The Queen v Kris Turangi Lucas Carr

IN THE COURT OF APPEAL OF NEW ZEALAND

CA380/00

THE QUEEN

KRIS TURANGI LUCAS CARR

Hearing:	7 December 2000
Coram:	Keith J Robertson J Goddard J
Appearances:	C M Clews for the Appellant S P France for the Crown
Judgment:	12 December 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

The appellant pleaded guilty, on the morning of his trial, to charges of aggravated robbery and unlawfully taking a motor vehicle. He was then aged 17. He was sentenced to four and a half years imprisonment for the aggravated robbery and to a concurrent term of one year for the conversion. He appeals against the longer sentence on the basis of disparity. His co-offender, who is 17 months younger, and was dealt with initially in the Youth Court, had two months earlier been sentenced in the District Court to two years imprisonment, suspended for two years, to six months periodic detention and to supervision for a period of twelve months.
Shortly after 9am on a Monday, the two offenders walked into a Hamilton bank. They were armed with knives, wearing hooded sweatshirts and white balaclavas. The appellant brandished his knife about as he walked up to the counter and approached the tellers while his co-offender kept his knife concealed beneath his clothing. They announced “this is a hold up” and ordered the bank staff to get down on their knees. The nine people in the bank all complied with the order. The offenders then demanded money from the tellers who placed $3,650 in cash into a plastic bag that the appellant had brought with him. He then demanded the keys to a car from the bank staff and customers. One of the customers handed over the keys to her car, valued at $5,700. She advised the offenders where the vehicle was. The offenders then left the bank thanking everybody very much. They drove off in the car, going only a short distance before abandoning it and leaving in it one of the knives used in the robbery. They went to a public toilet area and removed their outer clothing, leaving it in a rubbish bin. They hailed a taxi and left the area. Over the next two days the two offenders spent the proceeds of the robbery on clothing, sun glasses, cigarettes, food, a night’s accommodation at a hotel, travel, event tickets, internet access and a cellphone. When interviewed by the police the appellant said that the two of them had spent a week before the robbery planning it and the night before they had made balaclavas out of old T-shirts.
The Judge said of the sentence imposed on the co-offender that it “may well be out of kilter with the guidance the Court of Appeal had given in recent times”. He then referred to the extensive amount of material he had about the appellant. That material showed that from a very young age, if not for the whole of his life, he had been plagued by medical problems of a psychiatric nature. Those difficulties and conditions would be taken into account in the fixing of the sentence. The Judge also mentioned the victim impact statements, noting that the effect of what the two of them had done will live with at least one if not more people in the bank for the rest of their lives.
The Judge said that the starting point in considering the appropriate penalty was the judgment in this Court of R v Mako [2000] 2 NZLR 170. The Judge quoted paragraph [54] concerning the robbery of commercial premises where members of the public can be expected to be present, involving the targeting of substantial sums in tills or a safe by groups, and the use of illegal weapons and disguises, and other indications of preparation. Such an offence after a defended trial should attract a starting point of six or more years. The Judge said that the offending to which the appellant pleaded guilty fitted neatly into that categorisation and he did not understand either counsel to argue otherwise. He called attention to the planning, the intimidatory conduct, and the fact that a number of people were placed at risk and terrified. He mentioned the considerable number of mitigating factors, including age and the relevant psychiatric information. A substantial reduction was warranted. The Judge was also prepared to grant a discount for the plea of guilty even although it was made on the morning of the trial. That timing was partly to be explained by the fact that it was necessary for counsel to determine that there was not a psychiatric defence that needed to be pursued.
The appropriate sentence, if the charge had been defended and but for the mitigating factors, would have been in the region of six and a half to seven years imprisonment. A discount of some two years imprisonment was justified. Accordingly on the aggravated robbery charge the appellant was sentenced to four and a half years imprisonment.
Mr Clews, for the appellant, accepted that the sentencing Judge approached the sentencing correctly in accordance with Mako. Nonetheless he submitted that there was an unjustifiable gross disparity arising from the sentence imposed on the co-offender. While acknowledging that that sentence was lenient to an extraordinary degree and perhaps not even correct, he submitted that the test in R v Lawson [1982] 2 NZLR 219, 223 was satisfied : a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
