LOVE v R [2022] NZCA 614

LOVE v R [2022] NZCA 614 [7 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA416/2022[2022] NZCA 614BETWEEN JAMIE NGATATA LOVEAppellantAND THE KINGRespondentHearing: 2 November 2022Court: French, Thomas and Mallon JJCounsel: D A Ewen for AppellantC A Brook for RespondentJudgment: 7 December 2022 at 2.30 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 10 years' imprisonment on the robbery charge is quashedand a sentence of 18 months' imprisonment is substituted.C The sentences for the other charges are unaffected.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] The appellant pleaded guilty to and was convicted of robbery,1 demanding withintent to steal2 and wilful damage.3 The robbery was a "third strike" offence under thenow repealed "three strikes" sentencing regime.4[2] In the High Court, Mander J sentenced the appellant to 10 years' imprisonmentfor the robbery, the maximum sentence for that offence, taking the view that he hadno discretion to impose a lesser sentence under the three strikes regime.5 Were it notfor that regime, he would have sentenced the appellant to 18 months' imprisonmentrather than the 10 year maximum.6[3] The sentencing took place before the Supreme Court's judgment in Fitzgeraldv R.7 The Court held that, where imposing the maximum sentence under the threestrikes regime would breach the right not to be subjected to disproportionately severepunishment, the offender should be sentenced in accordance with ordinary principles.8[4] Following that judgment, the appellant appeals his sentence. He says the10 year sentence was grossly disproportionate punishment so as to breach s 9 of theNew Zealand Bill of Rights Act 1990 and should be quashed. He says it should eitherbe replaced with a sentence of 18 months' imprisonment or an order could be madeunder s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Leaveto appeal has been granted.91 Crimes Act 1961, s 234.2 Section 239(2).3 Summary Offences Act 1981, s 11(1)(a).4 Sentencing Act 2002, s 86D, repealed by Three Strikes Legislation Repeal Act 2022, s 5.5 R v Love [2020] NZHC 1215 at [15].6 At [29].7 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.8 New Zealand Bill of Rights Act 1990, s 9. Fitzgerald v R, above n 5, at [137]–[139] perWinkelmann CJ, [231] per O'Regan and Arnold JJ and [252] per Glazebrook J. Winkelmann CJalso considered that s 86D(2) of the Sentencing Act adds a sentencing principle that recidivism bythose caught by the regime is to be viewed as very serious and worthy of a stern sentencingresponse.9 Love v R CA416/2002, 23 September 2022 (Minute of Collins J).BackgroundThe offending[5] The demanding with intent to steal charge was for an incident on the eveningof 15 August 2019. The appellant approached and sat next to a person who was sittingin the gaming lounge of a bar and demanded money from him. The appellantthreatened he would make a scene. The person felt intimidated by the threats andhanded over $60 to the appellant to get him to leave.[6] The wilful damage charge was for an incident five days later atHillmorton Hospital where the appellant was an outpatient. The hospital hadmaintained an account for the appellant as part of its assistance with his finances. Theappellant arrived at around 8 am intending to get some money from his account butthe office had not yet opened. The appellant kicked and smashed the window of thedoor to the office, broke an outdoor chair and used part of that chair to smash threewindows of another building on the hospital grounds. Staff working inside thebuilding felt threatened by the appellant's actions.[7] The incident that was the subject of the robbery charge occurred at around11 am that day. The appellant went into a café and shouted aggressively at the cashierto hand over money or he would "blow [her] brains out". The appellant demanded thecashier put the till on the counter. He took around $380 from the till and then left.First strike[8] The appellant committed his first strike offence in January 2012. Heapproached two tourists who agreed to give him a lift in their car. When they reachedthe place where the appellant was to be dropped off, he demanded money from them.Fearing for their safety, they handed over $300. The appellant was convicted ofrobbery following a jury trial and sentenced to a term of imprisonment.Second strike[9] The appellant committed his second strike offence, another robbery, inFebruary 2019. He went into a service station, sat down at a table and waited forcustomers to leave. He then approached the store attendant with his hands behind hisback, saying he had a weapon and demanding money and tobacco. He left with $150and tobacco to the value of $5000. A compulsory treatment order was made followinghis guilty plea on this and other offending.10Personal circumstances[10] The appellant is now 46 years old. He was raised by his grandparents withwhom he was close. He had no trouble at school until he was 14 years old when hestarted using drugs and alcohol and was expelled from school for truancy. He hasnever held a stable job and has led a "chaotic lifestyle" characterised by many periodsof imprisonment.[11] He has a long list of convictions. Many of them are for wilful damage,shoplifting, theft, disorderly behaviour, possession of an offensive weapon, drugs(mainly cannabis) and breaching bail, community work or release conditions. He alsohas several convictions for assault, in addition to the offending that gave rise to thefirst and second stage warnings under the three strikes regime.[12] He is diagnosed as having Bipolar Affective Disorder complicated bymethamphetamine use and an antisocial personality. He has been under the care ofSpecialist Mental Health Services on and off for the last 25 years. He was in the careof the Wellington Medium Secure Forensic ward between February and 29 July 2019and responded well to medication. He was transferred to Hillmorton for the purposesof facilitating his transfer into the community. He was discharged on 30 July 2019into the care of the Forensic Community Team.