Williams v The Queen
[2020] NZHC 3104
•24 November 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-000043
CRI-2020-488-000044 [2020] NZHC 3104
BETWEEN CORNELL WILLIAMS
Appellant
AND
THE QUEEN
Respondent
Hearing: 18 November 2020 Appearances:
N S Leader for Appellant
R Annandale for Respondent
Judgment:
24 November 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 24 November 2020 at 3.00pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
N S Leader, Auckland
Crown Solicitor, Whangarei
WILLIAMS v R [2020] NZHC 3104 [24 November 2020]
Introduction
[1]On 8 July 2020, the appellant, Cornell Williams, pleaded guilty to two charges
– one of aggravated robbery and the other of attempted aggravated robbery. On 6 August 2020, Mr Williams pleaded guilty to two additional charges – possession of cannabis and being unlawfully in an enclosed yard. He was sentenced by Judge McDonald in the Whangārei District Court on all four charges on 10 September 2020 to five years’ imprisonment.1
[2] Mr Williams appeals the sentence imposed. He argues that the starting point adopted by the Judge was too high and that the Judge did not allow him sufficient discounts for his youth and his background as apparent from a cultural report prepared under s 27 of the Sentencing Act 2002 and a psychiatric report. As a result, he says the sentence imposed was manifestly excessive.
[3] The Crown opposes the appeal, arguing that the end sentence was not manifestly excessive; rather it was within the available range for Mr Williams’ offending.
Relevant facts
[4] On the evening of 23 May 2019, Mr Williams – then aged 18 – and four other co- offenders were drinking at an address in Otangarei. One of Mr Williams’ co- offenders suggested that they should rob a liquor store. The group then drove to a location close to a retail liquor store in Tikipunga. They disguised themselves and then ran from an alleyway towards the front doors of the liquor store. The doors were closed. They could only be opened manually from inside the store. One member of the group tried unsuccessfully to open the doors. Frustrated, the group then ran back to the vehicle and fled the scene. They stopped outside a residential property, where two members of the group (but not Mr Williams) pulled two fence palings from a picket fence and placed them in their vehicle. The group then drove to the Kamo area, driving slowly past another retail liquor store located in that suburb. They parked in a dead-end street nearby.
1 R v Williams [2020] NZDC 18622.
[5] Mr Williams with three others, approached and entered the Kamo liquor store. It was approximately 7.45pm. All four had disguised their faces and covered their hands. Two of Mr Williams’ co-offenders led the group. Those co-offenders had armed themselves with the fence palings. One of the co-offenders entered the store, threatening a customer who was then leaving; he raised the fence paling over his head, gesturing that he was about to strike the customer and advancing towards him. Another of the co-offenders used his fence paling to hit an employee who was working in the liquor store. The blow was to the head. The employee fell to the floor and covered his head to try and defend himself. Mr Williams then entered the store. He jumped over the counter, grabbed numerous packets of cigarettes from a storage shelf and put them into a bag that he had brought with him for that purpose. The fourth co- offender then entered the store and grabbed a number of bottles of alcohol. One of Mr Williams’ co-offenders then approached a female employee, who was hiding under a desk. He threatened her and tried to get her to tell him where the money was. She replied that she had no access to the store’s takings. All offenders, including Mr Williams, then left. They ran across the road and through a neighbouring property to their waiting vehicle which was being driven by a fifth co-offender.
[6] The employee struck with the fence paling suffered a cut to his left cheek. He was taken by ambulance to Whangārei Hospital where he underwent a precautionary X-ray. He was initially monitored for a head injury. He suffered bruising, swelling and pain to the face from the injury.
[7]In total, the stock taken from the Kamo liquor store had a total value of
$1,863.35.
[8] When he was subsequently spoken to by the police, Mr Williams admitted his role in the offending. He offered no explanation for his actions.
[9] Mr Williams was arrested on 18 June 2019. He pleaded not guilty to all charges he then faced on 19 July 2019. He was granted electronically monitored bail at a case review hearing on 11 September 2019. On 14 October 2019, he cut off his electronically monitored bracelet and absconded.
[10] On 10 April 2020, the police attempted to stop a vehicle being driven in the Otangarei area, near Whangārei. The vehicle failed to stop and a pursuit followed. The driver managed to evade the police who were pursuing him but was observed by another police unit pulling into a residential address in Tikipunga. An officer from the second police unit approached the vehicle. Mr Williams was the driver. When the officer tried to speak to him, he ran off on foot. He was tracked by a dog unit and found hiding on the roof of a house. He was lying top of a wallet, containing 1.37 grams of cannabis. The owners of the house told the police that Mr Williams was not known to them and that he did not have their authority to be on their roof. When he was spoken to by the police, Mr Williams denied being involved in the pursuit and said that he had no knowledge of the cannabis. He said that he had climbed onto the roof to have a sleep.
