The Queen v Fraser Wilson Jenkins

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 59/00

THE QUEEN

FRASER WILSON JENKINS

Hearing:	23 May 2000 (at Auckland)
Coram:	Henry J Robertson J Cartwright J
Appearances:	K Clews for the Appellant M Davies for Respondent
Judgment:	24 May 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

This is an appeal against sentence only in respect of a total effective sentence of 12 years imprisonment imposed on the appellant in the District Court at Hamilton on 18 February 2000.
Mr Jenkins had pleaded guilty to 11 counts which are summarised below together with the sentence imposed in respect of each matter.
[a]24 July 1999 aggravated robbery of a Wadestown Dairy – 5 years imprisonment;
[b]25 August 1999 unlawfully getting into a Mazda Familia motor vehicle – 1 year’s imprisonment;
[c]25 August 1999 unlawfully taking a Telstar motor vehicle – 1 year’s imprisonment;
[d]25 August 1999 possession of an offensive weapon, namely a tomahawk found in the Thomas vehicle – 1 year’s imprisonment;
[e]25 August 1999 possession of instruments, namely, a screwdriver, used to break into cars, found in the Thomas motor vehicle – 1 year’s imprisonment;
[f]25 August 1999 unlawfully taking a Mazda vehicle – 1 year’s imprisonment;
[g]25 August 1999 unlawfully getting into a Laser motor vehicle – 1 year’s imprisonment;
[h]30 August 1999 second aggravated robbery of Wadestown Dairy – 5 years imprisonment;
[i]Breach of bail – convicted and discharged;
[j]4 October 1999 using a document for a pecuniary advantage in Hamilton – 1 year’s imprisonment; and
[k]24 October 1999 aggravated robbery in Hamilton – 7 years imprisonment cumulative upon the 5 years for the Wadestown aggravated robberies.
He appeals against the total sentence upon the basis that it is manifestly excessive in that the Judge:
[a]misapplied the law relating to home invasion;
[b]was wrong in accumulating sentences; and
[c]misapplied the totality principle.
Mr Jenkins is 21 years of age. He has an unenviable list of previous convictions including most importantly for this exercise, the fact that on 11 September 1997 he was sentenced to 4 years imprisonment in respect of an aggravated robbery which he had committed on 6 October 1996. He had been released from prison a few weeks before the first offence in this present chronicle of lawlessness.
It is necessary only to summarise in broad detail the offending to encapsulate its essential nature. The first aggravated robbery at a Wadestown dairy involved four offenders. The present appellant was armed with a knife and with two others wearing balaclava and gloves entered the property. He threw a female shop assistant to the ground, pointed the knife at her husband and ordered him to open the till. The husband also was thrown across the counter and they left the scene having taken a couple of hundred dollars in cash, bus tickets and cigarettes.
The second aggravated robbery at that same Wadestown dairy was a little over a month later. Again four people carried out the crime including the use of stolen vehicles. Three people entered the shop again disguised with balaclavas and gloves and the appellant carried the same knife he had on the previous occasion. Using the knowledge he had gained on the previous visit he was able to open the till and remove approximately $400 in cash. The use of a second stolen vehicle enabled them to cover their trail as they fled the scene.
In respect of these two offences although initially denying involvement, the appellant when told of his fingerprints at the scene admitted that he had been responsible but refused to name his co-offenders. He accepted that there was “maybe” an intention to hurt and that the knife would “probably” have been used if the dairy owner had persisted. He described his role as “the brain. I have denied that”.
The other substantial count was the aggravated robbery of a property in Hamilton. The appellant was in the company of two female and one male associate. The female associates, one of whom was known to the occupier of the house, gained entry on the pretext of wanting to use the toilet. The appellant and the male associate then entered the house also carrying what the complainant believed was a small pistol. The complainant was blindfolded, gagged and bound by his hands and feet with a cord from the telephone which had been ripped from the wall. The other male associate held a pistol against the complainant’s head while this appellant and the two females proceeded to remove property from his house. They found the key to the occupant’s car and loaded it with stolen property including a video recorder, a colour television, fax machine, cordless telephone, a wristwatch, blankets and two bank cards.
The complainant was made to reveal the pin numbers of the bank cards having been threatened with being shot if he refused. The occupant’s car was converted to drive to the bank and $500 was withdrawn using the bank cards.
The sentencing Judge noted the trauma and consequence for the victims of these three aggravated robberies as well as the associated offences in which he had been involved.
In respect of the matters he noted the degree of violence which was inherent in the acts itself and the degree of terrorism as well. He concluded that this was
... a situation of someone who is a professional aggravated robber who has no concern for his victims, no concern for the community and is bent on simply helping himself in this terrifying way against people less well equipped to protect themselves and who are vulnerable.
The Judge noted the approach to sentences on the basis of Moananui [1983] NZLR 537 (this having pre-dated the decision of this Court in Mako) the Judge was of the view that the two Wellington aggravated robberies fell into the second category of cases in Moananui and he said he would have considered a starting point of 7 years on those two charges alone allowing that there would have to be a credit for an early plea of guilty.