[13] At the time of the present offending, he had become frustrated about not beingable to access money, was using drugs, particularly methamphetamine and MDMA,and was erratic and volatile. Dr Hillier, a consultant psychiatrist who prepared a reportin October 2019 considered that the appellant was aware of the adverse effects drugsand alcohol have on his mental state, understands that he presents as irritable andaggressive in a manner people find intimidating, and realises that he needs help. He10 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34.was on the telephone to his aunt, a mental health worker, when he carried out therobbery in the café.[14] The pre-sentence report writer assessed the appellant as at a high risk ofreoffending. His cyclical pattern of relapsing with drug abuse or ceasing to take hismedication and then entering a manic phase would need to be addressed to reduce hisrisk of harm to the public.High Court sentencing[15] Section 86D of the Sentencing Act 2002 at the relevant time provided that theCourt must sentence an offender who is convicted of a stage 3 offence to the maximumterm of imprisonment for that offence. It also provided that the Court must order thatthe offender serve the sentence without parole unless it is satisfied, given thecircumstances of the offence and the offender, that it would be manifestly unjust tomake the order.11 Any other sentence imposed at the same time had to be imposedconcurrently.12[16] This meant the Judge imposed a 10 year imprisonment sentence on the robberyconviction.13 He imposed concurrent sentences of six months' and one monthimprisonment on the demanding with intent and wilful damage charges respectively.14He considered it would be manifestly unjust to order that the appellant serve the10 year sentence without parole.15 This was because it would be grosslydisproportionate to the sentence he would have received had the three strikes regimenot applied (he would have been sentenced to 18 months' imprisonment16 and11 Section 86D(3).12 Section 86D(6).13 R v Love, above n 5, at [15].14 At [42]–[43].15 At [38].16 The Judge derived this by taking a starting point of 18 months' imprisonment for the robbery(taking into account that the robbery was spontaneous, but the business was vulnerable to this typeof offending because of its few staff and uncontrolled access and the cashier was left traumatised);an uplift of six months' imprisonment for the demanding with menaces (as separate offending forwhich a cumulative sentence was appropriate); no uplift for the wilful damage (as being part ofthe chain of events on the morning of the robbery); an uplift of six months to reflect the ongoingrisk he represented to the public in view of his previous conviction history; and discounts of fiveper cent for remorse, 10 per cent for the link between the appellant's mental disorder and theoffending, five per cent for difficulties in his upbringing and background; and 25 per cent for hisguilty pleas.automatically released after 9 months);17 the appellant's modus operandi involvedthreats rather than physical harm;18 and there was a link between the appellant's mentalcondition and his offending.19Appeal[17] The issue on appeal is whether the 10 year imprisonment sentence was agrossly disproportionate punishment contrary to the right affirmed in s 9 of theNew Zealand Bill of Rights Act 1990. If it is, then the appellant is to be sentencedaccording to ordinary sentencing principles. The appellant submits that the differencebetween 18 months and 10 years speaks for itself. The Crown accepts that it "may"be grossly disproportionate given the differences in the respective lengths of thesentences, the relatively low level nature of the offending and the appellant's personalcircumstances. The Crown's principal caveat to this is that there are two casescurrently before the Court that are awaiting judgment.20[18] We are satisfied a 10 year sentence was grossly disproportionate. It is far inexcess of the 18 month sentence the appellant would have received but for the threestrikes regime. On that sentence he would have been automatically released after ninemonths whereas the appellant has no guarantee of release on parole at any time beforethe expiry of the 10 year sentence. This disparity is so great as to cause "shock" to thenational conscience.21 While the appellant is a recidivist offender, his offending isgenerally low level and generally does not involve robbery. His robberies have notinvolved weapons or any physical harm. The differential in the sentence he wouldhave otherwise received is greater than in Phillips v R and Mitai-Ngatai v R where ineach case the third strike sentence was substituted with sentences under ordinaryprinciples.2217 At [37].18 At [35].19 At [36].20 Allen v R CA715/2021, heard on 23 June 2022; and Sheers v R CA351/2022, heard on14 September 2022.21 Fitzgerald v R, above n 7, at [79]–[81] per Winkelmann CJ, [239] per Glazebrook and [167] perO'Regan and Arnold JJ; and Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at[172].22 Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661; and Mitai-Ngatai v R [2021] NZCA 695. Wenote that in those cases the Crown conceded that s 9 had been breached.[19] We therefore consider that the 10 year imprisonment sentence on the robberycharge should be quashed and substituted with a sentence of 18 months' imprisonment.The concurrent sentences on the other two charges would remain. We agree with theCrown that it is not appropriate to make an order under s 34 of the Criminal Procedure(Mentally Impaired Persons) Act. While the appellant will need assistance when he isreleased, no further criminal detention can be justified. The appellant's mental healthcare will need to be provided under the civil regime rather than the criminal one.Result[20] The appeal is allowed.[21] The sentence of 10 years' imprisonment for the robbery is quashed. A sentenceof 18 months' imprisonment is substituted. The sentences on the other charges areunaffected.Solicitors:Crown Law Office, Wellington for the Respondent