THE QUEEN v ROBERT BRUCE HEWITT [2000] NZCA 22 (23 February 2000)

IN THE court of appeal of new zealand

ca447/99

THE QUEEN

V

ROBERT BRUCE HEWITT

Hearing:	23 February 2000
Coram:	Gault J Williams J Goddard J
Appearances:	P J B Winter for Appellant
	P K Hamlin for Crown
Judgment:	23 February 2000

judgment of the court DELIVERED BY GAULT J

[1] The appeal is against the sentence of imprisonment for five years imposed in the District Court at Auckland on 20 October 1999.

[2] The appellant, having been sentenced to periodic detention on 2 March 1998 for burglary, committed two of the offences with which we are concerned later in the same month.On the evening of 11 March, with a co-offender Darren Rose, he broke into a tuckshop in school grounds.He activated an alarm but took a box of cookies before making off.The following day the appellant, again with Rose, and two others set off to a rob a shop to obtain money and cigarettes. The appellant borrowed a chef's knife with a 10 inch blade and, with Rose driving, attempted to locate a suitable dairy.The appellant approached a superette with the knife but desisted when he found customers present.He was driven to another superette which he entered while his companions waited in the car ready for a getaway.He approached the male staff member, pointed the knife at his throat and threatened to kill him if he did not open the till. Although the victim complied, the appellant made off without taking any money.

[3] It was more than a year later before the appellant and Rose were spoken to by the police in respect of these offences.That was shortly after the aggravated robbery on 28 April 1999 of the same superette the appellant had refrained from entering on the earlier occasion because of the presence of customers.On this occasion his three associates were different persons.Two of them were Gary Hudson and Stephen Brown.The appellant and Brown armed themselves with imitation pistols and approached a dairy after arranging for the other two to be ready for a quick escape in the vehicle they were using. They decided against holding up this particular dairy and returned to the car. They eventually resolved to target the superette.This time the appellant and Hudson left the car parked nearby and armed with the pistols and wearing hats entered the premises.

[4] The owner of the store, his wife and their young daughter were present.On entering the store Hudson presented his imitation firearm and pointed it direct at the owner's head.The appellant held his firearm at his side and yelled at the victim's wife to take the money out of the cash register.Hewitt was reported to have said to Hudson "if he moves shoot him".The owner and his wife both refused the demands to open the cash register and the appellant was unable to open it himself.They turned their attention to stock and filled a plastic bag they were carrying with packets of cigarettes said to have been valued at $180.They moved towards the door by which time it seems the owner had satisfied himself that the firearms were not real and was moving towards preventing their escape.At this point he was struck on the head with the butt of the pistol carried by the appellant.The two co-offenders then ran off joined their companions in the car in which they drove to Bucklands Beach to dispose of the hats that they had been wearing.

[5] When spoken to by the police the appellant, Hudson and Brown all admitted their involvement.All three were 18 years old.Their respective explanations indicate their objectives.The appellant and Brown said they wanted to get money to buy cigarettes.Hudson had the higher aspiration of obtaining money to travel to Australia.

[6] The appellant pleaded guilty to the 1998 offending (burglary and assault with intent to rob) at callover on 25 August 1999.He pleaded guilty to the aggravated robbery before committal.He was sentenced to imprisonment for five years for the aggravated robbery, three years for the assault with intent to rob and one year for the burglary.Those sentences are concurrent and the five year sentence was fixed to reflect the totality of the offending.The sentencing Judge considered that an appropriate starting point for sentence for the aggravated robbery was six years which, because of the totality of offending, could be reduced to allow for mitigating factors only to a moderate extent.He accordingly imposed the sentence of five years imprisonment.

[7] In support of the appeal on the ground that the sentence of five years is excessive, Mr Winter submitted that the six year starting point was too high for the offending in the circumstances of the case.He also complained of unjustified disparity in the sentence against those imposed on Rose, Hudson and Brown.

[8] Rose was sentenced by the same Judge two days after the appellant was sentenced.Although two years older than the appellant, Rose was accepted as having had lesser involvement in the 1998 offences.He did not enter the premises and acted very much as a secondary party.He was a first offender and was regarded as a good prospect for rehabilitation.He was sentenced to 18 months imprisonment suspended for two years for what in his case was charged as aggravated robbery when the chef's knife was presented - it seems he accepted cigarettes were taken.To this was added a sentence of 180 hours community service.The Judge specified a starting point of three years before allowing for the guilty plea and personal circumstances.For the burglary of the school tuck shop he was sentenced to nine months imprisonment suspended for two years.

