THE QUEEN v ALLAN MICHAEL DAVIS [2001] NZCA 81 (20 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca472/00

THE QUEEN

V

ALLAN MICHAEL DAVIS

Hearing:	19 March 2001
Coram:	Tipping J Robertson J Young J
Appearances:	B R Green for Appellant
	J C Pike for Crown
Judgment:	20 March 2001

judgment of the court DELIVERED BY ROBERTSON J

[1] Allan Michael Davis was sentenced in the District Court at Christchurch 16 November 2000 to an effective sentence of 8½ years imprisonment.He appeals against that sentence.

[2] He faced six charges of aggravated robbery, one charge of attempted aggravated robbery and one charge of unlawfully taking a motor vehicle.

[3] As the Crown conveniently summarised the matter, the facts were as follows :

First he entered a dairy in Lyttleton Street, Christchurch.He wore a hooded raincoat and a balaclava.He then produced an air pistol, which had the appearance of a Luger.This weapon was apparently incapable of firing a projectile.Faced with the weapon the dairy owner gave over $400.The appellant then ran to his nearby car and left.

Three days later, his car having been impounded due to a driving offence, the appellant stole a car.Later on that day he entered a "McDonalds" outlet, clad as he was in the first robbery.Again at gunpoint he demanded cash from an assistant and was given $529.He then abandoned the car.On 3 September, now using a pushbike as transport, he robbed the "Addington Price Cutter store" again at gunpoint and again dressed as in the first robbery.He obtained $1,026.Ten days later he repeated the crime at a "take-away" outlet, and obtained $100.Apparently disappointed with this amount he then robbed a neighbouring outlet, the Addington "Super 7" store of $600.

On the following day, 14 September, he attempted to rob a Riccarton dairy but made off when the owner threw a glass of water at him, and ran into a back room.Later that evening he robbed a 24 hour dairy on Riccarton Road.

Following that robbery he was located by a Police dog unit.He admitted all the offending and assisted in the retrieval of the air pistol.

[4] The appeal is advanced on the basis first, that the starting point for the assessment of the total criminality was excessive, and secondly, that the credit for the pleas of guilty and co-operation was undervalued.

[5] In the hearing of this appeal and clearly in the District Court, the sentencing in R v E J Ellis (CON 009037015, Christchurch District Court, Noble DCJ, 19 October 2000) figured prominently.There an effective sentence of 10 years imprisonment was imposed for what was seen to be similar offending.

[6] The six charges of aggravated robbery arose between 26 August and 14 September.The unlawful taking of a motor vehicle was used in connection with one of those robberies.The attempted robbery was on 14 September.

[7] The Judge summarised matters thus :

On each occasion, Davis, you armed yourself with an air pistol.This was a Ruger (sic) military look-alike pistol.You were dressed in a hooded raincoat on the occasion of some of the robberies and you wore a balaclava on each occasion, which you pulled down to provide disguise.You targeted in the main suburban dairies but one of the offences occurred at a McDonald's restaurant and there were offences at small suburban supermarkets and a take-away shop. The maximum sentence for each of the aggravated robberies is one of fourteen years imprisonment.For the attempt, and for the unlawful taking offence, the maximum sentence in each case is one of seven years imprisonment.You obtained and made off with various amounts of cash.In total you got away with approximately $3,000 as a result of these robberies.The largest individual sum was approximately $1,020.

[8] The Judge referred to the decision of this Court in R v Mako [2000] 2 NZLR 170 and concluded that the starting point for each of the offences would have been 4 years imprisonment.He noted that the appellant was entitled to a significant credit for his pleas of guilty which were entered at what the sentencing Judge described as probably "the earliest possible opportunity".

[9] The Judge considered as a serious aggravating factor a previous conviction for robbery in July 1992.He noted other offending both prior to the 1992 conviction and subsequent to it.

[10] The appellant is 35.The pre-sentence report described his "voracious use of drugs" during the period of offending which was undoubtedly the catalyst for the robberies.The Judge recorded that on each occasion, as far as the victims were concerned there was the very real threat of violence principally as a result of the presentation of a look-alike pistol.As one would anticipate, the offending had a marked effect on the confidence and general well-being of the victims.

[11] The Judge eventually concluded this comparison of the two cases :

In your case, there are more robbery offences - seven if one includes the attempt.Furthermore, you have previous convictions for serious violent offences including one for robbery.In my view there is not a lot, Davis, to distinguish between your position and that of Ellis.Obviously sentencing for serious offending such as this should be seen to be consistent and even-handed. As to the multiplicity of offences, I bear in mind what the Court of Appeal had to say in Mako in paragraph 51 of the judgment.In my view, given your record, given that there are only a slightly greater number of robberies in your case, but having regard to the fact that you got away with significantly less cash and other property and resorted to less threatening conduct than Ellis, I believe that for you an overall sentence of somewhere in the range of eleven to twelve years would be appropriate based upon a sentence of two years and nine months for each of the individual robberies after allowing a credit for your plea of guilty to each charge.

[12] The Crown in District Court submissions asserted, and the sentencing Judge noted, that aggravating features were :

[a] the degree of planning and preparation;

[b] the targeting of premises operated by women alone;

[c] the use of a balaclava as a disguise;and

[d] the significant amount of cash taken overall.

[13] Mr Green submits that although there was some preparation it was limited and the targeting was more on the basis of premises where there would be only one person and not a number of customers.Although there was a weapon and disguise, it is common ground that the firearm was not operable and there is no evidence of other threats having been made.

[14] Counsel submitted that if the appellant had confronted eight persons and obtained the sum of approximately $3000 on one occasion, the starting point of the offending even considering the previous record of the appellant, would not have attracted a term of even 10 years imprisonment.

[15] There was considerable discussion about the case of Ellis in both sets of written submissions.We decline to become involved in a minute dissection of the facts in each of the cases.Previous decisions are helpful for the issues of principle which can be extracted from them, but there is seldom benefit in an extensive comparison of the unique facts or circumstances of individual cases.

[16] The Judge had an obligation to look at the totality of the offending and to determine an appropriate starting point for the established culpability.We are not attracted to a simple multiplication of indicated sentences for individual charges as assisting in determining the proper starting point.

[17] In our judgment the salient factors about the raft of offending can be summarised as follows :

[a] it all happened within a 20 day period;

[b] it involved 7 separate premises which apart from McDonalds Restaurant, were all dairies or small retail shops;

[c] the largest amount taken was just over $1000 and the total slightly more than $3000;

[d] the weapon used was an inoperative air pistol although the fear and apprehension for victims was as great as if it were a useable weapon;

[e] the appellant was no stranger to the Courts, with a criminal history spanning driving offending, violence, robbery, possession of a pistol and property offences over very many years.

[18] In circumstances such as these, important considerations must inevitably be the protection of the public and the condemnation of any who create this degree of fear and apprehension for people lawfully going about their daily routine activities.

[19] We are of the view that an appropriate starting point in respect of the offending when taken as a whole and bearing in mind the salient factors would be 10 years imprisonment.

[20] The fact that the underlying motive for the offending was drug addiction, cannot be a mitigating factor.This 35 year old man (and others like him) must understand that if they cannot or will not deal with the problems of drug abuse, the community must be protected from them.

[21] As the pre-sentence report noted, Mr Davis would "benefit from a drug treatment programme during his incarceration or as a pivotal special condition in his release plan" and we agree.The report noted that "his mercurial drug use is the main motivator in his criminality" but that cannot be other than an explanation but never an excuse for offending of this sort.

[22] The last of these offences occurred in mid September.He was arrested almost immediately on the first two.He admitted his involvement in the earlier incidents.He pleaded guilty before the end of the following month and was thoroughly co-operative with the authorities.

[23] In all these circumstances there is no basis upon which a substantial allowance for the early pleas of guilty should not be given.The sentencing Judge accepted this to be an important relevant mitigating factor.

[24] The appeal is allowed.The sentences imposed are quashed.On each of the aggravated robberies the appellant is sentenced to 7 years imprisonment.On the attempted aggravated robbery to 18 months imprisonment and to 6 months imprisonment on the unlawfully taking of the motor vehicle.All terms to be served concurrently.

Solicitors:

Cameron & Company, Christchurch for Appellant

Crown Law Office, Wellington