[11]Mr Williams was rearrested and he was remanded in custody.
[12] As noted, on 8 July 2020, Mr Williams pleaded guilty to two of the aggravated robbery charges laid against him. The police offered no evidence on other charges and he was discharged on those charges under s 147 of the Criminal Procedure Act 2011. He then entered guilty pleas to the cannabis offending and to the charge of being unlawfully in an enclosed yard (the roof).
District Court sentencing notes
[13] Judge McDonald recited the relevant purposes and principles of sentencing. He treated the aggravated robbery as the lead offence and considered that the starting point for Mr Williams’ offending should be set by reference to the guideline judgment of the Court of Appeal in R v Mako.2 He noted that there were a number of aggravating factors to the offending. He identified the following:
(a)Planning and pre-meditation. The Judge commented that Mr Williams and his four co-offenders had decided that they were going to commit an aggravated robbery. They had a vehicle for that purpose; each selected what task they would carry out – one a getaway driver, one the primary enforcer, Mr Williams to get the cigarettes and another to get
2 R v Mako [2000] 2 NZLR 170 (CA).
the liquor. He noted that after the attempted aggravated robbery, they went on to the next target, first driving past the Kamo premises to “case the joint”.
(b)Four offenders entered the liquor store.
(c)Disguises were used – hoodies, bandanas and gloves.
(d)Weapons were used – the fence palings.
(e)The business targeted was a retail liquor store.
(f)There were members of the public present at the time of the offending. This would have been known to Mr Williams and his co-offenders. A member of the public was threatened.
(g)Violence was used. An employee was struck in the head with a fence paling.
(h)The serious effect on the victims.
[14] The Judge considered that this was a “serious culmination of factors”, and that a starting point of seven and a half years’ imprisonment was appropriate for the lead offence. He considered that a starting point of two and a half years would ordinarily be appropriate for the attempted aggravated robbery, but taking into account totality, and looking at Mr Williams’ overall culpability, the Judge considered that a start point for both the aggravated robbery and for the attempted aggravated robbery of seven and a half years was appropriate. He did not impose any uplift for the two more minor offences.
[15]The Judge then turned to look at factors personal to Mr Williams:
(a)Mr Williams has a number of notations in the Youth Court for burglary, unlawful taking and other dishonesty related offending. The Judge did not consider that these notations required an uplift. Rather, he observed that Mr Williams did not come before the Court as a first offender, commenting that he had “in effect graduated from the Youth Court”.
(b)The Judge allowed Mr Williams a 15 per cent discount for his guilty pleas, noting that they were not entered at the first opportunity and that they only came after Mr Williams had been granted bail, absconded and then re-arrested.
(c)The Judge then turned to consider Mr Williams’ relative youth, noting that he was 18 at the time of the offending. The Judge referred to R v Churchward.3 He commented:
It is now well accepted that a discount for youth is given because often young people behave in an impulsive way, they do not think about the consequences. That is not your case because you had planned these robberies, this robbery and this attempted robbery.
The Judge did not consider that Mr Williams was vulnerable to pressure, commenting that he was “mature and streetwise”. The Judge considered that a five per cent discount for youth was appropriate, noting that Mr Williams’ capacity for rehabilitation was limited, given his past Youth Court matters.
(d)The Judge then turned to the cultural report obtained under s 27 of the Sentencing Act and to the psychiatric report which had been obtained. He accepted that Mr Williams was raised in a deprived area, but commented that “not every young person raised in that suburb becomes a violent aggravated robber, in fact, very, very few do”. The Judge also accepted that Mr Williams had suffered violence in the home as a child, and that he had received a poor education. He noted that Mr Williams has resorted to drug use, relying on alcohol, cannabis and methamphetamine. The Judge accepted that there was nexus between Mr Williams’ upbringing and his offending, but commented “… there is always two sides to the scales of justice, it is not all about you. Giving you huge discounts will enable you to just go about your life, not having a care for the victims you have offended against”. The Judge referred to the psychiatric report, noting that Mr Williams suffers from dyslexia and that he is unable to read or write. He also noted that the
3 R v Churchward CA439/05, 2 March 2006.
psychiatrist did not consider that Mr Williams suffers from any psychotic or mental health disorder. The Judge allowed a further discount to Mr Williams of 10 per cent for these various cultural factors.
[16] The Judge sentenced Mr Williams to four years and three months’ imprisonment for the aggravated robbery and to nine months’ imprisonment for the attempted aggravated robbery. He directed that both terms were to be served on a cumulative basis. On the other more minor matters, he sentenced Mr Williams to one months’ imprisonment on each, to be served concurrently. The end sentence was thus five years’ imprisonment.
The appeal
[17] The appeal is brought pursuant to s 244 of the Criminal Procedure Act. Section 250(2) provides that this Court, as the first appeal Court, must allow the appeal if it is satisfied that:
(a)for any reason there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[18] If there is an error, this Court must then form its own view of the appropriate sentence. The Court considers whether any error is material. Although the statutory provisions make no reference to the concept of a manifestly excessive (or inadequate sentence), those concepts are of long standing, and they continue to be used. The focus on sentence appeals remains very much on whether the sentence imposed is within range, rather than the process by which the end sentence was reached.4 In any other case, the Court must dismiss the appeal.
4 Tutakangahau v R [2014] NZCA 279 at [30], [32]-[35] and [36].
Submissions
Appellant’s submissions
[19] Mr Leader, for Mr Williams, submitted that the Judge overstated the seriousness of the offending. He accepted that there were two separate events and that each co-offender had a role, but argued that the aggravated robbery and attempted aggravated robbery were impulsive rather than planned. He acknowledged that violence occurred, but submitted the resulting injury was at the lower end of the scale. He observed that the property taken was of relatively low value and that the potential gain was limited. He referred to Anderson v R5 when a seven year starting point was adopted for an aggravated robbery. In that case, the two offenders wore balaclavas and latex gloves. One carried a cut down .22 calibre rifle and the other a screwdriver and pair of scissors. They broke into the Warehouse. They escorted four staff at gunpoint to the toilets and tied them up, threatening them if they did not comply with instructions. They directed the supervisor at gunpoint to the location where the takings were held, and got her to place $269,000 in cash, cheques and jewellery in a bag. They then bound her hands using tape and left her with the other victims. Mr Anderson appeared in the District Court where a nine-year starting point was adopted. His co- offender appeared in the High Court where a seven year starting point was adopted. Mr Anderson appealed. In the Court of Appeal, the lower starting point was considered more appropriate. The Court noted that Mr Anderson played a lesser role than his co-offender. No actual violence was employed and neither offender had gang connections; the risk to the public and to the staff involved was considered to be minimal. Mr Leader submitted that the offending in Anderson was considerably more serious than the offending committed by Mr Williams. He submitted that a start point sentence of six years would have been more appropriate for Mr Williams.
[20] Mr Leader also submitted that a total discount of 40 per cent would have been more appropriate for Mr Williams’ youth, personal circumstances and guilty pleas. With regard the youth discount, Mr Leader argued that the Judge’s finding that Mr Williams is “mature and streetwise” needs to be considered in light of his background and the fact he was exposed to crime from a very young age. He submitted that failing to give Mr Williams credit for his youth on this basis was tantamount to
5 Anderson v R [2019] NZCA 294.
penalising him for his upbringing. Mr Leader submitted there was no suggestion Mr Williams was the mastermind or that he put a great deal of thought into what occurred. He referred to the s 27 cultural report and the psychiatric report and argued that there was a clear nexus between Mr Williams’ troubled background, his upbringing and his offending.
Crown submissions
[21] Mr Annandale for the Crown submitted that the sentence was not manifestly excessive, given the totality of the offending. He pointed out that there were two sets of serious offending committed by Mr Williams – the aggravated robbery and the attempted aggravated robbery. He argued that each set of offending had to be recognised and that each should lead to a condign sentence. He submitted that a start point sentence of seven and a half years’ imprisonment was available and within range.
[22] He argued that the discount for youth allowed by the Judge was appropriate, noting that Mr Williams had the chance between the attempt and the robbery to ‘cool off’ and walk away. Mr Annandale also referred to Mr Williams’ bail history, noting that he cut off his monitor and went on the run for a number of months. Mr Annandale argued that this showed that Mr Williams is “clearly set in his ways”. He also submitted that any additional discount for youth risks double counting the cultural factor discount. He submitted that the 10 per cent discount allowed by the Judge for cultural factors was appropriate.
