RICKUS v R [2021] NZCA 435

RICKUS v R [2021] NZCA 435 [3 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA727/2020[2021] NZCA 435BETWEEN GYPSY RICKUSAppellantAND THE QUEENRespondentHearing: 15 June 2021Court: Clifford, Thomas and Muir JJCounsel: H T Young for AppellantJ A Eng for RespondentJudgment: 3 September 2021 at 2.30 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] Gypsy Rickus was sentenced to six years and three months' imprisonment forhis involvement in a kidnapping and aggravated robbery, following his acceptance ofa sentence indication based on a summary of facts and charges as negotiated betweenthe Crown and his counsel.1 Four years later he has filed an appeal against sentenceand requires an extension of time in order to do so. He says the sentence indication1 R v Rickus [2016] NZDC 25503. The sentence also included charges of unlawfully taking a motorvehicle, driving while disqualified, breach of release conditions and common assault.proceeded on an incorrect basis, given he disputed one aspect of the summary of factsand that the discounts for youth and totality were inadequate.Extension of time[2] An application for an extension of time must be granted if it is in the interestsof justice to grant the extension, after taking into account all the relevantcircumstances.2 Relevant circumstances include whether the delay is adequatelyexplained and whether there are compelling reasons to extend time.3 Also relevantis the seriousness of the charges, the strength of the proposed appeal, the effect onothers, prejudice to the Crown, and whether fresh evidence has come to light.4[3] Given the extent of the delay and the absence of a compelling explanation forit, Mr Rickus's application rests squarely on what he says is the strength of his appeal.Background[4] We begin by explaining the background and the circumstances which resultedin the sentence Mr Rickus now seeks to challenge.[5] In the late afternoon of 23 March 2016, a 21-year-old man was approachedon the street by Mr Rickus, a 16-year-old co-defendant and an older male (who wasnever identified). They engaged him in conversation and asked if he had a phone.Although he denied it, his cellphone rang and one of the offenders demanded itfrom him. Fearing for his safety, the victim handed it over. Mr Rickus then asked ifthe victim had a vehicle and, on being told he did, said that, if the victim took him tohis vehicle, Mr Rickus would give him back his cellphone. Mr Rickus said the victimshould come with him to Whanganui. Still fearing for his safety, the victim agreed.[6] Mr Rickus was the only one of the three offenders who accompanied the victimall the way to his house and, once there, he took the victim's cellphone charger2 R v Lee [2006] 3 NZLR 42 (CA) at [97], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.3 Oketopa v R [2020] NZSC 75 at [18]. See also Mikus v R [2011] NZCA 298 at [26], citing R vSlavich [2008] NZCA 116 at [14].4 R v Lee, above n 2, at [99]; and R v Ellis [2019] NZSC 83 at [15].and keys to his van. He then directed the victim to drive the van and they picked upthe other two offenders. Then began the trip to Whanganui.[7] The person who sat in the passenger seat (and there is some uncertainty aboutwho that was but it may well have been the older unidentified offender), placeda handgun on the seat next to the victim, told the victim it was loaded and that, if hedid anything stupid, he would be shot in the head.[8] They all travelled to Whanganui, spent some time at a house there and returnedto Palmerston North in the early hours of 24 March. The victim was then directedto drive around the city, past various service stations as the three offenders discussedwhere to commit a robbery. The victim was directed to park outside a Mobil servicestation and wait in the van, which he did as he was too scared to leave. By this stage,it was around 4.15 am. The three offenders confronted the sole service stationattendant when he was in the forecourt. They had disguised themselves by coveringtheir heads, faces and hands. The older offender was holding a weapon describedby the attendant as a "cosh" (a club or baton). He demanded the attendant openthe cash register. Mr Rickus and the co-defendant took money from the cash register,as well as some tobacco products, with a total value of just over $6,000. The victimwas instructed to drive away quickly. He was upset but told to "keep his mouth shutor he would be in trouble with the police". They told him he could not leave.[9] All four remained at a house until later that morning when Mr Rickus andthe co-defendant took the victim to Wellington and spent most of the day at anaddress there. Eventually they returned to Palmerston North, where the victimmanaged to escape. By this stage it was around 5.15 am on the morning of 25 March.Mr Rickus and his co-defendant left using the victim's van but were later apprehendedby the police.