TRAVIS v NEW ZEALAND POLICE [2017] NZHC 1607

TRAVIS v NEW ZEALAND POLICE [2017] NZHC 1607 [31 October 2017]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-Ā-KAHU ROHECRI-2017-470-000026[2017] NZHC 1607BETWEEN TONI TRAVISAppellantAND NEW ZEALAND POLICERespondentHearing: 9 October 2017Appearances: Bill Nabney for the AppellantAshley Shore for the RespondentJudgment: 31 October 2017JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 31 October 2017 at 2:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Toni Travis appeals the sentence of two and a half years' imprisonmentimposed by Judge I D R Cameron in the District Court at Tauranga on a charge ofaggravated robbery.1[2] Ms Travis was charged as a party to the aggravated robbery of a general storein Whangamata. Although she did not enter the shop it was accepted she was involvedin the planning and acted as the getaway driver.[3] Mr Nabney, for Ms Travis, submits that adopting the same starting point as theother offender of four years was excessive. Furthermore, he submits that insufficientrecognition was given for youth, remorse and previous good character. Mr Nabneysubmits that had sufficient and proper allowance been given to these mitigating factorsan end sentence of 19 months would have been appropriate, thereby bringing MsTravis within the jurisdiction of home detention.The offending[4] The Crown's summary of facts reveals the following.[5] Ms Travis and her co-defendant, Mr Ratahi, lived in Auckland. Both wereunemployed. Ms Travis' mother lives in Whangamata.[6] On 29 November 2016 Ms Travis and Mr Ratahi travelled to Whangamata tostay with Ms Travis' mother.[7] Two days later on the afternoon of 1 December 2016 the couple borrowedMs Travis' mother's car telling her they were going to visit friends in Whangamata.Before they left, Mr Ratahi picked up an axe from the house. He was wearing anumber of jackets and hoodies which, combined with sunglasses, operated toeffectively disguise his appearance.1 R v Travis [2017] NZDC 14751.[8] The couple drove into town and parked a block away from the general store.Mr Ratahi, with the axe hidden under his clothing, walked to the store while Ms Travisremained sitting in the driver's seat of the car.[9] As he approached the store a member of the public saw him acting suspiciouslyand followed him towards the store.[10] Once inside the store Mr Ratahi pulled out the axe and walked up to the counterwhere the two shop assistants were working. There was no one else in the shop.[11] Mr Ratahi pointed the axe at the two men and demanded they open the till.They complied. He stuffed approximately $300 in cash into his pockets and turned toleave.[12] The member of the public who had seen Mr Ratahi enter the shop realised whatwas happening and yelled out. Mr Ratahi saw this while he was still inside. Themember of the public positioned himself in the doorway and attempted to stopMr Ratahi from leaving but when he opened his jacket and revealed the axe, he steppedaside.[13] Mr Ratahi ran from the store pursued by the member of the public. He ran tothe car, jumped in and Ms Travis drove away at speed.[14] Victim impact statements filed by the two shop staff and the member of thepublic unsurprisingly reveal that all three men have been emotionally affected, to agreater or lesser extent. The member of the public had to take time off work and willprobably require some psychological support and/or counselling.District Court judgment[15] After a comprehensive review of the facts his Honour noted that Ms Travis, atthe age of 19, had no criminal history. To the Probation Officer she had confirmedthat the offending had been planned and, according to the author of the report, sheexpressed no remorse and did not demonstrate any insight into her offending, no doubtleading to the Probation Officer assessing her as being at medium risk of re-offending.[16] His Honour referred to the body of material filed in support of Ms Travis,including full letters of apology. He also noted that she was prepared to undergorestorative justice but that none of the victims wished to participate.[17] Judge Cameron referred to R v Mako2 and concluded that having regard to thevarious aggravating factors which included the level of pre-meditation, the nature ofthe weapon, the disguise and Ms Travis' role as getaway driver the offending fell intothe Mako category involving robberies of small retail shops where a small quantity ofcash was stolen. The Court of Appeal identified four years as the appropriate startingpoint for offending of that sort.3[18] His Honour adopted four years as the appropriate starting point for Mr Ratahi'soffending. The Judge determined that there was no good reason to treat Ms Travisdifferently having regard to the comments of the Court in Mako,4 particularly givenMs Travis' full participation in the planning, the provision of the vehicle and her roleas a getaway driver. In that sense she was not a secondary party.[19] Judge Cameron reduced the starting point by 20 per cent on account ofMs Travis' youth, lack of previous convictions, previous good character andexpressions of remorse. He also applied a further discrete 20 per cent discount for theguilty plea recognising that it did not come at the earliest opportunity.