Analysis
[23] It is of course the end sentence imposed which falls for consideration on the appeal. That is the focus of the appeal and not the process by which the sentence was reached. Nevertheless, it is helpful to look at the component parts making up the end sentence, to identify whether or not the Judge erred and made a material error.
[24]I consider first the starting point adopted by the Judge.
[25] The judgment of the Court of Appeal in R v Mako gives guidance for sentencing for offending of the type here in issue. The Court of Appeal there observed that the range of conduct that can constitute aggravated robbery is very wide. In
addition to the essential elements of the offence, there will be features in each case which contribute to or detract from the seriousness of the offending.6
[26] In the present case, the Judge identified a number of aggravating factors in the offending committed by Mr Williams. No issue was taken with the list of aggravating factors recorded by the Judge. Mr Leader did however submit that the Judge overstated the seriousness of the offending. I disagree. I accept that the planning and premeditation was relatively minimal. Nevertheless, there was some planning. Someone suggested that the group rob a liquor store. The roles must have been agreed, because each co-offender undertook a dedicated task. Balaclavas and gloves were obtained from somewhere. After the attempted robbery of the Tikipunga store, fence palings were obtained to use as weapons. The group drove past the Kamo liquor store prior to robbing it. The Judge did not say that the aggravated robbery involved sophisticated planning – rather, he said that there was “some planning and premeditation”.7 In my view, that observation was correct. In addition, actual violence was resorted to. Injuries, both physical and mental, resulted. A member of the public was threatened. It was relatively serious offending of its kind.
[27] In Mako, the Court of Appeal observed that the robbery of commercial premises, where members of the public can be expected to be present, targeting substantial sums in tills or in a safe, by a group, with a lethal weapon, disguises and other indications of preparation, should attract, for adult perpetrators after a defended trial, a starting point of six or more years’ imprisonment. The Court noted that where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point can be eight years or more.8 Later in its judgment, the Court observed, by way of a further example, that the 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 the assistance from a lookout or an accomplice waiting to facilitate getaway, and where the shopkeeper is confronted with one person with his or her face covered, but there is no actual violence and only a small sum of money is taken, should attract a starting point of around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders,
6 R v Mako, above n 2, at [33]-[34].
7 Police v Williams, above n 1, at [10(i)].
8 R v Mako, above n 2, at [54].
or if more money and other property is taken, five years, and in bad cases, six years would be more appropriate.9
[28] In the present case, the target premises were commercial. The Kamo liquor store is a relatively large retail outlet. It cannot accurately be described as a small retail shop. Members of the public could be expected to be present. The robbery targeted both goods and money. Two members of the group carried weapons, but it is something of a stretch to say that the fence palings were lethal weapons. The members of the group were disguised and there were indications of limited preparation. Actual violence was resorted to. Although Mr Williams was not himself involved in the infliction of the violence, he cannot escape the consequence that it was inflicted by others who he was acting in concert with. The amount taken was relatively modest -
$1,863 – but more was demanded and the demand was accompanied by a threat. In my view, the offending falls somewhere between the two examples discussed by the Court of Appeal in Mako which I have summarised in [27] above.
[29] I agree with Mr Leader that the offending in issue is less serious than the offending which was at issue in R v Anderson.10 I also note that starting points lower than seven and a half years have been adopted in similar cases. For example:
(a)In Molia v R,11 two offenders went into a dairy. They were wearing gloves and their faces covered. They pointed a pistol at a member of the public and then at the dairy owner. They demanded cash. They took $6,000 in cash and in cigarettes. Mr Molia was 18 years old at the time. A starting point of five years’ imprisonment was adopted. On appeal, this was described as being “a little high”, and a starting point of four and a half years was substituted.
(b)In Roberts v R,12 a 19 year old appellant was involved in several robberies and burglaries. He threatened a bakery owner and his daughter with a screwdriver and took $160 from them. With two associates, he robbed occupants of a parked car. He assaulted one of
9 See [56].
10 R v Anderson, above n 6.
11 Molia v R [2013] NZCA 512.
12 Roberts v R [2020] NZCA 441.
the occupants severely. He took the victim’s bag. With two associates, he smashed his way into a retail store and took $20,000 worth of property. With associates, he went to a liquor store. He was armed with a crowbar and he seriously assaulted one of the shop workers by stomping on his head. He then threw a bottle of liquor at the victim as he was leaving. He and his associates took items to the value of $1,700. With two associates, he drove into service station doors causing them to break. Mr Roberts was armed with a crowbar. The staff managed to get away, but the offenders took the cash register. With a large group of associates, he went back to a retail store, breaking in with a car. Mr Roberts seriously assaulted a security guard. He and his associates took $40,000 of property. Lastly, Mr Roberts went to a residential address and demanded money, taking the victim’s phone. The liquor store robbery was regarded as the lead offence. A parallel was drawn with the second example given in Mako, noted above. A starting point of 11 years’ imprisonment overall was adopted.
