MARSH v R [2019] NZCA 220

MARSH v R [2019] NZCA 220 [13 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA732/2018[2019] NZCA 220BETWEEN WIREMU KORI MARSHAppellantAND THE QUEENRespondentCA776/2018BETWEEN WADE ARMSTRONGAppellantAND THE QUEENRespondentHearing: 27 May 2018Court: Collins, Peters and Mander JJCounsel: G A Walsh for Appellant MarshC D Bean for Appellant ArmstrongM L Wong for RespondentJudgment: 13 June 2019 at 2.30 pmJUDGMENT OF THE COURTA. Mr Marsh's appeal against sentence is allowed. The sentence offour years and nine months' imprisonment is quashed and substitutedwith a sentence of three years and six months' imprisonment.B. Mr Armstrong's appeal against sentence is allowed. The sentence offive years' imprisonment is quashed and substituted with a sentence ofthree years and nine months' imprisonment.___________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Wiremu Marsh and Wade Armstrong were sentenced respectively to four yearsand nine months' imprisonment and five years' imprisonment on one charge ofaggravated robbery following their conviction by a jury.1 Each appeals their sentenceon the ground that it was manifestly excessive because the common starting pointtaken by the sentencing Judge was too high. Mr Armstrong also maintainsa three month uplift to reflect his previous convictions was unwarranted.Background[2] The victim was a drug dealer. Mr Armstrong contacted the victim ostensiblyfor the purpose of purchasing drugs. He together with a female associate arrived ata residential complex where the victim was staying. The victim let Mr Armstrong andhis female associate into the complex. There was conflicting evidence at trialregarding the narrative and sequence of events thereafter.[3] Judge K Saunders proceeded on the basis that while the victim andMr Armstrong were discussing the sale of methamphetamine, the female associatewent to the front door and let two men enter the building. Mr Marsh was one of thosemen. Thereafter, the victim, concerned at this turn of events, made his way to anapartment where his cousin and her partner resided. Mr Armstrong and Mr Marshfollowed and entered the apartment.[4] Matters became tense. The cousin and her partner unsuccessfully attempted toget the appellants to leave. The situation became increasingly heated and, once itbecame clear the men would not go, the cousin and the partner left. The victim knewhe was going to be robbed. Mr Armstrong stood over him with a clenched fist andthreatened him. Half a gram of methamphetamine, $50 in cash, a small sports bag anda cell phone were taken by the appellants.1 R v Armstrong [2018] NZDC 24016.[5] At sentencing, the appellants and the Crown urged the Judge to take varyingviews regarding the characterisation of the offending. The Crown submitted it was apremeditated robbery, in respect of which the drug deal had been used as a pretence togain access to the residential complex. The appellants maintained it was simply a drugdeal that had gone wrong after both men had been invited into the property andthe robbery was opportunistic.[6] In her sentencing remarks Judge Saunders concluded:[14] Having sat through the trial as the Judge I am of the view thatthe jury's verdict is consistent with the facts that this was a premeditatedrobbery with an element of home invasion. There were two groups of youwho both entered through different doors, with you, Mr Marsh, being let in byan associate and remaining unlawfully in the victim's residence. Neither ofyou left when you were asked to do so.[7] Having reviewed the available evidence ourselves, we acknowledgethe conflicting evidence, including that provided by witnesses called by the Crown,but consider that the Judge was entitled to come to the view she did on the facts. In anyevent, we consider there is no dispute regarding the essential aggravating features.There was no forced entry into the residential complex or into the apartment itself, butboth appellants were unlawfully present after being asked to leave by the occupants,and the robbery took place in a private dwelling.The sentencing[8] Judge Saunders considered the robbery involved an element of home invasionand that other factors affecting the culpability of the offenders included the number ofparticipants in the robbery and the low-level violence used. A starting point offour years and nine months' imprisonment was adopted.2[9] No uplift was applied for the fact that Mr Marsh had committed the robberywhilst on bail or to reflect his previous convictions. However, Mr Armstrong receiveda further three months' imprisonment to reflect his history of prior offending.No personal mitigating features were identified and no complaint is made in thatregard.2 At [17].Discussion[10] The relevant guideline judgment is R v Mako.3 However, the circumstances ofthe offending do not readily fit the particular categories of robbery described in thatcase. That is not unsurprising when regard is had to the range of conduct that canconstitute an aggravated robbery and the various features and factors that will detractor contribute to the seriousness of the criminality encompassed by the offence.4Ultimately, the assessment of the weight and combination of features to determinethe relative seriousness of a particular offence is a matter of judgment forthe sentencing Court in the exercise of its discretion.5[11] Both the appellants and the Crown recognise the present offending sitssomewhere between the category of robbery committed as part of a residential homeinvasion, which may justify starting points of between seven and 10 years'imprisonment, and a street robbery, which is described in Mako as being "[a]t the otherend of the scale" and which may justify starting points between 18 months andthree years' imprisonment.6 However, the overarching question remains as to wherealong that continuum the present offending sits when regard is had to the nature anddegree of the identified aggravating features.[12] We consider the Crown was right to acknowledge that the offending bore somesimilarity to a street robbery, involving, as it did, more than one offender demandingthe victim hand over property by the use of menacing conduct rather than actualphysical violence. However, we also accept the fact the robbery occurred in a privatedwelling place and the element of premeditation is required to be reflected inthe starting point. Notwithstanding the controversy regarding whether there was anunlawful entry, by the time of the robbery both appellants were unlawfully present inthe dwelling. That is an aggravating factor recognised by the Sentencing Act 2002.7[13] Counsel took us to a number of sentencing decisions of this Court in anendeavour to demonstrate the starting point was too high. In R v Crawford a starting3 R v Mako [2000] 2 NZLR 170 (CA).4 At [34].5 At [35].6 At [58]–[59].7 Sentencing Act 2002, s 9(1)(b).point of four and a half years' imprisonment was upheld on appeal where the occupantsof a boarding house robbed a fellow resident. 8 The offending was committed inthe victim's room. However, the robbery was more serious. It involved the use of aknife to threaten the victim and actual violence. The victim was also held for a periodof time while one of the offenders took his EFTPOS card in an attempt to withdrawcash from his account.[14] In Te Hau v R a starting point of three years' imprisonment was not disturbedfor an aggravated robbery which involved two offenders going to the victim's houseand demanding money.9 After moving outside the victim was punched in the face anda laptop and keys to the victim's vehicle were stolen. Threats were made that ifthe victim did not come up with the money demanded or called the police he wouldbe killed.[15] Finally, in Norton v R the appellant and his co-accused went to the victim'shome seeking compensation for a damaged tyre.10 They were armed with a hammerand a piece of wood. The victim let them into his house. Once the men were inthe victim's bedroom threats were made. A cell phone and an iPod were stolen.Because the robbery occurred in the victim's bedroom, the sentencing Judgeconsidered it more serious than if it had occurred in a public street but did not considerit as a serious as a home invasion. A starting point of two and a half years'imprisonment was not disturbed on appeal.Decision[16] Inevitably, no two cases are the same and each must turn on its own facts.Difficulties can arise in applying a guideline decision like Mako where there areaggravating features present to varying degrees which do not fit squarely withinthe recognised categories of offending that attract particular bands of imprisonment.We accept the Judge was entitled to take into account that the robbery occurred in aprivate dwelling place, and that there was premeditation with entry to the building8 R v Crawford [2009] NZCA 479.9 Te Hau v R [2013] NZCA 431.10 Norton v R [2012] NZCA 334.having been gained on the pretext of Mr Armstrong wishing to purchase drugs fromthe victim.[17] However, having regard to the approach taken in other cases, but moreover,because of the particular circumstances of the present offending, including the limitedvalue of the property taken, we consider the starting point adopted was excessive.A starting point of three and a half years' imprisonment would have more accuratelyreflected the seriousness of the offending.Uplift for previous offending[18] Mr Armstrong argued that the starting point should not have been uplifted bythree months because of his criminal history. He submitted that his past offending didnot indicate a propensity to commit robbery. While it was not pressed, the approachtaken by the sentencing Judge to Mr Armstrong's previous offending was comparedwith that taken in respect of Mr Marsh. He has a similar history and was on parole atthe time, yet received no uplift for those factors.[19] Mr Armstrong has 42 convictions over a period of 16 years; many relate toviolence and three involve firearms. Dishonesty offending is also a feature of his prioroffending. We accept the Crown's submission that, despite the absence of anyprevious conviction for aggravated robbery, his history of violence and dishonestydemonstrates the risk he poses to the community which is assessed in the pre-sentencereport as high. We therefore consider the uplift was warranted.[20] At first blush, it may seem Mr Armstrong may have some grounds for beingaggrieved that no uplift was imposed on his co-offender despite having a similarhistory, which includes some 20 convictions over 11 years, including 10 for violence.While Judge Saunders expressly rejected affording a discount to Mr Marsh onthe basis that as a second strike offender he would be required to serve the full term ofhis sentence without parole, we consider it likely, as the Crown submitted, thatthe Judge's decision not to impose an uplift to mark Mr Marsh's previous offending islinked to that fact.1111 See Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.[21] As a result of Mr Marsh's conviction, he received a second strike.12 This Courthas observed that when considering an uplift for previous convictions or for offendingwhilst on bail or while subject to a sentence, the sentencing Court should decidewhether the stage two offender's loss of parole renders such an uplift unnecessary.13[22] We accept that Judge Saunders did not expressly articulate her reason for notuplifting Mr Marsh's sentence in those terms, but, even leaving to one side that likelyrationale, we accept the Crown's submission that just because Mr Marsh benefittedfrom such leniency it does not give rise to any disparity when the approach taken inrespect of Mr Armstrong was available to the sentencing Court. No adjustment isrequired simply to match the sentence imposed on a co-offender even if it may beviewed as somehow falling short of that which should have otherwise been imposed.14Result[23] Mr Marsh's appeal against sentence is allowed. The sentence of four years andnine months' imprisonment is quashed and substituted with a sentence of three yearsand six months' imprisonment.[24] Mr Armstrong's appeal against sentence is allowed. The sentence offive years' imprisonment is quashed and substituted with a sentence of three yearsand nine months' imprisonment.Solicitors:Bean Law, Hamilton for Appellant ArmstrongCrown Law Office, Wellington for Respondent12 Sentencing Act, s 86C.13 Wipa v R [2018] NZCA 219 at [36].14 R v Nathan CA378/90, 24 April 1991; and Macfarlane v R [2012] NZCA 317.