BULLEN v R [2017] NZCA 615

BULLEN v R [2017] NZCA 615 [19 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA47/2017[2017] NZCA 615BETWEEN DENNIS EDWARD BULLENAppellantAND THE QUEENRespondentCA385/2017BETWEEN LYNNE AMANDA JACKSONAppellantAND THE QUEENRespondentHearing: 14 November 2017Court: Brown, Courtney and Toogood JJCounsel: R M Gould for Appellant BullenA J D Bamford for Appellant JacksonM H Cooke for RespondentJudgment: 19 December 2017 at 3.30 pmJUDGMENT OF THE COURTA The application for an extension of time to file the notice of appeal inCA385/2017 is granted.B The application to adduce further evidence on appeal in CA47/2017 isgranted.C The appeals against sentence are allowed.D The sentence of five years and nine months' imprisonment imposed onDennis Edward Bullen for aggravated robbery is quashed and a sentenceof four years and two months' imprisonment substituted.E The sentence of five years and six months' imprisonment imposed onLynne Amanda Jackson for aggravated robbery is quashed and a sentenceof four years and three months' imprisonment substituted.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] The appellants, Dennis Bullen and Lynne Jackson, were convicted following ajury trial in the District Court at Blenheim on charges of aggravated robbery andaggravated injuring.1 At sentencing Judge Zohrab took the same starting point of fiveyears and nine months' imprisonment for both appellants.2 Seeing little reason tomove from this starting point, the Judge sentenced Mr Bullen to five years and ninemonths' imprisonment and Ms Jackson to five years and six months' imprisonment,the modest difference attributable to Ms Jackson's time spent on electronicallymonitored bail.3 Mr Bullen was also ordered to pay $1000 emotional harm reparation.[2] Mr Bullen and Ms Jackson appeal their sentences. Both say that the startingpoint was too high, resulting in manifestly excessive sentences. In addition:(a) Ms Jackson says that the Judge fixed the starting point for her inreliance on factual findings that were not available on the evidence, anddid not take into account the limited role she played in the violencesuffered by the complainant; and1 As well as some minor drugs charges.2 R v Jackson [2017] NZDC 185.3 Concurrent sentences of one years' imprisonment for the aggravated injuring charge andone months' imprisonment for the drugs charges were also imposed on Mr Bullen and Ms Jackson.(b) Mr Bullen says that the Judge erred in failing to give any discount inrecognition of his remorse and his offer of $1,000 to the complainant'sfamily for emotional harm.[3] Ms Jackson was out of time to bring her appeal and sought an extension oftime to do so. As the delay is explained by Ms Jackson's difficulties in obtaining legalrepresentation and there was no objection by the Crown, we grant the application foran extension of time to file the notice of appeal.The offending[4] The complainant, Colin Farrell, was a 60 year old decorator and plasterer whoalso dealt in drugs. He was suffering from Chronic Obstructive Pulmonary Diseasefor which he took medication. Ms Jackson was a long-time friend of Mr Farrell andaware of his illness and the fact that he needed medication.[5] In late 2015 Ms Jackson contacted Mr Farrell and arranged to purchasecannabis from him. She proposed to Mr Bullen that he participate in the venture. Atsome point the plan to purchase the cannabis from Mr Farrell became a plan to robhim of it. Mr Bullen co-opted a younger man, Mr Guler, to provide "muscle".[6] On 22 December 2015 Mr Bullen, Ms Jackson and Mr Guler drove to theWairau Valley near Blenheim. Mr Bullen had given Mr Guler cable ties to use onMr Farrell if necessary. During the journey there was some discussion about stealingMr Farrell's medication, as well as the cannabis.[7] Ms Jackson directed Mr Farrell to a lay-by, described by Judge Zohrab asrelatively secluded though not totally remote. Mr Farrell was surprised and unhappyabout Mr Bullen's and Mr Guler's presence. Ms Jackson allayed his fears. She gotinto the rear passenger seat of Mr Farrell's vehicle. Mr Bullen got in the frontpassenger seat. When the cannabis was produced Mr Guler expressed doubt over theamount, went to the driver's side and removed the car keys from the ignition. He thenpulled Mr Farrell out of the car, cable tied his hands behind his back, punched andkicked him, and pushed him to the ground. Mr Farrell lost two teeth and sufferedlacerations to his face and bruising. The experience was all the more frightening forhim because he had breathing difficulties. Ms Jackson was also pushed to the groundin a charade intended to confuse Mr Farrell as to what was really happening.[8] Mr Bullen and Ms Jackson took the cannabis and returned to their vehicle.Mr Guler searched Mr Farrell's vehicle and took his medication, phone andsunglasses. The three then returned to Mr Bullen's house, leaving Mr Farrell injuredand still tied up.