[9] The Judge expressly dealt with the relative sentences of Rose and the appellant saying:

I have noted what Mr Brosnahan says about disparity in relation to the sentence imposed on you and the sentence imposed on Hewitt.The difference, it seems to me, is that Hewitt also had a very bad aggravated robbery and was fully involved in both that robbery and as well in the robbery to which you were a party.He also had previous convictions.

[10] Brown and Hudson were sentenced to imprisonment for two years for their participation in the aggravated robbery of the store on 28 April 1999.Brown provided the imitation pistols, was prepared to enter the first premises and provided the motor vehicle.Hudson participated in the actual robbery and presented the firearm directly at the victim.All co-accused were the same age at the time of the offence.They were sentenced by a different Judge after the appellant was sentenced.The Judge accepted submissions for leniency and addressed the disparity with the sentence of the appellant distinguishing his circumstances by reference to his previous convictions and other offending, the fact that the Crown accepted he was the ringleader and his direct involvement in the violence.

[11] Certainly when the sentences of Rose and Hudson are taken together they appear to reflect a more lenient response to the total offending than that met by the appellant for the same offences.His role in some of the offences and his personal circumstances did differ however.

[12] This case gives rise to the all too familiar problem of jurisdiction. Because the appellant's guilty pleas were entered after committal on the charges arising from the 1998 offending but before committal on the 1999 offence, this Court has no jurisdiction to entertain the appeals in respect of the totality of offending.The appeal against the five year sentence imposed on the aggravated robbery charge should have been brought in the High Court. Such an anomalous situation cannot be allowed to obstruct the proper consideration of the appropriate sentence for the total offending. Accordingly, to the extent that we deal with appeal against the aggravated robbery sentence, we do so in the capacity of Judges of the High Court.

[13] It is first necessary to consider the appropriate sentence for the offending.We begin, as did the Judge, with the aggravated robbery as the most serious offence.This was a robbery planned to the extent of taking imitation firearms for the purpose and positioning a getaway vehicle with a driver waiting.It involved the use of two firearms not immediately perceived by the victims as imitations.They feared for their lives.Goods to the value of $180 were taken but no money.There does not seem to have been any real danger to members of the public as their presence at an earlier target dairy deterred the offenders.It can be seen as a somewhat amateurish exercise by teenagers who were pursuing relatively small amounts of money, who were not disguised and so were readily apprehended.There was the blow to the head of the store owner but it was disputed that this was intentionally inflicted which dispute was not resolved.Therefore it is to be treated as having occurred in the course of fleeing and not to have been intentional.

[14] On the scale of seriousness this aggravated robbery must be placed quite low but not so as to trivialise the frightening experience for the victims. They were, like all shopkeepers, vulnerable and were targeted by a group of young criminals from whom they are entitled to be protected.They showed impressive resilience and the impact upon them was less than in many cases.

[15] Taken by itself we consider this offence would warrant a starting point of a sentence of between four and five years for an adult offender convicted after trial.That would call for adjustment in the present case for the early guilty plea and the personal circumstances of the offender.But also there must be adjustment to take account of the total offending including the burglary and assault with intent to rob a year earlier.

[16] The personal circumstances of the offender appearing in the pre-sentence reports are of an insecure youth effectively out of control, confused as to values and spiralling in antisocial behaviour and alcohol abuse.His background includes being born to a chronic drug user requiring treatment for withdrawal symptoms from birth.He was adopted and received a privileged upbringing seemingly insufficient to enable him to cope with identity conflicts.He has been diagnosed as having a borderline psychological condition of attention deficit disorder though he will not use medication prescribed for this.He was assessed as being at high risk of re-offending. His previous sentence of periodic detention resulted in two convictions for breach.Plainly his deep-seated problems, unless addressed to bring about a significant attitude change will lead him into even more serious trouble.It follows that leniency that might be attracted by background difficulties must be tempered with concern for public safety.

[17] Nevertheless the appellant is young and immature, he should not be consigned to the irredeemable.He is entitled to credit for his early guilty plea.

[18] For the single offence the appropriate sentence, and one closer to that of the co-offender's Hudson and Brown would be 2½ to 3 years.Then there is to be taken into account the earlier offending.That must be reflected in the total sentence.The burglary was less serious but the presentation of a large knife, in a menacing way to a shopkeeper was both dangerous and serious.That nothing was stolen only reflects the less than convincing nature of the exercise.

[19] Having weighed all the circumstances we conclude that for an 18 (now 19) year old offender who has not previously experienced imprisonment a lesser sentence than five years is an adequate response to the offending and will address a degree of disparity with the sentence of the co-offenders which is difficult to fully justify.

[20] Accordingly, the appeal is allowed, the sentence in respect of the aggravated robbery offence is quashed and we substitute the sentence of imprisonment for four years.The other concurrent sentences remain unchanged.

Solicitors

Crown Solicitor, Auckland