[20] This brought the end sentence to one of 30 months or two and a half years'imprisonment.Approach on appeal[21] Section 250 of the Criminal Procedure Act 2011 applies. Pursuant to thatprovision the Court must allow the appeal if it is satisfied that:(a) for any reason there was an error in the sentence imposed on conviction;and2 R v Mako [2000] 2 NZLR 170 (CA).3 At [56].4 At [64].(b) a different sentence should be imposed.[22] In any other case the Court must dismiss the appeal.5 This section confirmsthe approach taken by the Courts under the Summary Proceedings Act 1957 where theCourt said: 6(a) There must be an error vitiating the lower Court's original sentencingdiscretion: the appeal must proceed on an "error principle".(b) To establish an error in sentencing it must be shown that the Judge inthe lower Court made an error whether intrinsically or as a result ofadditional material submitted to the appeal Court.(c) It is only if an error of that character is involved that the appeal Courtshould re-exercise the sentencing discretion.[23] This Court will not intervene where the sentence is within the range that canbe properly justified.Defence submissions[24] Mr Nabney submits that Judge Cameron should have distinguished therespective roles of Mr Ratahi and Ms Travis. He submits that as the getaway driver,Ms Travis assumed a secondary role. In making that submission Mr Nabney refers tothe Court of Appeal's decision in R v Marsters where the distinction between theprincipal and the getaway driver was acknowledged at sentencing.7 He observes thatMs Travis remained in the car while Mr Ratahi committed the offence, she was notdisguised and was considerably younger than her co-defendant.8 He submits that astarting point of three years' imprisonment would have been appropriate to reflectthose differences given that there was no evidence she was involved in the planning,or was aware of how Mr Ratahi would behave in the course of the robbery.5 Criminal Procedure Act 2011, s 250(3).6 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].7 R v Marsters CA474/99, 16 December 1999.8 Mr Nabney believed Mr Ratahi was aged 27 years as compared to Ms Travis' 19 years.[25] Mr Nabney also submits that the 20 per cent global discount in recognition ofyouth, remorse and previous good character was insufficient. He submits thatMs Travis, as a relatively young woman, has good prospects for rehabilitation and thathaving regard to various letters of support, including former employers as well herpositive performance in two courses she has undertaken whilst in prison, a 30 per centdiscount should have been given which, when added to a full 25 per cent discount forher early plea, would have brought the end sentence within the jurisdiction for acommunity-based sentence.Analysis[26] For the purposes of the decision I shall separately deal with Mr Nabney's twoprincipal submissions, namely whether the sentencing Judge should have drawn adistinction between Mr Ratahi's offending and that of Ms Travis and, secondly,whether sufficient recognition was given to her youth, previous good character andremorse. In his written submissions Mr Nabney also submitted that the full 25 percent for the guilty plea should have been given, although for reasons which followlater in this judgment he accepted in oral argument that the 20 per cent allowed wasappropriate.Should Ms Travis' offending have been treated differently from her co-defendant?[27] The starting point in this analysis is the comments of the Court of Appeal inMako. It is instructive to repeat the observations of that Court and thus the context inwhich Judge Cameron's observations must be viewed.[28] In Mako, the Court said:"[35] Bearing in mind that the sentencing discretion extends across therange from non-custodial sentences to the maximum of imprisonment for 14years the task of placing the particular combination of features comprisingan offence in its proper relative position on the scale of seriousness is a matterof judgement calling for the careful exercise of the sentencing discretion.Features of the offending requiring assessment cannot be exhaustively listed.But some of those generally to be taken into account can be mentioned, if onlyto emphasise their variability."[29] The Court then went on to identify the relevant factors including the degree ofplanning and preparation, the number of participants, the use of disguises (hoods andother adornments), the types of weapon and how they were brandished, the targetpremises, the presence or otherwise of members of the public, the extent of violenceor threats of violence, the nature of the property stolen and the extent of recovery andvictim impact.[30] Within those variables the Court went on to consider particular scenariosincluding the robbery of small retail premises. The Court observed:"[56] A further example can be given taking another combination offeatures typical of many aggravated robberies. This envisages a robbery of asmall retail shop by demanding money from the till under the threat of the useof a weapon such as a knife after ensuring no customers are present, with orwithout assistance from a look out or an accomplice waiting to facilitategetaway. The shop keeper is confronted by one person with the face covered.There is no actual violence. A small sum of money is taken. The starting pointshould be around four years. "[31] The Court also commented:9"The vulnerability of small business operators and the frequency with whichthey are targeted gives rise to the need for deterrence."[32] The parallels with the index offending are immediately obvious. ThatMs Travis' role did not extend to committing the physical acts which are theingredients of the actus reus of the charge of aggravated robbery does not necessarilylessen her culpability as a co-defendant. This issue, too, was considered by the Courtof Appeal in Mako:"[64] As this Court made clear in Smart there is no justification for treatingthose assigned roles other than of confronting the victims as less culpableunless they are truly less than full participants. The look out, the getawaydriver, may in fact be the ringleader."[33] I agree with Judge Cameron that in the present case there is no soundjustification to treat Ms Travis' level of participation and involvement as materiallydifferent from that of Mr Ratahi. My reasons follow.[34] First, it was Ms Travis who had the connection with Whangamata and notMr Ratahi.9 R v Mako above n 2 at [42].[35] Second, the vehicle used to facilitate the offending belonged to Ms Travis'mother. Access to and the availability of a vehicle was a central aspect of the plan.[36] Third, the axe came from Ms Travis' mother's home.[37] Fourth, Ms Travis collaborated with Mr Ratahi in planning the robbery.[38] Fifth, before leaving the house Mr Ratahi disguised himself. Ms Travis wouldhave known of this as well as his possession of the axe. Indeed, knowledge of the axeis implicit in Ms Travis' plea of guilty to aggravated robbery.[39] Sixth, together Ms Travis and Mr Ratahi travelled to an area a short distancefrom the target address. Ms Travis was the driver. Ms Travis saw Mr Ratahi get outof the car with the axe and head towards the shop. She would have known thelikelihood of the shop being tended by shop assistants and the distinct possibility thatmembers of the public might also have been present.[40] Seventh, when Mr Ratahi was chased from the shop, Ms Travis remainedbehind the wheel and drove off at speed.[41] Finally, Ms Travis would have known that those within the shop, and possiblyothers, would have been exposed to the real potential of physical injury and, inevitably,emotional trauma as the victim impact statements later confirmed.[42] Considering these factors in combination it cannot be seriously argued that MsTravis played a secondary role such that her culpability should be assessed asmaterially less serious than Mr Ratahi's. Plainly she had a role in the planning and thefact that the offending took place in a town where she, unlike Mr Ratahi, had aconnection elevates her role in the planning.[43] For that reason I agree with Judge Cameron when, referring to Mako and theculpability of getaway drivers he said:1010 R v Travis above n 1 at [19]."In my view this defendant was a full participant. She took an active part inthe planning of the robbery by arranging the vehicle and arranging to be thegetaway driver. She knew her co-offender was in effect wearing a disguise.She knew her role was to act in taking this co-offender to the target premisesand then speeding away with him after the robbery was committed and that isprecisely what she did do. She is equally culpable in respect of the offendingand was not a secondary party."[44] For these reasons I am satisfied that the Judge's starting point of four years'imprisonment was entirely correct.Did the Judge give sufficient credit to the mitigating factors personal to Ms Travis?[45] The next question is whether the Judge gave sufficient credit for the otherfactors of youth, previous good conduct and remorse, and the plea of guilty.Mr Nabney submits that the 20 per cent discount given for youth, previous goodcharacter and remorse was insufficient. I shall deal with each of the factors advancedby Mr Nabney in turn.(a) Youth[46] Depending on the circumstances, which include the defendant's age, thecircumstances of the offending and their previous history, youth discounts may besubstantial. However, the age of the defendant is but one factor to be assessed.[47] Mr Nabney cites R v Churchward where the Court of Appeal accepted thatyoung people are more vulnerable or susceptible to negative influences and outsidepressures resulting in them having difficulty regulating their behaviour and impulses.11 An offender may, on account of youth and immaturity, not appreciate the full gravityof the offence while at the same time knowing that it is wrong.12 Churchward is alsoauthority for the proposition that young people have greater capacity for rehabilitationgiving rise to the hope that their criminal behaviour has not become so entrenched thatthey would not respond to rehabilitation.1311 R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446. See too R v Slade [2005] 2 NZLR 526,(2005) 21 CRNZ 600 (CA) at [43].12 R v Accused (CA265/88) [1989] 1 NZLR 643, (1988) 4 CRNZ 36 (CA) at 655, 48; R v Alletson[2009] NZCA 205 at [66]; Overton v R [2011] NZCA 648.13 R v Churchward above n 11.[48] However, youth will not always justify leniency. The extent to which it maybe factored into the sentencing process will be informed by an objective assessmentof the seriousness of the offending, previous offending and the safety of thecommunity.