[9] Mr Guler pleaded guilty and gave evidence for the Crown at trial. Mr Farrellgave evidence at trial, but had died by the time sentencing took place.Starting pointSentencing in the District Court[10] The Judge took the guideline judgment of R v Mako as the basis for identifyingthe relevant factors for the purpose of fixing an appropriate starting point.4 Heconsidered these to be: a reasonable degree of planning and premeditation; multipleoffenders; a significant degree of violence; detention of the complainant; medicationwas stolen; the complainant was vulnerable given his health; and, significant physicaland emotional impact.5[11] The Judge treated the verdict as indicative of the jury's finding that the violencewas a probable consequence of the plan to rob Mr Farrell and regarded all threeoffenders as equally culpable in their differing roles. Ms Jackson had breached thetrust Mr Farrell had in her as a close friend and used her knowledge of him, includinghis illness, to her advantage in instigating the plan. Mr Bullen, who claimed just to bethe driver, was closely involved in the plan, had enlisted Mr Guler and provided thecable ties. Mr Guler had inflicted the actual violence.[12] In fixing the starting point the Judge considered a number of cases, treating theoffending as being less serious than R v Young,6 in which this Court approved a starting4 R v Mako [2000] 2 NZLR 170 (CA).5 R v Jackson, above n 2, [71]–[74].6 R v Young CA573/95, 28 March 1996.point of seven years' imprisonment for the serious premeditated aggravated robberyof a service station, but much more serious than Tecofsky v Police,7 in which thestarting point was three years' imprisonment for a charge of aggravated robbery inwhich the victim was lured to an isolated spot for the purposes of the robbery.8 Hesettled on a starting point of five years and nine months' imprisonment for all threeoffenders.Was the starting point too high?[13] On appeal, both Mr Bullen and Ms Jackson maintain the Judge set too high astarting point, having wrongly identified the extent and nature of the aggravatingfeatures. Mr Bamford for Ms Jackson also argued that the Judge drew inferences thatwere not properly available to him on the evidence regarding the degree of planningand in attributing the "callous" theft of the medication to Ms Jackson because of herknowledge.[14] Ms Gould, for Mr Bullen, and Mr Bamford both contended that most of thefactors identified in Mako were absent in this case: there had been no significantplanning, no weapons or disguises, no members of the public present, no premisestargeted, no gang involvement and no significant amount of property taken. Ms Gouldargued that there were only two obvious aggravating features in the case, namely theimpact on the victim, accepted to be reasonably high, and the use of actual violence(even though it was inflicted by Mr Guler). Ms Gould described the offending asbeing that "the offenders met up with the victim, intimidated him and stole hiscannabis and left" and characterised it as "mean spirited and cowardly but notanything more than that, apart from the beating inflicted by Guler".[15] We do not accept these submissions. The Judge was entitled to form the viewhe did as to planning and premeditation. The evidence supported his view thatMs Jackson instigated the plan to meet Mr Farrell at a suitable place on the pretext ofbuying cannabis but actually to rob him of the drugs. The evidence was that Mr Bullenextended the plan to include Mr Guler's involvement for physical back-up in7 Tecofsky v Police [2013] NZHC 3376.8 R v Jackson, above n 2, at [76]–[77].anticipation of a struggle. Mr Guler specifically mentioned the possibility of a knifebeing used, presumably by Mr Farrell. Ms Jackson agreed to Mr Guler's involvement.Mr Bullen provided the cable ties intended to be used to restrain Mr Farrell.Ms Jackson clearly intended to use her influence to allay Mr Farrell's suspicions. Theplan may not have been especially sophisticated, but nor was it an impulsive robberywith little prospect of success.[16] Nor did the Judge make any error in his assessment of Ms Jackson's part in thetheft of Mr Farrell's medication. The Judge's finding that Ms Jackson was theinstigator of this aspect of the robbery was plainly available from the fact that only sheknew Mr Farrell and that he needed medication and, from Mr Guler's evidence, thatthe theft of the medication was talked about in the car on the way to meet Mr Farrell.Indeed it was the only available inference. We agree with the Judge's conclusion thatall parties were equally culpable despite their differing roles.[17] The other factors identified by the Judge were also significant in the overallcriminality. Mr Farrell was an older man and very unwell, a fact known to theoffenders. He was confronted with three offenders, one of whom was young, fit andthere specifically to provide "muscle". The plan anticipated that Mr Farrell would bedetained to facilitate the robbery and that happened. Violence was a probableconsequence of the plan and that happened. The injuries were moderately serious,particularly the loss of teeth. Mr Farrell's medication was stolen. He was left tied upin a manner that prevented him from freeing himself and in a relatively secludedlocation.[18] In these circumstances, the fact that several of the aggravating factors listed inMako were absent — no weapons or disguises were used, there were no members ofthe public present, no premises targeted, no significant amount of property taken andthere was no gang involvement — is of no moment. The features that were presentmeant that this offending was rightly viewed as moderately serious.[19] We turn, then, to consider whether the starting point taken by the Judge wasappropriate for the offending just described. Ms Gould argued that, given thatMr Bullen was also liable as a party on the injuring charge, a four and a half yearstarting point was appropriate for the aggravated robbery charge. Mr Bamfordsubmitted that a starting point of around five years would have been appropriate.[20] It is difficult to find comparable cases because, while some elements werecomparable to a street robbery, the level of pre-meditation would justify a higherstarting point than the 18 months to three years' imprisonment generally appropriatefor robbery with bullying or menacing conduct but no actual violence.9 Higher startingpoints are to be expected where the robbery involves physical enforcement or threatsof violence. Actual violence would take the starting point based on Mako above threeyears, as would high vulnerability with limited actual violence.10[21] Ms Cooke for the Crown sought to draw comparisons with home invasionaggravated robbery cases such as Nuku v R11and R v Williams,12 in which the startingpoints of nine and eight years' imprisonment respectively were adopted, thoughaccepting that the offending in those cases was much more serious than the present.She also suggested aggravated robbery of a small retail premises or of a taxi driverwere available as comparisons on the basis that in both situations the robbery occursunder the pretext of a commercial transaction. In such cases, she submitted thatstarting points of five years and nine months' imprisonment would be unremarkable;in Mako, the robbery of a small retail shop where detention, violence or multipleassailants are involved was regarded as justifying a starting point of five years'imprisonment and up to six years in bad cases.13[22] We do not accept that a starting point of five years and nine months'imprisonment would necessarily be unremarkable for robbery of a taxi driver. In Makothe Court observed that aggravated robbery of a taxi driver, usually at night, withactual violence or presentation of a weapon, would attract a starting point of betweenfour and five years.14 In the example cited by Ms Cooke, Komene v New ZealandPolice, a starting point of four and a half years was adopted where there was no lasting9 R v Mako, above n 4, at [59]; and R v Fidow [2013] NZCA 209 at [10].10 R v Falanai [2013] NZHC 3239 at [19].11 Nuku v R [2016] NZCA 179.12 R v Williams CA392/97, 31 March 1998.13 R v Mako, above n 4, at [56].14 At [57].injury but actual violence (choking) and the presence of a knife.15 Regardless, the taxidriver analogy is not of particular assistance given that the courts afford taxi driversparticular protection due to the vulnerable nature of the occupation.16[23] We consider the closest comparable case is, in fact, Tecofsky v Police, to whichJudge Zohrab referred, and Chapman v New Zealand Police, which involvedMs Tecofsky's co-defendant.17 These cases involved a plan by Ms Tecofsky, who wasa close associate of the complainant, to pick the complainant up on the pretext ofgiving him a lift. Instead she drove to a pre-determined spot where Ms Chapman andanother person were waiting. The complainant was punched about the head and hiswallet stolen. Ms Tecofsky acted as an innocent victim but later when she and thecomplainant stopped the car to change drivers she drove off, leaving him stranded.[24] Following guilty pleas by Ms Chapman and Ms Tecofsky, the sentencing Judgeadopted a starting point of three years' imprisonment. On Ms Chapman's appealMacKenzie J considered that her lesser role justified a starting point of only two anda half years. Ms Tecofsky abandoned her appeal in light of that decision, given thatshe had played the greater role in the offending. Notwithstanding that concession,Whata J went on to express the view that three years was appropriate as the startingpoint for Ms Tecofsky's offending.[25] As the Judge noted, the offending in the present case is more serious thanTecofsky because of the greater level of planning, the greater level of violence, themore serious injuries, the detention of the complainant and the fact that he was lefttied up at the side of the road, the complainant's general vulnerability (of whichMs Jackson was aware) and the gratuitous taking of medication. We agree with thatassessment. However, we consider that, by comparison with Tecofsky, the startingpoint taken by the Judge was too high. A starting point of four and a half years wouldhave been appropriate.15 Komene v New Zealand Police HC Auckland CRI-2009-404-242, 7 October 2009.16 R v Finau (2003) 20 CRNZ 333 (CA) at [9] and [20].17 Chapman v New Zealand Police [2013] NZHC 3301.Discount for remorse[26] The trial took place in November 2016 and Mr Bullen was sentenced on10 January 2017. On 2 January 2017 Mr Bullen wrote to the Judge referring to thefact that Mr Farrell had recently passed away and expressing remorse for hisoffending. He offered, as a means of expressing his remorse and condolences toMr Farrell's family, to make a payment of $1,000.[27] The Judge referred to Mr Bullen's letter and offer of payment before addressingthe starting point,18 but did not mention it specifically when considering the issue ofremorse:[91] Both you and Ms Jackson have suggested that there might bediscounts for remorse. I reject any suggestion of genuine remorse on the partof either of you. You, Mr Bullen, lied quite happily through the course of yourinterview There was plenty of time to apologise to this man, even the dayafter trial, after the verdict, but none of you could be motivated to do anythingwhen it would have mattered and now that Mr Farrell is dead.[94] For you, Mr Bullen, there will be an order for $1,000 emotional harmreparation to be paid within 21 days and I see no room for a discount.[28] Ms Gould submitted that the Judge was wrong to reject Mr Bullen's expressionof remorse particularly because it was supported by a tangible act, the offer of $1,000.[29] For the purposes of the appeal, Ms Gould provided affidavits sworn byMr Bullen's wife and adult children as well as by Mr Bullen himself. Sheacknowledged that it would have been helpful for Judge Zohrab to have had suchmaterial available at the time but indicated that the timing of the sentencing in earlyJanuary, when she herself was not formally back at work but only in Blenheim for thesentencing itself, meant that this was not attended to. Ms Cooke did not actuallyoppose the filing of these affidavits, though did question why they could not have beenproduced at sentencing and did not ascribe any significance to the material. Althoughnot fresh, we consider the affidavits are credible and cogent, and we therefore grantleave to adduce the affidavits of Mr Bullen and his family on appeal.18 R v Jackson, above n 2, at [69].[30] In essence, Mr Bullen's affidavit and those of his family describe Mr Bullen'sill-health around the time of the offending, as a result of which he was using cannabisas well as prescription painkillers. Mr Bullen deposed that once in custody his healthimproved and his clouded thinking cleared. He began to reflect on his offending andasked his wife to sell his motorbike so that he could make an offer of emotional harmreparation.[31] Ms Gould herself had filed an affidavit supporting Mr Bullen's claim of havingaccepted responsibility for the offending and expressing remorse. Ms Cooke objectedto this affidavit, and we accept her submission that the affidavit deals with evidenceof a contentious nature and either ought not to have been filed or Ms Gould ought notto have appeared on the appeal.19[32] It is a matter for the sentencing Judge to assess the genuineness of remorseexpressed at sentencing.20 However, s 10(1) of the Sentencing Act 2002 requiredMr Bullen's offer of $1,000 to be taken into account and that appears not to have beendone;21 having referred to the offer earlier, at the point of sentencing the Judge did notmention it but simply made the order requiring its payment as reparation.[33] We consider that, had the Judge taken Mr Bullen's offer into account andparticularly if he had had the benefit of the additional material made available to thisCourt, he would very likely have taken a different view of Mr Bullen's expressedremorse. Looked at overall, there is sufficient information to indicate that Mr Bullen'sthinking did become clearer while in prison and his decision to sell the motorbike anduse the proceeds to offer as reparation to Mr Farrell's family was a tangible expressionof genuine remorse. This Court has indicated that an offer to make amends may be anindication of the presence of true remorse, warranting a separate discount.2219 In line with r 13.5.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008.20 Edri v R [2013] NZCA 264 at [28].21 It is also a specific mitigating factor that must be taken into account: Sentencing Act 2002,s 9(2)(f).22 Gould v R [2012] NZCA 284 at [30].[34] Remorse and offers of reparation accepted as genuine by the Court tend towarrant a discount of around five to ten per cent from the starting point.23 Given thatMr Bullen's remorse is genuine and supported by a tangible offer accepted by thevictim's family, but nonetheless delayed and in the context of a not guilty plea, weconsider a discount around the middle of this range to be appropriate. We would allowa discount of four months from the starting point of four and a half years'imprisonment.Result[35] Ms Jackson's application for an extension of time to file the notice of appeal isgranted.[36] Mr Bullen's application to adduce further evidence on appeal is granted.[37] The appeals against sentence are allowed.[38] The sentence of five years and nine months' imprisonment imposed onMr Bullen for aggravated robbery is quashed and a sentence of four years and twomonths' imprisonment substituted.[39] The sentence of five years and six months' imprisonment imposed onMs Jackson for aggravated robbery is quashed and a sentence of four years and threemonths' imprisonment substituted (allowing the same three month reduction for timespent on electronically monitored bail).Solicitors:Crown Law Office, Wellington for Respondent.23 See for example Gould v R, above n 22; McArthur v R [2013] NZCA 600; Mark v R [2016] NZCA22; and Erickson v Ministry for Primary Industries [2017] NZCA 271, [2017] NZAR 1015.