COURT-CLAUSEN v R [2020] NZCA 488

COURT-CLAUSEN v R [2020] NZCA 488 [15 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA332/2020[2020] NZCA 488BETWEEN WILLIAM MATIU COURT-CLAUSENAppellantAND THE QUEENRespondentHearing: 29 September 2020Court: Collins, Mallon and Ellis JJCounsel: R M Mansfield for AppellantC Ure for RespondentJudgment: 15 October 2020 at 10.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of nine years' imprisonment imposed in the District Court isquashed and substituted with a sentence of seven years and six months'imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Court-Clausen appeals the sentence of nine years' imprisonment imposedby Judge Ingram in the District Court at Tauranga after he pleaded guilty to a chargeof aggravated robbery.1 The essence of the grounds of appeal is:(a) the starting point of 11 years' imprisonment adopted by the sentencingJudge was excessive; and(b) insufficient credit was given for personal mitigating factors.It is contended these errors and omissions led to a sentence that was manifestlyexcessive.Background[2] Mr Court-Clausen was deported from Australia in 2017 pursuant to s 501 ofAustralia's Migration Act 1958. He had been convicted in Australia in relation to avariety of offences and sentenced to terms of imprisonment in 2014 and 2016.The longest sentence was one year and eight months' imprisonment for drivingoffences and possession of a prohibited drug.[3] Soon after his arrival in New Zealand, Mr Court-Clausen joinedthe Comanchero Gang (the Comancheros).[4] On the evening of 19 July 2018, Mr Court-Clausen and other Comancherostravelled from Auckland to Mount Maunganui. The group used two cars and arrivedat Mount Maunganui at about 4.00 am. Their objective was to enter the house of asuspected drug dealer and take whatever drugs and money they could find. The planmisfired however when Mr Court-Clausen and his associates broke into the home ofan innocent couple, who lived near the target address.1 R v Moke [2020] NZDC 10395 [Sentencing notes].[5] At about 4.20 am on 20 July 2018, the victims, who are a couple in their sixtieswere woken to the sound of people climbing over their front fence. This was soonfollowed by the victims' front door being forced open with a sledgehammer. The malevictim tried to escape via the garage. His exit was, however, blocked by a large mandressed in black and wearing a balaclava, who pointed a shotgun at the victim as heendeavoured to escape. The male victim was then forced onto the floor of the garagewhile an offender pointed a gun at him and demanded "money and drugs". The malevictim's eye was hit, and he was threatened and told his dog would be shot if he didnot comply with the assailants' demands.[6] In the meantime, the female victim was accosted in the couple's bedroom bytwo of the offenders. They were also dressed in black and wearing balaclavas.The assailants forced the female victim to the floor and pointed a firearm at her.She was told on several occasions she would be shot if she did not "shut up". At onepoint an offender put a sock into the female victim's mouth.[7] The victims tried to explain that they did not have any drugs and that only asmall amount of cash was in the house. That cash comprised $40 in the femalevictim's wallet. The intruders then obtained from the male victim the combination ofa safe and endeavoured to open it.[8] Throughout the ordeal, the victims were threatened with death and beatings.Guns and weapons were pointed at them. The disturbance caused a neighbour, whohappened to be a police officer to alert police, who soon arrived at the property armedonly with tasers and pepper spray. When the police entered the property, they wereconfronted by the armed intruders. One of the offenders threw an object at a policeofficer, striking her on the head. The police then tried to use their tasers and pepperspray devices to gain control of the situation. The intruders escaped and ran to agetaway vehicle that was parked in a nearby street.[9] A police chase then ensued, through central Mount Maunganui and Blake Park.At one stage someone in the escape vehicle threw a loaded shotgun from the car.The offenders then drove through some bollards and abandoned their escape vehicleat Bay Oval. They then got into another vehicle that belonged to the friend of one oftheir associates. The offenders then continued their efforts to escape while beingpursued by a number of police vehicles. At one stage, the offenders drove on thewrong side of a major road in Mount Maunganui. The offenders abandoned the secondcar and escaped across a golf course and Tauranga Airport. Police dogs and the ArmedOffenders Squad were unable to track them.