The Queen v Todd James Scott
[2003] NZCA 152
•17 July 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA47/03
THE QUEEN
v
TODD JAMES SCOTT
Hearing:14 July 2003
Coram:Keith J
Hammond J
Paterson JAppearances: B J Horsley for the Crown
G J King and C J Milnes for the Appellant
Judgment:17 July 2003
JUDGMENT OF THE COURT DELIVERED BY PATERSON J
Introduction
[1] Mr Scott pleaded guilty to six counts of aggravated robbery and seven counts of kidnapping. He was sentenced on 10 December 2002 to imprisonment for ten and a half years. A minimum non-parole period of two thirds of the sentence was also imposed. Mr Scott has appealed against both the length of the sentence and the imposition of a minimum non-parole period.
[2] The notice of appeal was filed outside the time allowed by the rules. Leave is therefore required. The Crown does not object to this Court considering the appeal. Leave to appeal is granted.
Background
[3] The charges arose out of three separate incidents over a three day period in May 1997. Mr Scott was not apprehended until October 2002, he having absconded. He then pleaded guilty to all charges at the first available opportunity.
[4] Mr Scott, together with two others, decided to obtain drugs and cash by robbing people believed to be drug dealers. The first incident occurred on 4 May 1997 when the three men wearing balaclavas, green overalls and gloves, entered a residence. The occupants were out so the three men awaited their return. When they returned, Mr James, the acknowledged leader of the three men, pointed a loaded pump-action shotgun at the victims. The victims were subsequently bound and made to lie on the floor of the home. Six pounds of cannabis valued at approximately $20,000 were taken. A rifle or shotgun was located at this address, retained and later used by the three men.
[5] The second incident occurred on 6 May 1997 when the three men, once again disguised, drove to a home which was unoccupied. They then went to another residence which was occupied by two adults and three children. Both Mr James and the second offender, Mr Matchitt, had guns. Mr James pointed the shotgun at the adults’ heads and demanded cannabis and cash. When the occupiers denied that they had such items, Mr James pointed the shotgun at the head of one of the children. One of the adults then took Mr James to a nearby location and gave him three pounds of premium seedless cannabis head.
[6] The police statements of fact allege that both Mr Matchitt and Mr Scott, who were left to guard the other adult and the children, had rifles with them. Mr Scott had a .223 Ruger rifle which he found at the address. He took ammunition and loaded the rifle. A sum of $100 was also stolen from the purse of the female adult.
[7] Mr Scott, in an affidavit, stated that when he saw Mr James point the gun at the child’s head he was shocked and wanted no part of it. It was at this stage that he went to the gun cabinet and took a gun and a box of ammunition from it. His evidence was that he also took other guns that were there and hid them away, as he did not want them used or involved if things went bad. He also stated that at that time he wanted out of the offending, but he had to be careful that his two companions did not turn on him and silence him or get rid of him. Before Messrs Scott and James left for the third incident, the people at the house were bound with tape. Mr Matchitt was left to guard them while the other two departed for the third location.
[8] The third incident, at the third location, also occurred on 6 May 1997. When Messrs James and Scott arrived at the victim’s house a dog barked, and the victim came out to investigate. Mr James confronted the victim and shot him in the foot. At the time of the shooting, Mr Scott was some little distance behind Mr James. It was Mr Scott’s evidence that he put down his gun and tied a towel tightly round the wounded foot to stem the bleeding. Mr James was angry that he did this. He told Mr Scott to check upstairs and Mr Scott’s evidence was that there were three children asleep upstairs, but that when he returned downstairs he told Mr James there was no-one upstairs. Mr Scott guarded some of the occupants of the house while Mr James went with one of the occupants and recovered three pounds of cannabis head. A sum of $5000 in cash was also taken from this house. When Mr James returned, Mr Scott, he said at Mr James’ request, tied up the occupants of the house and remained to guard them while Mr James went to pick up Mr Matchitt. During Mr James’ absence, Mr Scott saw an armed male sneaking round the house. Mr Scott confronted this man with the gun, which he claimed did not have a bullet in the barrel, but did have ammunition in the magazine with the safety catch on. The man was taken inside where Mr Scott tied him up. Shortly after, Mr James arrived with Mr Matchitt and the three men departed in the car. In addition to the cannabis, they took $5000 in cash from this address.