[49] Ms Shore, for the Crown, accepts that Ms Travis, as a young offender with noprevious criminal offending, was entitled to a discount. However, as I understand hersubmission, it is that within the global 20 per cent, having regard to the other factorsof mitigation, the allowance given by Judge Cameron was entirely proper. For thatreason it is necessary to consider the other factors of remorse and previous goodcharacter which were also included in the 20 per cent discount.(b) Remorse[50] While remorse is a factor which may be taken into account beyond that implicitin a plea of guilty, it is generally not given a separate or discrete credit unless, on arobust assessment of the case, the sentencing Judge finds that genuine remorse isdemonstrated justifying a discrete credit.14 Here Ms Travis received a 20 per centdiscount for her plea of guilty. For reasons which follow I regard that discount asgenerous. It could have been lower.[51] It is correct that at sentence the Judge received a letter from Ms Travis in whichshe accepted that she was "partly responsible for what happened" but explained thatby reason of the dominating and threatening behaviour of her co-defendant she feltunable to resist his directions to become involved. In another letter she expressed deepregret for what she had done and apologised to those who had been affected by heroffending. Other letters of support and reference described Ms Travis as "somewhatstrong headed" but who was truly remorseful for her actions.[52] The pre-sentence report, however, paints a different picture. Recommendinga term of imprisonment, the report writer observed that Ms Travis expressed noremorse or insight into her offending and was assessed, despite her lack of previousconvictions, as being at medium risk of re-offending.14 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [64].[53] Plainly, this is not a case where a separate and discrete discount for remorsewas justified.(c) Previous good character[54] Judge Cameron expressly stated that within the 20 per cent discount before theguilty plea discount was applied, he had included a credit for Ms Travis' previous goodcharacter. Since I have rejected a separate discount for remorse the question is whetherthe global 20 per cent discount was sufficient to recognise both Ms Travis' youth andher previous good character.[55] Ms Shore refers to Rana v R where a discount of seven and a half per cent wasallowed because the offender could demonstrate nothing positive other than anabsence of previous convictions.15 In that case the offender demonstrated no sincereremorse and was assessed as being at high risk of re-offending. There are parallelsbetween the present case and Rana. Mr Nabney submits in the present case, even if aseven and a half per cent discount was applied, this leaves only a 12.5 per cent discountfor youth which, in his submission, is plainly inadequate.[56] I do not accept this submission. In R v Hall the Court of Appeal consideredthe discounts available to a 19 year-old offender on account of youth.16 The Courtreferred to other Court of Appeal decisions which endorsed discounts for offenders ofa comparable age of around 10 to 15 per cent.17 The discount given in this case fallswithin that range. The Court also observed that 19 is at the upper end of what mightbe considered youthful.18[57] In my view, while it would have been open to the Judge to have given greatercredit for previous good character, I am not satisfied that when combined with theyouth discount a 20 per cent allowance was wrong in principle.15 Rana v R [2014] NZCA 468.16 R v Hall [2012] NZCA 518 at [27].17 R v Jamieson [2009] NZCA 555; Brook v R [2010] NZCA 13; Day v R [2010] NZCA 172.18 R v Hall, above n 16, at [25].(d) Credit for guilty plea[58] Judge Cameron gave a 20 per cent discount on account of Ms Travis' plea ofguilty, observing that it did not come at the earliest opportunity. Ms Shore helpfullyset out the circumstances which led to Ms Travis' plea of guilty which show that shefirst appeared on 14 December 2016 and pleaded not guilty two days later. The casereview hearing was on 21 March 2017 with trial callover on 27 April 2017. Ms Travispleaded guilty on 1 June 2017. While it is apparent that there were discussionsbetween the Crown and Ms Travis' then counsel from February 2017 it would appearthat it was not until at least mid-May that Ms Travis indicated a willingness to pleadguilty following the Crown's indication it would submit a 20 per cent discount wasappropriate.[59] It thus follows that the 20 per cent discount was not only agreed betweencounsel but was, in all the circumstances, a reasonably generous discount given thesix and a half month delay between Ms Travis' first appearance and her entry of a pleaof guilty.[60] For these reasons it cannot be said that insufficient credit was given to thisfactor.Summary[61] It thus follows I am not satisfied that Judge Cameron erred at any point in theexercise of his sentencing discretion. However, even if the Judge did so err I am notsatisfied that a different sentence should be imposed.Result[62] The appeal is dismissed.Moore JSolicitors:Mr Nabney, TaurangaCrown Solicitor, Tauranga