[10] Later that morning, Mr Court-Clausen was endeavouring to hitchhike out ofTauranga. A vehicle, that happened to be driven by a police officer, stopped and pickedhim up. Mr Court-Clausen was arrested. He claimed to have been dropped off atMount Maunganui, following an argument he had with a friend.[11] The vehicles used in the offending were located. Cash, drug paraphernalia,passports and other evidence of criminal offending were found in those vehicles.Sentencing decision[12] Mr Court-Clausen pleaded guilty 17 months after he was arrested. He wassentenced by Judge Ingram on 8 June 2020 at the same time as one of his co-offenders,Mr Moke. The sentencing Judge had presided over the trial of two of the offenderswho had pleaded not guilty. That trial resulted in a hung jury. A retrial has yet to takeplace.[13] In setting the starting point of 11 years' imprisonment, Judge Ingramemphasised the following facts:(a) The victims were a vulnerable couple, who were held at gunpoint intheir own home, assaulted, bruised and at the time, feared for theirsafety. The physical violence was described by Judge Ingram as being"moderate".2(b) The offending was carefully planned and involved four, possibly fiveoffenders travelling from Auckland in two vehicles, one of which wasa rental car. The other car had been taken without the owner's2 At [13].permission. Evidence of the planning included the use of disguises, asledgehammer and firearms. The Judge said that this was "easily themost carefully planned and professionally executed aggravated robberyof its type that [he was] aware of in New Zealand".3(c) The offending involved "a gang engaged in intelligence gathering, anddirecting gang members to carry out aggravated robberies of private[dwelling houses]"4 for the purpose of obtaining drugs and money.[14] The choice of the 11 years' starting point was also influenced by:(a) the Judge's application of the principles articulated by this Court in Rv Mako;5(b) the fact the offending involved a home invasion, which was aparticularly aggravating feature of this case;(c) the need for deterrence; and(d) s 8(d) of the Sentencing Act 2002, which requires the imposition of asentence "near to the maximum prescribed for the offence ifthe offending is near to the most serious of cases for which that penaltyis prescribed". Judge Ingram considered the offending to be moreserious than most cases, although not the most serious.6[15] Judge Ingram added three months' imprisonment to reflect Mr Court-Clausen'shistory of criminal offending.[16] From the adjusted starting point of 11 years and three months' imprisonment,Judge Ingram deducted:3 At [10].4 At [11].5 R v Mako [2000] 2 NZLR 170 (CA).6 Sentencing notes, above n 1, at [45].(a) 15 months (11 per cent) to reflect personal mitigating factors set out ina report prepared pursuant to s 27 of the Sentencing Act. We discussthat report at [31]–[40].(b) 12 months (10 per cent) to recognise Mr Court-Clausen's guilty pleaentered 17 months after he was charged.These deductions produced an end sentence of nine years' imprisonment.Arguments on appeal[17] In submitting that a starting point of nine years' imprisonment is appropriatein this case, Mr Mansfield, counsel for Mr Court-Clausen, emphasised the followingpoints:(a) The level of physical violence inflicted upon the victims in this casewas at the lower end of the spectrum of violence for offending of thiskind.(b) Judge Ingram overstated the level of planning, which was no more thanwas evident in a number of cases, such as Royal v R,7 Manuel v R8 andTiori v R.9 We refer to those cases at [22]–[25].(c) The Judge was overconcerned that the offenders had travelled fromAuckland to Tauranga to carry out their crimes.[18] Mr Mansfield also criticised what he said was the inappropriately modestdiscount for the factors set out in the s 27 report.