NICHOLLS v POLICE [2016] NZHC 1979

NICHOLLS v POLICE [2016] NZHC 1979 [23 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000196[2016] NZHC 1979BETWEEN CORY JAMES NICHOLLSAppellantAND NEW ZEALAND POLICERespondentHearing: 23 August 2016Counsel: A Speed for AppellantZ Hamill for RespondentJudgment: 23 August 2016JUDGMENT OF DOWNS JSolicitors/Counsel:A Speed, Auckland.R Chambers, Auckland.Kayes Fletcher Walker, Auckland.[1] Before I discuss the appeal, I record a matter that arose at the outset of thehearing. Counsel for the appellant, Mr Chambers, did not appear. He is, I gather,overseas. Unfortunately Mr Chambers forgot to arrange for anyone to appear for theappellant on his, that is Mr Chambers', behalf. But at short notice Mr Speed verykindly appeared to convey the position and to offer an apology, which I accept.[2] Mr Speed said he could be ready to argue the appeal if given a little more time, but quite properly noted he did not have any specific instructions from theappellant. Mr Speed is in the same set of chambers as Mr Chambers.[3] For the Crown Ms Hamill was neutral as to whether the appeal shouldproceed in these circumstances, while noting it had been adjourned once previously.[4] I concluded the interests of justice favoured the case being heard anddetermined because:1(a) The issues are simple and everyone agrees that to be so.(b) Mr Chambers had filed full written submissions, which I had read.(c) The only instructions that could be given would be to proceed withthe appeal, abandon it, or seek to have it adjourned until Mr Chambersreturned. No particular factual instructions would likely arise becausethe appellant pleaded guilty to an agreed summary of facts, and asnoted I have had the benefit of Mr Chambers' written submissions andnow helpful oral argument from Mr Speed.[5] And so to the appeal itself. It is a sentence appeal. The appellant wassentenced to a term of imprisonment for two years and six months on a charge ofaggravated robbery pursuant to s 235 of the Crimes Act 1961.2 The appellantcontends the sentence is manifestly excessive, largely by reference to the startingpoint of three years' imprisonment adopted by Judge Field. The offending andsentencing Judge's methodology can be described briefly.1 Section 325(2)(b) of the Criminal Procedure Act 2011 provides a party to an appeal may be represented by a lawyer at the hearing of the appeal. I was satisfied the appellant had the benefitof legal representation for the reasons set out above.2 R v Nicholls [2016] NZDC 10650; maximum penalty 14 years' imprisonment.[6] The appellant and a co-offender, Mr Tonga, were charged with aggravated robbery following events on 17 July 2015. At approximately 2.15 pm that day, Mr Tonga knocked on the victim's door wearing a Black Power t-shirt. Mr Tonga asked the victim if he wanted to buy any weed, and when the victim declined, Mr Tonga walked into the house. Mr Tonga put his hands into a fighting stance, asked the victim for his money and took $20 from him. Mr Tonga told the victim to sit down and asked the victim what else he had. Mr Tonga then picked up a footstool and held it above his head before throwing it onto the couch.[7] The appellant was waiting with another man in a van outside. On Mr Tonga'ssignal, both immediately entered the victim's house. Once inside, the appellant andthe other man began collecting property and loading it into the van.3[8] I pause here to observe that the Crown's written submissions containedreference to this sequence as if it were a "looting". For the appellant, Mr Chambersand now Mr Speed, took issue with that description. At the hearing of the appealMs Hamill for the Crown abandoned any reliance upon it, and I put it entirely to oneside. I return to the facts.[9] The victim was not injured. Mr Tonga told him to not move for 80 seconds after the van started. All three offenders then left, the last of whom has never been identified.[10] Upon arrest, Mr Tonga said the victim owed him $200 as a drug debt. The appellant said he had been taken to the address and was unsure what would be happening there. He said once Mr Tonga called him inside, he knew something was wrong. The appellant did, however, admit taking the items.[11] The appellant pleaded guilty on 11 April 2016; the morning of his standby trial. He was sentenced on 13 June the same year. Judge Field adopted a three and a half-year starting point in relation to Mr Tonga, whose end sentence was just underthree years' imprisonment. The Judge said the Black Power t-shirt worn by Mr Tonga was meant to create the impression the robbery was a gang-related3 Items such as a PlayStation 4, games, a laptop, a pair of shoes, a watch, sunglasses and a mobile phone — all readily saleable items. Most of the property was, however, recovered.collection, but His Honour put this potentially aggravating factor to one side. That approach might well have been benevolent.4[12] The Judge concluded the appellant's role was lesser than that of Mr Tongaand so a lower starting point was called for. But in settling upon a starting point ofthree years' imprisonment, the Judge considered the appellant had providedconsiderable help to Mr Tonga and was present on the basis he would provide extra"muscle" if needed. The Judge uplifted the starting point by two months in recognition of the appellant's previous convictions for dishonesty, which weredescribed in the pre-sentence report as comprising "a long history of dishonesty charges".5 The Judge then apparently mitigated the sentence by eight months to reflect what he said were prospects of rehabilitation, positive aspects in the pre- sentence report and further deduction for the guilty plea. The ultimate sentence wastwo years' and six months' imprisonment.[13] The appellant contends the Judge erred in his assessment of the criminality of the offending. He accepts the offending was in a residential home and caused loss to the victim, but notes there was no forced entry, no actual violence and no weapon. The appellant submits the Judge engaged in speculation when concluding he wasthere to provide "extra muscle", and points out he was not involved in the initialencounter with the victim or much of what followed. He also contends the home- invasion feature should not be given undue weight.[14] Two sentencing decisions in relation to aggravated burglary were advanced asmore appropriate to the appellant's role,6 with the allied submission that a startingpoint of two years' six months' imprisonment would be correct, and also a submission that the Judge was wrong to uplift a starting point to reflect theappellant's criminal history.[15] As will be apparent, the focus of the appellant's case was the three-year starting point, which he contends is wrong. But issue is also taken with the Judge's4 See R v Mako [2000] 2 NZLR 170 (CA) at [49].5 Pre-sentence report, p 2.6 Heald v R [2014] NZCA 143; Arahanga v R [2012] NZCA 480.arithmetic in relation to mitigating features, on the basis of this passage in the sentencing notes:7From the 38 months that I had indicated appropriate I think six months could be deducted for your prospects of rehabilitation and the positive aspects inthe report leaving a total of some 28 months.In all the circumstances and allowing a further deduction for your plea, Ireach a final sentence of one of two years and six months.[16] The respondent's submissions are reflected in the analysis which follows.[17] Section 250(2) of the Criminal Procedure Act 2011 provides an appellate court must allow an appeal if satisfied:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[18] In any other case, the Court must dismiss the appeal.8 The Court of Appeal has confirmed the provision was not intended to change the antecedent approach,9and that the "manifestly excessive" principle remains apt.10 And as is well-known, the ultimate focus is the sentencing outcome and not associated methodology.[19] I reject the appellant's analysis for the following reasons.[20] First, it was open to the Judge to conclude (on the basis of the agreed summary of facts) the appellant was there to provide additional "muscle" if need be.I note the appellant and the other offender reacted immediately when Mr Tonga signalled for them to do so; they then entered the home and began taking property.The appellant's contention to the Police he was ignorant to this point is thusawkward. Moreover, the appellant pleaded guilty to aggravated robbery of the"being together" species; which presupposes he and at least one other person jointly7 R v Nicholls, above n 1, at [11]–[12].8 Criminal Procedure Act 2011, s 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].10 At [33], [35].extorted property from the victim under threat of violence. Materially, the appellanthas not challenged conviction.[21] Second, the offending falls somewhere between the categories identified inR v Mako,11 namely nocturnal home invasion on the one hand, and street robbery onthe other. The former attracts a starting point of at least seven years; the latterattracts starting points of between 18 months' imprisonment and three years'imprisonment. Against this background, the adoption of a three-year starting pointwas one open to the Judge.[22] Third, the Judge distinguished Mr Tonga's culpability from that of theappellant's. Mr Tonga's sentence was greater, which in part reflected the adoption ofa higher start point in relation to him. Furthermore, fine distinctions betweenoffenders who act in concert are not required at sentencing, particularly whendeterrence is the primary sentencing objective. That is true for the offence ofaggravated robbery.[23] Fourth, despite the appellant's submission to the contrary, violating another'shome is a serious aggravating factor in our system of criminal justice. Mako makesthis clear;12 so too s 9(1)(b) of the Sentencing Act 2002. The point can be put thisway: on the appellant's analysis this case should be treated as akin to a streetrobbery, for, his suggested starting point lies within the range identified by the Courtof Appeal for that type of robbery. But this in my view would be to give insufficientweight to one of the most serious aspects of the offending.[24] Fifth, in Te Hau v R,13 a starting point of three years' imprisonment wasconsidered "appropriate" by the Court of Appeal in relation to a charge of aggravatedrobbery in the context of similar facts.14 For completeness, that case involved actualviolence (two punches to the victim's face) and an explicit threat to kill. And, in thatcase, the stolen property was not recovered. However, there was one fewer offender11 R v Mako, above n 3, at [58]–[59].12 R v Mako, above n 3, at [58].13 Te Hau v R [2013] NZCA 431.14 At [14].there and the violation of the victim's home was not as intrusive. Overall, the twocases suggest similar levels of culpability.[25] The cases cited by the appellant involve aggravated burglary and notaggravated robbery. While it is true their facts are not much removed from those inquestion, there is no reason to approach this case elliptically: more apt are Mako andTe Hau, particularly when the former judgment is a guideline one of a Full Court ofthe Court of Appeal.[26] Sixth, I reject the submission it was not open to the Judge to uplift thestarting point by reference to the appellant's criminal history. I have examined thathistory and it is sufficient to say it is extensive in relation to offences of dishonesty.[27] Seventh, while the Judge's remarks in relation to discounts for mitigatingfeatures can be read as suggesting the Judge intended to impose a 28-month term ofimprisonment, rather than one of 30 months' imprisonment, the issue remainswhether the actual sentence is manifestly excessive.[28] I am not persuaded it is. The Judge mitigated the sentence by eight monthseven though the appellant's guilty plea was belated, and notwithstanding his criminalhistory which I have just referred to. It therefore appears to me the appellant was thebeneficiary of a not insignificant discount for mitigating features which objectivelywere not compelling.[29] The appeal is dismissed...Downs J