THE QUEEN v ANDREW BRUCE NODWELL [2000] NZCA 40 (8 March 2000)

IN THE court of appeal of new zealand

ca 475/99

THE QUEEN

V

ANDREW BRUCE NODWELL

Hearing:	28 February 2000
Coram:	Blanchard J Robertson J Williams J
Appearances:	N Cooke for Appellant K Hastie for Respondent
Judgment:	8 March 2000

judgment of the court DELIVERED BY WILLIAMS J

[1] On 20 September 1999 the appellant, Mr Nodwell, pleaded guilty to conversion of a rental car and aggravated robbery.On 9 November 1999 he was sentenced to concurrent terms of five and one years imprisonment respectively on those charges.He has appealed to this Court on the ground that the sentences were manifestly excessive in the circumstances.

[2] Shorn of the personal circumstances discussed later in this judgment, the facts are that on the afternoon of 3 August 1999 Mr Nodwell returned a rental car to Betta Rental Cars Limited.He was a regular and valued patron of that company.He noticed another rental car in the yard with the keys in the ignition.Without making arrangements with Betta Rentals, he drove the car away.

[3] On 4 August 1999, Mr Nodwell put a rifle into the converted rental car. Although he was a gun collector, he had cut down the barrel to the point where it was by definition a pistol.He drove the car to a shopping centre in Massey in West Auckland where he noticed an Armourguard Security van drive past.He followed the van and when it stopped in a car parking area at Westgate at the end of the Auckland North Western Motorway, he stuck the barrel of the cut-down rifle through the van door to prevent it closing.The rifle was unloaded but of course the two occupants, father and son, did not know that.He demanded the cash which was in the van.Fearing for their safety, the guards handed over several bags containing cash totalling $11,706.30.The security guards and a number of courageous persons in the car parking area tried to block Mr Nodwell's escape but he eluded them and drove to Point Chevalier where he parked the rental car and walked off down Great North Road dragging a green rubbish-bin.When stopped by the Police, the bin was found to contain all the money taken in the robbery together with the rifle.

[4] The victim impact reports which were before the sentencing Judge showed that the father and son, though physically unhurt, were deeply shaken by the robbery.Although Mr Nodwell was not to know it, in fact another son, also a security guard, had been shot in an aggravated robbery some ten days previously.Unsurprisingly, the guards confronted by Mr Nodwell thought they were about to suffer the same fate.The father had to take about ten days off work.The effect on him and his family was profound.The son gave up his employment and moved out of Auckland and suffered a loss of income.

[5] The conversion and robbery were plainly serious crimes.The facts imply premeditation.A firearm was presented to the security guards.They did not know it was unloaded and could have been provoked into using firearms with which they may have been provided in the course of their employment.Had the rifle been loaded, members of the public present in the car parking area might have been in danger.A large sum of money was taken.The offender made good his escape despite the efforts of others.It was largely a matter a matter of luck that all the money and the firearm were recovered.

[6] In those circumstances, there was, in our view, ample justification for the sentencing Judge to take the view that this was a "serious and planned aggravated robbery" and was a "carefully executed and ... apparently dangerous attack upon these people in their Armourguard vehicle".The Judge took a starting point of seven years imprisonment for the aggravated robbery.That starting point was appropriate.This case, said the Judge, clearly fell towards the top of the second category in R v Moananui [1983] NZCA 66; [1983] NZLR 537. In our view there is little to distinguish aggravated robberies of security vans from robberies of banks so that Mr Nodwell's case could easily have been held to be in the first category.We therefore reject the submission made on Mr Nodwell's behalf that the Judge's starting point was too high.

[7] There were said to be a number of mitigating features in Mr Nodwell's case to which, it was submitted, the sentencing Judge gave too little credit.

[8] Mr Nodwell was 32 years of age.He had no previous convictions.He came from comfortable family circumstances though he was estranged from his father. His mother and sister continue to support him.For some years prior to the offences he had run a company making electric beds for disabled persons, mainly those with serious illnesses or who had suffered serious accidents.The information before the Court was somewhat ambiguous as to the financial health of the business at the time of the offending.It may have been the case that the police summary was correct in recording Mr Nodwell telling the Police that he and his business were in financial difficulties and their need for money led to his committing the offences but that point was disputed by Mr Nodwell and, since it was not taken into account by the sentencing Judge, we put it to one side.

[9] In a letter of apology he wrote the victims and again in his explanation to the Police, Mr Nodwell said that in early 1999 he befriended a woman with terminal cancer who was using one of his company's beds.To demonstrate how nauseated her medication made her, she persuaded Mr Nodwell to take an analgesic prescribed for her.He rapidly became addicted.By March 1999 he was purchasing opiates on the illicit market.He attempted to stop but suffered a week of withdrawal.He recommenced taking drugs.He concealed his addiction from his family and flatmates and his ingestion increased to the point where he was spending $500 per week on illicit drugs.Several days before the offences, he developed toothache and sinusitis.He felt unwell and was unable to sleep.He purchased a proprietary analgesic available without prescription and took a large number, perhaps as many as 60-70 over 48 hours. It was whilst he was under the influence of these drugs and whilst, as he put it to the Probation Officer, he was operating on "remote control" that he took the rental car and drove it home.He said the following day he found himself with the rifle in the car sitting outside a chemist shop when the Armourguard vehicle drove past.As he put it in his letter to the security guards, "I just followed you with the thought that more money meant more pills".He asserted to the Probation Officer that he had no recollection of committing the robbery, taking the money or fleeing, or of anything up to the time of his arrest.He was assessed by a psychiatrist as not being hallucinated though his ingestion of drugs may have impaired his ability to make rational decisions.The Higher Ground Drug Rehabilitation Trust assessed him as being suitable for their programme.

[10] Mr Nodwell's letter of apology to the security guards appeared to be a genuine expression of remorse, contrition and shame.

[11] An unusual matter in a case of this nature is that a community group conference was organised by the Restorative Justice Group on 29 October 1999. It was attended by Mr Nodwell, his mother and sister, the proprietor of Betta Rentals and several facilitators.Though invited, the victims did not attend. Mr Nodwell made an offer of amends to Betta Rentals by way of the transfer to them one of his collection of vintage cars.That was accepted. Representatives from Betta Rentals also said they wanted Mr Nodwell to be treated as leniently as possible by the Court and provided a statement for the Judge to that effect.

[12] Although the security guards were not present, their victim impact statements to the Court mentioned an offer of amends of $10,000 made to each and their then intention to accept.The funds were apparently to be provided by way of a mortgage to be raised by Mr Nodwell's mother on her home.However, this Court was told at the hearing that nothing has eventuated as regards the payment of amends.

[13] The power for the Court to take an offer to make amends into account on sentencing appears in the Criminal Justice Act 1985 s 12 which relevantly reads :

(1) In imposing a sentence in any case, a court may take into account any offer of compensation, whether financial or by means of the performance of any work or service made by or on behalf of the offender to the victim.

(2) In deciding whether and to what extent any such offer of compensation should be taken into account, a court may have regard to whether or not the offer has been accepted by the victim as expiating or mitigating the wrong.

[14] As this Court emphasised in R v Thacker (CA392/90 22 March 1991) in offences generally, property offences in particular, the making of reparation or amends can be an important consideration in determining the appropriate sentence, though it is only one of many factors to be taken into account (R v Crime Appeal CA 246/92 4 September 1992).Such cases as there are show that an offer of amends needs to be seen against the terms of the Criminal Justice Act 1985 s 5 requiring full-time custodial sentences to be imposed in cases of serious violence absent special circumstances.As this Court said in R v Clotworthy (1998) 15 CRNZ 644, 661 :

We would not wish this judgment to be seen as expressing any general opposition to the concept of restorative justice (essentially the policies behind ss 11 and 12 of the Criminal Justice Act 1985).Those policies must, however, be balanced against other sentencing policies, particularly in this case those inherent in s 5, dealing with cases of serious violence.Which aspect should predominate will depend on an assessment of where the balance should lie in the individual case.Even if the balance is found, as in this case, to lie in favour of s 5 policies, the restorative aspects can have, as here, a significant impact on the length of the term of imprisonment which the Court is directed to impose.They find their place in the ultimate outcome in that way.

[15] Although, as earlier noted, the evidence as to Mr Nodwell's financial position in this case was equivocal, where an offer to make amends has been made care needs to be taken in dealing with that matter at sentencing to ensure that there can be no suggestion that the sentence will differ according to the wealth of the offender or that affluent offenders can buy their way out of appropriate sentences (R v Honan [1988] NZCA 109; (1988) 3 CRNZ 532, 534-535;Hall Sentencing para S12.5 pD/127).

[16] The Judge noted the early plea of guilty, lack of previous convictions, the testimonials, his apology and his intention to seek rehabilitation.He took the view that although Mr Nodwell's "mental processes were somewhat disordered" by his drug addiction the circumstances of the aggravated robbery did not "indicate that this was the action of an irrational or disordered person" and was "not an opportunistic and sudden response to an urgent need for gratification of your drug habit".

[17] The Judge noted the offer of amends to the victims for their shock, upset and financial loss but held the circumstances came nowhere near the range where suspension of the term of imprisonment could be contemplated.After starting at the term of seven years, he allowed a discount for the factors mentioned in para [16]. before imposing the sentences against which this appeal is brought, observing :

All in all and giving you such credit as I may for the matters special to you which have been raised in your favour, the Court must be primarily in this case concerned with deterrence, not only of you but of others who are minded to behave in this fashion and there can only be one response to this kind of offending and that is by a prison sentence of a considerable length.

[18] The matters submitted to the sentencing Judge were rehearsed before us in careful submissions on Mr Nodwell's behalf.However, having considered all those matters and the mitigating factors, we are satisfied that the reduction for those circumstances from the appropriate starting point has not been shown to be insufficient.

[19] Although the sentence could be said to be stern, in our view it was within the available range and could not be said to be manifestly excessive.An aggravated robbery of a security van in a crowded carpark is a very serious offence.Amends was not a major factor in sentencing given that they were relatively modest.There was a need for a substantial sentence in order to deter others who might contemplate similar offending.The public, and particularly security guards, are entitled to be protected against conduct such as the appellant's.

[20] The appeal against sentence is accordingly dismissed.

Solicitors:

Crown Solicitor, Auckland

Nigel G Cooke, Auckland