Travis v Police

[2017] NZHC 1607

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-470-000026 [2017] NZHC 1607

BETWEEN

TONI TRAVIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 October 2017
Appearances:	Bill Nabney for the Appellant Ashley Shore for the Respondent
Judgment:	31 October 2017

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 31 October 2017 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

TRAVIS v NEW ZEALAND POLICE [2017] NZHC 1607 [31 October 2017]

Introduction

[1]      Toni Travis  appeals  the  sentence of  two  and  a  half  years’ imprisonment imposed by Judge I D R Cameron in the District Court at Tauranga on a charge of aggravated robbery.1

[2]      Ms Travis was charged as a party to the aggravated robbery of a general store in Whangamata. Although she did not enter the shop it was accepted she was involved in the planning and acted as the getaway driver.

[3]      Mr Nabney, for Ms Travis, submits that adopting the same starting point as the other offender of four years was excessive.  Furthermore, he submits that insufficient recognition was given for youth, remorse and previous good character.  Mr Nabney submits that had sufficient and proper allowance been given to these mitigating factors an end sentence of 19 months would have been appropriate, thereby bringing Ms Travis within the jurisdiction of home detention.

The offending

[4]      The Crown’s summary of facts reveals the following.

[5]      Ms Travis and her co-defendant, Mr Ratahi, lived in Auckland.  Both were unemployed.  Ms Travis’ mother lives in Whangamata.

[6]      On 29 November 2016 Ms Travis and Mr Ratahi travelled to Whangamata to stay with Ms Travis’ mother.

[7]      Two days later on the afternoon of 1 December 2016 the couple borrowed

Ms Travis’ mother’s car telling her they were going to visit friends in Whangamata. Before they left, Mr Ratahi picked up an axe from the house.   He was wearing a number  of  jackets  and  hoodies  which,  combined  with  sunglasses,  operated  to

effectively disguise his appearance.

1      R v Travis [2017] NZDC 14751.

[8]      The couple drove into town and parked a block away from the general store.

Mr Ratahi, with the axe hidden under his clothing, walked to the store while Ms Travis remained sitting in the driver’s seat of the car.

[9]      As he approached the store a member of the public saw him acting suspiciously and followed him towards the store.

[10]     Once inside the store Mr Ratahi pulled out the axe and walked up to the counter where the two shop assistants were working. There was no one else in the shop.

[11]     Mr Ratahi pointed the axe at the two men and demanded they open the till. They complied. He stuffed approximately $300 in cash into his pockets and turned to leave.

[12]     The member of the public who had seen Mr Ratahi enter the shop realised what was happening and yelled out.  Mr Ratahi saw this while he was still inside.  The member of the public positioned himself in the doorway and attempted to stop

Mr Ratahi from leaving but when he opened his jacket and revealed the axe, he stepped aside.

[13]     Mr Ratahi ran from the store pursued by the member of the public.  He ran to the car, jumped in and Ms Travis drove away at speed.

[14]     Victim impact statements filed by the two shop staff and the member of the public unsurprisingly reveal that all three men have been emotionally affected, to a greater or lesser extent. The member of the public had to take time off work and will probably require some psychological support and/or counselling.

District Court judgment

[15]     After a comprehensive review of the facts his Honour noted that Ms Travis, at the age of 19, had no criminal history.  To the Probation Officer she had confirmed that the offending had been planned and, according to the author of the report, she expressed no remorse and did not demonstrate any insight into her offending, no doubt leading to the Probation Officer assessing her as being at medium risk of re-offending.

[16]     His Honour referred to the body of material filed in support of Ms Travis, including full letters of apology.   He also noted that she was prepared to undergo restorative justice but that none of the victims wished to participate.

[17]     Judge Cameron referred to R v Mako2 and concluded that having regard to the various aggravating factors which included the level of pre-meditation, the nature of the weapon, the disguise and Ms Travis’ role as getaway driver the offending fell into the Mako category involving robberies of small retail shops where a small quantity of cash was stolen. The Court of Appeal identified four years as the appropriate starting point for offending of that sort.3

[18]     His Honour adopted four years as the appropriate starting point for Mr Ratahi’s offending.  The Judge determined that there was no good reason to treat Ms Travis differently having regard to the comments of the Court in Mako,4 particularly given Ms Travis’ full participation in the planning, the provision of the vehicle and her role as a getaway driver.  In that sense she was not a secondary party.

[19]     Judge Cameron reduced  the starting point by 20 per cent on  account  of

Ms Travis’  youth,  lack  of  previous  convictions,  previous  good  character  and expressions of remorse. He also applied a further discrete 20 per cent discount for the guilty plea recognising that it did not come at the earliest opportunity.

[20]     This brought the end sentence to one of 30 months or two and a half years’

imprisonment.

Approach on appeal

[21]     Section 250 of the Criminal Procedure Act 2011 applies.   Pursuant to that provision the Court must allow the appeal if it is satisfied that:

(a)       for any reason there was an error in the sentence imposed on conviction;

and

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

3 At [56].

4 At [64].

(b)      a different sentence should be imposed.

[22]     In any other case the Court must dismiss the appeal.5   This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: 6

(a)      There must be an error vitiating the lower Court’s original sentencing discretion:  the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[23]     This Court will not intervene where the sentence is within the range that can be properly justified.

Defence submissions

[24]   Mr Nabney submits that Judge Cameron should have distinguished the respective roles of Mr Ratahi and Ms Travis.  He submits that as the getaway driver,

Ms Travis assumed a secondary role.  In making that submission Mr Nabney refers to the Court of Appeal’s decision in R v Marsters where the distinction between the principal and the getaway driver was acknowledged at sentencing.7   He observes that Ms Travis remained in the car while Mr Ratahi committed the offence, she was not disguised and was considerably younger than her co-defendant.8    He submits that a starting point of three years’ imprisonment would have been appropriate to reflect those differences given that there was no evidence she was involved in the planning,

or was aware of how Mr Ratahi would behave in the course of the robbery.

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

6      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].

7      R v Marsters CA474/99, 16 December 1999.

8      Mr Nabney believed Mr Ratahi was aged 27 years as compared to Ms Travis’ 19 years.

[25]     Mr Nabney also submits that the 20 per cent global discount in recognition of youth,  remorse  and  previous  good  character  was  insufficient.    He  submits  that

Ms Travis, as a relatively young woman, has good prospects for rehabilitation and that having regard to various letters of support, including former employers as well her positive performance in two courses she has undertaken whilst in prison, a 30 per cent discount should have been given which, when added to a full 25 per cent discount for her early plea, would have brought the end sentence within the jurisdiction for a community-based sentence.

Analysis

[26]     For the purposes of the decision I shall separately deal with Mr Nabney’s two principal submissions, namely whether the sentencing Judge should have drawn a distinction between Mr Ratahi’s offending and that of Ms Travis and, secondly, whether sufficient recognition was given to her youth, previous good character and remorse.  In his written submissions Mr Nabney also submitted that the full 25 per cent for the guilty plea should have been given, although for reasons which follow later in this judgment he accepted in oral argument that the 20 per cent allowed was appropriate.

Should Ms Travis’ offending have been treated differently from her co-defendant?

[27]     The starting point in this analysis is the comments of the Court of Appeal in Mako.  It is instructive to repeat the observations of that Court and thus the context in which Judge Cameron’s observations must be viewed.

[28]     In Mako, the Court said:

“[35]    Bearing in mind that the sentencing discretion extends across the range from non-custodial sentences to the maximum of imprisonment for 14 years … the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of judgement calling for the careful exercise of the sentencing discretion. Features of the offending requiring assessment cannot be exhaustively listed. But some of those generally to be taken into account can be mentioned, if only to emphasise their variability.”

[29]     The Court then went on to identify the relevant factors including the degree of planning and preparation, the number of participants, the use of disguises (hoods and

other adornments), the types of weapon and how they were brandished, the target premises, the presence or otherwise of members of the public, the extent of violence or threats of violence, the nature of the property stolen and the extent of recovery and victim impact.

[30]     Within those variables the Court went on to consider particular scenarios including the robbery of small retail premises. The Court observed:

“[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 the threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a look out or an accomplice waiting to facilitate getaway. The shop keeper 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. …”

[31]	The Court also commented:9
“The vulnerability of small business operators and the frequency with which they are targeted gives rise to the need for deterrence.”
[32]	The  parallels  with  the  index  offending  are  immediately  obvious.	That

Ms Travis’ role  did  not  extend  to  committing  the  physical  acts  which  are  the ingredients of the actus reus of the charge of aggravated robbery does not necessarily lessen her culpability as a co-defendant. This issue, too, was considered by the Court of Appeal in Mako:

“[64]    As this Court made clear in Smart there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants.  The look out, the getaway driver, may in fact be the ringleader.”