[19] Ms Ure, for the Crown, submitted that the starting point adopted by JudgeIngram, while at the upper limit, was nevertheless within the range that was reasonably7 Royal v R [2009] NZCA 65.8 Manuel v R [2010] NZCA 285.9 Tiori v R [2011] NZCA 355.available. Ms Ure also submitted that the discounts provided by Judge Ingram wereappropriate.AnalysisStarting point[20] It is one of the fundamental principles of sentencing in New Zealand that courts"must take into account the general desirability of consistency with appropriatesentencing levels in respect of similar offenders committing similar offences insimilar circumstances".10[21] There are three decisions of this Court, which provide a useful indication as tothe appropriate starting point in this case.Royal v R[22] In Royal, an 11-year starting point was held by this Court to be appropriate.That case concerned three intruders, who broke into a home. They were dressed aspolice officers and were armed with a sledgehammer and firearms. Once inside thehome the intruders bound and gagged six members of the family who occupied thehome and subjected one occupant to a vicious assault. The assault was described inthe following way by this Court:11 a middle aged male occupant [was taken] into the kitchen where an elementof the stove was turned on, and instructions given that the victim should sit onit. He refused to do so and subsequently was threatened and punched to thefloor, where he received kicks to the head and body The offender took aknife from a kitchen [drawer] and slashed his victim's upper body and thighs, causing cuts to his clothing and to his body.Manuel v R[23] In Manuel, this Court upheld a starting point of 10 years and three months'imprisonment for a case in which three intruders broke into a farm cottage wherethe victim and his 17-year-old girlfriend were sleeping. All three intruders werecarrying firearms. The victim was hit to the back of his head and dragged into the10 Sentencing Act 2002, s 8(e).11 Royal v R, above n 7, at [3].lounge and struck a number of times with the butt of a gun. While the victim lay nakedon the floor, "the assailants wrapped a piece of cloth around his neck and pulled hishead from the ground with the cloth He was then tied up. He was put on a chair,still naked, and had his arms tied behind his back with an electrical lead".12 The victimsuffered a laceration to the back of his head, bruising and fractures to one of his feetand other injuries. He required multiple stitches and was unable to work forthree months.Tiori v R[24] In Tiori, the sentencing Judge adopted a starting point of 10 years. This Courtreduced that starting point to eight years. That case involved four men breaking intoa tinnie house in retaliation for an assault that one of the intruders had suffered.They were disguised and armed with a hammer and a slug gun. The intrudersdemanded the occupants lie on the floor and hand over their drugs and money.One victim was hit on the back of the head with the slug gun, and the barrel of the sluggun was pushed into his body and head. The summary of facts said the victims thoughtthe assailants also had a single barrelled shotgun, but no weapon matching thatdescription was found.[25] Royal, Manuel and Tiori all involved defendants who carefully planned theircrimes. All three cases involved the use of weapons and assailants who weredisguised.[26] We do not underestimate in any way the seriousness of the offending ofMr Court-Clausen and his associates. We unreservedly share the Judge's concern thatit involved a significant degree of planning and was executed in a way that must havecaused considerable distress to the victims. Nevertheless, it is significant that Royaland Manuel involved the infliction of far greater injuries to the victims in those casesthan occurred in the present case. The injuries to the victims in this case were moreclosely aligned to the victim in Tiori, where a starting point of eight years'imprisonment was held to be appropriate.12 Manuel v R, above n 8, at [8].[27] The extent to which a victim is injured is one very important factor in settingthe starting point in a case such as this.13 While there were no lasting physical injuriesto the victims, there was serious repeated threats made with loaded firearms.There was therefore a serious risk of grave harm. Another significant factor is thesophistication of the planning and execution of the offending.14 Also important is themotive for the offending which, in this case, was the desire to steal drugs and money.The offending was carried out at the behest of a criminal gang. This is a furtheraggravating factor.15[28] When we assess all of the factors associated with the offending in this case andcompare those features to the cases we have summarised at [22]–[25], we