[1] Jeremiah Thomas appeals his sentence1 of two years and nine months’ imprisonment in respect of one charge of aggravated robbery2 to which he pleaded guilty.

Background

The offending

[2] On 4 February 2023 at approximately 8.45 pm the appellant drove a car with the registration plate FEH377, pulling up outside the Highlands Dairy at 271 Coronation Avenue, New Plymouth. Two people including the appellant, who

1 R v Thomas [2023] NZDC 12028.
2 Crimes Act 1961, s 235(c). The maximum sentence is 14 years’ imprisonment.

THOMAS v R [2023] NZHC 2027 [1 August 2023]

was 18 at the time, stepped out of the vehicle wearing full disguise and each holding a hammer.

[3] One offender ran behind the counter and the other jumped over the counter. As the shopkeeper attempted to lock herself in a secure room at the back of the dairy, one of the offenders pushed the door, attempting to gain entry, but the shopkeeper locked it before the offender gained entry.

[4] The offenders took a large quantity of cigarettes and over $1,000 of cash from the dairy before returning to the waiting vehicle.

Criminal history

[5] Mr Thomas has 16 previous convictions, 11 in the Youth Court and five in the District Court. At the District Court level, they include burglary by day, burglary by night, attempted unlawful taking, and unlawfully in building.

Procedural history

[6] On 14 June 2023 the New Plymouth District Court sentenced Mr Thomas to two years and nine months’ imprisonment.

[7] The Court canvassed Mr Thomas’ history of offending, poor compliance with intensive supervision, absconding on electronically monitored (EM) bail, and personal circumstances. The Judge said Mr Thomas presents “a really difficult scenario for the courts”.3

[8] The Judge found the offending is most similar to an example given by the Court in R v Mako:4
A further example can be given taking 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 the face covered. There is no actual violence.

3 R v Thomas, above n 1, at [19].
4 R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA) at [56].

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomas v The King

Details

AGLC: Thomas v The King [2023] NZHC 2027
Case: [2023] NZHC 2027
Decision Date: 1 August 2023

CaseChat Overview and Summary

Jeremiah Matthew John Thomas appeals the two-year and nine-month sentence imposed on him for aggravated robbery, to which he pleaded guilty. The High Court was required to determine whether the sentence was manifestly excessive and if a different sentence should be imposed. The Court found that the starting point of five years’ imprisonment was too high and that a starting point of four years was more appropriate given the lack of actual violence during the robbery. The Court found that Mr Thomas's youth and background factors warranted substantial discounts and that the end sentence of 22 months’ imprisonment was appropriate. However, the Court found that a non-custodial sentence of home detention would better serve the purposes of sentencing for Mr Thomas and that he is eligible for such a sentence if a suitable address can be found. The appeal is allowed and the sentence is substituted for 22 months’ imprisonment, with leave granted for Mr Thomas to apply to the court of first instance for a sentence of home detention if a suitable address is identified. The Firearms Prohibition Order and reparation order made in the District Court remain in place, as does the cancellation of the appellant’s sentence of intensive supervision.

Orders