The Queen v Russell James Edward Weeks

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 123/00

THE QUEEN

RUSSELL JAMES EDWARD WEEKS

Hearing:	23 May 2000 (at Auckland)
Coram:	Henry J Robertson J Cartwright J
Appearances:	M Davies for Crown G E Wilson and H B Parekh for Respondent
Judgment:	24 May 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The Solicitor General applies for leave to appeal against sentence imposed on the respondent in the District Court at Hamilton on 7 April 2000 after he had pleaded guilty to two charges of aggravated robbery and one of receiving. He was initially charged with three charges of aggravated robbery arising out of incidents which occurred on 16 October. Prior to trial the Crown accepted a plea of guilty of receiving to one count and the respondent simultaneously admitted the other two matters upon which he had been committed for trial on 22 November 1999.
The respondent was born on 2 August 1982 so that he was a little over 17 when at about 5 pm on the afternoon of Saturday 16 October 1999 with four other associates, he was on River Road in Hamilton. This group approached another group of youngsters and demanded that a belt and a pair of shoes be handed over. One of the respondent’s associates had an axe handle and threatened the victim (who was aged 14) if he did not hurry up and get the belt off he would be hit. The victim took off his belt, threw it into some bushes and ran away. The respondent subsequently retrieved the belt and began to wear it.
By about 11 pm on that same day the respondent and his initial group had been joined by two others. The seven of them approached two youths and one of the group started pushing one of the other youths (who was aged 15) who fell to the ground. This respondent and a female associate approached the second victim (aged 16) and demanded a sweat shirt. The female struck the lad twice on the arm with a skateboard after which he removed his sweat shirt and handed it over. Following this the respondent walked over to this person, punched him and was then joined by others who started punching and kicking the lad once he fell to the ground. This person handed over his shoes to stop the beating but he was hit a few more times before the group left him alone.
The second victim in this incident was then told to take off his shoes and sweat shirt which he did.
Before the group departed the two youngsters were advised not to go into town and not to “nark to the cops”.
When initially spoken to by the police the respondent denied his involvement, but subsequently admitted that he had punched the victim claiming the victim was about to hit his girlfriend.
The sentencing Judge noted that the most serious aspect of the respondent’s involvement was the single punch and participating in the punching and kicking that followed when the second victim was on the ground. He said that some of the injuries which were sustained, although relatively minor physically, had disrupted studies for School Certificate and arose from events which the Judge described as “almost a hyena pack type of activity”.
He noted that vulnerable youth were being bullied and threatened and classified the street violence as worrying for the community. He referred to the very recent decision of this Court in R v Mako (CA 446/99, 23 March 2000) which he concluded mandated a starting point between 18 months and 3 years and the need for a strong deterrent measure. The Judge accepted that because of the use of actual violence and the presence of a weapon the starting point should well be 2 to 3 years.
The Judge recorded that he had dealt with the female co-offender on 5 November 1999 when he had imposed a sentence of corrective training. He noted that their personal circumstances were not dissimilar aside from an age difference probably exacerbated by the respondent’s immaturity.
The Judge referred to the pre-sentence report which had considered the offending as too serious for a community based sentence, but noted that since the offending the respondent had returned home and was engaged in worth while employment and concluded that the positive future outlook and his age enabled the Judge to back away from imposing a custodial sentence.   He said on this :
Now I am conscious in adopting that role that I am taking a very lenient approach, that I am deliberately concentrating on the rehabilitative aspect of the situation here and that my decision to take a lenient approach is really right at the periphery of, and driving round the side of, to some extent, the pretty clear directions coming through from the Court of Appeal.   But the Court of Appeal does, as it always does in the tariff guidance type cases make it clear that ultimately each case has to be looked at on its individual merits, and there is no set formula. I accept there are some aggravating features here that the Crown has identified as far as the general run of these type of street offences are concerned.   The numbers. The willingness to actually resort to violence.   But at the end of the day it is clearly coming through that this young man’s involvement, despite the punch, was it seems, generally unpremeditated.   It was a case of getting caught up in the pack mentality and simply being led into a situation that really :
(a)       Of course should not have got into, but
(b)       Is probably uncharacteristic of his general nature.
