REID v R [2017] NZCA 451

REID v R [2017] NZCA 451 [12 October 2017]NOTE: LOWER COURT ORDER PROHIBITING PUBLICATION OF THENAMES OF THE VICTIMS AND THEIR BUSINESSES REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA149/2017[2017] NZCA 451BETWEEN ALISTAIR JAMES REIDAppellantAND THE QUEENRespondentHearing: 3 October 2017Court: Winkelmann, Wylie and Whata JJCounsel: J S Jefferson for AppellantE J Hoskin for RespondentJudgment: 12 October 2017 at 3 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Reid seeks to appeal a sentence of five years and six months'imprisonment. He was found guilty at trial on charges of aggravated robbery and demanding with menaces. Mr Reid contends his sentence is manifestly excessive.[2] The alleged errors are:1(a) a four-year starting point for the aggravated robbery charge was manifestly excessive;(b) a 12-month cumulative sentence for the demanding with menaces charge was inappropriate;2 and(c) the end starting point for both sets of offending violated the totality principle.Background[3] The primary victim was 41 years old at the time of the offending.3 He had cerebral palsy and, as a result, difficulty with movement. In 2014, before trial, he died in a motorcycle accident.[4] On 28 November 2013, Mr Reid and his stepdaughter, Mrs Hillman, went to Hastings to play the pokies. It went badly; Mr Reid lost a large amount of money —according to Mrs Hillman "a couple of thousand probably". He was in a bad mood.He had wanted to buy drugs but could not. They headed to Napier, during which time Mr Reid formed a plan to extract money from the victim, who was known tohim. He drove the victim's address, which adjoined the victim's family business,arriving at about 11 am. Mr Reid and Mrs Hillman knocked on his door and when he answered Mr Reid went inside. Mrs Hillman then returned to the car.[5] Mr Reid produced a knife from his pocket and demanded money from the victim, stating he would hurt him and burn down the victim's family's businesses and houses if he did not pay $2,000. Mr Reid told the victim he "owed" him.Mr Reid held the knife to the victim's throat, cutting it sufficiently to leave a longmark.1 Mr Reid did not pursue a further ground of appeal, namely that the uplift of six months for his prior criminal history was excessive.2 See below at [16] regarding whether this aspect of the sentence is properly regarded as a cumulative sentence or an uplift.3 By order of 15 January 2014, Judge Rea suppressed the name of the victims and their businesses.[6] The victim told Mr Reid he had $200 in his wallet, which Mr Reid took,together with the registration card for the victim's motorbike which was also in thewallet. Mr Reid found the keys to the motorbike in the victim's jacket, andthreatened to take the motorbike if the victim did not produce $2,000.[7] At one stage, Mrs Hillman entered the premises after hearing screaming. Shegave evidence that she saw Mr Reid hitting the victim's legs with a hammer. Thiswas not corroborated by the victim's statement to police. He complained however ofbruising to his chest and arm.4[8] Mr Reid then forced the victim to drive to an ATM to withdraw money. The victim gave Mrs Hillman his eftpos card and PIN but he only had $8 in hisaccount. They then returned to the victim's business premises. By this time, the victim's mother was there. Mr Reid told her the victim owed him $2,000. Fearing for her son's safety, she drove to her bank and withdrew $2,000. At 2 pm the same day, she met up with Mr Reid and gave him the money.The sentence under appeal[9] Sentencing notes are not available.5 Counsel agree the sentence imposed comprised:(a) a starting point of four years for the lead offence of aggravated robbery;(b) an uplift of one year for the demanding with menaces charge;(c) a six-month uplift to reflect Mr Reid's criminal history; and(d) an end sentence of five years and six months' imprisonment.4 Mr Reid was acquitted at trial of a charge of injuring with intent to injure, which related toallegations he had struck the victim's legs with a hammer.5 This was due to a technical error with recording.Jurisdiction[10] Mr Reid brings the present appeal pursuant to s 244 of the Criminal Procedure Act 2011. In ordinary circumstances, the appellant must satisfy the court there is an error in the sentence imposed and a different sentence should be imposed.6 It is settled that a sentence may be set aside where it is manifestly excessive.7[11] But as there are no sentencing notes, we must approach the issues on appeal based on our own assessment of the evidence and authorities.AssessmentStarting point[12] R v Mako remains the leading tariff judgment for aggravated robbery.8 It identifies the following types of aggravated robbery and corresponding starting points:(a) The robbery of commercial premises by a group, where members of the public can be