THE QUEEN v ANDREW HAMILTON-SEYMOUR [1999] NZCA 98 (27 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 338/98

THE QUEEN

V

ANDREW HAMILTON-SEYMOUR

Hearing:	26 May 1999
Coram:	Blanchard J Heron J Goddard J
Appearances:	A C Hughes-Johnson QC for Appellant K B Hastie for Crown
Judgment:	27 May 1999

judgment of the court delivered by HERON J

[1] This is an appeal against a sentence of six years imprisonment for the aggravated robbery of a Christchurch bank in June 1998.

[2] The appellant disguised, walked into the bank and approached two female bank tellers.He took a plastic air pistol from a bag he was carrying and placed it on the counter and then reached across the counter and removed some money from the teller's draw.He demanded further money which was given to him.He then left the bank.At the time there were no members of the public in the bank and later he admitted the robbery after initially denying that he had been involved.He then co-operated with the police leading them to various items used in the robbery with the exception of the gun, which he said was thrown away in a city area.The appellant maintains that it was an imitation firearm, but the gun was never discovered.

[3] As a result of a search warrant executed at his address following the robbery he was also found to be in possession of 40 grams of cannabis and he received a sentence of six months concurrent for possession of cannabis for supply.

[4] The bank lost $5,124 in the robbery and the bank tellers involved had both suffered trauma from the events as is inevitably the case.

[5] The motive for the robbery the Judge accepted in the court below, was that the appellant had lost drugs which he intended to sell and was under pressure to make payment for them, the robbery being committed out of desperation as a means to deal with that problem and with the threats which had been made to the appellant's personal safety.As the Judge pointed out this was a matter that carried implications both for and against the appellant.The fact that he was involved in drug trafficking of such a dimension that required a significant amount of money which he could only find by robbing a bank, speaks for itself.

[6] The Judge said that he thought that the case was either at the bottom end of the first category of offences identified in Moananui [1983] NZCA 66; [1983] NZLR 537 or the top end of the second category, and commented on the fact that notwithstanding stern sentences in this area the prevalence of bank robberies remained.The Judge then thought that a sentence of eight years imprisonment was appropriate but reduced it for a prompt plea of guilty and other co-operation by two years, leaving the present sentence under appeal.He declined to make cumulative the sentence for the possession of cannabis for sale.

[7] On appeal the single point is that the Judge started at too high a point by wrongly placing it in the first category of Moananui and then at the higher level, rather than the next or second category.This Court in Moananui said at page 539:

The aggravated robbery now in question falls within a broad spectrum of offences.It is not in the most serious class of these offences but we list some of these in the interests of perspective.They are cases which planned armed robberies are carried out in premises such as banks so as to endanger the safety of considerable numbers of people.These cases usually attract sentences of six to eight years, but both the upper and lower limits must obviously be regarded as flexible in the light of the particular facts.

[8] Here it is submitted that the bank was a small branch that was robbed in daylight when no member of the public was present.There was no violence of any kind other than the presentation of the gun and no members of the bank staff or the public were ever in actual danger.The Judge having put the case at the bottom end of the top category, which would tend to suggest a starting point of six years, rather than eight years, should have, it was submitted, imposed a lesser sentence when the guilty plea was taken into account.The further grounds for appeal are that the Judge appeared to have made no or little allowance for the motive for the robbery, the fact that no physical harm could eventuate, or that the appellant was genuinely contrite, including writing a letter to one of the victims.

[9] Aged 25 years the appellant has a recent violent offence in 1995 when he was sent to prison for six months and three earlier dishonesty offences.The probation officer thought his conduct was drug related and he remained at a high risk of reoffending.He has shown some personal improvement by taking up martial arts.

[10] Mr Hughes-Johnson referred us to a number of cases in the second category of Moananui where sentences of less than six years were imposed and replica firearms used.We are content however, to put this case as the Judge appeared to accept, at the admittedly flexible boundary of the two categories of Moananui and give proper recognition for the plea of guilty.

[11] This was in our view a bank robbery of middle ranking proportions and whilst the nature of the weapon remains a mystery, the Judge was rightly content to accept it as a replica and together with the other circumstances of the appellant, we think the case was entitled to be categorised in terms of Moananui at slightly less than eight years, as a starting point. We note the Judge indicated that bank robberies remained prevalent but he did not as such use that factor specifically to impose this sentence.

[12] We are inclined to think that between six and seven years might have been a fair range from where to begin including the fact that it was nonetheless a public facility that was being robbed and whilst there were no members of the public about, that may have been merely fortunate.In all the circumstances and having regard to the important early plea of guilty, we are inclined to think that a sentence of five years would have been sufficient to meet the gravity of this offending, and the personal circumstances of the appellant. The end result has also to reflect the drug offending.

[13] The appeal is accordingly allowed.The sentence of six years imprisonment quashed and a sentence of five years imprisonment imposed.

Solicitors:

Crown Law Office, Wellington for Crown

A C Hughes-Johnson QC, Christchurch for Appellant