Mr France, for the Crown, submitted that
•some differentiation in sentencing was appropriate – because of the choice Parliament had made between young and adult offenders;
•the appellant’s sentence is in itself correct;
•it is the co-offender’s sentence that is out of kilter and explicable only by the Judge in that sentencing expressly going outside the range and exercising clemency : the sentence was driven by a desired outcome rather than by an analysis of the required term of imprisonment.
Mr France stated this question : does the exercise of clemency for one offender require a reduction in the otherwise appropriate sentence for the co-offender? There has never been an easy answer to that question, but he mentioned two matters which indicated that no adjustment is required:
The difference in ages, and the corresponding differing legislative schemes, supports the existence of a disparity;
The appellant chose to offend as he did. He cannot complain if the correct and tending towards lenient sentence he has received is trumped … by an even more lenient sentence to his younger co-accused. Both are fortunate; [the other offender] much more so.
In the end however in oral argument he properly accepted, as he had in his written submissions, that the disparity is too great.
Mr Clews accepted, again properly, that the sentence imposed on the appellant is an appropriate one. We agree with that assessment. The only issue is disparity.
Two points are to be made about the suspended sentence for the co-offender. The first is that the (different) District Court Judge who imposed it frankly acknowledged that a term of imprisonment was justified. Earlier in his sentencing remarks he had referred to Mako. He said to the appellant “if you come and darken these doors by any offence that carries with it a term of imprisonment within the next two years, you will go to jail.” That indication that the sentence (of two years or less) was to be suspended was followed almost immediately by a statement which indicates (if leniently) what Mako would require. “You should really get in the vicinity of three or four years imprisonment.” The Judge then imposed a term of imprisonment of two years suspended for two years. It appears to us to be inescapable that in this case the length of the sentence was substantially reduced to make suspension available. That approach is not permissible. This Court made that clear in Solicitor-General v Lam (1997) 15 CRNZ 18, 24:
the Court’s first duty on sentencing for aggravated robbery, as for any other offence, remains to decide the appropriate mode of punishment and if imprisonment, the term. Such exercise is carried out without regard for the potential to suspend the sentence if it falls between the limits [of six months to two years]. It is wrong to commence by considering whether a suspended sentence is the appropriate response and if so then to tailor the mode or the length of the sentence so as to make suspension possible. As this Court said in a similar context in R v Donaldson CA 426/96, 6 March 1997 any distortion in the term of imprisonment, for the purpose of invoking Section 21A, is precluded.
The second point to be made about the suspended sentence of imprisonment is that it is not to be treated as imposing no penalty at all. In this case the disparity is not between four years six months imprisonment and nothing. Under the Criminal Justice Act 1985 s21A(2) and (3), provisions emphasised in Lam, the Court must decide, before suspending the sentence, that it would have sentenced the offender to imprisonment and it must fix a term that corresponds in length to the sentence of imprisonment that it would have imposed – in both cases in the absence of a power to suspend the sentence. The more practical matter is that under s21A (4) and (5) an offender subject to a suspended sentence who is convicted of an offence punishable by imprisonment may have some or all of the original term of imprisonment imposed. But even when those features of a suspended sentence are taken into account it still appears to us that the disparity is too great.
The test of disparity is or course an objective one. The test is not merely whether the offender thinks he has been unjustly treated, but whether there is real justification for that grievance. We think that in this case there is real justification. A 17 year old is imprisoned for a term of four and a half years while his co-offender retains his freedom (subject to the qualifications just made). That marked difference has to be put in the context of the acceptance by counsel that both offenders were equally culpable. The age difference must not of course be ignored, especially in the light and significance Parliament gives it, and as we have said, the co-offender is subject to the prospect of imprisonment if he offends again. He is also subject to the other sentences mentioned at the outset. But a real sense of grievance properly still remains.
We accordingly allow the appeal, set aside the term of four and a half years imprisonment and replace it with a term of three years imprisonment.

Solicitors
Crown Law Office, Wellington

[2000] NZCA 381

12 December 2000