ANDERSON v R [2019] NZCA 294

ANDERSON v R [2019] NZCA 294 [9 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA754/2018[2019] NZCA 294BETWEEN KAIPARA ANDERSONAppellantAND THE QUEENRespondentHearing: 10 June 2019Court: Brown, Whata and Moore JJCounsel: N S Leader for AppellantM Harborow and R S Ching for RespondentJudgment: 9 July 2019 at 12.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of five years and 10 months' imprisonment is quashed.C A sentence of four years and seven months' imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] Kaipara Anderson pleaded guilty to charges arising out of his involvement inthe robbery of The Warehouse at Dargaville. On 26 January 2018 he was sentencedby Judge de Ridder in the District Court at Whangārei to five years and 10 months'imprisonment.1[2] Nine months later his co-defendant, Mr Cameron, was sentenced in theHigh Court at Whangārei to five years and two months' imprisonment.2[3] Mr Anderson appeals his sentence on the basis that the starting point imposedwas too high given the principle of parity.Factual background[4] Late in the evening of 28 May 2017 Mr Cameron and Mr Anderson coveredtheir faces with homemade balaclavas. They put on black clothing and shoes and worelatex gloves. Mr Cameron armed himself with a cut down .22 calibre rifle. It is notknown whether that firearm was loaded.[5] The men drove to The Warehouse in Dargaville. There they broke into the rearperimeter area and entered the building through an insecure door. Inside the store werefive staff; a man and four women. Undetected, Mr Cameron and Mr Anderson wereable to watch the staff's movements via the CCTV security system in the manager'soffice. Mr Anderson armed himself with items he found in the office; a screwdriverand a pair of scissors.[6] At 11:00 pm, via the store's public address system, the supervisor announcedit was time for "smoko". Shortly afterwards two of the victims entered theadministration area where Mr Cameron and Mr Anderson were hiding. They wereimmediately confronted by the intruders. They were threatened that if they didanything stupid or did not comply with instructions they would be shot. Then, atgunpoint, they were directed into the toilet area. Their hands were bound withelectrical cord. Then they were tied to each other.[7] Shortly after this the three other workers entered the administration area.They too were confronted by the men. At gunpoint they were escorted to the toilets.1 R v Anderson [2018] NZDC 1305.2 R v Cameron [2018] NZHC 2046.At Mr Cameron's direction the supervisor identified herself. The other two victimswere then bound with electrical cord in a similar fashion to the first two victims.Mr Anderson, armed with the screwdriver and scissors, stood guard over the fourbound victims while Mr Cameron, armed with the gun, directed the supervisor to takehim to the "money". She led him to the safe and was directed, at gunpoint, to open it.Mr Cameron instructed her to place the contents of the safe into a bag he was carrying.Cash and cheques to a value of over $27,000 were placed in the bag along with some300 items of jewellery valued at more than $242,000.[8] Mr Cameron then bound the supervisor's arms and hands using adhesive tape.He directed her to return to where the other victims were tied up. He tied her back-to-back with two of the other victims. Bound in this way all five victims were directedto sit on the floor.[9] Mr Cameron then rifled through the staff's personal property before asking thesupervisor if she wished him to inform someone of the robbery so that she and theothers could be released. The supervisor simply asked both men to leave.[10] They did, but not before taking the supervisor's handbag which contained avariety of items including jewellery, a cellphone, cash and car keys.[11] About an hour after the two men had first entered The Warehouse the victimsmanaged to free themselves. They called the Police.[12] After leaving the scene, Mr Anderson burned his clothing at a nearby house.[13] Several days afterwards Mr Cameron was pulled over by the Police. Later thatsame day the Police went to arrest Mr Anderson at his home. A search revealed seventinnies containing approximately seven grams of cannabis. Another tinny was foundon Mr Anderson.[14] When interviewed, Mr Anderson admitted going to The Warehouse withMr Cameron and arming himself with scissors and a screwdriver. He said he had beenpaid $400 by an unknown person to assist in the robbery.3 In respect of the cannabishe said he had been selling approximately 20 cannabis tinnies a week.[15] Other than one ring, none of the jewellery or cash has been recovered.[16] Apart from some minor cuts and abrasions caused by the ligatures, none of thevictims suffered any physical injuries. However, unsurprisingly, the victim impactstatements reveal varying levels of post-traumatic stress and emotional harm.[17] On 21 and 28 August 2017 Mr Anderson pleaded guilty to the followingcharges:(a) one charge of aggravated robbery;4(b) five charges of kidnapping;5 and(c) one charge of possession of cannabis for supply.6Application for extension of time[18] Mr Anderson's appeal was filed approximately nine months after the expiry ofthe statutory filing date. As earlier noted he was sentenced on 26 January 2018.Mr Cameron was sentenced on 9 October 2018.[19] Mr Anderson applied for an extension of time to file his appeal.7 This was notopposed by the Crown. Given that the appeal relates to issues of parity withMr Cameron's sentence we grant the extension.3 To the probation officer who prepared the PAC report he said this figure was $1,000 and wasoffered to him by Mr Cameron.4 Crimes Act 1961, s 235(c); the maximum penalty is 14 years' imprisonment.5 Section 209; the maximum penalty is 14 years' imprisonment.6 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c); the maximum penalty is eight years' imprisonment.7 Criminal Procedure Act 2011, s 248(4).The judgment under appeal[20] After reciting the facts, the sentencing Judge noted that the followingaggravating factors were engaged:8(a) the use of disguises;(b) premeditation;(c) the use of weapons;(d) the presence of two offenders; and(e) the vulnerability of the victims.[21] As to Mr Anderson's specific involvement the Judge said:9 although I accept that you were not the ringleader of this offending, it seemsthat other people apart from your co-offender were behind it. You knew fullwell what was going on, you had plenty of opportunity especially when yousaw the firearm to back out, but you willingly went along with the exerciseand you were a willing and active participant right throughout from themoment that you disguised yourselves and then entered the building,remaining there and taking part in confronting and terrifying these fiveworkers. So you cannot seek to diminish your role.[22] The Judge set a starting point of nine years' imprisonment10 after observingthat there was little difference on that point between the parties.11 No uplift was givenfor the possession for supply charge. The Judge then applied discounts of 18 monthsfor Mr Anderson's youth and remorse and a further discount of 20 months(being 22 per cent) for his guilty plea. This led to a final sentence of five years and10 months' imprisonment.8 R v Anderson, above n 1, at [13].9 At [12].10 At [14].11 At Mr Anderson's sentencing the Crown sought a starting point for the aggravated robbery andthe kidnapping charges of eight to 10 years' imprisonment with a modest uplift for the cannabisoffending. Mr Leader suggested a starting point of eight to nine years' imprisonment with asix-month uplift for the cannabis charge. In this Court Mr Leader accepted the starting point rangehe had advanced in the District Court was too high.The ground of appeal[23] The sole ground of appeal is that given the principle of parity the starting pointof nine years' imprisonment was set too high. For Mr Anderson, Mr Leader submittedthat Mr Cameron's level of culpability was higher; yet van Bohemen J adopted thesignificantly lower starting point of seven years.[24] It is thus necessary to examine how the sentence for Mr Cameron wasconstructed.Mr Cameron's sentence[25] Justice van Bohemen drew on this Court's judgment in R v Mako.12 He notedthe presence of the following aggravating factors:13(a) a moderate degree of unsophisticated planning;(b) the presence of a lethal weapon;(c) threats of violence towards the victims;(d) binding and immobilisation of the victims;(e) entry into commercial premises with the expectation of a reasonablyhigh potential gain, albeit at a time when members of the public werenot present; and(f) the value of the unrecovered property.[26] Against these factors van Bohemen J balanced the fact that Mr Cameron haddemonstrated some modest degree of empathy towards the victims when he offered tophone someone to assist in their prompt release.1412 R v Mako [2000] 2 NZLR 170 (CA).13 R v Cameron, above n 2, at [31].14 At [32].[27] In formulating the starting point, the Judge made reference to the followingexamples set out in Mako:15[54] The robbery of commercial premises where members of the publiccan be expected to be present, targeting substantial sums in tills or a safe by agroup, with a lethal weapon, disguises and other indications of preparationshould attract a starting point of six or perhaps more years. Where firearmsare loaded or the danger of harm is increased in other ways, or if actualviolence is used, the starting point would be eight years or more. ...[58] Forced entry to premises at night by a number of offenders seekingmoney, drugs or other property, violence against victims, where weapons arebrandished even if no serious injuries are inflicted would require a startingpoint of seven years or more. [28] After concluding that Mr Cameron's offending sat somewhere between the twoexamples given in Mako at [54], van Bohemen J set the starting point at seven years'imprisonment. The Judge observed that in reaching that figure he had regard to anumber of comparable cases.16[29] The Judge expressly recognised that the question of parity with Mr Andersonwas engaged. He dealt with this in the following way:[28] Clearly, the fact Judge de Ridder adopted that starting point [of nineyears' imprisonment] is highly relevant and persuasive given you and MrAnderson acted in this together, with you, arguably, playing a more seriousand culpable role given your brandishing of a firearm. That said, I am requiredto come to my own decision based on my understanding of the facts and thelaw.Appellant's submissions[30] Mr Leader submitted van Bohemen J's analysis was correct. A near identicalassessment of Mr Anderson's culpability would lead to the same seven-year startingpoint. He said the discrepancy in starting points is incapable of justification. It is sostark and so irreconcilable that the appeal should be allowed, particularly givenMr Anderson's relatively lower culpability.15 At [25]–[26] and [30].16 At 35]; referring to Anderson v R [2014] NZCA 410; R v Marsters [2013] NZHC 1434; R v Tuku-Inamata [2014] NZHC 2654; R v N [2014] NZHC 2236; R v Wellington [2014] NZHC 2993; R vInamata [2015] NZHC 284; Tukaki v R [2013] NZCA 411; and Martin v R [2016] NZCA 213.Respondent's submissions[31] Mr Harborow, for the Crown, submitted there is a genuine point of differencejustifying the different starting points. This is because Mr Cameron was beingsentenced for a second strike offence and accordingly was required to fully serve hiswhole sentence without parole.17 Mr Harborow variously described this factor as"pervasive" and "looming large" throughout van Bohemen J's sentencing remarkswith the consequence the Judge adopted a more lenient compensatory starting point.[32] The essence of Mr Harborow's submission was that it is wrong in principle totake parity into account when setting the starting point in cases where theconsequences of a second strike offence are engaged. In developing that submissionhe observed that parity is not a blunt instrument; regard needs to be given to thedifferences between defendants. In this case the key difference is that Mr Cameronwas being sentenced on a second strike offence.[33] On the question of whether the nine year starting point adopted byJudge de Ridder was manifestly excessive, Mr Harborow submitted that the presentcase falls squarely within [54] of Mako; commercial premises targeted by twooffenders seeking valuables from a safe. As the Court observed in Mako the offenderswere prepared. They broke into the staff area. They were armed with weapons andwore disguises. That conduct called for a starting point of "six or perhaps more"years.18[34] However, Mr Harborow said that van Bohemen J interpreted this passage asmeaning "six years" without taking into account the particular aggravating factorspresent in this case, including the detention and binding of the victims as well as thevalue of the unrecovered property taken. Taking those factors into account justified astarting point of eight years or more.[35] In support, he referred to R v Tuku-Inamata where the defendant, who was notthe ringleader, was armed with a screwdriver.19 There were six offenders and a loaded17 Sentencing Act 2002, s 86C(4).18 R v Mako, above n 12, at [54]. Set out above at [27].19 R v Tuku-Inamata, above n 16.gun was carried by a co-defendant. Ellis J adopted an eight year starting point whichwas described by this Court in a related appeal as being at the lower end of the range.20[36] Mr Harborow thus submitted the nine year starting point adopted byJudge de Ridder was within the available sentencing range.DiscussionPrinciples[37] We must allow the appeal if we are satisfied that there was an error in thesentence appealed from such that a different sentence should be imposed.21Ultimately, the focus is on the sentence imposed, rather than the process by which itwas reached.22[38] The general desirability that there be consistency of sentences betweenoffenders committing the same or similar offences is a well-recognised principle.23But as this Court pointed out in O'Sullivan v R, not every difference between sentencesor starting points for co-defendants will support an appeal on the grounds ofdisparity:24It is not enough that an offender thinks he has been unfairly treated. Thequestion is whether or not there is a real justification for any grievance – thatwill be the case if a reasonably minded independent observer, aware of all thecircumstances of the offence and of the offenders, would think that somethinghad gone wrong with the sentencing process.(Footnotes omitted).[39] The disparity must be unjustifiable or gross; a lenient or unusually mercifulsentence extended to one offender cannot create a legitimate expectation that otherrelated offenders will receive the same indulgence.2520 Martin v R, above n 16, at [11].21 Criminal Procedure Act, s 250(2).22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].23 Sentencing Act, s 8(e).24 O'Sullivan v R [2015] NZCA 147 at [21].25 Macfarlane v R [2012] NZCA 317 at [24].Was the starting point too high?[40] In this case, having reviewed the two sentencing decisions, we are of the viewthat there is a gross and irreconcilable discrepancy between the respective startingpoints. A difference of two years cannot properly be explained given the differentlevels of culpability. In this we agree with Mr Leader (and with van Bohemen J) thatMr Cameron's involvement in the robbery was more serious than Mr Anderson's.Indeed the sentencing Judge appeared to accept as much.26 Such a conclusion wasinevitable on the facts for the following reasons:(a) throughout Mr Cameron was armed with a firearm which he broughtwith him. In contrast Mr Anderson improvised by arming himself withitems he found in the manager's office;(b) Mr Cameron assumed the lead role, directing the victims at gunpointand interrogating the staff;(c) Mr Cameron directed the supervisor to "lead him to the money";(d) once the safe had been opened Mr Cameron placed the sports bag onthe floor and directed the supervisor to fill it;(e) Mr Cameron bound the supervisor's arms and hands and led her to thetoilet area where she was tied to the other victims;(f) Mr Cameron rifled through the staff's personal property and thesupervisor's handbag; and(g) consistent with his leading role, Mr Cameron asked the supervisor ifthere was anyone she wanted him to call.[41] In contrast, the summary reveals Mr Anderson as a secondary party whoseprincipal task was to support Mr Cameron and to maintain guard over the victims.26 R v Anderson, above n 1, at [12].[42] Furthermore, when measured against other cases, particularly Mako, we do notaccept that van Bohemen J's starting point for Mr Cameron was unduly lenient orunusually merciful. Indeed, drawing guidance from the relevant comments in Mako,it seems to us that the starting point was entirely appropriate. There was no actualviolence let alone injury. There were no obvious gang connections nor was there aconfrontation with the Police. These are all factors which the Court in Mako suggestedcould attract starting points of eight years or more.27 Although a weapon wasbrandished, it was not used. There is no evidence it was loaded. The risk to the publicwas minimal and the staff, although justifiably frightened, were not made to sufferunduly. As for the kidnapping charges we agree with van Bohemen J that the relevantcriminality of this offending was subsumed in the starting point insofar as the detentionof the victims was taken into account as an aggravating factor.28[43] We also agree with van Bohemen J that the index offending sits somewherebetween the examples set out at [54] of Mako; that is six "or perhaps more" years andeight years or more.[44] Mr Harborow argued that van Bohemen J viewed the first example given bythe Court in Mako at [54] as warranting a starting point of six years only rather than"six or perhaps more years". We do not think that is so. The Judge adopted a startingpoint of seven years. This accurately reflected the fact that, in this case the victimswere bound and property of substantial value not recovered, warranting a starting pointhigher than six years. It should also be noted that there was a further factor listed inthe example at [54] of Mako that was not present in Mr Anderson's offending to asignificant degree: the risk to members of the public. Overall, we do not think theJudge's starting point can be impeached or that he misconceived the Mako guidelinesin any way.[45] As for the comparison to Tuku-Inamata, the offending in that case was clearlymore serious: it involved actual violence to the point that one of the victims washospitalised; the firearm used by the offenders was loaded; members of the publicwere present; the degree of planning was greater evidenced by the use of plastic ties27 R v Mako, above n 12, at [54].28 R v Cameron, above n 2, at [36].and a getaway car; and the end result was a dangerous car chase with police.29Although the Court of Appeal indicated that the starting point for Mr Tuku-Inamatawas at the lower end of the range, it left undisturbed a starting point of seven-and-a-half years for his co-offender Mr Martin, who played a similar role.30[46] Furthermore, we cannot agree that the consequences of a second strike offenceled van Bohemen J to adopt a lower starting point. While it is correct he referred tos 86C(4) of the Sentencing Act 2002 and factored this into his sentence, he was carefulto confine the application of this principle to his discussion on the appropriateness ofthe uplifts for Mr Cameron's related drug and driving offending, his previousconvictions and the fact that the aggravated robbery and kidnapping offences werecommitted while he was subject to another sentence.31 This approach is consistentwith the judgments of this Court in Paerau v R and Wipa v R.32 It is far from evidentto us that the consequences of Mr Cameron's second strike affected the formulationof the starting point set for Mr Cameron.