THE QUEEN v REBECCA THOMAS [2001] NZCA 231 (29 August 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 153/01

THE QUEEN

V

REBECCA THOMAS

Hearing:	29 August 2001 (at Auckland)
Coram:	Thomas J Anderson J Hammond J
Appearances:	S D Cassidy for Appellant A R Burns for Crown
Judgment:	29 August 2001

judgment of the court DELIVERED BY THOMAS j

[1] The appellant, Ms Thomas, pleaded guilty to three offences; that being armed with an offensive weapon she assaulted unknown persons with intent to rob them, that she was an accessory after the fact to aggravated robbery, and of common assault.Ms Thomas was sentenced to 16 months imprisonment on the two main charges and two months imprisonment on the lesser charge, all sentences to be served concurrently.

[2] On 30 December 1999, Ms Thomas and three associates, one female and two males, travelled by car into the central area of Auckland City for the express purpose of committing crimes in order to obtain money to fund their New Year's holiday.The car was owned by Ms Thomas, and she drove the car.On the way into the central City the foursome stopped at one of the occupants' addresses and picked up an imitation pistol, an air-gun.They then drove around the City looking for premises to rob.The premises were chosen.Ms Thomas parked the car.The two men left the car and Ms Thomas and the other female, a Ms Sherwin, waited in the vehicle.When the two men returned they indicated that the robbery had been successful.Ms Thomas was not charged in relation to this incident.

[3] Ms Thomas then drove the car to another area of the City.Two young Asian girls were sighted.They were thought to be suitable targets for a robbery. The men persuaded Ms Thomas and Ms Sherwin to commit the robbery.Ms Sherwin had the imitation firearm.She presented it to the two victims and demanded money.A brief struggle took place as Ms Sherwin sought to wrench the bag from one of the two victims.The other Asian woman flagged a taxi.At this point, Ms Thomas and Ms Sherwin took fright and the victims made off.This incident was the subject of the charge of being armed with a weapon assaulting the women with intent to rob them.

[4] On 8 February 2000, the same group decided to undertake a further robbery. They again took with them the imitation pistol.Ms Thomas drove them around the City looking for premises to rob.A service station was selected.Ms Thomas parked the car nearby and waited with Ms Sherwin while the men committed the robbery.When they returned they had with them a considerable sum of money.Ms Thomas then drove them away.Apparently, the men did not share the proceeds of the robbery with Ms Thomas and Ms Sherwin.Ms Thomas was charged with being an accessory after the fact in respect of this aggravated robbery.

[5] The assault related to an earlier unrelated incident.

[6] Mr Cassidy, who appeared for Ms Thomas, filed an affidavit by Ms Sherwin.It proved to be of little assistance to the Court.As Mr Burns submitted, the reality remains that the pair, in possession of an imitation firearm, tried to rob two young women walking down the street.Ms Thomas was actively involved in the robbery.In her statement to the Police she admitted that she had said to the victims: "Hurry up, hurry up, just give us the bag".

[7] Mr Cassidy also contended that the 16 month sentence imposed on Ms Thomas was disproportionate to the 15 months imprisonment, together with 18 months supervision, imposed on Ms Sherwin, the sentence being suspended for two years.

[8] The sentencing Judge, however, was well aware of the sentence imposed on Ms Sherwin.He took the same starting point as the sentencing Judge who sentenced Ms Sherwin.He noted that, although Ms Thomas had pleaded guilty, the plea had been made late in the piece.Mr Cassidy explained to our satisfaction, however, that Ms Thomas had been prepared to plead guilty to the appropriate charge, and did so promptly when the present charge was laid.Of greater significance, the sentencing Judge also emphasised the degree of planning and participation on Ms Thomas's part.Apart from her involvement in the robbery of the two young Asian women, she had provided and driven the robbery vehicle for the group.

[9] It would be untenable to suggest that the one month difference in the two sentences was a disparity.Rather, Mr Cassidy's submission was directed at the sentencing Judge's decision not to suspend Ms Thomas's sentence.We believe, however, that this decision was justified.

[10] First, Ms Thomas faced an additional charge to Ms Sherwin.Ms Sherwin was sentenced only on the charge assaulting the two Asian women with intent to rob them.Ms Thomas faced that charge together with the charge of being an accessory after the fact to a robbery.

[11] Secondly, Ms Sherwin went to the Police and disclosed the offending. Admittedly, she did this at the insistence of her father, who is to be roundly commended for the stance which he adopted.But prompted or not, Ms Sherwin did go to the Police and she did assist in resolving these crimes.We agree with Mr Burns that the level of co-operation justifies a different outcome.

[12] Thirdly, we have been provided with and read the Judge's sentencing notes relating to Ms Sherwin.If anything, we consider that the sentencing Judge who sentenced Ms Thomas adopted a more realistic approach to the sentencing of these offenders.The street attack and attempted robbery on two young Asian women could have warranted a relatively severe deterrent sentence.Any justification for suspending the sentence in Ms Sherwin's case can only be based on the fact that she assisted the Police.This basis does not exist in respect of Ms Thomas.Further, suspending a sentence for aggravated robbery, as stated in R v Mako [2000] 2 NZLR 170, will be only rarely justified. Ms Thomas, unlike Ms Sherwin, was convicted of being an accessory after the fact to aggravated robbery.The decision not to suspend the sentence was therefore well within the Judge's discretion.

[13] The appeal against sentence is dismissed.

[14] The Crown accepted that the Judge had approached the question of home detention from the wrong direction.We agree that there are factors present which justify consideration of home detention.Leave is therefore granted to Ms Thomas to apply for home detention.

Solicitors

Crown Solicitor, Auckland for Crown