[10] In his victim impact statement, the victim spoke of the traumatic effect ofthe incident on him. He had been badly burnt as a child, causing him significantdisability. He had moved to Palmerston North in an effort to gain independence buthad only been there a week at the time of the incident. He was physically and mentallyexhausted after what happened and too scared to leave the house. He believedthe threats which he said Mr Rickus made to him about killing him and assaulting him.He described feeling terrified. His mother said the victim had previously suffereda brain injury and the incident resulted in his threatening suicide. He was diagnosedwith post-traumatic stress disorder. She described the victim as previouslywell-adjusted and happy but by sentencing, "a mess". The whole family was affected.[11] The service station attendant was relatively sanguine about the aggravatedrobbery, although said he felt very threatened at the time.The procedural history[12] Mr Rickus and his co-defendant were jointly charged with kidnapping,unlawfully taking a motor vehicle, and two charges of aggravated robbery(one in respect of the victim's cellphone and one in respect of the robbery of theservice station). The Crown agreed to take part in a sentence indication on three onlyof those charges, meaning there was no charge relating to the taking of the cellphone.Mr Rickus maintained he had no knowledge of the presence of the handgun. Partly asa result of that, the sentencing indication hearing was adjourned to enable Mr Rickus'sthen lawyer, Ms Younger, to agree a summary of facts with the Crown.Advice at the time[13] In her affidavit filed for the purposes of the appeal, Ms Younger describesMr Rickus as "adamant" in his desire for a sentence indication hearing. Ms Youngerfocused on obtaining an amended summary of facts which Mr Rickus "could livewith". As a result, the Crown summary of facts was amended as follows (amendmentsshown by italics):[16] This offender was holding a handgun which he later placed on the seatnext to the complainant. He told the complainant that the handgun was loadedand if he did anything stupid he would shoot him in the head. The defendantdenies any knowledge that this occurred.[14] The fact the kidnapping victim had low intellectual functioning because of abrain injury was not included in the summary of facts. Furthermore, the period ofdetention on the kidnapping charge was agreed to be reduced from 48 hoursto 24 hours.[15] Ms Younger says this was the best possible resolution of the issue. The Crownwould not concede there was no gun because the victim was clear about that in hisstatement to the police. Ms Younger saw the amendment as giving her at leastthe opportunity to argue that Mr Rickus did not remember or know there was a gun inthe van, which she did. Ms Younger says Mr Rickus understood, despite what wassaid in the summary of facts, that the Judge could come to her own conclusion aboutMr Rickus's knowledge of the presence of the gun and hold him accountable for hisco-offender's actions.[16] The summary of facts in relation to the aggravated robbery was also amendedto say that it was the older offender only who made demands of the service stationattendant, and held the weapon.[17] Ms Younger describes Mr Rickus as "adamant" in his instructions to proceedwith the sentence indication on the amended summary of facts. She had no concernsabout his understanding of the choices available to him, nor was she under anymistaken understanding as to what were his instructions.Sentence indication[18] On 10 October, Judge Edwards gave a sentence indication on charges ofaggravated robbery, kidnapping and unlawfully taking a motor vehicle. It alsoincluded charges to which Mr Rickus had already pleaded guilty: two breaches ofrelease conditions, driving while disqualified, and an assault committed onanother prisoner during the remand period at Linton Prison. The Judge recordedthe allegations as set out in the agreed summary of facts, including that Mr Rickusdenied any knowledge of the handgun.[19] The aggravated robbery charge was taken as the lead offence. The Judgeidentified the aggravating features as the degree of premeditation, the use of disguise,the presence of a weapon, the number of offenders, the kidnapping of the victim as thedriver, the vulnerability of the victim given the time and unlikelihood of others beingpresent, and value of the property stolen. The Judge referred to R v Mako onthe robbery of retail premises, noting the case fell into the category warrantinga starting point in the region of five years' imprisonment.5 The fact Mr Rickus wasnot the one with the cosh did not reduce his culpability. The Judge did not acceptthe submission that the older offender was the driver of the offending, noting theprimary role played by Mr Rickus in the kidnapping, much of which took place in theabsence of the older offender.[20] The Judge uplifted the starting point of five years by three years to reflect allof the offending against the victim of the kidnapping (including unlawfully taking themotor vehicle). She noted the kidnapping was over a period of 24 hours, thatthe victim was unwittingly involved in an aggravated robbery, had to drive to and fromWellington, repeatedly said he wanted to leave and that the kidnapping came to an endonly when he managed to escape.[21] The Judge considered that the kidnapping covered the period after theaggravated robbery of the service station but said what happened beforehand had to bereflected in the overall uplift. The Judge specifically addressed the fact Mr Rickus didnot recall the presence of the handgun or threats of violence towards the victim but didnot accept that could have happened in the confines of a van without Mr Rickus beingaware of it. She disregarded the suggestion that Mr Rickus was acting at the directionof the older offender, observing that he was not present when the kidnapping firstoccurred, during the drive to and from Wellington, and that it was Mr Rickus alonewho went with the victim to his house to get the van. She also referred to the victimimpact statement, recording the victim's vulnerability and the impact on his family.[22] The Judge uplifted the combined starting point of eight years by four months,to reflect the other offending, being particularly concerned about the assault on anotherprisoner, with a 25 per cent discount for a guilty plea on those charges.[23] The Judge noted Mr Rickus was 19 years old and had a reasonably limitedhistory but observed that any discount for age and prospects of rehabilitation had to bebalanced against the fact the offending was committed while Mr Rickus was on bailand subject to prison release conditions. That, she said, must reduce any allowancefor his youth. The Judge declined a discount because of Mr Rickus's offer to attend5 R v Mako [2002] 2 NZLR 170 (CA) at [56].restorative justice, noting that the victim of the kidnapping was not prepared to attendas he remained fearful of the defendant. She also questioned how genuine Mr Rickus'sremorse was.[24] The Judge indicated a discount of 20 per cent if guilty pleas were enteredto the trial charges. The result was an indicated sentence of six years and eight months'imprisonment.[25] Finally, the Judge observed the end sentence after discounts would have to belooked at on a totality basis.What happened following the sentence indication[26] Ms Younger's advice to Mr Rickus was that there was significant risk, shouldhe be convicted at trial, that the starting point would be increased to a much higherstarting point than that taken at the sentence indication hearing on the basis ofthe agreed summary of facts. There would be more charges, all the allegations wouldbe included in the summary of facts and there would be no credit for a guilty plea.The starting point after a jury trial could be as high as nine to ten years. She listed therisk factors for Mr Rickus in what she describes as "the disclaimer" which he signed.The disclaimer recorded Mr Rickus's instruction that he accepted the sentenceindication and, while the sentence might reduce further to take account of any remorseand totality, he was happy with a sentence of six years and eight months'imprisonment.Sentencing[27] In sentencing, the Judge followed the same format as her sentence indication.She tempered somewhat her comments about Mr Rickus's youth and limited historyand gave him a discount by reducing the eight-year starting point in respect of theaggravated robbery and kidnapping charges by six months. She then applieda 20 per cent discount in respect of Mr Rickus's guilty plea, leaving an end sentenceof six years' imprisonment. She uplifted that by three months in respect of the othercharges after allowing a full discount for the guilty plea on those charges.[28] The Judge then said she stepped back and considered the issue of totality,which she described as being whether the total length of the sentence was out ofproportion to the overall offending and Mr Rickus's role in it. She did not considerany further reduction was required.[29] The final sentence was six years' imprisonment on the kidnapping andaggravated robbery charges, with three months cumulative in respect of the othercharges.[30] Mr Rickus was still happy following sentencing, telling Ms Younger hewas "stoked".Did the sentence indication proceed on an incorrect basis?[31] Mr Young now acts for Mr Rickus. In his submission, the sentence indicationprocess was flawed from the outset because the agreed summary of facts did not allowfor the disputed fact of whether Mr Rickus knew of the presence of the handgun in thevan to be resolved. In his submission, a sentence indication needs to be based onundisputed facts and, if not, then the sentence indication cannot proceed and thedefendant either has to continue to trial or plead guilty and seek a disputed fact hearing.[32] Section 24 of the Sentencing Act 2002 clarifies the law relating to facts onwhich an offender is to be sentenced.6 It therefore applies after a plea of guilty hasbeen entered or there has been a finding of guilt, and before sentencing. Section 24(2)provides a procedure for proof of facts which are in dispute, generally referred to asa disputed facts hearing. If a fact is relevant to the determination of a sentence,the Court must indicate the weight it would likely attach to the disputed fact and itssignificance to the sentence. The prosecutor must then prove beyond reasonable doubtthe existence of any disputed aggravating fact and must negate beyond a reasonabledoubt any disputed mitigating fact raised by the defence that is not wholly implausibleor manifestly false. A defendant has the right to request a disputed facts hearing.76 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at 24.02.7 Sentencing Act 2002, s 24(2)(b); and Saggers v R [2012] NZCA 591 at [24]–[25].[33] In contrast, a sentence indication takes place prior to trial (and obviously priorto a guilty plea) but only if the defendant so requests it.8 If so, the court may give anindication only if satisfied that the information available is sufficient for that purpose.9Such information must include:10(a) a summary of the facts on which the sentence indication is to be given,agreed on by the prosecutor and the defendant; and(b) information as to any previous conviction of the defendant; and(c) a copy of any victim impact statement that has been prepared inrelation to the offence concerned under the Victims' Rights Act 2002.[34] That is exactly what happened in this case. The Judge had previously refusedto give a sentence indication because she was dissatisfied with the summary of facts.The summary of facts presented at the resumed sentence indication hearing had beenamended by agreement between the Crown and defence, and Mr Rickus specificallyendorsed the amended summary and signed it, giving his consent for it to be used forthe purpose of a sentence indication.[35] Had Mr Rickus simply pleaded guilty to that summary of facts rather than seeka sentence indication and the case proceeded to sentencing without a disputed factshearing, then we would agree Mr Rickus would have had a legitimate complaint.In those circumstances, the situation would have been analogous to R v Gatenby.11In that case, Mr Gatenby had pleaded guilty to cultivating cannabis but told the policeit was for personal use. He appealed his sentence on the grounds that he had not beencharged with possession of cannabis for supply, yet the Court placed weight on whatit saw as a commercial motive behind the cultivation. This Court referred to the s 24process requiring the Court to indicate the weight it would likely attach to a disputedfact and then the need for the prosecutor to establish it beyond reasonable doubt.12It considered Mr Gatenby's assertion that the cultivation was for personal use only asdubious but said it could not be rejected out of hand as implausible or8 Criminal Procedure Act 2011, s 61(1).9 Section 61(2).10 Section 61(3).11 R v Gatenby CA511/04, 28 April 2005.12 At [13].manifestly false.13 While the Judge here clearly regarded Mr Rickus's protestationsof ignorance as implausible, we think, like R v Gatenby, they were dubious but couldnot totally be disregarded.[36] We accept it was less than ideal that the agreed summary included the commentthat Mr Rickus disavowed any knowledge of the handgun. The point, however, is thatMr Rickus had the benefit of receiving the sentence indication. He knew the Judgewas not prepared to accept his version of events and she indicated what the sentencewould be on that basis. It would have been open to Mr Rickus to reject the sentenceindication, enter a guilty plea and request a disputed fact hearing on the issue of hisknowledge of the presence of the handgun. He did not. Instead, he decided, followingMs Younger's careful advice as to the advantages and disadvantages of doing so,to accept the sentence indication and plead guilty to the charges. That was his decisionto make.14[37] In any event, there can be little dispute that Ms Younger's advice was sound.She had agreed a summary of facts with the Crown which did not include significantlyaggravating factors, as she appropriately detailed in the disclaimer.[38] For these reasons, we do not accept that the sentence indication proceeded onan incorrect basis.Were there any errors in the sentence?[39] Mr Rickus also complains that the discount of approximately six per cent foryouth was wholly inadequate, that the starting point on the kidnapping charge was"very high" and that a substantial discount should have been given for totality. As aresult of all these factors, he says the sentence was manifestly excessive.[40] Mr Young points out that Mr Rickus was only 19 years old at the time of theoffending and had a relatively light criminal history. In his submission, the endsentence was "a crushing one" to impose on a young man and there should have beena greater discount for youth.13 At [15].14 See Ngamu v R [2018] NZCA 464.[41] As discussed above, the Judge reduced the discount for youth given that theoffending occurred while Mr Rickus was on bail and subject to sentence. At thesentence indication, she said this meant there would be no discount for youth but onsentencing she allowed a further six months in that regard.[42] We acknowledge the importance of taking into account a defendant's youthwhen determining an appropriate sentence. There is growing evidence as to theage-related neurological differences between youth and adults, particularly in relationto brain development and development of rational thought.15 A reduction of sixmonths from the original eight-year starting point (amounting to around six per cent)is low. That must be balanced, however, against the uplift which the Judge wouldotherwise have imposed for offending while on bail and awaiting sentence. Overall,while we can accept that a greater discount was available and could legitimately havebeen applied, we do not agree that the Judge was in error in taking the approachshe did.[43] And, as we conclude below, given the seriousness of the offending in this case,we do not consider that the end sentence was manifestly excessive.[44] Turning to the three-year uplift on the kidnapping charge, this Court has saidthere can be an "infinite variety of circumstances which underlie the crimeof kidnapping",16 and that there is therefore no tariff or guideline decision in relationto its sentencing. Relevant factors may include the length of detention, the extentof premeditation, the number of offenders, gang involvement and the level ofviolence involved.17[45] While other kidnapping cases may involve serious violence that is also oftendomestic or gang related, the aggravating features of this case involve the length ofdetention, the number of offenders, the taking of the victim's van and thevictim's vulnerability. We agree with Mr Eng for the Crown that the kidnapping wasserious and prolonged offending which caused a vulnerable victim considerable harm.15 See Taiapa v R [2020] NZHC 3355 at [61]–[64]; and Churchward v R [2011] NZCA 531, (2011)25 CRNZ 446.16 R v Hall CA296/05, 28 February 2006, at [26], citing R v Wharton (2003) CRNZ 109 at [11].17 R v Liev [2017] NZHC 2253 at [25].Mr Rickus had the benefit of the kidnapping charge being limited to the period afterthe robbery, although the Judge was entitled to take into account the events leading upto it.[46] In all the circumstances, we are not persuaded that an uplift of three yearsto the starting point to reflect the kidnapping charge was out of range.[47] As to totality, again, another Judge might have taken a different approach.The issue, however, is whether the end sentence was manifestly unjust. In allthe circumstances, we do not accept it was.Reason for the need for an extension of time[48] We observed above that no compelling explanation has been advanced for thelate filing of the appeal. Mr Young explains that he began acting for Mr Rickus inrelation to parole proceedings after he had been recalled to complete his sentencefollowing his failure to remain at a residential drug treatment programme. Prior tobeing released onto that programme, Mr Rickus had completed the medium intensityrehabilitation programme and the drug treatment programme while in prison.Mr Young candidly describes Mr Rickus as a young man with a mixture of positiveand negative traits and refers us to a December 2019 parole report. This describesMr Rickus as having suffered an extremely impoverished upbringing in circumstancesinvolving exposure to drug use and many different caregivers. Mr Young says it istragic that a young man from a challenging background should be subject to such alengthy period of imprisonment for offending which occurred when he was 19 yearsold and who will likely have to serve the whole sentence of imprisonment.[49] While we agree that Mr Rickus's situation is a most unfortunate one, theseissues do not adequately explain the delay or constitute a compelling reason to extendthe time for him to appeal his sentence. This is particularly so in circumstances wherethe appeal is of little merit.Result[50] The application for an extension of time to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent