WOODSTOCK v R [2020] NZCA 472

WOODSTOCK v R [2020] NZCA 472 [5 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA144/2020[2020] NZCA 472BETWEEN KIERAN AARON WOODSTOCKAppellantAND THE QUEENRespondentHearing: 24 August 2020Court: Gilbert, Thomas and Dunningham JJCounsel: J D Lucas for AppellantM R L Davie for RespondentJudgment: 5 October 2020 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of six years and six months' imprisonment on the charge ofaggravated robbery is set aside. A sentence of four years and six months'imprisonment is substituted. This is to be served cumulatively onthe sentence of two years and two months' imprisonment imposed forthe 2017 offending. The other sentences imposed in the District Court areconfirmed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Woodstock pleaded guilty to one charge of aggravated robbery, one chargeof burglary, two charges of unlawful possession of a firearm and one charge of failingto carry out obligations in relation to a computer search. This offending took place inlate January 2019 (the 2019 offending), about a week after Mr Woodstock's 23rdbirthday.[2] Mr Woodstock was sentenced by Judge O'Driscoll on 4 February 2020 tosix years and six months' imprisonment for the 2019 offending.1 This sentence wasto be served cumulatively on an existing sentence of two years and two months'imprisonment that had been imposed on 29 May 2019 on four charges of receivingstolen motor vehicles (the 2017 offending).2 This offending occurred in June,November and December 2017 when Mr Woodstock was aged 21.[3] In the result, Mr Woodstock is serving an overall sentence of eight years andeight months' imprisonment for the totality of this offending. He had not previouslybeen imprisoned.[4] Mr Woodstock now appeals against his sentence for the 2019 offending.He contends the adjusted starting point adopted for the 2019 offending was too high,a discount for personal circumstances ought to have been allowed, and a greateradjustment should have been made to reflect the totality of the 2019 and 2017offending given these sentences were to be served cumulatively.[5] Mr Woodstock filed his appeal 11 working days out of time. The delay wasrelatively short and there has been no prejudice to the Crown. We accordingly grantthe application for an extension of time to appeal.1 R v Woodstock [2020] NZDC 1915 [Sentencing judgment].2 Police v Woodstock [2019] NZDC 10396. This decision was confirmed on appeal in Woodstock vPolice [2019] NZHC 2070.The factsBurglary[6] Sometime after 6 pm on 27 January 2019, Mr Woodstock and three associatesdrove to the unoccupied address of the victim. They gained entry to the house bybreaking the laundry window with a brick and reaching inside to open the door.Once inside, they obtained the keys to a Ford Falcon motor vehicle and aHarley Davidson motorcycle. They took these vehicles away from the propertytogether with a laptop computer found in the house. The estimated combined value ofthese items was $90,000.Aggravated robbery[7] At about 2 pm the following day, Mr Woodstock and his associates returned tothe address. This time, the victim was home. When he saw them driving up hisdriveway, he ran from the garage to a neighbour's house to seek help. He knocked onthe door, but no one answered. Mr Woodstock and the others pursued him.When the victim took out his cell phone to call the police, one of Mr Woodstock'sassociates snatched it from his hand.[8] The victim was told to return to his house. When he refused, one ofMr Woodstock's associates threatened him, asking if he "wanted to see a gun" (in fact,there was no gun). The victim was then punched in the face by another ofMr Woodstock's associates. The summary of facts records that "the male defendants"(referring to Mr Woodstock and two others) punched, stomped and kicked the victimrepeatedly and dragged him back to his house.