What is coming through is that by and large he is not a violent person, he is perhaps a bit slow.   He is perhaps a bit immature.
The Judge noted aggravating features including the number of assailants and the willingness to resort to actual violence. Despite the punch which the respondent had thrown the Judge regarded the matter as generally unpremeditated. While indicating that he was very conscious of the victims’ situation the Judge determined that a sentence of supervision which included a drug and alcohol counselling condition as well as reparation, was appropriate.
In the event he sentenced the respondent to 12 months supervision and ordered reparation of $2000 to be paid to the two victims.
The Crown submits that the sentence imposed is both wrong in principle and manifestly inadequate.
Counsel has referred to what this Court said about offending of this sort in Mako :
“... at the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon was produced or where offenders acting together by bullying or menacing conduct enforced the demand although no actual violence occurred where the starting point would be between 18 months and 3 years - actual physical enforcement might well require a higher starting point ...”
The Court also noted the high proportion of aggravated robberies committed by teenagers and consequently acknowledged that it would only encourage such offending to impose lower sentences unless there were real prospects of rehabilitation and an unlikelihood of re-offending. The Court said :
However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender remains serious violent offending.
It was submitted by the Crown that s 5 of the Criminal Justice Act must apply (see R v Epiha, CA 75/98, 29 April 1998, and R v Aualitia (CA 528/93, 14 March 1993). It was stressed that this factor was recognised in the pre-sentence report and had been acknowledged by the Judge when sentencing the female co-offender. Accordingly it was argued that in the absence of special circumstances in the offence or the offender, a full-time custodial sentence had to be imposed.
It is submitted that the correct approach which should have been adopted by the Judge is encapsulated in the decision of this Court in Epiha where it was said :
This is a case which is covered by s 5 of the Criminal Justice Act. There was a requirement to impose a term of imprisonment unless there were special circumstances.
We have no doubt that the Judge should have considered the provisions of s 5 notwithstanding his understandable concern for this young man and the possibilities of his rehabilitation. There was nothing about the offending which could have justified anything other than a custodial sentence. There were three charges arising out of two quite separate incidents some hours apart which were blatant examples of bullying and street thuggery.
As far as the position of the offender himself is concerned, we are satisfied that his return home and his employment and rehabilitative matters were not sufficiently out of the ordinary to provide a justification for a non-custodial sentence.
The matters are important factors to be taken into account in determining the length of sentence but we are satisfied, as the sentencing Judge had been when he imposed the term of corrective training on the co-accused, that the provisions of s 5 must operate requiring the Court to impose a full-time custodial sentence.
Bearing in mind his background, his employment and family support, and the circumstances of the October night, we are satisfied that an appropriate sentence could have been as high as 18 months imprisonment but as this is a Solicitor General’s appeal Mr Davies has accepted that a sentence of 12 months imprisonment would be sufficient.
Two further issues necessarily arise. First, whether in terms of the philosophy enumerated in R v Petersen [1994] 2 NZLR 533 and applied in countless cases since, it was a case in which there could be suspension of the prison sentence and whether to grant leave to apply for home detention, s 21D Criminal Justice Act 1985.
For the reasons which were enunciated in Epiha we are satisfied that to suspend the term of imprisonment in the circumstances of this case would send quite the wrong message about this sort of mindless behaviour in public places. It is too easy after the event and away from the scene to construct an argument that what happened was really not as serious as it might have been and that it was really loutish and foolish behaviour rather than serious criminality. That is to take the focus away from the apprehension and position of these victims and the understandable fear of countless other youngsters going about their lawful business as the victims were in this case.
We are however satisfied that for the reasons which were so clearly influential with the sentencing Judge and in the absence of any argument to the contrary from the Crown, it is appropriate to grant leave to apply for home detention.
Leave to appeal is accordingly granted. The appeal is allowed. The sentences imposed are quashed. The respondent is sentenced to 12 months imprisonment. He is to present himself to the Registrar of the District Court at Hamilton at 9 am on Friday 26 May to commence that sentence.
Leave to apply for home detention is granted.

SOLICITORS

Crown Law Office, Wellington
Gordon Wilson, Hamilton

[2000] NZCA 61

24 May 2000