The Queen v Morgan Nick Hoy

[2002] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND CA63/02

THE QUEEN

V

MORGAN NICK HOY

Hearing:	18 July 2002
Coram:	McGrath J Robertson J Gendall J
Appearances:	M C Smith for Appellant B J Horsley for Crown
Judgment:	23 July 2002

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

1. The appellant was sentenced in the District Court at Wellington to an effective term of six years imprisonment, having pleaded guilty to charges of aggravated robbery, aggravated burglary and assault with intent to rob.  He appeals against the sentence.

2. The offending encompassed three separate events in May 2000, June 2000 and March 2001.  The crime of assault with intent to rob occurred when the appellant in disguise, approached an Armourguard security van parked outside a Bar in Porirua and using a metal weapon attempted to break into the van through its door, then hammered on its window with the bar.  When the attempts to break into the van and intimidate the driver failed he fled.

3. Three weeks later, he and associates decided that they would rob Bar premises in Porirua, it being the same Bar outside which the security van had earlier been attacked.  Early in the morning, when it was known that only two persons would be present the appellant and associates, disguised wearing balaclavas pulled down over their faces, entered the premises forcing the two women to lie on the floor and over $16,000 was taken from two safes.  None of those funds have been recovered. 

4. The third crime occurred nine months later in March 2001.  The appellant forced entry into the premises of a Kennel Club, which had recently undertaken an auction sale, and consequently was to be expected that substantial funds were there on the premises.  That is why the interior was protected by a security guard.  The appellant, having forced entry approached that guard with an axe-handle, demanding money and threatening violence in order to obtain it.  An associate of the appellant was also involved in the intruding, but remained at a distance as a lookout.  When the security guard fled the appellant and his associate abandoned their aim to steal funds that were on the premises.

5. In sentencing the appellant the District Court Judge reviewed the facts correctly describing the offending as serious violent offending, which required a deterrent sentence to meet the need to protect the public.  The Judge referred to the appellant as being a member or prospect of a gang who undertook robberies to obtain money so as, it is said, to repay debts within the gang culture.  The Judge took as a starting point for the crime of aggravated robbery with a weapon a term of five years imprisonment.  He referred to the opportunistic nature of the crime of attempted robbery of the Armourguard van.  He expressed the view that the later aggravated burglary was serious, involving the appellant being armed with a weapon.  The Judge referred to mitigating factors such as the early guilty pleas, and the withdrawal from confrontation at the aggravated burglary.  The Judge said that it was necessary to look at all the offending in its totality to determine what was an appropriate sentence.  He concluded that it would, when viewed in respect of all three serious crimes.  He took as “starting points” terms of five years, two years and one year imprisonment and allowed a discount of 25% for the guilty pleas.  As a consequence a sentence of six years imprisonment was imposed.  That sentence was apportioned, as it were, to four years imprisonment in respect of the charge of aggravated robbery of the Bar, 18 months imprisonment in respect of the aggravated burglary of the kennel club premises, and six months imprisonment in respect of the charge of assault with intent to rob the Armourguard van.  The sentences were to be cumulative.

Discussion

1. The appellant committed three separate crimes escalating in seriousness from an attack upon a security van intending to rob it; a night time intrusion armed with a weapon into Club premises intending to steal; and aggravated robbery, as one of four disguised offenders, of commercial premises where $16,000 was obtained, none of which had been recovered.  In terms of R v Mako [2000] 2 NZLR 170 (CA) the aggravated robbery crime would have justified a starting point of six or more years imprisonment. The Judge clearly had this in mind when he set out some of the aggravating features of the robbery of the Bar as they could be measured against features discussed in Mako (supra).  These included the degree of planning, number of participants, the use of disguises, the organised robbery of commercial premises in which a substantial sum of money was taken, the impact upon the two victims present who were terrified by the appellant and his co-offender’s actions. 

2. Although counsel for the appellant contended that the Judge did not specifically adopt the totality principle in the sentencing exercise, we think he gave recognition to this when referring to sentences necessary to reflect the “totality of the offending” on at least two occasions.  It needs to be remembered that the application of the totality principle does not equate to giving a “discount for bulk offending”.  Depending on the nature and extent of offending a proper sentencing approach to the overall seriousness of the particular crimes might, and often does, require a sterner sentence.  In this case the Judge, in imposing cumulative terms appears to have adopted that approach so as to lead to an effective sentence of six years imprisonment which may have been excessive for the aggravated robbery alone.  But it was not a crime alone.  The Judge was entitled and required to approach sentencing by taking into account the two other quite separate crimes whilst making allowance for guilty pleas and other mitigating features. 

3. Apart from the attempted robbery of the Armourguard van, with each of the other two crimes there was a substantial degree of planning aimed at entry into club and commercial premises at which it was to be expected there would be substantial funds.  Three separate events involving aggravated or attempted robbery, aggravated burglaries, two involving weapons and two involving invasion into commercial premises, all involving intimidation and threats of violence, was lawless repetitive behaviour.  The effective sentence of six years imprisonment was at the upper range of that available to the Judge but it could not be said to be manifestly excessive.

4. The appeal is dismissed.

Solicitors

Crown Law Office, Wellington