expected to be present; targeting substantial sums in tills or a safe; with a lethal weapon, disguises and other indications of preparation should attract a starting point of six years or more.9(b) Robbery of a small shop by one person, possibly with an accomplice waiting to facilitate getaway; demanding money from the till under threat of the use of a weapon; with no customers present, no actual violence, and a sum of money taken should lead to a starting point of around four years. If the shopkeeper is confined or assaulted, or confronted by multiple offenders; or if more money and other property is taken; five years (or six years for bad cases) should be the starting point.106 Criminal Procedure Act 2011, s 250(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].8 R v Mako [2000] 2 NZLR 170 (CA).9 At [54].10 At [56].(c) Robbery of taxi drivers should attract a starting point of between four and five years where a weapon is presented or physical violence employed, though no serious injury is caused, and money is taken.11(d) Forced entry to premises at night by a number of offenders seeking money, drugs or other property; with violence against victims; where weapons are brandished will require a starting point of seven years or more, even if no serious injuries are inflicted. Where a private house is entered, the starting point will be increased under the home invasion provisions to around 10 years.12(e) Street robbery for small amounts without actual violence will attract between 18 months and three years as a starting point, but more if there is actual violence.13(f) At the high end, very serious armed robberies will attract a starting point of around 10 years.14[13] The Court also noted:[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.[14] Applying this guidance, we do not consider a starting point of four years for the aggravated robbery charge is excessive. As Ms Hoskin for the Crown notes, there are several aggravating features including:1511 At [57].12 At [58].13 At [59].14 At [55].15 Having reviewed the evidence we do not agree the offending was premeditated. Rather, it appears a spontaneous decision was made to seek out the victim after a bad morning at the pokies.(a) There was use of a weapon and violence — there was evidence Mr Reid cut the victim's throat with a knife (albeit relatively superficially).(b) There was entry by Mr Reid into the victim's flat for the purpose ofactual physical enforcement of his demands, including forcing the victim to give over his wallet and motorbike registration, and forcing him to travel to the ATM.(c) There were further threats of violence to family and family property,namely the victim's mother, their houses and family businesses.(d) The victim was a vulnerable person.[15] We agree that the offending is much more serious than the street robbery where no violence occurs mentioned at [12(e)] above. It is more akin to robbery of a small retail shop demanding money under threat of the use of a weapon, where the shopkeeper is confined and assaulted.16 The element of home invasion is a further aggravating feature. A starting point of four years was therefore well within range. Indeed, given the element of home invasion in the offending, four years could be described as lenient.Cumulative sentence[16] Mr Reid characterises the uplift of one year for the demanding charge as a cumulative sentence. It seems likely to us that the Judge was merely uplifting to reflect that additional offending — a standard application of sentencing principles. However the sentence is constructed, the ultimate question for us remains whether the end point reached was manifestly excessive.[17] We are satisfied a distinct uplift in the sentence for the demanding with menaces charge was appropriate. As the Court in Mako stated:16 See [12(b)] above.[51] Multiple offending involving separate incidents, which is all too common, gives the criminality an added dimension which must be accorded full response on totality principles. In this respect, maximum sentences (against which all sentences must be kept in perspective) apply for each offence.[18] While the demanding with menaces offending forms part of a continuing series of criminal acts, there are two sets of victims and two separate incidents of criminal behaviour. An uplift was clearly warranted.Totality principle[19] In terms of the sentence in fact handed down, an uplift of 12 months for the demanding charge was substantial, but the total starting point of five years for both offences was not excessive. Indeed, in our view an even higher starting point for the aggravated robbery, say of four and a half years, would not be manifestly excessive. A combined five-year starting point is therefore well within range, considering the totality of the offending.Outcome[20] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent