Belle v NZ Police [2017] NZHC 877

Belle v NZ Police [2017] NZHC 877 [4 May 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2017-488-3CRI-2017-488-4[2017] NZHC 877BETWEEN TE AHU BELLEAppellantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Appearances: T Spencer for AppellantJW Wall for RespondentJudgment: 4 May 2017RE-ISSUED JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 4 May 2017 at 12.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] On 19 January 2017, Mr Te Ahu Belle was sentenced by Judge G L Davis, having pleaded guilty to:(a) one charge of aggravated robbery,1 for which the end sentence wastwo years and seven months' imprisonment;(b) one charge of theft,2 for which the end sentence was one months'imprisonment; and(c) one charge of receiving stolen property valued in excess of $1000,3for which the end sentence was one months' imprisonment.[2] The sentences are to be served concurrently.[3] Mr Belle now appeals against this sentence on the grounds that his sentence was manifestly excessive and, particularly, there is such a disparity between his sentence and the sentence imposed upon his co-offender for the robbery that a miscarriage of justice had occurred.Background factsThe offending[4] At the time of offending, Mr Belle was aged 19 years. The charges of aggravated robbery and theft arose from events on the 23 and 24 April 2016. On the evening of 23 April, Mr Belle stole a hammer, two fishing reels, and various other items of property from a vehicle parked in Dargaville to which he had gained access by prising the hinge off the sun-roof. The value of the property was estimated at $900.1 Crimes Act 1961, s 235(c); maximum penalty 14 years' imprisonment.2 Crimes Act, ss 219(a) and 223(c); maximum penalty one year's imprisonment.3 Crimes Act, ss 246 and 247(c); maximum penalty seven years' imprisonment.[5] In the early hours of the following morning, Mr Belle, together with Glen Inglis, aged 18, robbed two French tourists of money. The victims, M Menard and Mlle Joelle, were visiting New Zealand for five days and exploring the sites of the north. They had parked a rental van in a public parking area before consuming a meal and then going to sleep about 10.00 pm. At around 1.20 am on 24 April, the victims were awoken by Mr Belle and Mr Inglis, who were banging on the campervan window telling them to wake up. When M Menard got out of the van, he saw Mr Belle and Mr Inglis outside the van. In one hand Mr Belle was holding the stolen hammer; he had a beer in his other hand.[6] Mr Belle raised the hammer up to stomach height and demanded that M Menard give him his money. M Menard tried to grab Mr Belle's hammer; Mr Inglis then punched him twice in the head and pushed him. Mlle Joelle then handed Mr Belle approximately $320 and a yuan note. The two offenders fled on foot. After the victims phoned the police and tracker dogs were dispatched, Mr Belle and Mr Inglis were apprehended along with $310 in cash (Mr Belle with $160 and Mr Inglis with $150 and the yuan note). The property stolen earlier from the vehicle was found in Mr Belle's backpack, and the hammer on the side of the road.[7] On 21 July 2016, Mr Te Ahu Belle pleaded guilty to a charge of aggravated robbery and a charge of theft. He was granted a bail variation. While on bail pending sentence, sometime between 27 and 30 November 2016, Mr Belle received an Epson projector valued at $1056 from an unknown person, knowing that projector had been stolen. On 6 December 2016, Mr Belle used his Facebook account to advertise and sell the Epson projector, which a would-be purchaser identified as being stolen. On 19 January 2017, Mr Belle pleaded guilty to this additional charge of receiving.District Court Decision[8] Taking the lead charge of aggravated robbery, Judge Davis identified the sentencing purposes of holding Mr Belle accountable; promoting a sense of responsibility for the harm caused to the victims; and denouncing and deterring this sort of offending. The Judge said the sentencing principles mainly involved thegravity of the offending. He emphasised the significant psychological impact the offending would have on the victims: tourists, with limited English, set upon at night in a foreign country. The Judge also noted the often irreparable damage that suchincidents can have on New Zealand's reputation.[9] Judge Davis discussed the guideline judgment of R v Mako,4 identifying that the Court of Appeal placed the starting point for street robberies between 18 months' and three years' imprisonment. The Judge observed this offending was similar to a street robbery – yet also not. Judge Davis said he placed little weight on the fact Mr Inglis struck the victim, given that Mr Belle had the hammer and initiated the demand, the use of the weapon being an aggravating feature. The Judge believed a further aggravating feature was the vulnerability of the victims as tourists, and given that they were woken up in the night. The Judge reasoned that breaking into a van was arguably more akin to breaking into a house, as a campervan such as this has a greater degree of privacy than a normal street robbery.[10] The Judge also found there was an element of pre-meditation, given that Mr Belle had taken the hammer and gone from the stolen car to the site of the robbery. While acknowledging the planning was limited as everything stolen from the vehicle appeared to already be in his backpack, he would have at least had to take the hammer out of the backpack. Judge Davis rejected the defence submission that there was limited violence. For these reasons, Judge Davis adopted the Crown'ssuggested starting point of four years.[11] In support of this starting point, Judge Davis referred to three largely analogous cases involving attacks on tourists, two of which involved attack on tourists in vehicles.5 The Judge was of the view that these cases could be distinguished on the basis that the prevalence of attacks in the north in recent years required a sentence sending a clear message that it must stop.[12] Judge Davis declined to uplift the starting point for the theft charge, accepting the defence submission that the robbery and the theft were so intrinsically4 R v Mako [2000] 2 NZLR 170 at [59].5 R v Gladstone HC Gisborne, CRI-2003-016-6805, 5 August 2005; R v Lakatini [2008] NZCA 507; R v Clement [2013] NZHC 1422.linked that they effectively happened at the same time. The receiving charge, however, occurred six months after the robbery whilst on bail, and warranted an uplift of four months.[13] Turning to the personal aggravating or mitigating factors, the Judge declined to uplift for Mr Belle's moderate previous criminal history of unlicensed and drink- driving offences, which were of no relevance to the present offending. Judge Davis noted Mr Belle's attempts at rehabilitation in a Whānau Care support programme. But the Judge held that, as Mr Belle had not stayed until completion of the course, it could not be given much weight, despite some suggestion of continued drug and alcohol counselling. Mr Belle was to undertake anger management which had not begun at the time of sentencing, and was involved in direct one-on-one counselling in the Miriam Centre. The Judge formed the view that a reduction of four months was appropriate to reflect this work.[14] Applying Churchward v R,6 and noting the neurological vulnerability and susceptibility of youths, their capacity for rehabilitation, and the effects of imprisonment, the Judge granted a discount of six months. This resulted in anadjusted starting point of three years and six months' imprisonment. A maximumguilty plea discount of 25 percent, with noted favourable rounding, amounted to an 11 month reduction and thus an end sentence of two years and seven months'imprisonment.[15] The Judge reiterated this was motivated by a desire to denounce and deter, before sentencing Mr Belle to concurrent terms of one months' imprisonment foreach of the theft and receiving charges. Mr Belle gave $150 in reparation. Judge Davis then gave Mr Belle his first strike warning under the three-strikes regime for serious violent offending.The co-offender's sentence[16] Mr Inglis pleaded not guilty to the charge of aggravated robbery and elected trial by jury. On 17 February 2017, however, Mr Inglis received a sentence6 Churchward v R [2011] NZCA 531.indication from Judge DJ McDonald on the basis of an amended charge list of injuring with intent to injure, robbery, and possession of a Class C drug (cannabis) for the purpose of supply. The summary of facts for the robbery and theft charges was the same summary of facts to which Mr Belle had pleaded guilty seven months earlier.[17] Judge McDonald gave a sentence indication consisting of a starting point oftwo years and nine months' imprisonment on the injuring with intent and robbery charges. This was uplifted by three months for the possession for supply, bringing the end starting point to three years. The Judge considered a discount of at least 15 per cent for youth, lack of previous convictions and remorse was appropriate, followed by a 20 per cent discount for his guilty plea. This would result in an endsentence of 20 months' imprisonment which would commute to home detention.[18] Mr Inglis accepted the sentence indication and was sentenced on 7 April 2017 to nine months' home detention, to be followed by post-detention conditions for a period of six months.Grounds of appeal[19] For Mr Belle, Ms Spencer argues that the total end sentence was manifestly excessive because:(a) The starting point was too high and should have been two years and nine months as taken by Judge McDonald in sentencing Mr Inglis. Counsel notes that Judge McDonald did not consider the victims were vulnerable nor that the more serious case of R v Clement7 was comparable;(b) There was an excessive uplift of four months for the receiving charge where one month would have been sufficient;7 R v Clement above n 5.(c) The youth discount was insufficient and should have been 25 per cent; and(d) The discount for rehabilitative efforts and remorse was insufficient;(e) Accordingly, the resulting sentence would have meant Mr Belle was eligible for home detention.[20] Ms Spencer submits also that there is a gross and unjust disparity between the respective starting points and end sentences for Mr Belle and his co-offender Mr Inglis, which resulted in something going wrong with the administration of justice.Approach to an appeal against sentence[21] Section 250(2) of the Criminal Procedure Act 2011 requires the Court to allow a sentence appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[22] In any other case, the Court must dismiss the appeal.8 The appeal mustproceed on an "error principle", as set out in R v Shipton,9 which includes a finding that a sentence was manifestly excessive.10 Whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which the sentence is reached.11 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.8 Criminal Procedure Act 2011, s 250(3).9 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].11 Ripia v R [2011] NZCA 101 at [15].Submissions for the respondent[23] For the respondent, Mr Wall accepts that, while at first glance there appears to be a marked disparity between the two starting points, that disparity is explicable taking into account the distinct charges and factual findings upon which each defendant was sentenced. He submits that the focus for disparity ought to be the starting points, and contends that the starting point for Mr Belle was justifiable. Indeed, Mr Inglis' starting point was at the lower end of the spectrum and could becriticised for its leniency. Accordingly, the respondent submits that this appeal ought not to be allowed simply to bring Mr Belle's sentence into line with the undulylenient sentence imposed on Mr Inglis.[24] The respondent argues that the uplift for the receiving charge and the other various discounts applied were within the range and discretion of the sentencing judge and should not be disturbed.Primary ground of appeal: gross and unjustified disparityApplicable legal principles[25] Under s 8(e) of the Sentencing Act 2002 a principle to be considered during sentencing is the desirability of maintaining consistency across sentencing levels in respect of similar offenders committing similar offences in similar circumstances. While this is most frequently relevant to maintaining consistency for similar offenders across different occasions, it is also relevant in sentencing co-offenders in the same or similar circumstances.[26] In R v Lawson,12 the Court of Appeal observed that differences in the lengths of sentences imposed on co-offenders are not in and of themselves enough to allow an appeal on the grounds of disparity. There will be some instances, however, where a marked and unjustified disparity will unacceptably impede, and undermine public confidence in, the administration of justice and may justify a reduction in a sentence imposed on one co-offender which would otherwise be appropriate.12 R v Lawson [1982] 2 NZLR 219 (CA) at 223.[27] The objective test is whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.13 This test iscommonly applied alongside the "unjustified and gross" formulation originally set out in R v Rameka to describe disparity.14DiscussionThe approach of the sentencing Judge[28] In sentencing Mr Belle, Judge Davis correctly referred to the Court ofAppeal's decision in R v Mako as the guideline judgment for aggravated robbery.Viewed in isolation from the sentencing of Mr Inglis, the Judge's approach wasorthodox and justifiable. I agree with him that the victims were vulnerable, being taken by surprise and woken from their sleep; and that there were elements of the offending which could reasonably have placed it within the taxi driver category said in Mako to justify a starting point of between four and five years.15 I agree also that denunciation and deterrence of this type of offending were appropriately emphasised by the Judge.16 It follows that the starting point of four years' imprisonment adoptedby Judge Davis for Mr Belle was clearly within the available range.[29] As to the subsequent adjustments:(a) the uplift for the receiving charge was high but arguably justified by the offending having occurred while Mr Belle was on bail pending sentence; and(b) the discounts for youth, remorse and rehabilitative efforts were not generous but very much discretionary matters for the Judge.13 At 223.14 R v Rameka [1973] 2 NZLR 592 (CA).15 R v Mako, above n 4, at [57]. See also the observations in a similar recent case: R v Williams[2017] NZHC 776 at [14] and [15].16 R v Williams, above n 15, at [17].[30] I am not persuaded that the end sentence imposed on Mr Belle resulted from any error by the Judge. Although it is stern, it was a sentence open to the Court.Disparity[31] In Mako, the Court of Appeal said that "fixing the starting point is the mechanism for seeking consistency in sentencing".17 Mr Belle's starting point wasfour years for aggravated robbery, and Mr Inglis's was two years and nine monthsfor injuring with intent and robbery. The combined elements of the two charges which were substituted for Mr Inglis, are reflected in the charge of aggravated robbery to which Mr Belle pleaded guilty at a very early stage. In such circumstances, the difference in the nature of the charges and the applicable maximum penalties are of less significance in determining whether the disparity between the starting points is unjustified or gross than an examination of the respective roles of Mr Belle and Mr Inglis in the offending.[32] It is evident that the co-offenders played roughly equal parts in the offending. It was Mr Inglis who inflicted the actual violence to subdue the victim and facilitate handing over of the money. This violence consisted of two strikes to the head and a push. Mr Belle carried the weapon and issued the demand for money. The weapon was not used, except by way of its presence to support the initial demand for money. Nonetheless, I accept the Crown's submission that Mr Belle's active role in therobbery means that the Judge was entitled to consider that Mr Belle ought to also bear some responsibility for the immediate violent consequences of Mr Inglis'intervention. The co-offenders essentially split the proceeds equally.[33] The starting point adopted for Mr Belle is 15 months, or 45 per cent, longer than that adopted by Judge McDonald for Mr Inglis. There is no principled basis upon which that difference can be justified. In Tamihana v R, the Court of Appeal held that a starting point of 50 per cent above that of a co-offender led to a disparate result in an assault case where the culpability of both offenders was broadly similar.1817 R v Mako, above n 4, at [187].18 Tamihana v R [2015] NZCA 169.