[9] Messrs James and Matchitt were apprehended shortly thereafter. Mr James defended the charges against him, which included six of aggravated robbery and seven of kidnapping (the same charges on which Mr Scott was sentenced). In addition, Mr James faced a charge of wounding with intent to cause grievous bodily harm, the result of shooting the third victim in the foot. Initially, Mr James pleaded not guilty to all charges but on the fourth day of the trial, changed his pleas and admitted all offences. Mr James received an effective sentence of 15 years imprisonment made up of 12 years for each count of kidnapping and aggravated robbery, and a cumulative sentence of 3 years imprisonment for the wounding with intent to cause grievous bodily harm, which was confirmed on appeal to this Court.
[10] Mr Matchitt pleaded guilty to four charges of aggravated robbery and four charges of kidnapping relating to the first two incidents. He was not charged with any offences relating to the third incident. He was sentenced to eight years imprisonment. The starting point adopted by the Judge was 12 years imprisonment but he gave Mr Matchitt a significant discount for his very early guilty plea, his co-operation with the police and, it appears, a credit for offering to give evidence in the forthcoming trial against Mr James. In actual fact, he did not give that evidence.
[11] In sentencing Mr Scott, the Judge noted that, on any analysis, this was particularly serious and grave offending. He accepted that Mr James was the ringleader and that Mr Scott perceived a threat from a violent and domineering person. He also noted that Mr Scott’s concern at the manner in which Mr James behaved led him to conceal a weapon at the second scene, and to fail to report the existence of three children at the third scene. However, he noted that Mr Scott continued with the offending and took a loaded gun to the third scene. The Judge took into account the victim impact statements which were by then five years old, and found them to make harrowing reading. Other factors which confirmed the seriousness of the offending were the value of the items taken, the planning which went into at least two of the incidents, the disguises used, the loaded firearms used to threaten victims, including young children, that all victims were subdued, and that home invasion was involved on two occasions. The pre-sentence report noted that Mr Scott had a generally low level of insight into the potential longterm effects and psychological violence suffered by the victims.
[12] Mitigating factors taken into account by the Judge were his early guilty plea after being finally apprehended, his co-operation with the police, the fact that he was not the ringleader and felt under some pressure from a violent and domineering person, that he gave assistance to the injured victim, that he did not disclose the presence of children in the third scene, and that he hid the firearms at the second scene to prevent their use and possible escalation.
[13] The Judge determined that the starting point for the sentence on a totality basis was 14 years imprisonment. He noted that Mr Matchitt had been sentenced to eight years’ imprisonment, but had not been charged with any offences relating to the third incident. Many of the aggravating factors referred to in paragraph 11 were taken into effect in setting the starting point of 14 years. The mitigating factors referred to in paragraph 12, including the guilty plea and the fact that Mr Scott was not the ringleader, resulted in the Judge giving a one-third discount reducing the final sentence to a total of ten and a half years.
[14] Counsel for Mr Scott submitted that the sentence was manifestly excessive and submitted, in particular, that the sentencing Judge placed too much emphasis on victim impact statements that were five years out of date, failed to give sufficient weight to the mitigating features and the appellant’s personal circumstances, and gave insufficient weight to various factors referred to in Mr Scott’s affidavit sworn on 21 November 2002, particularly when the Crown had not challenged those statements. Factors relied upon by counsel were that the gun at the third incident did not have a bullet in the breech, the assistance given to the wounded victim, the fact that he did not disclose the presence of young children asleep at the third scene, the hiding of guns at the second scene, and the lesser role played to that played by Messrs James and Matchitt.
[15] Crown counsel acknowledged that the Crown did not challenge many of the statements made in Mr Scott’s affidavit, but does not accept all the submissions made on his behalf. In particular, the Crown does not accept that there was some degree of coercion and threats if Mr Scott had not taken part, or that he was coerced into planning the offending. Counsel noted that most of the matters raised by Mr Scott’s counsel had been addressed by the sentencing Judge, and had been taken into account as mitigating factors. In the Crown’s view a sentence of ten and a half years imprisonment for three serious aggravated robberies involving the use of loaded weapons, the binding and detention of victims, and the breaking into of private dwellings could not be said to be excessive. The circumstances of each offence place them in a category where under R v Mako [2000] 2 NZLR 170 a starting point of seven years imprisonment would be appropriate. Given the three separate incidents, a starting point of 14 years and a final sentence of ten and a half years was well within the available range.
[16] We agree that the sentence in this case was entirely appropriate. This was serious offending and the features referred to in paragraph 11, even allowing for the fact that Mr Scott was not the ringleader, justified a sentence of 14 years before giving a discount for mitigating factors. This was serious offending in which loaded firearms were involved, threats were made to victims, and the victims were contained and bound. The motivation was to obtain money and drugs. Mr Scott’s particular motivation was that he owed money on drug dealing and hoped to obtain sufficient to repay what he owed.