[30] In my judgment, the seven and a half year starting point adopted by the Judge was too high. Taking into account the limited degree of premeditation and planning, but allowing for the number of participants, the targeting of the liquor store, the use of the fence palings as weapons and the resort to violence, a starting point of six years, in my view, is more appropriate for the aggravated robbery committed by Mr Williams. That starting point should be uplifted by six months, to recognise the attempted aggravated robbery. That offending appears to have involved little or no planning, and to have been relatively, albeit not totally, impulsive. I agree with the Judge that no uplift was required for the other more minor offending. I would have adopted an overall starting point of six years and six months for all of the offending.
[31]I now turn to consider the discounts afforded by the Judge.
[32] No challenge was taken with the Judge’s 15 per cent discount for the guilty pleas. Although it is not expressly stated in the Judge’s sentencing notes, the
sentencing post-dated the Court of Appeal’s decision in R v Moses.13 Both counsel accepted that no further adjustment was necessary as a result of that decision.
[33] The Judge’s discount for Mr Williams’ youth – five per cent – was, in my judgment, parsimonious. The Court of Appeal in Churchward v R14 accepted that the age of a defendant can be relevant to sentencing and it discussed the justification for youth discounts. The Court noted that there are age-related neurological differences between young people and adults, which can make young people more vulnerable to negative influences, and more likely to act impulsively. The Court noted that those neurological factors can lead to a reduction in culpability of young people as compared to adults. It observed that this does not mean that young persons should not take responsibility for their actions – rather, their actions may be partly explicable, but not necessarily excusable, by their state of neurological development.
[34] The Judge perceived Mr Williams to be “mature and streetwise”, and this seems to have led to his conclusion that the discount to be afforded for his relative youth should be limited. In my judgment, the Judge erred in this regard. The age- related neurological limitations of young offenders do not manifest only in impulsive offending. The limitations can also result in a lack of forethought, a tendency to be easily led and an inability to resist peer pressure. In my view, the fact that Mr Williams is “mature and streetwise”, assuming that to be the case, speaks more to Mr Williams’ personal circumstances than to his limited neurological development. Mr Williams’ age-related neurological development does not excuse his actions but in my view it does reduce his culpability.
[35] The Court of Appeal in Churchward also recognised that the effects of a lengthy terms of imprisonment on young people can be crushing. It accepted that it can be easier for young people to be rehabilitated into the community. As the Court noted, a well-balanced reaction is required in order to avoid alienating young persons from society.15 This approach is consistent with s 7(1)(h) of the Sentencing Act 2002.
13 R v Moses [2020] NZCA 296.
14 Churchward v R, above n 3, at [77]-[81].
15 At [78].
[36] Where the offending is grave, the scope to take account of youth can be circumscribed, because the factors that can lead young people to offend can also cause concerns about future public safety. The Judge alluded to this. He also alluded to the need for denunciation and deterrence, specific to Mr Williams and in general.
[37] Nevertheless, in my judgment, the discount afforded to Mr Williams for his youth was too low. There is no arithmetical formula which can be applied, but I note that in similar cases, discounts ranging from 10 to 20 per cent have been given for youth, remorse and the prospect of rehabilitation, and notwithstanding that the offenders involved have had a history of past offending.16
[38] Taking these various matters into account, in my view, Mr Williams was entitled to a rather greater discount for his relative youth. Although not entirely impulsive, his offending lacked forethought and he appears to have gone along with a group, under the influence of others. He has not shown any specific remorse but he did not dispute his involvement in what occurred. While he has already been before the Courts on a number of occasions, there is nothing to suggest that rehabilitation is impossible, and in my judgment, there is a risk that a too lengthy sentence of imprisonment could have a crushing effect on him given his age. In my view, a discount of 10 per cent for youth would have been more appropriate.
[39] Finally, I turn to the cultural report. Section 8(i) of the Sentencing Act provides that sentencing Judges must take into account the offender’s personal, family, whanau, community and cultural background. Reports are commonly provided pursuant to s 27 of the Act, to provide detail about the offender’s background. If such a report is provided, a discount is not automatic. A discount can only be given for “traceable linkages between that deprivation, the offender and the offending”.17
16 Elliott v R [2018] NZCA 526 – 20 per cent discount – 19 year old offender; Hemopo v R [2016] NZCA 242– 11 per cent discount – 19 year old offender; Tukaki v R [2013] NZCA 411 – 19 year old offender – no discreet discount – instead removal of uplift for prior offending; Molia v R, above n 11 – 15 per cent discount – 18 year old offender; Roberts v R, above n 12 – 10 per cent discount – 19 year old offender – “already somewhat hardened into a life of criminality, and where index offending could not be described as impulsive”.
17 Arona v R [2018] NZCA 427 at [59].
[40] The Court of Appeal’s decision in Carr v R is relevant.18 The sentencing Judge in that case emphasised that causation and correlation are not synonymous and that the law does not accept that some groups may use violence but not others. The Judge did not give any discount, considering the offending there in issue was too serious to have linkages to the offender’s background.19 However, the Court of Appeal considered that the sentencing Judge had erred in not granting any discount on account of the information contained in the s 27 report. It stated as follows:20
[65] We consider that the report gave a credible account of matters which might be considered to have impaired choice and diminished moral culpability so as to establish a causative contribution to offending, of the kind envisaged in Zhang. Where that is shown, we consider it must have an effect on the sentencing outcome. The focus of s 27 is on matters personal to the offender and while the gravity of the offending might temper the extent of any discount allowed for such considerations, that is a different proposition from saying there should be no allowance. …
[66] Nor is it appropriate to reason that because other people with disadvantaged backgrounds do not offend, legitimate references to deprivation affecting the life of an individual offender can be put on one side. We can agree with the Judge that “[e]xcessive discounts in this context” undermine what he described as the criminal law’s precepts of human agency and choice. Those observations obviously were intended to embrace s 7(1) of the Sentencing Act’s reference to the purposes of sentencing, including holding offenders accountable, promoting a sense of responsibility and denouncing the conduct in which the offender was involved. But there is a clear difference between avoiding an excessive discount and deciding that there should be no discount at all. The latter conclusion might in its turn attract the criticism that the requirements of ss 7(1)(h) and 8(i) of the Sentencing Act had not been met. Section 7(1)(h) states that one of the explicit purposes of sentencing is to assist in the offender’s rehabilitation and reintegration. Section 8(i) has been mentioned above. When there is a link … recognised it would be wrong not to apply the provisions of the Act.
The Court of Appeal granted a 15 per cent discount for cultural factors.
[41] In the present case, the Judge did not ignore the cultural report and the s 27 report. Rather, he accepted that Mr Williams had a difficult background, and very much a deprived childhood. He also accepted that there was a nexus between Mr Williams’ upbringing and his offending. His considered that it was appropriate to give Mr Williams a further discount for these matters. He gave Mr Williams a discount of 10 per cent.
18 Carr v R [2020] NZCA 357.
19 R v Carr [2019] NZHC 2335 at [62].
20 Carr v R, above n 19, at [65] (footnotes omitted).
[42] Setting a discount for cultural factors is a fact specific exercise in each case.21 While another Judge may have granted a higher discount, I am not persuaded that Judge McDonald erred in giving Mr Williams a 10 per cent discount for the cultural factors. As I have already noted, Mr Williams’ offending was relatively serious, and the gravity of his offending tempers the extent of the available discount. The Judge accepted the nexus between Mr Williams’ cultural background and the offending, and granted him a discount of 10 per cent. I am not persuaded that he erred in so doing.
[43] I would have adopted a starting point of six years and six months for the offending in its totality and allowed a total discount of 35 per cent for the guilty pleas, Mr Williams’ youth and the cultural factors identified in the s 27 report and in the psychiatric report. I would have rounded the discount up to 28 months and adopted an end sentence of four years and two months’ imprisonment for all of the offending. This is significantly lower than the sentence imposed. For the reasons I have set out, I am satisfied that there was an error in the sentence imposed and that a different sentence should be substituted.
Result
[44] The appeal is allowed. The sentence of five years imposed by the Judge is set aside. I substitute a sentence of four years and two months’ imprisonment on the charge of aggravated robbery, a sentence of six months’ imprisonment on the charge of attempt aggravated robbery, to be served concurrently, and sentences of one month each on the charges of being in possession of cannabis and unlawfully in an enclosed yard, also to be served concurrently. The end sentence is therefore one of four years and two months’ imprisonment.
Wylie J
21 Whittaker v R [2020] NZCA 241 at [51].
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