are drawnto the conclusion that the starting point of 11 years' imprisonment was too high.A starting point of 10 years would have more than adequately reflected theaggravating features of Mr Court-Clausen's offending.Uplift[29] No issue can be taken with the modest uplift of three months' imprisonment toreflect Mr Court-Clausen's history of criminal offending.DeductionsGuilty plea[30] We agree with the 10 per cent deduction for the guilty plea entered byMr Court-Clausen 17 months after he was charged.Section 27 report[31] The s 27 report portrays a 30-year-old man, who left school at 12 and whosechildhood was marred by physical and sexual abuse from members of his whānau.Mr Court-Clausen still struggles to come to terms with the abuse which he suffered.13 R v Mako, above n 5, at [43].14 At [36].15 At [49].This in turn has set the scene for his lifelong addiction to drugs and his impaired mentalhealth.[32] Upon being deported to New Zealand, Mr Court-Clausen found himselfdislocated from most of his support networks in Australia, which he had developedsince he was about 13 years of age. He joined the Comancheros "as a mechanism forsupport" in part because he was told he was ineligible for the unemployment benefit.[33] Mr Court-Clausen's wife and children have moved to New Zealand to be nearhim. The reality is, however, that his sudden deportation from Australia had the effectof dislocating him from his connections in Australia, which he had developed over a15-year period, and placed him in New Zealand with little opportunity to reconnectwith his New Zealand whānau and with tikanga Māori. Deportation in this caseinvolved a double dislocation.[34] Judge Ingram expressed a number of reservations about the s 27 report.His concerns were:16(a) The report writer did not set out his experience and qualifications.(b) The report writer did not attend Court.(c) The report contained "not a lot more than unsupported self-servingstatements by [Mr Court-Clausen]".[35] Judge Ingram was critical of what he described as "the subversion of thestatutory process" by the s 27 report being filed without the report writer beingavailable to "allow the Court to carefully and accurately assess the reliability of theinformation provided in circumstances where defendants do not co-operate withprobation officers".17 We note, however, that the pre-sentence report that was beforeJudge Ingram did not indicate any lack of co-operation by Mr Court-Clausen withthe probation service.16 Sentencing notes, above n 1, at [21]–[23].17 At [24].[36] Notwithstanding his reservations about the s 27 report, Judge Ingram providedMr Court-Clausen with a discount of 15 months (11 per cent) to reflect the matters setout in the report.[37] If Judge Ingram was concerned about the validity of any aspect of the s 27report, then the preferred course would have been to provide an opportunity forthe Judge's concerns to be tested. This was particularly important in this case wherethere was nothing before the Court to support any misgivings about the contents of thes 27 report.[38] We have examined the details of the s 27 report and consider it provides auseful lens with which to view Mr Court-Clausen's path towards his offending.We also have no doubt the author of the s 27 report has accurately recordedMr Court-Clausen's remorse, which is also something that was noted in thepre-sentence report.[39] In our assessment, a discount of 15 per cent for the personal factors set out inthe s 27 report would appropriately reflect the principles of the Sentencing Act thatrequire courts to have regard to an offender's "personal", "whanau" and "culturalbackground".18[40] We therefore quash the sentence imposed in the District Court and substitutethat sentence with one of seven years and six months' imprisonment. That sentence iscalculated in the following way:(a) a starting point of 10 years and an uplift of three months for previousoffending;(b) deductions for guilty plea (10 per cent); and(c) factors identified in the s 27 report (15 per cent).18 Sentencing Act, s 8(i).These calculations produce a sentence slightly over seven years and six months'imprisonment. We round the calculation down to seven years and six months'imprisonment.Result[41] The appeal against sentence is allowed.[42] The sentence imposed in the District Court is quashed and substituted withthe sentence we have set out at [40].Solicitors:Crown Law Office, Wellington for Respondent