R v Gonzalez CA 168/98 [1998] NZCA 149 (5 August 1998)

Last Updated: 1 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA 168/98

THE QUEEN

V

TREVOR ANTHONY GONZALEZ Coram: Blanchard J

Heron J Anderson J

Hearing: 4 August 1998 (at Auckland)

Counsel: M Kennedy for Respondent

M J Thomas for Appellant

_{Judgment: 5 August 1998}

_{JUDGMENT OF THE COURT DELIVERED BY HERON J}

This is an application by the Solicitor-General for leave to appeal against a sentence of two years imprisonment suspended for two years and twelve months periodic detention, imposed in the District Court at Auckland on 29 May 1998. The appellant pleaded guilty to one count of aggravated robbery in that on 24 September

1997 at Auckland, being armed with an air pistol, robbed the St Heliers branch of the

Bank of New Zealand.

The circumstances were that on 24 September 1997 the respondent entered the bank armed with an air pistol tucked inside his trousers. He also was carrying in a plastic bag a small metal box. He approached one of the bank staff and told her that

he was in possession of a bomb. She was able to alert other staff members. He apparently repeated to a staff member he was carrying a bomb and that there were two persons outside the bank waiting for him. He said that they had threatened his daughter and he needed money to stop them. The staff member kept speaking to him and then indicated that she would get the money. On being taken to where money would be available, the respondent took out an empty plastic bag, presumably for the purposes of receiving the money. He continued to carry the plastic bag with the small metal box in it. The bank staff put $2,080 into the bag and the respondent then left the bank. He had not gone very far when he was apprehended by a member of the public. He admitted what he had done saying that he was in financial difficulties and had committed the offence out of desperation. All the money was recovered. The so called bomb was a harmless device. The two women bank employees were shaken and distressed by the events and had some ongoing emotional symptoms.

Circumstances of the Respondent

The respondent is aged 57 years and has two adult children. After a marriage of some duration he and his wife separated some three years before. It appears likely that these circumstances led to financial difficulties and generally to feelings of isolation and low self esteem. He has since formed a relationship which the respondent considers to be stable and supportive. The respondent has had a good work history but lost a permanent job in 1996. Notwithstanding that, he has kept himself employed mainly in temporary positions over this time. The source of his financial problems which the robbery was designed to alleviate, appear to be gambling. He is currently receiving counselling for this and references from counsellors are positive. The reaction to his offending from his two children has been different. His son who lives in England has difficulty understanding his

father’s actions whilst his daughter has come out from England to support her father and both her and his present partner, remain supportive. His counsellor records:

Tony has worked all his life and providing a home for his family was most important to him. However, the failure of his marriage and two job redundancies and unforeseen debt proved his undoing. Tony will have to live with the stress and trauma caused by his actions ...

The Judge identified a number of mitigating circumstances. The first was the support that he had in particular from his daughter. The Judge considered that it indicated an acknowledgement, as his record otherwise showed, of being a hardworking and conscientious parent. The Judge thought that, combined with an offence free past, was significant. The other matter that the Judge thought was important was the way in which he had responded to support and assistance and counselling that had been given to him following this crime. The Judge said in summary of those mitigating considerations as follows:

One needs to consider the position of a man of 57 years of age having suffered the loss of a relationship of some 30 years, the loss of his tenancy as the result of the loss of income, the slight that he felt in respect of the loss of his employment, and the justification that at some later point in time he succeeded in his grievance against his employer, but that the umbrella of the state he having contributed to it for some period of time in the range of 30 years, at the time that he most needed it, did not supply accommodation at a reasonable rate which he could meet, but was affected by the current view as to market rentals, the policy in respect of the unemployment benefit was not available because he did not fall into the criteria in respect of his dismissal.

When one looks at human conduct in our society, there are many features which indicate stressors at the highest level. It is commonly acknowledged that some of those are the purchase or sale of a house, loss of employment, the loss of a long term partner, and the scale deteriorates from that, but in the general recognition of such factors, I believe it is generally accepted that they are major stresses. In this particular case at least four of those features were present in the accused. It is not too difficult to imagine that when the foundations are removed such as employment, your home and the source of income, it would be very easy to fall into a state of desperation.

The respondent pleaded guilty on 16 April 1998 when he was arraigned but it was accepted that on 20 February, prior to the time depositions would have been required, that a plea of guilty would be entered. Depositions were not held. The Judge accepted that the range of between four and seven years on the basis of R v Moananui [1983] NZCA 66; [1983] NZLR 537 could be justified for the offending, considered a discount of 50% would reduce that to two years, and having come within that range,

thought it appropriate to suspend the sentence on the basis that it would be in the interests of the respondents rehabilitation that he be allowed to remain in the community to receive counselling and to continue his search for employment. He thought that the circumstances for that were particularly favourable having regard to the new relationship he had formed and other support that he had.

As what must be seen as a fallback position, the Judge however, also found, that in his view, circumstances were such that they were sufficient to amount to special circumstances pursuant to S.5 Criminal Justice Act 1985, allowing the imposition of other than a full time custodial sentence.

Crown Submissions

The Crown submit as they did before the sentencing Judge that the appropriate term was between four and seven years but suggest that reference in that case to planned armed robberies carried out in premises such as banks so as to endanger the safety of considerable numbers of people, usually attract sentences of six to eight years. More appropriate the Crown acknowledged, was the second category in Moananui, namely robberies of small premises involving less risk of injury and smaller sums of money. The Crown submit that the offence has features of both categories and points out that recently sterner sentences for offending have been awarded over and above the range settled in Moananui. See R v Lilley and Wehi (CA 310/93, 19 October 1993). It is to be noted in that case that that was an armed robbery of Postbank premises planned by three men, two of whom entered the bank. One of them held a loaded sawn-off shotgun which accidentally discharged as it was cocked.

The Crown however submit that a minimum starting point of five years was required but were prepared to acknowledge that two years for a guilty plea and personal circumstances, made a minimum of three years imprisonment appropriate. The Crown says if they are wrong in that view and a term of two years can be reached by largely accepting a substantial discount for a plea of guilty and other factors,

suspension is contrary to principles discussed recently, and in particular in Solicitor- General v Lam (1997) 15 CRNZ 18 (CA) where it was said:

While it is correct that in Petersen the Court dismissed the Solicitor-General’s appeals in the two cases where suspended sentences had been imposed for aggravated robbery, no other instances have been drawn to our attention where such sentences have survived a Solicitor-General’s appeal. We consider that the cases where imposition of such a sentence for aggravated robbery is appropriate will be rare.

As to the special circumstances required by S.5, we refer to that section:

Violent offenders to be imprisoned except in special circumstances - (1) Where -

(a) An offender is convicted of an offence punishable by imprisonment for a term of 2 years or more; and

(b) The court is satisfied that, in the course of committing the offence, the offender used serious violence against, or caused serious danger to the safety of, any other person, -

the court shall impose a full-time custodial sentence on the offender unless the court is satisfied that, because of the special circumstances of the offence or of the offender, the offender should not be so sentenced.

This court has held that the presentation of a firearm albeit imitation, with the threat to use it, constitutes serious violence. R v Meads CA 347/93, 21 October 1993. No doubt by analogy a bogus bomb carried by a robber who describes it as a bomb is to be regarded as serious violence in the course of committing the offence. The serious violence is implicit in what is said and done.

Of more importance are the personal circumstances of the respondent. As said in R v Newlove (1993) 11 CRNZ 560:

The expression of “special circumstances of the offender” is not defined in the Criminal Justice Act and is obviously one of some elasticity. The emphasis is on the word “special”, which is the reason why such matters as good character, absence of previous convictions, and the high regard of the community cannot of themselves qualify: they are regrettably common features across a wide spectrum of offending. In the end it becomes a question of the degree to which any particular attribute or characteristic of the offender is so far removed from those usually encountered in sentencing for similar offences, as to warrant a departure from the mandatory requirements of s.5 and from general sentencing principles applicable to crimes of serious violence.

The Crown says that there are no particular attributes or characteristics of the respondent so far removed from those usually encountered in sentencing for similar

offences. Broken relationships, loss of employment, poverty and desperation even combined as they were in this case are common amongst those who commit serious offences.

There may come a point however where the cumulative effect of the circumstances of the individual speak clearly in the direction of rendering those circumstances collectively special, although in isolation not so. See R v Accused (1994) 11 CRNZ 471, 476. In the Judge’s view that was the case here and he approached the case on that basis without regard to questions of suspension. We regret that whilst there are many mitigating factors they do not in our view differ from a number that are present in such cases and are not sufficiently special to invoke the section.

We note also in this regard the general proposition that on appeal considerations must speak more powerfully for increase in sentence than those which might justify a reduction. R v Wihopi [1976] 1 NZLR 422, 424. R v Cargill [1990] 2

NZLR 138, 140.

It is difficult to find any case, and counsel were unable to direct us to any, where a robbery of this description has been accorded less than three years imprisonment and in many cases have resulted in sentences much more than that.

By any measure the case fell within the second category of R v Moananui and we note that in the examples given there, only one case, described as very lenient came below three years.

Whilst the personal circumstances are such they call for a sentence at the lower end of the scale, resort to robbery by violent means of public facilities such as banks with the accompanying distress and terror suffered by those affected, call for a sentence of imprisonment in excess of two years. That being so, no legitimate question of suspension can arise. We have listened to the respondent’s counsel advance the many mitigating circumstances that apply here. We have also read the

well reasoned written submissions of the respondent’s friend Mrs Gray, given to us yesterday.

We understand the further distress that a sentence of imprisonment will impose on the respondent and those close to him, and that questions of rehabilitation and recovery will have to await release from prison. Nonetheless for this prevalent offence, the sentence is out of line and manifestly inadequate and it cannot be allowed to stand, distressing as it is to put the respondent through the sentencing process a second time.

Leave is granted to the Solicitor-General to appeal. The appeal is allowed. The suspended sentence and the periodic detention order is quashed. Whilst a sentence of four years imprisonment may have been appropriate in these circumstances in accordance with the approach taken in Solicitor-General appeals, the minimum sentence available is selected. He is sentenced to three years imprisonment. He is present in court and is to be taken into custody now.

Solicitors:

Crown Law Office, Wellington for Appellant