Thomas v The King

[2023] NZHC 444

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-461

[2023] NZHC 444

BETWEEN

WHIDDON THOMAS

Appellant

AND

THE KING

Respondent

Hearing:

14 February 2023

Counsel:

K Hogan for Appellant B So for Respondent (Via VMR)

(Appellant also present via VMR)

Judgment:

14 March 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 14 March 2023 at 10.00 am.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

THOMAS v R [2023] NZHC 444 [14 March 2023]

[1]    On 14 April 2022, Mr Whiddon Thomas pleaded guilty to two charges of aggravated robbery, a week before the scheduled trial.1 He was sentenced to four years’ imprisonment by Judge Thomas in the Auckland District Court on 28 October 2022.2

[2]    He now appeals his sentence on the grounds it is manifestly excessive and did not follow indicative statements made by Judge Mabey QC when he was arraigned on 14 April 2022.

The offending

[3]    On 20 November 2020, the appellant and a co-offender entered the home of the complainants through an unlocked front door. The appellant was armed with a full-length double barrel shotgun with a wooden stock. He immediately approached the complainants, pointed the firearm at them and instructed them to sit down.

[4]    While the appellant was pointing the shotgun at the complainants, his co- offender demanded cash. The complainants handed over a total of approximately

$750.

[5]    The co-offender then demanded drugs, but the complainants said they did not have any. The co-offender began rummaging through the house and took several valuable items, including a tattooing kit, jewellery and a watch.

[6]    The co-offender told the complainants that they would end up hurt if the Police were told about the incident and if they wanted their stuff back, they would need to pay for it. Following that, the appellant and the co-offender left.

The arraignment hearing before Judge Mabey

[7]    The appellant pleaded guilty at an arraignment hearing on 14 April 2022 before Judge Mabey. He did not receive any sentence indication beforehand.

1      Crimes Act 1961, s 235(b), maximum penalty: 14 years’ imprisonment.

2      R v Thomas [2022] NZDC 23986.

[8]    Judge Mabey entered the convictions. He then dealt with the appellant’s application for bail pending sentence. The appellant was on EM bail at the time. The Crown took a neutral position on the bail application.

[9]    In accordance with s 13 of the Bail Act 2000, the Judge considered the likelihood of the appellant receiving a sentence of home detention. He noted that the appellant’s responsibility for his mother was not relevant, but the crucial factor was that the appellant appeared to have an addiction and was working on rehabilitation:

But looking at the facts and thinking where I, if I was sentencing, might land on a start point you may well have enough to get to two years. The crucial factor is this, there appears to be an addiction and it looks like Mr Thomas has got on with rehab and that is the crucial factor. Putting him in custody now would break the rehab, put him back in the yard with people he doesn’t need to be associating with anymore and would be counterproductive. If bail is continued pending sentencing and if there are sufficient reports then he may well be a candidate for home detention and that being the case then section 13 applying the interests of justice reverse burden would justify bail being granted pending sentence.

[10]Accordingly, the appellant was granted bail pending sentence.

District Court decision

[11]   The appellant was sentenced by Judge Thomas on 28 October 2022. The Judge reviewed the facts and then discussed the co-offender’s influence on the appellant. He noted that the co-offender did not plead guilty. She went to trial and was acquitted. Her defence was that she was not there, and it was not her who was the problem. Nonetheless, the Crown accepted for purposes of the appellant’s sentencing that the co-offender was issuing orders, and the appellant was more of a “foot soldier”. Judge Thomas rejected any argument that acquittal of the co-offender should affect his sentence.

[12]   Regarding the starting point, the Judge referred to R v Mako, the guideline judgment for aggravated robbery.3 He said Mako suggested a seven-year starting point for forced entry into premises at night by a number of offenders seeking money.4 He took into account lack of violence, the home invasion aspect, and the shotgun. He

3      R v Mako [2000] 2 NZLR 170 (CA).

4 At [58].

further considered the dynamic of the appellant being a foot soldier and the influence others had over him. He set a starting point of six years, clearly considering that was the lowest starting point he could adopt.

[13]   The Judge referred to Paula Rio v Police, where he said a starting point of four and a half years was upheld by the High Court.5 He noted that person did not use the piping that was the weapon in that case and the defendant who did had a starting point of five years. The Judge said Rio did “not do enough” to bring him down from six years. He said Rio was an example of how different dynamics inform starting points and is not “authority” for the proposition that the starting point here must be less than six years.

[14]   Judge Thomas also considered Tereora v R which involved some brutality, where the Court set a starting point of six and half years.6 He said that the case was not so closely aligned to the appellant’s that it “displaces Mako”.

[15]   The Judge rejected an argument that the appellant should receive a lesser sentence because he knew the complainants involved. He said Mako did not draw that distinction and most stand-over cases before the courts do not involve strangers.

[16]   The Judge then uplifted the starting point of six years by six months for the appellant’s previous convictions involving weapons and because he was subject to a sentence at the time of the offending.

[17]   Regarding discounts for personal mitigating circumstances, the Judge gave the appellant a 10 per cent discount for his guilty plea and a further 10 per cent discount for 15 months spent on EM bail. He also took into account a s 27 report (which he said recorded many sad elements of the appellant’s background) and rehabilitative efforts. Combining all these factors, the Judge said he would reduce the appellant’s sentence by “something in excess of 35 per cent”.

[18]Judge Thomas then sentenced the appellant to four years’ imprisonment.

5      Paula Rio v Police HC New Plymouth CRI-2011-443-033, 26 August 2011.

6      Tereora v R [2015] NZCA 120.

[19]   I note that while the Judge intended to deduct “something in excess” of 35 per cent, he in fact deducted 40 per cent from the starting point in fixing the final sentence. Ms Hogan, counsel for the appellant, accepted that was the case. The actual discount for s 27 factors, remorse and rehabilitation was therefore approximately 20 per cent.

Approach to sentence appeals

[20]   An appeal against sentence is brought under s 244 and in accordance with s 250 of the Criminal Procedure Act 2011. The Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.7 In any other case, the Court must dismiss the appeal.8

[21]   Though the words do not appear in s 250, it is well-engrained that the sentence must be “manifestly excessive” for the appeal court to substitute its own views. The Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 Whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.10

Appellant’s submissions

[22]   While acknowledging that Judge Mabey’s comments at the arraignment did not amount to a sentence indication, Ms Hogan stresses his emphasis on the importance of the appellant’s addiction and rehabilitation efforts and Judge Mabey’s indication that the sentence might be home detention.

[23]   She says that a lower starting point was available to the Judge as Mako provides for flexibility, and subsequent case law enables a lower starting point than instructed at [58] of Mako.11 Ms Hogan contends that a four and a half to five year starting point is appropriate. She refers to three cases she says are comparable: R v Crawford,12

7      Criminal Procedure Act 2011, s 250(2).

8      Criminal Procedure Act 2011, s 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

10     Ripia v R [2011] NZCA 101 at [15].

11     Above n 3.

12     R v Crawford [2009] NZCA 479.

Paula Rio v Police13 and Tereora v R14 and says, given there is no violence in the present instance and the victims were not especially vulnerable, the starting point should be lower than in those three cases.

[24]   Ms Hogan reiterates that the appellant’s role in the offending was “lesser”. The motive for offending appeared to be recovery of a debt owed to a connection of the co-offender. It was the co-offender making demands and stealing money. The appellant had only recently met her and was threatened by her to make him accompany her in the offending. The appellant’s motivation was to make some money. He was vulnerable at the time of the offending due to permanent cognitive and neurological damage to his brain, low mental health and methamphetamine use. Ms Hogan says that the importance of role has been emphasised by the Court of Appeal in Zhang.15

[25]   Ms Hogan further submits that the sentencing Judge gave an insufficient discount for mitigating factors. In particular, she says that insufficient weight was given to the appellant’s remorse after the offending, his rehabilitative efforts, and the factors in the s 27 report, particularly his addiction. She contends these warrant a discount of over 30 per cent rather than the 20 per cent in fact allowed.

[26]   The appropriate end sentence for the appellant is contended to be home detention, to be served via placement in the He Waka Tapu treatment programme.

Crown submissions

[27]   The Crown opposes the appeal. Ms So says the starting point of six years’ imprisonment was within the available range. She emphasises that home invasion is an aggravating factor in aggravated burglary cases. Wairea v R is relied on in support of the starting point.16 Ms So disputes the relevance of the cases to which Ms Hogan refers. She also submits the sentencing Judge was correct not to lower the sentence on the basis the victims were known to the appellant and had gang connections.

13     Paula Rio v Police, above n 5.

14     Tereora v R, above n 6.

15     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

16     Wairea v R [2012] NZCA 423.

[28]   Ms So contends that the discounts given to the appellant for his remorse, rehabilitation efforts and personal background were adequate. She argues that although the appellant has presented as remorseful, he also does not fully accept responsibility for his offending. Regarding the appellant’s rehabilitative efforts, she says these should be contextualised by his relapse prior to his sentencing causing his mother to withdraw her consent to EM bail.

[29]   Ms So accepts that the appellant’s health factors played a causative role but submits that his addiction has a low causative link to the offending. The appellant himself had said that he took part in the robbery because he was scared of the consequences of not following his co-offender’s orders, not because of his drug addiction.

[30]   Ms So says the comments made by Judge Mabey at the arraignment hearing were made without considering Mako and the appellant had not relapsed at that time. The s 27 report was also not available at the time. She submits that Judge Mabey’s statements should therefore be limited to the application of s 13 of the Bail Act 2000.

Discussion

Starting point

[31]   The starting point is Mako. I note the spectrum of aggravated robbery scenarios that the Court of Appeal outlined:

[56] 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. 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.

…

[58]      Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting

point would be increased under the home invasion provisions to around ten years.

[59]      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 is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

[32]   While the Judge clearly focused on the example at [58] of Mako, the present case is different in a number of respects and has a very different flavour. There was no forced entry, the incident occurred at 5.00 pm in the early evening (according to counsel) there were only two offenders, there was no violence by either, there was one weapon and no injury.

[33]   Also relevant to [58] in Mako is that while home invasion is still an aggravating factor under s 9(1)(b) of the Sentencing Act 2000, the higher maximum penalties for home invasion have since been repealed.

[34]   I agree with the Judge that the fact the two victims knew the appellant (referring to him as Woody) and the victims’ involvement with gangs does not make the appellant less culpable. These are not factors arising out of Mako. However, the level of fear of the victims is relevant to the seriousness of the offending. My reading of the victim impact statements is that the male was not very fearful. He does not refer to any such feeling in a long written account. The female victim says she was really scared and worried as the co-offender walked around the house and grabbed things and it was hard to pay attention to what the co-offender was taking. There is no sense of long-term trauma from her account.

[35]I note and agree with Ms Hogan’s emphasis on paragraph [60] of Mako:

[60] The illustrations given are intended for guidance and should minimise the need to trawl through large numbers of previous sentencing decisions seeking those in which the offending appears similar. The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then to select a starting point. That can be related to the examples given. They are not intended to prescribe the starting point for any case but are to inform the assessment the sentencer is required to make.