[33]    I agree with Judge Cameron that in the present case there is no sound justification to treat Ms Travis’ level of participation and involvement as materially different from that of Mr Ratahi.  My reasons follow.

[34]     First, it was Ms Travis who had the connection with Whangamata and not

Mr Ratahi.

[35]     Second, the vehicle used to facilitate the offending belonged to Ms Travis’

mother. Access to and the availability of a vehicle was a central aspect of the plan.

[36]     Third, the axe came from Ms Travis’ mother’s home.

[37]     Fourth, Ms Travis collaborated with Mr Ratahi in planning the robbery.

[38]     Fifth, before leaving the house Mr Ratahi disguised himself. Ms Travis would have known of this as well as his possession of the axe. Indeed, knowledge of the axe is implicit in Ms Travis’ plea of guilty to aggravated robbery.

[39]     Sixth, together Ms Travis and Mr Ratahi travelled to an area a short distance from the target address.  Ms Travis was the driver.  Ms Travis saw Mr Ratahi get out of the car with the axe and head towards the shop.   She would have known the likelihood of the shop being tended by shop assistants and the distinct possibility that members of the public might also have been present.

[40]     Seventh, when Mr Ratahi was chased from the shop, Ms Travis remained behind the wheel and drove off at speed.

[41]     Finally, Ms Travis would have known that those within the shop, and possibly others, would have been exposed to the real potential of physical injury and, inevitably, emotional trauma as the victim impact statements later confirmed.

[42]     Considering these factors in combination it cannot be seriously argued that Ms Travis played a secondary role such that her culpability should be assessed as materially less serious than Mr Ratahi’s. Plainly she had a role in the planning and the fact that the offending took place in a town where she, unlike Mr Ratahi, had a connection elevates her role in the planning.

[43]     For that reason I agree with Judge Cameron when, referring to Mako and the culpability of getaway drivers he said:10

“In my view this defendant was a full participant.  She took an active part in the planning of the robbery by arranging the vehicle and arranging to be the getaway driver.  She knew her co-offender was in effect wearing a disguise. She knew her role was to act in taking this co-offender to the target premises and then speeding away with him after the robbery was committed and that is precisely what she did do. She is equally culpable in respect of the offending and was not a secondary party.”

[44]      For these reasons I am satisfied that the Judge’s starting point of four years’

imprisonment was entirely correct.

Did the Judge give sufficient credit to the mitigating factors personal to Ms Travis?

[45]     The next question is whether the Judge gave sufficient credit for the other factors  of  youth,  previous  good  conduct  and  remorse,  and  the  plea  of  guilty.

Mr Nabney submits that the 20 per cent discount given for youth, previous good character and remorse was insufficient.  I shall deal with each of the factors advanced by Mr Nabney in turn.

(a)      Youth

[46]    Depending on the circumstances, which include the defendant’s age, the circumstances of the offending and their previous history, youth discounts may be substantial.  However, the age of the defendant is but one factor to be assessed.

[47]     Mr Nabney cites R v Churchward where the Court of Appeal accepted that young people are more vulnerable or susceptible to negative influences and outside pressures resulting in them having difficulty regulating their behaviour and impulses.

11  An offender may, on account of youth and immaturity, not appreciate the full gravity

of the offence while at the same time knowing that it is wrong.12   Churchward is also authority for the proposition that young people have greater capacity for rehabilitation giving rise to the hope that their criminal behaviour has not become so entrenched that

they would not respond to rehabilitation.13

11     R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446. See too R v Slade [2005] 2 NZLR 526, (2005) 21 CRNZ 600 (CA) at [43].

12     R v Accused (CA265/88) [1989] 1 NZLR 643, (1988) 4 CRNZ 36 (CA) at 655, 48; R v Alletson

[2009] NZCA 205 at [66]; Overton v R [2011] NZCA 648.

13     R v Churchward above n 11.

[48]     However, youth will not always justify leniency.  The extent to which it may be factored into the sentencing process will be informed by an objective assessment of the seriousness of the offending, previous offending and the safety of the community.

[49]     Ms Shore, for the Crown, accepts that Ms Travis, as a young offender with no previous criminal offending, was entitled to a discount. However, as I understand her submission, it is that within the global 20 per cent, having regard to the other factors of mitigation, the allowance given by Judge Cameron was entirely proper.  For that reason it is necessary to consider the other factors of remorse and previous good character which were also included in the 20 per cent discount.

(b)      Remorse

[50]     While remorse is a factor which may be taken into account beyond that implicit in a plea of guilty, it is generally not given a separate or discrete credit unless, on a robust assessment of the case, the sentencing Judge finds that genuine remorse is demonstrated justifying a discrete credit.14    Here Ms Travis received a 20 per cent discount for her plea of guilty.  For reasons which follow I regard that discount as generous.  It could have been lower.

[51]     It is correct that at sentence the Judge received a letter from Ms Travis in which she accepted that she was “partly responsible for what happened” but explained that by reason of the dominating and threatening behaviour of her co-defendant she felt unable to resist his directions to become involved. In another letter she expressed deep regret for what she had done and apologised to those who had been affected by her offending.  Other letters of support and reference described Ms Travis as “somewhat strong headed” but who was truly remorseful for her actions.

[52]     The pre-sentence report, however, paints a different picture.  Recommending a term of imprisonment, the report writer observed that Ms Travis expressed no remorse or insight into her offending and was assessed, despite her lack of previous

convictions, as being at medium risk of re-offending.

14     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

[53]     Plainly, this is not a case where a separate and discrete discount for remorse was justified.

(c)      Previous good character

[54]     Judge Cameron expressly stated that within the 20 per cent discount before the guilty plea discount was applied, he had included a credit for Ms Travis’ previous good character. Since I have rejected a separate discount for remorse the question is whether the global 20 per cent discount was sufficient to recognise both Ms Travis’ youth and her previous good character.

[55]     Ms Shore refers to Rana v R where a discount of seven and a half per cent was allowed because the offender could demonstrate nothing positive other than an absence of previous convictions.15   In that case the offender demonstrated no sincere remorse and was assessed as being at high risk of re-offending.  There are parallels between the present case and Rana.  Mr Nabney submits in the present case, even if a seven and a half per cent discount was applied, this leaves only a 12.5 per cent discount for youth which, in his submission, is plainly inadequate.

[56]     I do not accept this submission.  In R v Hall the Court of Appeal considered the discounts available to a 19 year-old offender on account of youth.16   The Court referred to other Court of Appeal decisions which endorsed discounts for offenders of a comparable age of around 10 to 15 per cent.17   The discount given in this case falls within that range.  The Court also observed that 19 is at the upper end of what might be considered youthful.18

[57]     In my view, while it would have been open to the Judge to have given greater credit for previous good character, I am not satisfied that when combined with the

youth discount a 20 per cent allowance was wrong in principle.

15     Rana v R [2014] NZCA 468.

16     R v Hall [2012] NZCA 518 at [27].

17     R v Jamieson [2009] NZCA 555; Brook v R [2010] NZCA 13; Day v R [2010] NZCA 172.

18     R v Hall, above n 16, at [25].

(d)      Credit for guilty plea

[58]     Judge Cameron gave a 20 per cent discount on account of Ms Travis’ plea of guilty, observing that it did not come at the earliest opportunity.  Ms Shore helpfully set out the circumstances which led to Ms Travis’ plea of guilty which show that she first appeared on 14 December 2016 and pleaded not guilty two days later.  The case review hearing was on 21 March 2017 with trial callover on 27 April 2017. Ms Travis pleaded guilty on 1 June 2017.   While it is apparent that there were discussions between the Crown and Ms Travis’ then counsel from February 2017 it would appear that it was not until at least mid-May that Ms Travis indicated a willingness to plead guilty following the Crown’s indication it would submit a 20 per cent discount was appropriate.

[59]     It thus follows that the 20 per cent discount was not only agreed between counsel but was, in all the circumstances, a reasonably generous discount given the six and a half month delay between Ms Travis’ first appearance and her entry of a plea of guilty.

[60]     For these reasons it cannot be said that insufficient credit was given to this factor.

Summary

[61]     It thus follows I am not satisfied that Judge Cameron erred at any point in the exercise of his sentencing discretion.  However, even if the Judge did so err I am not satisfied that a different sentence should be imposed.

Result

[62]     The appeal is dismissed.

Moore J

Solicitors:
Mr Nabney, Tauranga

Crown Solicitor, Tauranga