THE QUEEN v PLECKY JOHNSON [1999] NZCA 59 (29 April 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 389/98

THE QUEEN

V

PLECKY JOHNSON

Hearing:	29 April 1999 (in Auckland)
Coram:	Eichelbaum CJ Gault J Robertson J
Appearances:	P J Kaye and M A Lowe for Appellant S P France for Crown
Judgment:	29 April 1999

judgment of the court delivered by ROBERTSON j

[1]Plecky Johnson appeals against a sentence of 3 years imprisonment imposed upon him in the District Court at Auckland on 29 October 1998.

[2]Mr Johnson and three others pleaded guilty to a charge of aggravated robbery which arose from an attack on a taxi driver on 30 September 1998. These four men and another had been together at an address in Otara drinking. The present appellant was then aged 17 having been born 29 February 1980.One was aged 23, another 17 and the other 18.We know nothing of the age of the fifth person or whether any action was commenced against him.

[3]The group discussed robbing a taxi driver.They agreed that they would hire a taxi cab and somewhere along the way would knock the driver out and take his vehicle.They went to a public telephone and called for a cab to take them to Papatoetoe.It was agreed between them before they got into the cab that one would stab the driver, another would punch the driver, a third would get out of the van and run round to the driver's side and pin the driver to the ground so the present appellant and the fifth man could search the van for money.

[4]Pursuant to their plan at about 2.30 in the morning they got into a taxi van which had responded to their telephone call and proceeded to drive off. A screwdriver was produced by the man who was sitting in the rear of the taxi directly behind the driver.He swung his arm around on three occasions stabbing the victim in the left arm and shoulder which caused puncture wounds. While this was going on another of the assailants punched the victim in the left side of his face.While the driver was trying to protect himself he received a further stab wound to his lower left arm.We note that the screwdriver may have unexpectedly been introduced into the attack but there is no question about the fact that actual violence was intended.

[5]The driver decamped and took refuge in a neighbouring house before he could be confronted by one of the assailants who had pursued him.The present appellant completed his assigned task by searching the front interior of the taxi van looking for money along with the other associate who also was hunting for money at the other side of the taxi.

[6]The young men left the scene and the victim (having called the Police) returned to his vehicle to find that all that had actually been taken was a packet of cigarettes and a cigarette lighter.

[7]The four men who were charged were located in February 1998.The present appellant admitted the facts and stated that at first he thought they were all just joking but after a while he could see they were serious and we only did it for the "money".

[8]That was the only charge which this appellant faced.Others of his co-offenders faced other charges of aggravated robbery of shop premises in October 1998 and associated related offences including possession of offensive weapon, unlawfully taking and unlawfully getting into a motor vehicle.

[9]The sentencing Judge undertook a detailed analysis of the matters which had been involved and concluded that in respect of the charge which they all faced relating to the aggravated robbery of a taxi driver the appropriate starting point was 4 years reduced by one year to 3 years taking into account a plea of guilty and other minor mitigating features he had been able to identify.He discussed appropriate penalties with regard to the additional charges and eventually concluded that those who had been involved in not only the aggravated robbery of the taxi driver but the two aggravated robberies on dairies and other crimes should serve a sentence of 4½ years imprisonment.

[10]The position of those other people is not before the Court.We should observe that it appears that the overall penalties imposed on them were very lenient.Whatever may be said about the fact that these men had been drinking and under the influence of drugs, their relative youth or their contrition, the stark reality is that over a period of about two weeks they had acted as outlaws.

[11]Probably because of a recognition of the leniency which was extended to the other offenders it is no part of this appeal that there is any unjustifiable disparity.If the other accused had faced terms of imprisonment significantly higher than the total penalty which was imposed upon them they would have had no grounds for complaint.

[12]The present appeal is advanced on the basis that in the charge as laid it is alleged that the aggravation was the men being together and not because of the use of the weapon.We accept that is the position in the charge and it is the manner in which they were dealt with by the Judge.However we do not close our eyes to the fact that in accordance with the arrangement, actual violence was administered to this innocent taxi driver.It is acknowledged by Mr Kaye that there was a degree of planning.He submits that the involvement of the current appellant was in a lesser role.We do not find such distinction particularly convincing.These sort of offences (where the aggravation is more than one person being together) are accomplished by reason of the numbers involved.Each is an integral part of what occurs and each can anticipate that their culpability will not be a matter of refinement.

[13]We acknowledge that there was a sympathetic report from Community Corrections noting that the appellant was at the time of the offending still at school, was remorseful and had an apparent inability to function independently away from his peer group.The recommendation was that the matter could be dealt with by way of supervision with conditions :

[a] to undertake anger management as directed;

[b] to undertake drug and alcohol counselling as directed;

[c] to undertake other such counselling as may be directed.

Coupled with a suspended term of imprisonment.

[14]In our view the recommendation was unhelpful and unrealistic.This was a planned attack on a vulnerable person carrying out a valuable function in the community.In our judgment it could never have been a realistic possibility that this matter (which involved serious violence) could be dealt with other than by way of a term of imprisonment.A term as short as 2 years would have failed to recognise the gravity of what occurred and would have been inconsistent with applicable tariffs.

[15]The victim impact report indicates the major effect which this had on this 40 year old man who is married with 5 children.As well as the wounds which he received which required stitches, he has ongoing problems because of pain in his forearm muscle which interfered with his main source of income as a lead guitarist in a band.He has also given up taxi driving which he had done for 17 years, so there were ongoing financial consequences for both him and his family as a result of the attack.

[16]It is clear that the Judge took into account all factors which could be advanced in respect of any of these men.It is now submitted that insufficient weight was given to youth and the real positive potential which was shown for the future.That cannot be accorded particular significance in a case which involves such unjustified and unwarranted attack on an innocent man providing a service.The appellant remarked to the Community Corrections Officer that the offending was "hatched out of a drunken binge" and that he regarded it in a somewhat light-hearted manner.This does not impress us. There is no comfort or solace for this victim (or others who are apprehensive at the potential for such offending) that it only happened after these young men over-indulged in alcohol.That is no excuse for the fact that they behaved in this outrageous way.

[17]Reference has been made to decisions in this Court R v Kopara (CA 301/92, 11 November 1992), R v Tuhiwai (CA 398/92, 25 March 1993), R v Milford (CA 332/98, 14 December 1998), R v Falamoe (CA 297/87, 14 December 1987) and R v Hodge (CA 471/94, 28 November 1994) which attracted penalties between 6 years and a suspended sentence.All they do is demonstrate the factual and personal circumstances which must be weighed in each case.

[18]An attack on a taxi driver should not be considered as less serious than an intrusion into a small business.In some ways there are more serious aspects especially when it is an attack by five young men on a taxi driver alone in the early hours of the morning.In terms of the second category in R v Moananui [1983] NZCA 66; [1983] NZLR 537 (which speaks of 2½ to 7 years) a starting point here of 4 years and a sentence of 3 years was lenient.The allowance of one year in the circumstances was a fair reflection of all mitigating factors especially when there was only co-operation and contrition when they were apprehended (more than four months after the attack) and the plea came only after depositions.

[19]Despite the careful written and oral submissions of Mr Kaye we find no substance in the appeal even having given every possible consideration for his age and personal circumstance.It is accordingly dismissed.He must forthwith surrender the bail granted by the sentencing Judge pending this appeal and commence serving the sentence.

Solicitors

Crown Law Office, Wellington