[36]   In Crawford, the facts were arguably worse than the present, yet a starting sentence of four years six months’ imprisonment was fixed and upheld.17 It was not a home invasion as the offenders had been invited into the victim’s room in a boarding house, but the Court said that made no difference as there was nonetheless a breach of trust. There were two offenders. Mr Crawford pushed the victim onto his bed and the other held a steak knife to his throat, the knife being in the victim’s room. The offenders took cash and  an  EFTPOS  card  but  could  not  withdraw  money,  so  Mr Crawford returned. He struck the victim on the head, knocked him to the ground, kicked him and stomped on his nose with his foot. He and the co-offender then led the victim across the road to the EFTPOS machine in order to get access to the victim’s bank account. While Mr Crawford did not use a weapon (and the weapon used in the present case was more serious), he inflicted serious violence and caused injury to the victim. Mr Crawford was also directly involved in two separate attacks on the victim, which would have been more terrifying. Overall, I do not consider Mr Crawford’s culpability to be lower than that of the appellant.

[37]Judge Thomas incorrectly described the starting points in Paula Rio v Police.

18 In fact all three defendants had a starting point of four and a half years, uplifted to five years for a second offence. Ms Fiona Rio, Ms Paula Rio and Mr Dallas Rio went to an address on two occasions looking for a male person. Dallas was armed with a steel pipe during both. On the first occasion, Fiona punched the victim (whom she had punched the previous day) about half a dozen times. Paula assisted with the search for the person they were trying to locate. On the second occasion, the seventeen-year- old son of the first victim was there. Fiona asked where his mother was. When he did not tell her, she punched him twice. The three defendants were sentenced together in the District Court. As noted above, a starting point of four years and six months was imposed for the first incident in respect of all three. This was uplifted by six months for the second incident. Paula Rio and Dallas Rio appealed. In two separate judgments in the High Court, White J upheld the starting points for both appellants.19 He noted that they did not instigate the offending, but considered that Paula did participate in

17     R v Crawford, above n 12.

18     Rio v Police, above n 5; and see also Dallas Rio v Police HC New Plymouth CRI-2011-443-033, 26 August 2011.

19     Paula Rio v Police, above n 5, at [25]–[27]; and Dallas Rio v Police, above n 19, at [21]–[23].

the offending and Dallas did hold the weapon. He said that a starting point of over five years for the two charges of aggravated burglary would have been within range.

[38]   Viewed overall and taking into account the appellant’s role in this case,20 I consider the appellant has a similar or slightly lower level of culpability than Dallas Rio. Although the appellant held a gun rather than a pipe, the offending that he participated in is less serious. He was acting under pressure and played a lesser role as a “foot soldier”. He entered the house with one other person rather than two. There was less of a power imbalance because there were also two people in the house (and on one account there were three). No injury was caused by either offender. The offending only occurred once.

[39]   Tereora and Wairea v R, the latter having been referred to by the Crown, both involved more serious offending or, in the case of Wairea, quite different facts. In any event, I acknowledge there is a range of potential sentences in cases like this.

[40]   With reference to Crawford and Rio, I consider the starting point should or could have been five years’ imprisonment. The District Court Judge was correct that a shotgun is a particularly dangerous weapon to bring to an aggravated robbery. Had something happened, the presence of a shotgun could cause the consequences to be more serious. That is clearly relevant. But in fact the shotgun was not discharged, there was no violence and no one was injured. Further, I consider the appellant’s much lesser role to be material. Overall, despite the presence of the gun, my assessment is that the offending would have been less frightening and less serious than the other cases I have reviewed.

[41]   One of the principles of sentencing is to ensure consistency across cases for fairness.21 That is particularly applicable in setting the starting point here given the striking contrast between the actual sentence and the tentative assessment for purposes of bail. Indeed, Judge Thomas clearly intended to award the lowest sentence possible22 but, in my view, did not do so. I consider he was too hidebound by the example given

20     Zhang v R, above n 15, at [118].

21     Sentencing Act 2000, s 8(e).

22     R v Thomas, above n 2, at [11] and [15].

in Mako at [58]. As noted, that example is materially different to the present facts and has to some degree been altered by the change in penalty for home invasion.23 More emphasis should be placed on similar cases. The Judge talked of Rio not being “authority” for the starting point, but it and Crawford were not put forward as authorities, rather as broadly comparable cases for purposes of consistency and fairness. Further, Crawford is a decision of the Court of Appeal some nine years after Mako.

[42]   For the above reasons, I consider an appropriate starting point would be five years.

[43]   The six-month uplift for personal aggravating circumstances was not contested and there is no real basis for interfering with that.

Discount for s 27 factors, remorse and rehabilitation

[44]   In relation to discounts for the appellant’s personal background and noting the actual discount was 20 per cent, I nonetheless consider he should have received a higher discount for s 27 factors, remorse and rehabilitative efforts. In my view, a discount of 25 per cent for these factors is more appropriate.

[45]   The s 27 report records that the appellant came to New Zealand with his mother from the United States when he was nine years old. He identifies as an indigenous American and after moving to New Zealand, identified with the indigenous culture here.

[46]   At the age of 12, the appellant suffered a traumatic brain injury after being hit by a car when cycling. As a result, he suffered permanent cognitive and neurological damage to his brain. He spent some time in hospital and rehabilitation. Afterwards  he lost interest in school, obviously became troublesome, and according to his self- report, was asked to leave after less than two years at secondary level. In the report writer’s opinion, the appellant likely also suffers from ADHD. These factors are barriers to navigating the complex social well-being system. He has had difficulty

23     Tiori v R [2011] NZCA 355 at [16].

finding stable housing which in turn makes it difficult to maintain employment. Gangs gave him a place to sleep, and shower. He was assaulted by members of the gang while staying there. He also became addicted to methamphetamine as he found it “normalises and calms” him. The report writer noted this is consistent with likely ADHD. Gangs also introduced the appellant to criminal ways of making money.

[47]   The appellant told the report writer that his co-offender intimidated him with a shotgun and threats of violence from gang members unless he agreed to participate in the robbery with her. As he had been beaten by gang members in the past, he was anxious about the threats. The report writer noted that the appellant’s inherent impulsivity and mildly impaired cognition may have made him vulnerable to manipulation and prone to acting hastily.

[48]   As the Crown accepts, the appellant’s personal background and his neurological disability are likely to be causative factors in his offending. The appellant’s methamphetamine addiction played a smaller part in this offending, but I accept it also had some causative role.

[49]   The appellant is apologetic towards the victims of his offending. He messaged one of the victims shortly after the offending, saying he was sorry and that he had felt threatened. The appellant has written a letter of apology to the Court.  He said to the s 27 report writer that he regrets his offending: “it’s the worst decision I ever made to help her [his co-offender]. I wish I hadn’t done it. I know it was bad because I have been doing time for it ever since.”

[50]   In my view, the appellant has shown real remorse for his role in the offending. While, as the Crown argues, this obviously includes regret and sorrow for himself, I accept his remorse for the victims is genuine, based on his letter and his message. A Court should not over-analyse the language used by people in the appellant’s position.

[51]   On my reading of the Judge’s sentencing notes, no discount was given at all for remorse, nor could that be said to be reflected in the 10 per cent guilty plea allowance. A discount should be allowed.

[52]   The appellant has also undertaken drug rehabilitation courses while on EM bail at his mother’s house. He relapsed, causing her to rescind her consent, and he was recalled to prison. But I accept he is genuinely motivated to address his addiction and that he did so for a time. He has since sought and was granted a place at He Waka Tapu in the event he was eligible for home detention.

[53]   In recognition of the s 27 factors, remorse and rehabilitation, I would allow a 25 per cent discount.

[54]   This brings the total discount (including guilty plea and time on bail) to 45 per cent and the final sentence to 39 months, or three years and three months’ imprisonment. It follows that the sentence given of four years’ imprisonment was manifestly unjust.

Result

[55]The appeal is allowed.

[56]   The sentence imposed in the District Court is quashed and a sentence of three years and three months’ imprisonment is substituted.

[57]I thank counsel for their very helpful submissions.

Hinton J