was wrong to seek a starting point of less than four years in this case.

[22]     As to Mr St John’s youth, Mr Horsley submitted the Judge was right not to give the appellant any discount in this case.  He reminded us of the decision of this Court in R v Bradnock (CA55/99, 26 April 1999) in which this Court said:

In light of the empirical data available as to the age of accused in this sort of offending [18] is not an age which can be considered as extraordinary or youthful.  The simple fact is that too many offences of this sort in dairies, service stations and the like are committed by people in their late teens.

[23]     In that case, this Court considered a sentence of four years imprisonment imposed on an 18 year old who, armed with an air pistol, had robbed a dairy of $100.  No additional threats had been made apart from those inherent in presenting the firearm, and saying, “I don’t want to have to hurt you, just open the till”.  The appellant acted alone.  He had pleaded guilty.  After commenting that a starting point of five years was appropriate, the Court reduced the sentence to three years three months in light of the early guilty plea and the particular circumstances of the appellant.

[24]     Mr Horsley also referred this Court to Solicitor-General v Lamb (1997) 15 CRNZ 18.  There, this Court allowed a Solicitor-General appeal, and increased the respondent’s sentence to three years, after noting that a starting point of five years was appropriate.  In that case the respondent had robbed a pizza parlour with another person, armed with a loaded BB gun.  He was 22 years old, pleaded guilty at a very early stage, and showed a willingness to make reparation.

[25]     With respect to the unfortunate comment by the Judge that defending a charge was an “aggravating feature”, Mr Horsley accepts that this was wrong.  An accused is absolutely entitled to have the case put to the jury.  However we think there was force in Mr Horsley’s point that the lack of remorse subsequently displayed by Mr St John is a very strong reason for not going below the appropriate starting point.

Resolution

[26]     It is apposite in this case to set out in full paragraphs 56 and 65 in R v Mako:

[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.

[65]     Youth and the prospects of rehabilitation may be mitigating factors.  Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences.  As noted in the judgment of the Full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers.  In some cases young offenders may have been directed by others who are older.  It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and unlikelihood of re-offending.

[27]     It is always distinctly troubling when a youth who has stupidly committed an offence of this kind, of very real seriousness, has to be sent to prison for that first offence.  In this case Mrs West accepted, as she had to, that the mode of sentence in this case has to be imprisonment. 

[28]     As to the term of imprisonment, the sentencing Judge could have adopted five years imprisonment as a starting point, and Mrs West realistically accepted that the sentence in this instance was well within the range available to the Judge.

[29]     As this Court noted in Mako, in the case of a young first offender, as to the term of imprisonment, the central issues include:  what are the real prospects of rehabilitation and the likelihood of reoffending?  As the Judge said there has been little remorse, save for himself, shown by Mr St John in this case.  As to rehabilitation, it is encouraging that Mr St John came from a good and supportive family; and he had held down, prior to this offending, a worthwhile job.

[30]     Mrs West enlarged on these points, and said everything that could have been said on Mr St John’s behalf.

[31]     Nevertheless we do not consider that we should interfere with this sentence.  It was well within the acceptable sentencing range; it was, as Mr Horsley said, an “unexceptional” case; this Court should not “tinker” by way of what could only be a smallish sentencing adjustment; and any adjustment would inevitably invoke fairness and parity concerns, vis-à-vis the other offenders.

[32]     In the result, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington