THE QUEEN v ELDER BROWNE [2002] NZCA 112 (27 May 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 277/01

THE QUEEN

V

ELDER BROWNE

Coram:	Gault P McGrath J Anderson J
Appearances:	P Dacre for Appellant A Markham for Crown
Judgment (On the papers):	7 August 2002

judgment of the court DELIVERED BY ANDERSON J

[1] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.An oral hearing is no longer sought by counsel.The appeal was originally against conviction and sentence but counsel for the appellant has received instructions to abandon the appeal against conviction and has informed this Court accordingly in written submissions signed by him.Nevertheless, in the course of determining the appeal the Court has received and considered submissions filed in draft by counsel for the appellant, developing an appeal against conviction and sentence as well as the final submissions noting the abandonment already mentioned.The Court has also considered written submissions on behalf of the Crown and all relevant materials forming part of the file, as well as this Court's decision on an appeal by a co-offender, P H Tipene, delivered on 27 May 2002.Members of the Court have conferred and agreed upon this judgment.We record that disposal of the appeal was delayed in consequence of requests by or on behalf of the appellant for further time to prepare written submissions.

Offences and sentence

[2] The appellant was one of four offenders involved in the commission of aggravated robberies of five banks in Auckland between 29 December 1999 and 24 January 2000.A characteristic of the gang's method was the use of screwdrivers to lever open money drawers.The appellant was found guilty on his trial before a High Court Judge and jury on all five counts of aggravated robbery, along with three counts of unlawful taking of motor vehicles.He was sentenced to twelve and a half years imprisonment.A co-offender, John Koteka, was found guilty of four counts of aggravated robbery and one count of unlawful taking of a motor vehicle.He was sentenced to ten years and five months imprisonment.Another offender, J Balle, pleaded guilty at an early stage to one of the robberies and received a sentence of four and a half years imprisonment.Paul Tipene pleaded guilty during trial to one count of aggravated robbery and was discharged pursuant to s347 of the Crimes Act on a further three counts of aggravated robbery and two counts of unlawfully taking a motor vehicle.He was sentenced to seven years imprisonment but following a successful appeal to this Court that sentence was quashed and a sentence of six years imprisonment substituted.That appeal succeeded because, in the view of this Court, the sentence of seven years imprisonment was unduly elevated by at least a year for two reasons.First, the sentencing Judge wrongly thought Mr Tipene had offended whilst on parole.Second, although the Crown acknowledged in the course of the trial that the aggravating element it relied on was the being together of the robbers rather than the use of weapons, and the Judge noted in sentencing that screwdrivers held by the offenders were not in fact used as weapons, nor was anyone threatened by them, the Judge held that screwdrivers were carried by the offenders with the intention that they be seen as weapons.That finding was inconsistent with the case which the offenders were required to face.

[3] In respect of the last mentioned matter we think it appropriate to repeat what we said in our judgment concerning Mr Tipene.

On the matter of weapons we think, with respect to the sentencing Judge, that there is a tension between the Crown's acknowledgement that the robbery was not aggravated by reason of weapons and the Judge's conclusion that the screwdrivers were intended to be part of the intimidatory tactics, which conclusion had connotations of use as weapons. The screwdriver is not commonly a weapon but may become one when intended to be used as such. The Judge was no doubt entitled to regard as an aggravating element the inherently dangerous potential of such objects in the circumstances of the robberies. But the difference between intending the screwdrivers to be weapons, and intending them to be perceived by the victims as weapons is largely semantic. The Judge's view effectively reinstated for sentencing purposes an allegation from which the Crown had resiled for want of evidence. Although this aspect of the reasons for sentence would not, on its own, in view of the generally aggressive method of the robbery, justify any amelioration of the sentence, it does have a cumulative effect on the appropriateness of the sentence when combined with the next matter we mention.

[4] Counsel for the appellant in the present appeal submitted that the sentence of twelve and a half years imprisonment in this case was similarly informed by the Judge's inappropriate view about the screwdrivers.

The pre-sentence report and offence history

[5] The appellant is a 24 year old man with an extensive history of offending. He was born and raised in South Auckland by his extended family with no knowledge of his natural father and in an abusive environment which required intervention by the Department of Social Welfare.His attendance at schools was intermittent.He left secondary school deficient in reading and writing and disadvantaged by hearing difficulties.He gravitated to associates afflicted by drug and alcohol abuse, as he was.According to his own information he was subjected to stand-over tactics and continual harassment by members of gangs.Alcohol and drug abuse is a central ingredient in his offending and he has previously undertaken treatment by attending a residential programme but with little therapeutic benefit.

[6] The appellant was dealt with on seven occasions in the Young Persons Court, beginning at the age of 15.He came to notice principally for dishonesty offences including many counts of burglary and the taking of vehicles.He has more than 40 previous offences including robbery, burglary, assault, aggravated robbery on more than one occasion and sundry convictions for dishonesty and the flouting of Court orders.

Reasons for sentence

[7] The Judge, in addition to the observations he made about intimidatory tactics relating to the carrying of screwdrivers, referred to the degree of planning and competence of execution of the aggravated robberies, the amounts stolen, totalling over $140,000, the impact on victims and the relevance of this Court's observations in R v Mako [2000] 2 NZLR 170.Specifically with reference to the present appellant he outlined the childhood deprivation and personal difficulties the appellant had suffered and which were noted in the pre-sentence report.With reference to the appellant's age and persistent offending he considered this appellant had a settled determination to break the law and that he had scorned every opportunity for rehabilitation.

[8] The Judge remarked that he was satisfied the appellant was a professional criminal with a determined predilection for increasingly serious offending which meant that the public must be protected from him and that the penalty should be increased to take account of that public protective factor.

[9] He found no mitigating factors.In respect of the first aggravated robbery he considered that an appropriate term of imprisonment would be seven years and that, guided by R v Stevens CA 12/98 23 February 1998, the sentence should be increased by a further five years to take account of the additional four aggravated robberies.On the three charges of car conversion he imposed a total of six months imprisonment and constructed the sentence cumulatively to render an overall sentence of twelve and a half years imprisonment.

Appellant's submissions

[10] As we have mentioned, this appellant invoked the argument concerning the Judge's perception of the carrying of screwdrivers as an aggravating factor.

[11] It was also submitted that the starting point on the first robbery should not have been increased by one year to reflect the appellant's extensive criminal history and for the need for deterrence and protection of the public. This was because the appellant's list of previous convictions was not so significant as to require a starting point of seven years and because any elements of deterrence and public protection would be met by an overall sentence.

[12] Counsel submitted that the sentence of twelve and a half years was at the top of the range for multiple aggravated robberies although he acknowledged it was not the highest sentence imposed.But in cases such as R v Green (1994) 11 CRNZ 641 and R v S, Pulete and Ali CA 232/92 13 November 1992, there were more robberies and the offenders were armed.In R v Green fifteen years imprisonment was imposed after guilty pleas in respect of seven sophisticated armed robberies at banks and in R v S, Pulete and Ali a sixteen year starting point was deemed appropriate for six armed bank robberies.

[13] The overall submission on behalf of the appellant was to the effect that in this case weapons were not used and the offending was not near the degree of seriousness evident in the other cases specifically referred to above.

Submissions for the Crown

[14] Counsel for the Crown submitted that a one year increment in the sentence to meet public safety concerns was justified and expressly contemplated in Mako.Reference was made to the relatively young age of the appellant and the relatively large record of offences including burglary, theft and assault.In 1998 the appellant received a sentence of two years imprisonment for robbery and the present offending began a little over a year after that sentence was imposed.

[15] Counsel submitted that twelve and a half years imprisonment does not represent any sort of ceiling in serious cases of professional aggravated robbery and she cited the following passage from R v Mako supra at 182:

Multiple offending involving separate incidents, which is all too common, gives the criminality an added dimension which must be accorded full response on totality principles.In this respect, maximum sentences (against which all sentences must be kept in perspective) apply for each offence.

Discussion

[16] We made it plain in our decision in respect of Tipene that the Judge's perception of screwdrivers as weapons would not on its own justify any amelioration of the sentence.Accordingly, unless there were some other legitimate concern that the sentence is manifestly excessive or inappropriate the point will not carry the appeal in the instant case.

[17] And we find no other reason for concern in the Judge's sentencing approach.There could be no question of a discount for guilty pleas, the appellant maintaining his defence to the end.The robberies concerned were carried out with premeditation, planning, aggressive bombast, and material success.

[18] The ultimate sentence was stern but responded to repetitive violent crime on the part of an offender whose history shows a propensity for violence and other lawlessness.

Result

[19] For these reasons the appeal must be and is dismissed.

Solicitors

Crown Law Office, Wellington