[17] In the circumstances, a discount of 25% for the mitigating factors, including the guilty plea, was all that Mr Scott could expect. It was given to a person who knew that the police wished to apprehend him but who managed to stay at large for a period of more than five years.
[18] The only remaining issue raised on the sentence appeal was parity between the co-offenders. In our view, there is nothing in this point. The ringleader, Mr James, who committed the additional offence of wounding with intent to cause grievous bodily harm received 15 years imprisonment. Mr Matchitt who did not participate in the third incident, received eight years imprisonment. He received a greater discount than would be normal because of his actual and promised co-operation. If it had not been for that co-operation it is likely that he would have been sentenced to nine years imprisonment. Mr Matchitt was not charged with any offences relating to the third incident, and was therefore entitled to a lesser sentence than Mr Scott, who was involved in all three incidents. It is difficult to assess the level of culpability between Mr Matchitt and Mr Scott, but in our view, it is approximately equal. There are some factors which favour Mr Matchitt and some which favour Mr Scott. We note that this Court in R v James (CA140/98 of 10.8.98), in considering an appeal by Mr James, noted that the District Court Judge sentencing Mr Matchitt considered that Mr Matchitt was under some degree of compulsion on the part of the other two. Some of the mitigating factors for which Mr Scott is entitled to a credit, were not available to Mr Matchitt. In the circumstances however, we cannot see that a final sentence of ten and a half years for Mr Scott for being a party to all three incidents raises parity concerns with a sentence of eight years for Mr Matchitt who was involved in two incidents only. Further, there are no parity concerns between Mr Scott’s ten and a half years sentence and Mr James’ 15 year sentence, although we accept Mr Scott’s lesser role, and his non-involvement in the injuring count. When all matters are balanced, a sentence of ten and a half years for Mr Scott is not out of line with the sentence of 15 years for Mr James.
[19] In the circumstances, the appeal against the sentence is dismissed.
Minimum non-parole period
[20] In imposing a minimum non-parole period of two thirds of the sentence, the Judge noted that, if he had been sentenced at the same time as his two co-offenders, he would have been required to serve two thirds of that sentence before being eligible for parole. The Judge noted the statutory provisions which would have applied at the time, and those which enabled him to impose a minimum parole period at this time. He noted that “it would be a bizarre result if because of the delay in apprehending you, you were to be sentenced on any different basis than the two co-accused who have had to serve two thirds of their sentence.”
[21] Counsel for Mr Scott submitted that the Judge manipulated the sentence which he was not entitled to do. Further, he submitted that, under the present sentencing regime, it is for the Parole Board to determine the length of time that a prisoner serves and is not for the Judge to adjust it so he does not serve a lesser time than his co-offenders who were sentenced under the original sentencing regime.
[22] Crown counsel acknowledged that the approach taken by the Judge may not be an entirely proper reason for imposing a minimum period of imprisonment of two thirds of the sentence. Nevertheless, it was submitted that the circumstances of the offence were sufficiently serious to justify the imposition of a minimum period of imprisonment.
[23] We accept that the sentencing Judge did not take a correct principled approach in imposing the minimum non-parole sentence. This Court determined the approach to be taken in R v Brown [2002] 3 NZLR 670. The focus of the sentencing Court is not on whether the offender would pose a danger to the community if released after one third of the sentence had been served. The power to impose a minimum sentence for a serious offender is intended for cases of such seriousness that, even if there were no danger to the community, release after serving one third of the sentence would represent insufficient denunciation, punishment and deterrence in all the circumstances. Section 86 of the Sentencing Act 2002 gives the sentencing Court the power to impose a minimum period of imprisonment “if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002.” It is thus in the more serious cases where the sentences are likely to be longer than those for the usual offences that a minimum non-parole period is likely to be imposed.
[24] In our view, this is one of those more serious cases. It would not be sufficient denunciation, punishment and deterrence in all the circumstances for Mr Scott to be released from prison after serving a period of three and a half years imprisonment. This was a very serious case with traumatic consequences for the victims. An effective sentence of only three and a half years would convey the wrong signal to the community. We therefore, for reasons other than those given by the District Court Judge, confirm that the minimum non parole term is to be two thirds of the sentence.
Result
[25] Both the appeal against the sentence and the appeal against the minimum non-parole period are dismissed.
Solicitors:
The Crown Solicitor, Wellington
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