[9] The victim was instructed to contact the police and advise them thatthe property stolen the previous day had been returned. The victim was also instructedto write a letter changing the ownership of the vehicles to one of Mr Woodstock'sassociates. Mr Woodstock remained with the victim while the others searchedthe house. Four firearms were located and taken away by one of Mr Woodstock'sassociates.Unlawful possession of firearms[10] On 31 January 2019, police executed a search warrant at the address of one ofMr Woodstock's associates. Two firearms were located (neither belonged tothe victim). Mr Woodstock's fingerprint was found on one of these firearms.Mr Woodstock did not hold a firearms licence.Failure to carry out obligations in relation to computer search[11] On 1 February 2019, police seized Mr Woodstock's cell phone underthe Search and Surveillance Act 2012. Mr Woodstock refused to provide his passcodeto the phone.Sentence indication[12] The Judge gave a sentence indication on 23 October 2019.3 The Judge tookaggravated robbery as the lead charge.4 He identified the following aggravatingfactors — multiple offenders (four), home invasion, use of violence, premeditation,value of property taken and the impact on the victim who has suffered serious physical,emotional and financial harm.5 After considering comparable cases, the Judge adopteda starting point of seven years and six months' imprisonment for the aggravatedrobbery charge.6 The Judge applied a two-year uplift for the burglary7 and a furtheruplift of six months to take into account that the offending occurred whileMr Woodstock was on bail for the 2017 offending.8 A 20 per cent discount wasallowed for Mr Woodstock's guilty plea bringing the indicated sentence to one of eightyears' imprisonment.9 The Judge then applied a 12-month adjustment for totality totake account of the sentence imposed for the 2017 offending.10 The indicated sentencewas therefore seven years' imprisonment, cumulative on the sentence for the 2017offending.11 The Judge noted that he did not have a PAC report or any report prepared3 R v Woodstock [2019] NZDC 21007 [Sentence indication].4 At [34].5 At [38].6 At [40]–[44].7 At [45].8 At [53].9 At [56]–[57].10 At [59]–[60].11 At [61] and [66].under s 27 of the Sentencing Act 2002 but doubted that these would alter the outcomegiven the approach he had taken.12Sentencing judgment[13] Mr Woodstock accepted the sentence indication and pleaded guilty.A PAC report, a s 27 cultural report and a letter written by Mr Woodstock to the Judgewere provided for the purposes of sentencing. Mr Woodstock also expressed hiswillingness to meet the victim and engage in a restorative justice conference.[14] However, the Judge declined to postpone sentencing to enable the prospect ofrestorative justice to be pursued. The Judge considered it highly unlikely thatthe victim would wish to engage in such a process and said it would be in everyone'sinterests for sentencing to proceed without delay.13[15] In accordance with the Sentence indication, the Judge adopted a starting pointof seven and a half years' imprisonment for the aggravated robbery charge. This wasuplifted by two years' imprisonment for the burglary charge. The Judge appliedan uplift of six months to reflect that the offending occurred while Mr Woodstock wason bail for the 2017 offending. The adjusted sentence was therefore 10 years'imprisonment.14 No discount was made for Mr Woodstock's personal circumstances.A 20 per cent discount (two years) was applied for the guilty plea. This was adjustedby 12 months for totality to bring the sentence to seven years' imprisonment.15The Judge then made a further adjustment of six months to take account that thissentence was to be served cumulatively on the existing sentence of two years and twomonths' imprisonment for the 2017 offending.16[16] In the result, Mr Woodstock was sentenced to six years and six months'imprisonment on the charge of aggravated robbery. Concurrent sentences wereimposed for the other offences — three years' imprisonment for burglary, two years'imprisonment for the two charges of unlawful possession of firearms and one month's12 At [68].13 Sentencing judgment, above n 1, at [3].14 At [11].15 At [11].16 At [12].imprisonment for failing to comply with the search.17 The effective end sentence wastherefore six years and six months' imprisonment to be served cumulatively onthe sentence of two years and two months' imprisonment for the 2017 offending.This differed from the Sentence indication only to the extent that a further six-monthadjustment was made for totality.Was the starting point too high?[17] Mr Lucas, for Mr Woodstock, argues the starting point on the aggravatedrobbery charge should have been six years and six months, the same as was upheld bythis Court in Tereroa v R.18 He says the facts in Tereroa are similar to the present inthat it also involved the victim being assaulted by multiple offenders in his home.As in the present case, the offenders did not carry weapons. Mr Lucas notes thatMr Woodstock says he did not personally engage in the violence. Mr Lucas arguesthat an uplift of 18 months' imprisonment (as opposed to two years) would have beensufficient to take account of the burglary charge. These adjustments would reduce theadjusted starting point by 18 months, from 10 years to eight years and six months.This would be before the guilty plea discount, any discount for personal mitigatingcircumstances and any adjustment for totality.[18] Mr Davie, for the Crown, submits that the starting point of seven years and sixmonths for the aggravated robbery was in range. He refers to this Court's guidelinedecision in R v Mako and various other decisions applying it such as R v Fenton andCurrie v R suggesting that starting points in the region of 10 years' imprisonment areappropriate in cases of aggravated robbery involving invasion of a private home.19Mr Davie points out that the starting point of six years and six months' imprisonmentadopted in Tereroa v R was described by this Court as being at the very bottom end ofthe available range.20[19] We are satisfied the starting point of seven years and six months adopted forthe aggravated robbery was within the available range and in accordance with this17 At [13].18 Tereroa v R [2015] NZCA 120.19 R v Mako [2000] 2 NZLR 170 (CA), Fenton v R [2008] NZCA 379 at [15] and Currie v R [2010]NZCA 449 at [47].20 Tereroa v R, above n 18, at [29].Court's guideline judgment in R v Mako.21 The offending was premeditated, involvedfour offenders, violence, the threat of a firearm, entry to the victim's home and theftof property. The victim has suffered considerably as a result of the offending.While Mr Woodstock says he did not participate in the violence, he pleaded guilty toa summary of facts that states otherwise. Sentencing had to proceed on that basisgiven no disputed facts hearing was sought.[20] We do not consider the uplift of two years for the burglary the previous daycan be regarded as excessive in the circumstances, in particular due to the significantvalue of the property stolen. In our view, these aspects of the sentencing exercisecannot be impeached, particularly given there was no uplift for the other offending.In any event, the ultimate question is whether the end sentence is appropriate, notthe way it was constructed. We now turn to the more difficult issues of whetherthe overall adjustment for totality was adequate given the sentence was cumulative onthe sentence imposed for the 2017 offending and whether there should have beena discount for Mr Woodstock's personal circumstances.Should there have been a discount for Mr Woodstock's personal circumstances?[21] The Judge allowed no discount for Mr Woodstock's personal circumstances.Mr Lucas submits this was an error. Mr Davie submits that the Judge was entitled notto allow any discount for personal mitigating factors in all the circumstances.Mr Woodstock was 23 years old at the time of the offending and no longer a youth.The offending was premeditated. It was neither impulsive nor out of character.Mr Davie submits that Mr Woodstock does not have "bright" rehabilitative prospects.Mr Davie does, however, acknowledge that it would have been open to the Judge torecognise a modest discount to reflect Mr Woodstock's difficult childhood.[22] Mr Woodstock was the third eldest of four children. His father took no part inraising him. Indeed, Mr Woodstock has never met his biological father.Mr Woodstock had a socially and economically disadvantaged upbringing.21 R v Mako, above n 19, at [58].[23] Mr Woodstock was conditioned to violence from an early age. He was bulliedon a daily basis by his older brother, who suffered from ADHD. It appears thatMr Woodstock was the target of his brother's frustrations and anger. His brother waseight years older than him and physically much bigger. The fighting continued withoutadult intervention and only stopped when Mr Woodstock became old enough to standup for himself. On one occasion, when Mr Woodstock was sleeping at hisgrandmother's house, he woke to find his brother straddling him, holding a knifeacross his face and threatening to stab him. He was aged 11 at the time and his brotherwas 19. Fortunately, his brother was disturbed before the situation escalated further.Mr Woodstock also reports being the subject of abuse from one of his stepfathers andwitnessing violence against his mother.[24] Although describing his home environment as "pretty shitty" much of the time,Mr Woodstock says he was grateful for his mother's efforts to provide for him as bestshe could. He says visiting his maternal grandparents, who lived nearby, "was areprieve when things at home were tough". Unfortunately, his grandfather passedaway when Mr Woodstock was about eight years old and his grandmother died inNovember 2017.[25] Mr Woodstock was expelled from school at the age of 13 and did not attendschool from that point onwards. He describes himself as being "in a type of survivalmode, always self-dependent". He speaks of "surviving without an education" andsays he wants "to get back that part of his life". He has never been employed.He states that it is difficult to get a job without experience and he feels "dumb" and"judged". He expresses disappointment at the loss of his education and is keen toredress this. The PAC report writer states that Mr Woodstock has commenced furthereducation since being in custody and there is a possibility he may be able to gainemployment with a construction company through a family connection once he isreleased. His ultimate ambition is to become a qualified mechanical engineer.[26] Mr Woodstock relies heavily on his small circle of friends. He toldthe probation officer that he found it difficult to make social connections growing upand gravitated towards peers who support rule-breaking behaviour. His desire to helpone of his friends, who was also one of his co-offenders, was a contributing factor inhis offending.[27] The writer of the cultural report states that Mr Woodstock does not have analcohol or drug problem, but he acknowledges that his offending is a concern.Mr Woodstock was willing to participate in a restorative justice conference withthe victim. This did not progress for the reasons we have already noted. The reportwriter considers that there is a nexus between Mr Woodstock's offending andthe trauma he suffered in his upbringing from bullying and witnessing violence.His decision-making has also been constrained by his lack of education and lifelongpoverty.[28] Mr Woodstock has no prior convictions for violent offending of any kind.That aspect of the offending could be viewed as being out of character. As noted,Mr Woodstock denies participating in the violence against the victim, although heacknowledges being present when it occurred. He told the PAC report writer that hedid not "use any violence towards the victim" and wants to "clear his name" becausehe does not want to be perceived as a violent person. While denying that he physicallyassaulted the victim, Mr Woodstock expressed guilt and shame for the harm inflictedon him.[29] Mr Woodstock has some prior convictions for dishonesty-related offending.He has one conviction for theft (for offending in March 2015) for which he wassentenced to community work and ordered to pay reparation of $699. In addition tothe 2017 offending, Mr Woodstock has three other convictions for unlawfully takingmotor vehicles (for offending in April 2015 and January 2016). Mr Woodstock wasordered to pay total reparation of $556 and ordered to serve sentences of communitywork for this offending. Mr Woodstock has other minor convictions, but none of anypresent relevance. The current sentence of imprisonment is clearly a very big step upfor him.[30] Mr Woodstock told both report writers that he is ready and willing to engagein rehabilitative treatment.[31] We consider there is an obvious nexus between Mr Woodstock's social andeconomic deprivation and his offending. Mr Woodstock's lack of education, lack ofemployment and lack of family support from a young age do not excuse, but helpexplain why he has found himself living in "a type of survival mode" and has resortedto engaging in some criminal activity. Although, at 23, Mr Woodstock is no longer ayouth, he is still a young adult and as such is less likely to be able to resist peerinfluence and make sound decisions. We consider these factors are relevant tothe assessment of Mr Woodstock's culpability for his offending.[32] The importance of taking a different approach to sentencing young adults wasdiscussed in Dr Andrea Păroşanu and Professor Ineke Pruin's article "Young adultsand the criminal justice system".22 They point to research showing that certainfunctions of the brain such as impulse control and resistance to peer influence continueto develop into the mid-twenties and beyond and, "in many ways, young adults aremore similar to youths than to adults".23 Countries such as Germany, Austria,Croatia and the Netherlands have extended the application of juvenile law provisionsto young offenders up to the age of 23, thereby recognising the need to treat youngadults differently from more mature adults and the importance of minimisingthe exposure of young offenders to the negative influences of imprisonment at an agewhere decision-making and risk-taking functions are still in development.24[33] We also consider that rehabilitation is an important purpose of sentencing inMr Woodstock's case. He has not received any form of counselling or assistance toaddress the causes of his offending. It appears that he is motivated to overcomethe disadvantages of his upbringing, advance his education, and pursue a worthwhilelife. His prospects for rehabilitation are supported by his expression of shame for hisoffending, concern for the victim and his preparedness to meet the victim and engagein a restorative justice process. These matters are to Mr Woodstock's credit.They demonstrate a willingness to be held accountable for his offending and a genuinemotivation to change.22 Andrea Păroşanu and Ineke Pruin "Young adults and the criminal justice system" [2020] NZLJ296.23 At 297.24 At 297–298.[34] It is important that the sentence imposed on a young man like Mr Woodstockis not crushing, removing all hope. As it stands, he could spend the better part of histwenties in prison. This is unlikely to assist Mr Woodstock's rehabilitation orreintegration into the community. On the contrary, there is a risk of Mr Woodstockregressing while in prison and being set on an irreversible path of further and moreserious offending. This would be contrary to the public interest.[35] We are satisfied that a discount should have been allowed for Mr Woodstock'ssocial and economic deprivation and his prospects for rehabilitation. We consider adiscount of the order 18 months (approximately 15 per cent) from the adjusted startingpoint is appropriate in all the circumstances.[36] Taking the adjusted starting point fixed by the Judge of nine years, six months'imprisonment, this reduces to eight years and six months' imprisonment after upliftingby six months for offending while on bail and discounting by 18 months for personalmitigating circumstances. There is no challenge to the guilty plea discount(20 per cent) which is also to be applied to the adjusted started point (rounded to24 months). This brings the indicated sentence to six years and six months'imprisonment before any adjustment is made for totality.Was the totality adjustment adequate?[37] The Judge made an aggregate totality adjustment of 18 months for both sets ofoffending, recognising that the sentences would be served cumulatively. Mr Lucassubmits that the overall sentence of eight years and eight months' imprisonment forthe 2017 and 2019 offending is too long as a first custodial sentence for a young manwho has accepted responsibility for his wrongdoing and has good prospects forrehabilitation. We agree.[38] A substantial totality adjustment was clearly required, as the Judge recognised.The adjusted starting point for the 2019 offending was nine years and six months'imprisonment. The adjusted starting point for the 2017 offending was three years'imprisonment.25 The combined starting point was therefore 12 years and six months'25 Police v Woodstock, above n 2, at [19]–[22].imprisonment (ignoring the six month uplift for offending while on bail). Clearly, thatwould have been grossly disproportionate in all the circumstances to reflect the totalityof the offending, particularly for a young man facing his first custodial sentence.We consider an overall adjustment of two years' imprisonment was required to reflectMr Woodstock's culpability for the totality of his offending.[39] In conclusion, the sentence appeal must be allowed. The end sentence forthe 2019 offending is reduced to four years and six months' imprisonment taking intoaccount that it is to be served cumulatively with the sentence imposed for the 2017offending. The effective sentence for the totality of the 2017 and 2019 offending istherefore six years and eight months' imprisonment.Result[40] The application for an extension of time to appeal is granted.[41] The appeal against sentence is allowed.[42] The sentence of six years and six months' imprisonment on the charge ofaggravated robbery is set aside. A sentence of four years and six months'imprisonment is substituted. This is to be served cumulatively on the sentence of twoyears and two months' imprisonment imposed for the 2017 offending. The othersentences imposed in the District Court are confirmed.Solicitors:Crown Law Office, Wellington for Respondent