[47] Mr Harborow raised a further point. He submitted that the sentencing Judge'sstarting point might have incorporated a penalty for the cannabis related offending,justifying, to some extent, the discrepancy between the starting points. He submittedan uplift of between six to nine months may have been appropriate. However, thatsubmission sits uncomfortably with the sentencing Judge's observation that he did notpropose to uplift the nine year starting point to take into account either Mr Anderson'sprevious offending or the unrelated charge of possession of cannabis.33 In any case,the cannabis-related offending was insignificant on any analysis. Mr Anderson wasfound in possession of approximately eight grams of cannabis, an amount marginallymore than quarter of the presumption for supply.34 Had he not admitted he had beenselling cannabis Mr Anderson would doubtless have faced a charge of possessionsimpliciter, or not been charged at all.29 R v Tuku-Inamata, above n 16.30 Martin v R, above n 16, at [12].31 R v Cameron, above n 2, at [38] and [42]–[44].32 See Paerau v R [2018] NZCA 139 at [40]; and Wipa v R [2018] NZCA 219 at [36].33 R v Anderson, above n 1, at [15].34 Misuse of Drugs Act 1975, ss 6(6) and 2(1A) and sch 5.[48] It follows we agree that seven years is the appropriate starting point,notwithstanding our view that Mr Anderson's offending was less serious than hisco-offender's. We thus turn to consider Mr Anderson's personal circumstances insetting the appropriate final sentence.What should the final sentence be?[49] The sentencing Judge adopted a combined discount of 18 months whichequates to a reduction of slightly less than 17 per cent. We are satisfied that this wasan appropriate recognition of Mr Anderson's age and evident remorse for the reasonswhich follow.[50] First, Mr Anderson was aged 18 at the time of the offending.[51] Secondly, we are satisfied Mr Anderson was sincere in his expressions ofremorse. A psychological report prepared for the Department of Corrections describedhim as demonstrating empathy for his victims and expressing genuine remorse for hisactions and their impact on The Warehouse staff. Consistent with these observations,Mr Anderson expressed a willingness to engage in restorative justice. That offerappears to have been taken up by three of the victims. Two reported they found theexperience a positive and helpful one although, unsurprisingly, they also describedsuffering long term emotional and psychological consequences.[52] Furthermore, Mr Anderson's criminal history is relatively modest and, with theexception of a burglary conviction in 2016 for which he was sentenced to 60 hours'community work and intensive supervision, mostly relates to driving offences.[53] We are mindful of the principles enunciated by this Court in Churchward v R.35Mr Anderson's prospects of rehabilitation are positive. His offending bears hallmarksconsistent with the impulsivity and peer pressure receptiveness of youth.This conclusion is also supported by the contents of the psychological report whichrecords him as representing a low risk of further violent offending and a low tomoderate risk of further general offending. Taking these factors into account we35 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.consider the appropriate discount is one of 15 months, which represents 18 per cent.As noted this is broadly comparable to the discount given by the sentencing Judge.[54] Similarly, we see no reason to disturb the Judge's discount of approximately20 per cent in recognition of Mr Anderson's guilty plea. He first appeared on2 June 2017. On 3 July 2017 he pleaded not guilty and elected trial by jury. However,he entered guilty pleas on 21 and 28 August 2017. Thus, while not pleading at theearliest reasonable or practicable opportunity, he did so at a sufficiently early stage torelieve the witnesses' anxiety at the prospect of giving evidence and saved the Statethe substantial costs associated with a jury trial.[55] Taking all of these factors together, we arrive at an end sentence of four yearsand seven months' imprisonment.Result[56] The appeal is allowed.[57] Mr Anderson's sentence of five years and 10 months' imprisonment isquashed.[58] A sentence of four years and seven months' imprisonment is substituted.Solicitors:Crown Solicitor's Office, Auckland for Respondent