The Queen v Mark Timothy Giddens

[2000] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND CA165/00

THE QUEEN

V

MARK TIMOTHY GIDDENS

Hearing:	26 June 2000 (At Auckland)
Coram:	Blanchard J Ellis J Anderson J
Appearances:	M E Goodwin for Appellant K Raftery for Crown
Judgment:	26 June 2000

JUDGMENT OF THE COURT DELIVERED BY ELLIS J

1. The appellant was convicted on one charge of aggravated robbery and sentenced to four years imprisonment.  He appeals against this sentence on the grounds that it was manifestly excessive.  For him it was submitted the sentencing Judge did not give sufficient credit for his guilty plea, and further that the sentence was disproportionate to that of his co-offender Trevithick.

2. The facts of the matter are that at approximately 1.10am on Sunday 8 November 1998 the appellant and Trevithick wearing disguises entered the Caltex Service Station situated in Cameron Road, Greerton.  Inside the shop Giddens pointed an imitation hand gun approximately 8 to 10” from the head of the sole attendant and demanded money, while the defendant Trevithick was standing beside him at the counter.  The attendant realised that it was an imitation hand gun and refused to hand over any money.  Giddens became very agitated when he saw that the attendant had reached down and pushed the panic button under the till.  Giddens stated “leave the fucken button alone, I’m not scared to shoot you.  I will shoot you.  Stop fucking around.”  At this stage Giddens reached over the counter and tried to open the till by pushing the till keyboard and barcode scanner.  He was unable to open it.  Trevithick then warned Giddens that a car had just driven past slowly. As a result both offenders ran from the station empty-handed, crossed the forecourt and as they were running across Cameron Road they were pursued by two witnesses who had been passing at the time.  They were chased through the carpark area of Cobb & Co., where they scaled a high wooden fence, and were lost sight of.  As a result of information received Trevithick was spoken to by Police nearly a year later and admitted the facts as outlined.  In explanation he stated that he only acted as a lookout and stood by the front door of the shop.  Trevithick was aged 17 years and was a first offender.  Giddens was also spoken to by Police on 14 September 1999 and has admitted the facts as outlined.

3. I now turn to the appropriate starting point for sentencing with a quotation from Mako [2000] 2NZLR 170. I quote paragraph 56 at page 183:

   A further example can be given taken another combination of features typical of many aggravated robberies.  This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway.  The shopkeeper is confronted by one person with face covered.  There is no actual violence.  A small sum of money is taken.  The starting point should be around four years.  Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

1. Earlier in the Judgment, and without limiting the factors to be considered, the Court in Mako listed those that may be relevant.  In the present case we summarise them as follows.  There appears to have been little planning behind this offence.  There were only two participants.  Disguises were worn.  The weapon was a toy gun.  The target was a service station late at night with a sole attendant, large sums of money were not involved, nothing was stolen, there was no actual violence or injury.  There was however tantamount to a threat to kill.  There was no associated offending or criminal associations, nor was there multiple offending.  As observed in Mako, the impact on the victim can be an important consideration.  Here, fortunately, after a short period of distress the victim is apparently able to continue his work without adverse effect.

2. Bearing in mind all these factors both aggravating and mitigating, we agree with the sentencing Judge that a sentence of four years imprisonment is the appropriate starting point from which to construct the appropriate sentence.

3. As far as the personal circumstances of the appellant are concerned, he presents as a 28 year old man with a long list of prior convictions, six are alcohol or drug related, six are for dishonesty including burglary, eight for driving or nuisance offences, and he has been convicted of arson and assault.  However, none are in the present category of seriousness.  Hitherto the most severe sentence has been three months imprisonment.

4. He plainly has an alcohol problem and counsel was able to persuade the sentencing Judge to recommend that he be given counselling in prison.  He does show hopeful signs for future control of his addiction.  The probation officer bleakly assesses him as being very likely to reoffend, but this is at odds with a testimonial as to his work habits and to an apparently stable relationship he has formed with a child on the way. 

5. As to the guilty plea, his co-offender pleaded guilty and turned Queen’s evidence.  Following depositions the appellant pleaded guilty at the first callover in this Court.  While the case against the appellant was strong and he did not plead guilty at the first opportunity, a trial was avoided.  In our view discounts for guilty pleas are to be encouraged as being much in the public interest, and palpable discounts in sentence should be stated and given.  There is no rule of thumb in such matters, and each case will depend on its own facts and circumstances.

6. As to the disparity with the sentence given to his co-offender Trevithick, he was sentenced to 18 months imprisonment suspended for 18 months and also to 6 months periodic detention.  We have seen the Court file and it appears it was accepted that as a 17 year old youth he was approached by the appellant, an uncle by association, and led astray by the older man who suggested they “do a job” together.  However Trevithick supplied the toy gun and we are inclined to think he was involved in the confrontation rather than as an onlooker or lookout.  His youth, the fact he was a first offender, and his agreeing to give evidence all indicate a substantially more lenient sentence.  Nevertheless, we think there is too great a disparity and such can give a justifiable sense of grievance as well as a lack of balance which this Court recognises should be avoided.

7. Taking all these factors into account, in particular the appellant’s guilty plea and the sentence passed on his co-offender, we consider the appeal should be allowed and a sentence of 3 years imprisonment substituted.

Solicitors:

Crown Solicitor, Auckland