The Queen v Heiko Kretzschmann

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 113/00
CA 116/00

THE QUEEN

HEIKO KRETZSCHMANN
AND MARTIN JAMES CARROLL

Hearing:	25 May 2000
Coram:	Thomas J Anderson J Panckhurst J
Appearances:	J C Pike for Solicitor-General B S Yeoman for Mr Kretzschmann I M Antunovic for Mr Carroll
Judgment:	1 June 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The appeal

The Solicitor-General seeks leave to appeal against the sentences imposed on two co-offenders convicted of aggravated robbery and wounding with intent to cause grievous bodily harm in the victim’s home in Upper Hutt. The two respondents, Martin Carroll and Heiko Kretzschmann, were convicted following a jury trial. On 31 March 2000 they were sentenced to eight and seven years’ imprisonment respectively.

Factual background

On 16 August 1999 at approximately 11.30 pm Mr Carroll and Mr Kretzschmann visited the home of the 27 year-old victim. He was a long-standing acquaintance. They were accompanied by a third party who has been granted a retrial after the jury failed to reach a verdict in his case. The victim opened the door and Mr Carroll and Mr Kretzschmann forced their way inside, saying that they were there to “clean him out”. Mr Carroll produced a sawn-off .22 calibre rifle. There is evidence that it was loaded. He pushed the victim against the wall and held the rifle against his cheek. The victim was punched several times in the face and about the head. Mr Carroll threatened him with the knife. Although the wounds were not as serious as the stab wound yet to come, the victim’s thumb and forearm were cut in this fracas. At some point Mr Carroll gave the gun to Mr Kretzschmann and told him to take the safety catch off. The victim was forced to lie on a bed and told to cover himself with a duvet. Cash, stereo equipment and a television set were taken. While Mr Carroll and Mr Kretzschmann were engaged in searching for more property, the victim attempted to escape. He was seized and set upon by both Mr Carroll and Mr Kretzschmann. Mr Carroll then stabbed the victim in the back of the neck. The wound inflicted was four to five centimetres from the midline of his neck. It was not small. It was two centimetres wide and two centimetres deep. Fortunately, the stab wound was angled away from major blood vessels and nerves or it could have caused serious and permanent injury or even been fatal.
Mr Carroll and Mr Kretzschmann seem to have been engaged in a form of “debt-collection”. There had been a dispute between the victim and a former partner about a car which he had promised her. The offenders were apparently trying to secure “collateral”.
The victim suffered bruising to his face and eyes, the stab wound to the back of the neck and a number of smaller scrapes and bruises. He was treated at Hutt Valley Hospital for approximately 45 minutes on the night of the incident. The victim impact report suggests that he is now being targeted by associates of the respondents. He has been labelled a “nark”, and has received intimidating visits and offensive telephone calls.
Mr Carroll is 27 years old. He has a history of drug abuse and 78 previous convictions. Although most involve minor property offences, Mr Carroll has been convicted of a number of crimes involving violence and drugs. Mr Kretzschmann is 25 years old and has 23 previous convictions, mostly for traffic offences. In 1996, however, he was imprisoned for wounding with intent to cause grievous bodily harm. Mr Carroll appears to have been the ring-leader and, according to the pre-sentence report, has something of a history of addressing perceived injustices by direct action. Mr Kretzschmann’s role was seemingly more minor than Mr Carroll’s. Certainly, he was not the one who stabbed the victim in the neck.

The Judge’s sentencing remarks

The sentencing Judge noted that this case fell to be dealt with under the “home invasion” legislation introduced into the Crimes Act last year increasing the penalties for specified offences where they occur within the home (see ss 17A-17E). He carefully considered all the facts. What had happened was a serious attack with intent to extort property. In the course of the attack serious violence had been used. The complainant had been frightened, as he was meant to be. The Judge remarked, however, that this was not the arch-typical case envisaged by the new legislation. He said:
Home invasion is certainly not something to be minimised but assessing it as best I can it was not an event of quite the same kind as those where strangers break and enter a house with greater or lesser violence, perhaps masked, and then commit offences terrorising utterly the people that they deal with. We have had cases of that sort in recent times. It is not a mitigating factor but it is a factor of some difference that you [the offenders] knew the complainant and the whole thing related to an earlier dispute. It might make the degree of fright or fear caused by your entry rather less than would be caused by invasion by a stranger but that is not to say that it is to be condoned. Indeed this kind of taxing or settlement of disputes or whatever it was is to be discouraged. That is the whole purpose of the law.

Later, the Judge added:

The home invasion element has to be separately dealt with so that it is clear that the new law is being given effect to. We are told not to say how much we have added on but I don’t see how we can avoid that.

The learned Judge thought that the issue came down to a question of degree and how much should be added on to the sentence because of the home invasion factor. It was not hard, he said, to think of cases which would call for a greater addition for home invasion than the one before him. The Judge then reviewed the personal circumstances of Mr Carroll and Mr Kretzschmann. Having considered other aggravated robbery sentences which had been referred to him by counsel, he took the view that the starting point in the present case would be within the range of about six years for Mr Carroll and, because he was not the actual knife-wielder, five years for Mr Kretzschmann. He added two years for the home invasion factor resulting in the sentences of eight and seven years’ imprisonment respectively.

Counsels’ submissions

Mr Pike, who appeared for the Solicitor-General, argued that the sentences are manifestly inadequate. He contended that the Judge’s starting point of six years for Mr Carroll and five years for Mr Kretzschmann was far too low. Mr Pike was critical of the fact that the Judge distinguished between home invasion by strangers and persons known to the victim on the basis that familiarity might result in a lesser degree of fear. He submitted that this distinction is irrelevant to the sentencing process. It proceeds on a flawed premise; that is, that one has more to fear from strangers than acquaintances and would be an unprincipled “watering down” of the home invasion legislation. In particular, Mr Pike contended, such a principle would lead to an unacceptable disparity in some situations, such as domestic violence or offending in a small town.
Mr Pike claimed that the appropriate starting point is ten years. There were, he said, no mitigating factors. In aggravation, however, he referred to the prior convictions of both offenders and their motive in “visiting” the victim. Mr Pike submitted that sentences of 11 or 12 years would have been appropriate, but having regard to the principles relating to appeals by the Solicitor-General, the minimum sentence available was ten years. In the result, he urged, a proper sentence for Mr Carroll would be ten years’ imprisonment and for Mr Kretzschmann nine years’ imprisonment.
Mr Antunovic, who appeared for Mr Carroll, conceded that his client’s sentence was at the lower end of the scale, but claimed that it was not manifestly inadequate. He argued that the Judge’s original assessment of six years (before adding a premium for the home invasion) fairly represented the totality of the offending and was within the available range. Mr Antunovic emphasised that the Judge was in the best position to assess the seriousness of Mr Carroll’s conduct. He then contended that two years was an appropriate addition for the home invasion element, representing two-fifths of the five year increase in the maximum penalty for both offences when committed in the victim’s home. Mr Antunovic also argued, consistently with the Judge’s observations at sentencing, that there were no other serious aspects to this particular home invasion.
Counsel for Mr Kretzschmann, Mr Yeoman, adopted Mr Antunovic’s submissions. He pointed out that the starting point in R v Mako, (CA 446/99, 23 March 2000) was expressed in general language and contended that it was clearly intended to allow for flexibility in sentencing. Indeed, this was one of the reasons why this Court in that case abandoned the rigid approach in R v Moananui [1983] NZLR 537, which divided offending into three broad categories. He urged that, when Mr Kretzschmann’s culpability is examined in context, the sentence of seven years was appropriate.

The Court’s decision

In approaching sentencing in this case it is appropriate to bear in mind that the home invasion legislation, which was passed prior to the offending in issue, raised the maximum sentence for both aggravated robbery and wounding with intent to cause grievous bodily harm to 19 years’ imprisonment. Both the starting point and the sentence is to be determined having regard to that new maximum penalty.
While not losing sight of the fact that Mr Carroll and Mr Kretzschmann were also convicted of wounding with intent to commit grievous bodily harm, it is appropriate to then have regard to this Court’s recent decision in R v Mako, supra, which sets out the principles to be followed in sentencing an offender for aggravated robbery. The Court in that case did not purport to set a new or higher tariff, but rather to change the approach to be adopted when sentencing offenders for this particular crime. It recognised that the range of conduct which can constitute aggravated robbery is very wide. In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, which will contribute to or detract from the seriousness of the conduct and the criminality involved. It is the particular combination of these variable features which requires assessment for sentencing in each case. The Court directed that once the seriousness of the particular combination of features is assessed and a starting point reached, it is necessary to consider whether overall the crime was aggravated or mitigated by the offender’s particular circumstances, such that the sentence to be imposed should be higher or lower than the starting point. To dispel any doubt the Court emphasised that in this context a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial (para [34]).
The Court then reviewed a number of features found in different combinations which called for the careful exercise of the sentencing discretion in evaluating the seriousness or criminality of the offending. Guidelines are provided to assist sentencing Judges determine the appropriate starting point. A number of examples are given. The most pertinent example for present purposes is the following:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
The home invasion legislation is, of course, directly relevant. This Court had occasion to discuss the application of this legislation in R v Palmer (CA 344/99, 16 December 1999), and R v La’ulu (CA 560/99, 20 March 2000). Discrete and concrete recognition is to be given to the element of home invasion.
Having regard to the guidelines in R v Mako and the impact of the home invasion legislation, we agree that the Judge’s starting point in this case is far too low and that, as a result, the sentences are manifestly inadequate. A number of features combine to make the offending much more serious than indicated in the sentencing Judge’s remarks. Mr Carroll and Mr Kretzschmann were bent upon extorting or taking property from the victim because of a perceived “debt” which he owed to a relative. These were “stand-over” tactics. As Mr Carroll and Mr Kretzschmann entered into the premises where the victim lived, the element of home invasion is at once present. Undue force was not necessary to enter the premises because the pair were known to the victim, but they then made their intentions clear carrying with them a sawn-off .22 calibre rifle. It was apparently loaded. Mr Carroll also had a knife. Both of these lethal weapons were brandished. The victim was threatened and intimidated. He was struck around the face and head several times and cut on his thumb and across the forearm with the knife. Although not high in value, property was taken. When the victim sought to escape he was set upon by both Mr Carroll and Mr Kretzschmann. Mr Carroll stabbed him in the neck so severely that he could well have suffered a long-term injury or even been killed. It is to be emphasised that the stabbing was to the victim’s neck, a particularly sensitive area of the body.
Further, regard should be had to the fact that two serious crimes were involved. The aggravated robbery included the use of both the loaded sawn-off rifle and a knife within the home. The wounding with intent to cause grievous bodily harm was a separate, although closely related, vicious crime. The dicta of Hulme J in R v Henry (1999) 46 NSWLR 346 (at para 322) quoted at length in R v Mako are pertinent:
Commonly a robbery occurs in circumstances charged with emotion and experience within and without the courts shows that there is but a fine line between a threat and a weapon on the one hand and injury or death on the other. Although an offender who crosses that line may lay him or herself open to further charges, it is important that the courts impose real sanctions to discourage the creation of the risk.
When the offending is looked at in totality, therefore, the starting point must be considerably higher than the six years adopted by the Judge. It does not sufficiently recognise the seriousness or criminality of the aggravated robbery and violence involved. The totality of the offending and the fact that both the aggravated robbery and the wounding with intent took place in the home must be given due weight. On a proper evaluation, the starting point for this aggravated robbery and wounding with intent to cause bodily harm, excluding any allowance for invasion, must be in the order of eight years.
We should touch upon Mr Pike’s submission that the distinction which the sentencing Judge drew between home invasion by persons known to the victim and home invasion by strangers is irrelevant to the sentencing process. It is unlikely that the Judge meant his remark to be construed as strictly as suggested. Home invasion will generally be no less serious when the victim and intruder are known to each other than when they are strangers. In some circumstances, the home invasion element may be even more serious by virtue of the relationship of the intruder to the victim. Each case must turn on its own circumstances. (See R v Palmer, supra, at para [32]). Certainly, in this case we see no justification for making any allowance for the fact that the victim was known to Mr Carroll and Mr Kretzschmann.
Nor should we allow to pass without comment the Judge’s observations quoted above, that sentencing Judges have been told not to say how much they have added on to the sentence to allow for the fact the case involves home invasion. The Judge’s comment is possibly a reference to this Court’s observation in R v La’ulu that “an appearance of mere mathematical adjustment is to be avoided”. (See para [30]). What the Court actually said, however, was that “the sentencing process undertaken by the Judge should … be carefully articulated, although an appearance of mere mathematical adjustment is also to be avoided.” (Emphasis added). We believe that the Court was reiterating the caution stated in R v Palmer that the additional element for home invasion was not to become an “arbitrary impost” (at para [32]). Certainly, the Court’s observation in R v La’ulu is not to be construed as a direction not to indicate the increase in the penalty which is added or included for the purpose of giving effect to the home invasion legislation. To the contrary, such an indication will usually be required in accordance with this Court’s decision in R v Palmer.
Consequently, we have reached the conclusion that the starting point in this case should have been ten years. Had the offending not taken place in the home, the appropriate starting point would have been in the order of eight years. Worse cases of home invasion can be envisaged, but anything less than two years in the circumstances of this case would not give effect to the intent of that legislation. We therefore confirm that the increase of two years in this case is appropriate for the element of home invasion.
Turning from the starting point to the circumstances which are particular to this offence we are again in agreement with Mr Pike that there are no mitigating features. Nor can an allowance be made for a guilty plea. There are, however, aggravating factors, the first being that Mr Carroll and Mr Kretzschmann were engaged in a “debt-collecting” expedition. It has been frequently reiterated that the Courts will not accept persons taking the law into their own hands, particularly when threats and violence are used by the self-appointed “enforcers” to intimidate the victim. It needs to be emphasised that this form of activity will not be tolerated in the home. The second aggravating factor is the previous convictions of both offenders. Although their convictions are numerically submerged in other types of offending, both Mr Carroll and Mr Kretzschmann have previous convictions for a crime or crimes involving violence. Personal deterrence was therefore a relevant consideration. In all, therefore, while not imperative, it would have been open to the sentencing Judge to increase the starting point by a year.
As this is a Solicitor-General’s appeal, however, we propose to leave the primary sentence at the starting point of ten years.
The Solicitor General’s applications for leave to appeal are granted. The appeals are allowed. The sentences imposed on Mr Carroll and Mr Kretzschmann in the Court below are quashed. To recognise the totality of the offending a sentence of ten years’ imprisonment is imposed on Mr Carroll in respect of each offence, the sentences to be served concurrently. A sentence of eight and-a-half years’ imprisonment is imposed on Mr Kretzschmann in respect of each offence, again to be served concurrently. The reduction in Mr Kretzschmann’s sentence in relation to Mr Carroll is to roughly preserve the relativity between the two decided upon by the sentencing Judge following the increase in the sentences.

Solicitors
Crown Law Office, Wellington for Solicitor-General

[2000] NZCA 74

1 June 2000