[34] Moreover, the unfairness of the outcome is demonstrated by the difference between the two types of sentence. Mr Belle's sentence entails a complete loss ofliberty in a correctional facility for a period of up to two years and seven months, of which at least 10 months must be served before he becomes eligible for parole, but without any guarantee of early release. The sentence of home detention being served by Mr Inglis involves a less onerous loss of liberty, at home, for a definite period of nine months.[35] There is also the consideration that the core principle underlying recognition of a guilty plea is that a defendant will receive a reasonable discount for acknowledging responsibility for offending, especially if the plea comes at an early stage, and for avoiding the expenditure of court time and resources and putting victims through a trial. What has occurred to Mr Belle does not reflect that policy. He pleaded guilty at an early stage but was sentenced more severely than his co- offender who stayed in the criminal justice system much longer and appears to have benefited from bargaining for lesser charges. On an objective analysis, the injustice to Mr Belle is manifest. Adopting the observations of the Court of Appeal in R v Lawson, right-thinking members of the public are likely to say, "there is something wrong here."19[36] In determining Mr Belle's appeal, I do not consider it necessary to decide whether Mr Inglis's sentence was manifestly inadequate. There is some basis forMr Wall's submission that the sentence was very lenient but it is by no means obvious that a young offender should not be given home detention for offending of this kind.20 Mr Wall acknowledged that it was unlikely that the Police would seek the leave of the Solicitor-general to appeal that sentence.[37] In any event, Tamihana v R is also authority for the proposition that, if the disparity of treatment between co-offenders is gross and unjustifiable, even after any differences between the co-offenders have been taken into account, this should be rectified on appeal notwithstanding that the sentences themselves are within the19 R v Lawson, above n 12, at 223.20 See, for example, R v Nathan [2017] NZHC 806.appropriate range.21 It is enough in the present case that the disparity is unjustifiable and gross. It is of such a nature that right-thinking members of the public are likelyto say, "There is something wrong here."22[38] I turn to consider what sentence should be imposed in its place.What sentence should be imposed?[39] Adopting a starting point of two years and nine months' imprisonment foraggravated robbery, I add the uplift of four months' imprisonment applied by JudgeDavis for the receiving offence committed while on bail.[40] The four months' discount for remorse and rehabilitation, while not generous,was open to the sentencing judge on the evidence he had before him. To theresulting 33 months' imprisonment, I apply the youth discount of six months allowedby Judge Davis, taking the sentence to one of 27 months.[41] I then apply the guilty plea discount of 25 per cent, which was appropriate given its promptness, and reach a total effective end sentence of just over 20 months.[42] I have said that, considered by itself, the sentence of two years and sevenmonths' imprisonment imposed by Judge Davis resulted from a principled approachand was available to the Judge. But the writer of Mr Belle's pre-sentence provision of advice to the Court recommended home detention. He is eligible for it under the Sentencing Act.23 Such a sentence will give greater emphasis to rehabilitation than one of imprisonment while minimising his risk to the community and restricting his alcohol use. It will enable Mr Belle to complete further programmes in the community and demonstrate his motivation to address the causes of his offending. The proposed home detention address is appropriate. Mr Belle is the father of two young children, who reside at the proposed electronically monitored sentence address with his partner. A sentence of home detention means they are not deprived of a father figure.21 Tamihana v R, above n 18.22 R v Lawson, above n 12, at 223.23 Sentencing Act 2002, s 15A.[43] A sentence of around nine to 10 months' home detention is roughly equivalent to a sentence of 20 months imprisonment, bearing in mind the mandatory early release after half a short term sentence of imprisonment has been served.24I am required also to take into account that Mr Belle has served 15 weeks'imprisonment since he was sentenced in January. I consider justice will be served ifI sentence Mr Belle to four months' home detention.[44] I assume that it is unnecessary to alter the concurrent sentences of one month imprisonment imposed on the theft and receiving charges, that time having already been served.Result[45] The result is that I allow the appeal in part by quashing Mr Belle's sentenceof imprisonment on the charge of aggravated robbery with effect from Monday, 8 May 2017.[46] In its place, I impose a sentence of four months' home detention, effectivefrom Monday, 8 May 2015. That will give the authorities time to put the new sentence in place. The sentence of home detention is to be served at 69 Logan Street, Dargaville for its duration unless otherwise authorised by the Probation Officer. Upon his release from prison, Mr Belle is to go directly to that address and remain there for the fitting of an electronic monitoring device. The other conditions set out on page 5 of the pre-sentence report under the first heading "Sentence Comment" shall also apply.[47] I order under s 80N(1) of the Sentencing Act 2002 that the standard post- detention conditions set out in s 80O of the Act shall apply and shall expire on 8 March 2018........................................... Toogood J24 Parole Act 2002, s 86.