Tecofsky v Police
[2013] NZHC 3376
•16 December 2013
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 company of you Miss Chapman.
[7] As this was occurring, you Miss Tecofsky got out of the vehicle and you were yelling and screaming. The victim persuaded you to return to the vehicle and told you that you needed to get out of the area. You got back in the car and started to drive but after a short distance the victim told you that you should swap seats with him and it would be better if he drove. You stopped the vehicle but as soon as the victim got out of the car you then sped off leaving the victim at the roadside. Of course this all went according to your plan.
[3] Turning to the sentence, the Judge observed:
[20] The charge of aggravated robbery carries a maximum penalty of
14 years’ imprisonment. The degree of criminality in this offending is reflected in the following factors. First, there was a significant amount of
planning and premeditation involved in this crime. Second, there were three
participants involved. Third, the amount stolen in this case was two and a half thousand dollars. Fourth, the victim in this case was vulnerable because he was a friend of you Miss Tecofsky and he trusted you yet you lured him into this isolated spot for the purpose of the intended robbery. You were aware of that Miss Chapman. Fifth, there was actual violence employed against the victim which resulted in some bruising to his head and face. He has also lost the sum of two and a half thousand dollars. I do not have a victim impact statement because he has elected not to provide one to the police.
[4] The Judge then adopted a starting point for both Ms Chapman and Ms Tecofsky of three years. He observed that this case is more serious than the case of R v Sika.1 He highlighted the breach of trust, significant premeditation and the fact that substantially more valuable property was stolen as key distinguishing factors. He did, however, conclude that the offending was less than described in the Court of Appeal in Lakatani.2
[5] In the result Ms Tecofsky was sentenced to two years and three months imprisonment, taking into account all relevant and mitigating and aggravating personal factors.
Respondent’s submissions
[6] The respondent submits that the starting point of three years was within the range available to the Judge having regard to the guideline Court of Appeal case of R v Mako.3
[7] It is submitted that the aggravating factors, identified by the Judge, justified a starting point at the high end of the available range, and that the appellant received the maximum discount for a guilty plea.
[8] It is submitted further that regard should be made to the sentence of the appellant’s co-accused, Tracey Chapman. It is said that her appeal was allowed on the basis that she played a lesser role than the present appellant, a circumstance which should reflect in a lower starting point in her case. A 25 percent discount was allowed for a guilty plea making a notional end sentence of 23 months. This being within the home detention range, a sentence of seven months home detention, adjusted from a notional starting point of ten months to allow for time served, was substituted for the original sentence.
[9] The Crown submits that the greater role played in the offending justifies a higher starting point in Ms Tecofsky’s case.
1 Sika v R [2011] NZCA 376.
2 R v Lakatani [2008] NZCA 507.
3 R v Mako [2000] 2 NZLR 170.
Appellant’s submissions
[10] Somewhat belatedly, Mr Allan filed submissions and concedes that in light of the decision4 in relation to Ms Chapman’s appeal, this appeal is “doomed to failure”.
Assessment
[11] Notwithstanding Mr Allan’s sensible concession, I propose to resolve the appeal for completeness of the record.
[12] The relevant threshold test is set out at s 250 of the Criminal Procedure
Act 2011 which provides:
250 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
[13] In short, I must be satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.
[14] I am not satisfied that there was any error or that a different sentence should be imposed. In reality, the appellant was the ringleader in a premeditated act of violence, to a person who had placed trust in the appellant, but instead was subject to unprovoked violence. This engages several of the aggravating features identified by the Court of Appeal in R v Mako, including a degree of planning and preparation, and the number of participants (three). While the extent of the violence does not appear at the upper end of the scale, it is nonetheless serious. This type of conduct
must also be strongly deterred given the combination of the above factors.
4 Refer [13]-[15].
[15] For the foregoing reasons the threshold test set out at s 250 is not satisfied either as to (a) or (b). The appeal is dismissed.
Solicitors:
P N Allan, Christchurch
Raymond Donnelly & Co, Christchurch