Tecofsky v Police - [2013] NZHC 3376

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000125 [2013] NZHC 3376

ROSEMARY MAY TECOFSKY Appellant

v

POLICE Respondent

Hearing: 12 December 2013

Counsel: P N Allan for Miss Tecofsky
D J Orchard for the Crown

Judgment: 16 December 2013

JUDGMENT OF WHATA J

[1] Ms Tecofsky was convicted on one charge of aggravated robbery and a sentence of two years three months imprisonment was imposed. Ms Tecofsky appeals against sentence on the basis that it was manifestly excessive and/or that in all the circumstances home detention ought to have been imposed.

The judgment

[2] Judge Garland set out the facts of the offending, which are not disputed, as follows:

[4] The facts relating to the aggravated robbery charge are these. The victim used to be a close associate of you Miss Tecofsky. During the afternoon of 6 June 2013 the victim contacted you and arranged for you to drive him from Redwood to Belfast so that he could catch a ride to Blenheim. At about 5.30 pm you, Miss Tecofsky, dropped the victim off at the Peg Hotel in Belfast. When the victim opened his wallet which

TECOFSKY v POLICE [2013] NZHC 3376 [16 December 2013]

contained several hundred dollars, he gave you some money to pay for petrol. A short time later you drove off.

[5] About two hours later the victim contacted you again and told you that he was not having any luck getting a ride. You then suggested that you would pick him up from his current location and give him a ride up to Blenheim. At around 9.00 pm you arrived at the roadside near the service station to pick him up. Prior to arriving there you had sent messages to the co-defendant, Miss Chapman, who was in the company of a third person, a Mr Sinclair. As the victim entered your car Miss Tecofsky you told him that you were stressed out and you suggested that you should park up for a while and talk. You then drove the victim to a carpark at Waikuku Beach where you remained in the car.

[6] Between 9.30 and 10.00 pm while you were sitting there in the car in accordance with the arrangements that you had made with Miss Chapman, Miss Chapman and a third party, Mr Sinclair, arrived at that same location. When they arrived Mr Sinclair approached the vehicle that you and the victim were seated in. He opened the left front door and then he began punching the victim about the head. As that occurred, you Miss Chapman stood nearby whilst you Miss Tecofsky remained in the driver’s seat of the car and you made out that you were really concerned and you threatened to phone the police. Mr Sinclair, using his right forearm, then forced the victim backwards and with his other hand he uplifted the victim’s wallet from the centre console. Mr Sinclair then patted the victim’s clothing looking for other items to steal before running off in the…

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.

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Details

Case: [2013] NZHC 3376
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the case of Tecofsky v Police, the appellant, Rosemary May Tecofsky, appealed against her sentence of two years and three months imprisonment imposed for the crime of aggravated robbery. The respondent, the Police, defended the sentence on the basis that it was within the appropriate range and reflected the significant aggravating factors of the case. The appeal was heard by Whata J in the High Court of New Zealand, Christchurch Registry. The central legal issue in this appeal was whether the sentence imposed on the appellant was manifestly excessive or whether an alternative sentence, such as home detention, should have been imposed. The court considered the relevant legal framework under the Criminal Procedure Act 2011, specifically the threshold test for allowing an appeal against sentence, which requires the court to be satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.

The court examined the facts of the case, which involved a planned and premeditated aggravated robbery where the appellant lured a vulnerable victim into an isolated location, where he was assaulted and robbed by co-offenders. The court noted the significant aggravating factors of the crime, including the degree of planning, the number of participants, the breach of trust, and the use of violence against the victim. The court assessed the sentence against these factors and concluded that the sentence was appropriate and did not constitute a manifest excess. The court also compared the appellant's sentence with that of her co-accused, Tracey Chapman, whose appeal resulted in a reduced sentence due to her lesser role in the crime. Despite the concession by the appellant's counsel that the appeal was likely to fail, the court proceeded to consider the appeal to ensure completeness of the record. Ultimately, the court found that the threshold test for allowing an appeal was not satisfied, and the appeal was dismissed.

In summary, the High Court upheld the sentence imposed on the appellant for aggravated robbery, rejecting the argument that it was manifestly excessive or that an alternative sentence should have been imposed. The court determined that the sentence appropriately reflected the seriousness of the crime and the need to deter such conduct.

Orders