He further noted that the Hamilton matter included an element of home invasion and that a co-accused who had a far less serious history was sentenced to seven years imprisonment. The Judge was of the view that this offending would in and of itself have attracted nine years.
The Judge noted that if all the sentences it had mentioned were added together and cumulated it would lead to a sentence with a 25 year starting point. There may be a question mark over the mathematics but the starting point was substantial. He recognised the importance of the totality principle as well as the fact that the appellant was a relatively young man and that a sentence should not be imposed that leaves “beyond it any prospect of a future for an offender.”
There was no probation report as the appellant declined to be interviewed. The sentencing Judge had tendered to him a report which had been prepared on 1 September 1997 in respect of a previous charge of aggravated robbery. It has been made available to us also. It is salient to note that the offence in October 1996 occurred four days after he had been released from prison in respect of a previous sentence.
It was argued before us that the two Wadestown offences taken in isolation would not have attracted a starting point of 7 years in terms of Moananui.
We are unable to accept that submission. The first Wadestown matter involved actual violence. The second was a copycat situation of using the knowledge of the first to perpetrate the second. This is offending committed by someone who was still on parole for aggravated robbery. The priority consideration must be the protection of the public, total condemnation of robberies associated with violence and a sentence which had a deterrent aspect to it.
In respect of the Hamilton offending it was acknowledged that this was additionally serious because of the home invasion factor. It was argued that because initial entry to the home had been gained by one of the associates using a ruse it was less serious and that the Judge was mistaken in his belief that the appellant was wearing a balaclava. The co-accused Price had been sentenced by another Judge on 13 January. There the Court concluded that a sentence of 7 years was called for although it is to be noted that there was in respect of unrelated offending a further 18 months which was imposed.
The Courts have a clear duty to underscore the philosophy of the new legislation (see R v Palmer [2000] 1 NZLR 546). Standing on its own the offending in Hamilton would in our view without the home invasion legislation have clearly called for a starting point of as much as 7 or 8 years. The home invasion aspect has to be taken into account in addition (see R v La’ulu (CA 560/99, 20 March 2000) and even allowing for an early plea of guilty a sentence of 8 years could not have been disturbed on appeal.
The Judge was correct to note that in the final analysis the important part of the exercise was what effect the totality principle was to have. This was a relatively young man who had been involved in a spree of really serious criminal offending. When one looks at the concentration of offending within the time-span one could not ignore his background and history but always a balance , must be maintained.
The sentencing Judge recognised the importance of all this when he referred to the decision of this Court in R v James (CA 140/98, 10 August 1998) which noted :
Sentencing for multiple offending ... can be structured in different ways. ... The ultimate question is whether the effective sentence imposed properly represents the totality of the particular offending.
The Crown submitted that the eventual term of 12 years was in fact lenient in all the circumstances considering :
[a]The three aggravated robberies committed on different dates;
[b]the presence of a previous conviction for aggravated robbery;
[c]the fact that the first robbery was committed while on parole for the same offence;
[d]there was a return in the second robbery to the scene of the first;
[e]all three robberies involved the use of disguises;
[f]the appellant had a weapon on two of the occasions;
[g]all offences were planned, calculated and premeditated;
[h]there was a willingness to resort to violence;
[i]there were a number of other crimes committed;
[j]there were devastating effects on the victims, all of whom were in a particular vulnerable situation.
The Crown submitted that the only mitigation related to the plea of guilty and even with that in mind there was little or no co-operation with the authorities.
Mr Clews submitted that a total effective sentence of 10 years would have been appropriate and more reflected the need to avoid a crushing effect on a relatively young man. He however accepted that without the home invasion legislation a total sentence of 8 or 9 years could not have been justified. There can be no question that the fact that there was a home invasion aspect as part of this offending has to be reflected in the final sentence.
In those circumstances counsel was forced to concede that his task was a difficult one.
We are satisfied that although severe for a 21 year old, the overall sentence was within range. In our judgment it struck an acceptable balance between the competing interests. Various arguments may be made as to the form of the sentence but it is the ultimate final effective sentence which is important and we are satisfied that the 12 years was not manifestly excessive.
The appeal is accordingly dismissed.

SOLICITORS

Crown Law Office, Wellington
K Clews, Hamilton

[2000] NZCA 64

24 May 2000