R v Thompson CA123/95 [1996] NZCA 397 (13 March 1996)

Last Updated: 13 December 2021

THOMPSON William Joseph v R

_{Status Court of Appeal Judgments (Archive)}

Court of Appeal

123/95

13 Mar 1996

Richardson P - McKay J - Temm J

Appellant: William Joseph THOMPSON Respondent: The Queen

Coram No.: 3

Appellant's Counsel: C J Tennet Respondent's Counsel: B P Heather Filing date: 11 Apr 95

Hearing Year: 1996

Keytitles: Criminal Law, Appeals against conviction, Offences, Property, Aggravated Robbery, Grounds, Summing up, Omission, Witness, Sentencing, Disparity

Statutes: Crimes Act 1961 - Orig. Sentence: 9 years imprisonment Judgments: 12395

Criminal Law - Sentencing - Disparity - Judge assessing appropriate sentences for robbery at 10 years for co - offender and 9 years for appellant - co - offender's sentence made concurrent on existing sentence of 4 years 3 months for unrelated offences - disparity such as to give justifiable sense of grievance - sentence reduced to 7 years 6 months.

Appeal against conviction dismissed. Appeal against sentence allowed - sentence to 7 years 6 months cumulative on sentence imposed in District Court.

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.123/95}

THE QUEEN

v

_{WILLLIAM JOSEPH THOMPSON}

_{Coram: Richardson P}

McKay J

Temm J

_{Hearing: 13 March 1996}

_{Counsel: C J Tennet for Appellant}

B P Heather for Crown

_{Judgment: 13 March 1996}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

The appellant appeals against both conviction and sentence. He was convicted after a jury trial on a count of

aggravated robbery. One of his co-accused, Minhinnick, was convicted at the same time, but the jury were unable to reach a unanimous verdict in respect of the third accused.

The robbery was of an Armourguard Security man who was carrying the takings from two of the shops in the St Luke's Shopping Mall in Auckland. The offence was committed about 2.20 pm on a Saturday afternoon. There were a very large number of members of the public present

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in the area, and there was a vicious assault on the security guard. The appellant struck him on the head with the butt of a sawn off shotgun, felling him to the ground and causing serious injuries. The appellant and a co-offender then made off, the appellant having some difficulty because of the people coming in from the carpark and blocking the exits. He threatened with the firearm one woman and the adolescents with her and her baby, and caused fear to a large number of other people who were in the vicinity at the time.

The woman who was threatened gave clear evidence of identification. She was going from the carpark towards the mall when the appellant burst through the doors screaming "Get out of the way this is a robbery". Not unnaturally she looked at him and continued to do so as he ran towards her. He came to within two or three feet of her, and her pram was obstructing his way. She was concentrating on his face, she noticed his eyes and she saw

he was carrying a gun, which he was pointing at her and the two girls. She said he was very nervy, and ran past

her towards two men, lifting the gun as if to strike them. The woman identified him from a number of photographs on photoboards handed to her by the police for her to look through. She had no difficulty in identifying the appellant. Her evidence on this and her identification of the appellant in Court were unshaken in cross-examination.

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In the light of this evidence, which it was clearly open to the jury to accept, Mr Tennet wisely accepted that he could not maintain as a separate ground of appeal the argument that the verdict should be set aside on the basis that it could not be supported having regard to the evidence. The other grounds of appeal related to the Judge's directions to the jury, and more particularly complaints of non direction.

The Judge referred to a letter from Minhinnick to the third accused, Bain, and to evidence of conversations not with Bain but in which reference was made to him. She pointed out to the jury that these parts of the evidence could not be used against Bain. It was argued that she should also have directed the jury that they could not be used against the appellant. When she came to deal with the case against the appellant, however, she reminded the jury of what she had said about evidence which was inadmissible, and she specifically directed them that references in statements made by Minhinnick in his interview with the police, or during the course of the police conversation, which are prejudicial to the appellant should not be counted against him. It was not suggested that there was anything in the letter to Bain of any great significance to the appellant, and we are satisfied that the direction was adequate. The earlier reference to the letter not being evidence against Bain would not, in its context, have suggested that it might be able to be used against the appellant.

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Criticisms were made in respect of an alleged failure to adequately direct the jury as to inadmissible, irrelevant and prejudicial evidence, and as to the Judge's direction as to lies. We have carefully read the whole of the summing up, and are satisfied that these points have no substance. We are also satisfied that the Judge was not required to give the jury a warning under section 12C of the Evidence Act 1908 in respect of the evidence of a witness whose house was used by the accused. There was nothing in the evidence to indicate that she had a purpose of her own to serve in giving evidence such that there was a risk that she might give false evidence prejudicial to the appellant. There is no basis for questioning the Judge's exercise of her decision not to give such a warning in this case.

Counsel properly recognised that the key evidence in the case was that of the woman who identified the appellant as the man who ran towards her and threatened her with the shotgun. Her evidence was clear and was unshaken in cross-examination. The Judge gave a specific and very clear direction as to the dangers inherent in direct evidence of identification, and of the need for caution before convicting in reliance on it. She told the jury that it was quite possible for an honest witness to make a mistaken identification, and that notorious miscarriages of justice have occurred as a result. She told them that a mistaken witness can be a very

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convincing one, and that even a number of convincing witnesses can all be mistaken. There can be no criticism of

the adequacy cof the Judge's direction on this matter.

Some further points were raised, but in our view they lack substance, and we are not persuaded that there is any ground for setting aside the jury's verdict. The appeal against conviction is accordingly dismissed.

In respect of sentence, the appellant and Minhinnick were sentenced by the trial Judge at the same time. The appeal was based not on the sentence itself, but on the ground of disparity. The Judge regarded Minhinnick as the organiser of the robbery. She took into account his extensive list of previous offending involving assaults, crimes of dishonesty, crimes of violence, crimes of misuse of drugs and, more recently, conspiracy to commit aggravated robbery. She considered the starting point in this case to be 10 years, and could see no reason to reduce that. In the case of the appellant, it was submitted that he was not a person who would be involved in violence such as was perpetrated on the Armourguard Security guard. She commented that this did not ring true in the light of another offence of which he had been convicted and on which he was at that time awaiting sentence. She had access to the pre-sentence report for that other offence, which involved the stabbing of the victim, with the result that the Armed Offenders Squad was called out. She stressed that she was in no way

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sentencing the appellant for that offence. In our view, she was entitled to use it for the purpose of testing the submission that the violence on the Armourguard Security guard was out of character. The Judge took into account that the appellant was not the planner, but she also took into account that he was the person who committed the seriously violent attack on the guard. Considering these matters, she took the view that the starting point for the appellant's offending should be the same as for Minhinnick, namely 10 years imprisonment, but because of his less serious record, which did not include convictions of a similar offence, she reduced that period by 12 months and sentenced him to 9 years imprisonment.

These sentences of 10 years and 9 years respectively were not challenged as being excessive for the offending in question. The disparity argument arises from the fact that Minhinnick's sentence was made concurrent on an existing sentence. The Judge said in sentencing Minhinnick:

"I have given careful consideration in your case to a cumulative sentence and I have decided in view of the fact that I cannot take the same approach with your co-offender, Mr Thompson, that it is inappropriate to [sc impose] a sentence which would be cumulative on your existing sentence of four years and three months."

The appellant thus received a sentence of 9 years for his part in the robbery, against 5 years 9 months additional sentence imposed on Minhinnick. This was notwithstanding the Judge's assessment that Minhinnick

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should receive the slightly longer sentence on account of his previous record and his primary role in organising the offence. The appellant subsequently came before the District Court in respect of the other offence for which he was awaiting sentence. He received a sentence of 18 months imprisonment cumulative on the 9 years imposed for the present offence. It is not clear why the sentence was made cumulative, nor whether the attention of the District

Court Judge was drawn to the comparison in the sentences imposed on the present offence. Nor is it clear to what

extent questions of totality and possible disparity were drawn to the Judge's attention.

We agree that the sentences of 10 years and 9 years imposed by the Judge in the present case for Minhinnick and for the appellant were unexceptional and were within the discretion available. In the end result, however, the appellant has received a sentence of 9 years, whereas Minhinnick has effectively received a sentence of an additional 5 years 9 months on top of his existing sentence. We are not able to deal with the subsequent sentence imposed in the District Court which was made cumulative and which is not the subject of the present appeal, but we are satisfied that the disparity in the sentences imposed in the case of Minhinnick and the appellant for the robbery is such as to give rise to a justifiable sense of grievance. It is also in conflict with the Judge's own appreciation of the relative responsibility of the two offenders and of the sentences

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appropriate for each considered relative to the other. For these reasons, we allow the appeal against sentence and quash the sentence of 9 years imposed. We substitute a sentence of 7 years 6 months, which will of course be cumulative on the sentence subsequently imposed and made cumulative in the District Court.

_Solicitors

_{Crown Law Office, Wellington}

Appellant's Counsel: C J Tennet

Respondent's Counsel: B P Heather

End of Document