THE QUEEN v JAMES SHEVAN CASSIDY [2002] NZCA 245 (17 October 2002)

IN THE court of appeal of new zealand

CA254/02

THE QUEEN

V

JAMES SHEVAN CASSIDY

Hearing:	15 October 2002
Coram:	McGrath J Baragwanath J Salmon J
Appearances:	A Kiernan for Crown D S Niven for Respondent
Judgment:	17 October 2002

judgment of the court DELIVERED BY BARAGWANATH J

[1] The Solicitor-General applies for leave to appeal against a sentence of two years' supervision imposed on the respondent by the District Court at Auckland on 4 July 2002.The respondent had pleaded guilty on arraignment to three counts of robbery and one of demanding with menaces, committed at four different banks, three in Auckland and one in Wellington.On the day following the final offence the respondent called the police to confess to all the offences.

[2] The sentencing Judge attributed the offending to the respondent's serious drug dependency and imposed the sentence of supervision on conditions including a requirement that he complete the Odyssey House programme.The respondent left Odyssey House and on 31 July, within a month of sentence, committed two very similar offences to which he has pleaded guilty and on which he is to be sentenced by the District Court after the determination of this appeal. Mr Niven concedes that, taking the subsequent offending into account, a full time sentence of imprisonment is the inevitable outcome of the Solicitor-General's appeal.

[3] On the afternoon of Friday 23 November 2001 the respondent entered an Auckland bank carrying a black backpack.He approached a teller and passed her a note stating that he had a bomb in his bag and demanded cash.He made off with the $1,500 she gave him.The next morning he entered another Auckland bank and handed the teller a similar note.He left with $10,200.The exercise was repeated on 27 November at a Wellington bank.On this occasion the respondent instructed a co-offender on how to perform a similar robbery and waited nearby while the co-offender approached a teller with a similar note. The co-offender left the bank without money; this episode is the subject of the count of demanding with menaces.On 30 November at a further Auckland bank the respondent approached a teller with a note stating that he had a gun and told her that the gun was in his bag and that he would use it.He left the bank with $1,490 in cash.None of the $13,190 taken has been recovered.

[4] The victim impact reports, on seven tellers and one of the members of the public who were present and affected by the offending, record a range of reactions from continuing anxiety, loss of confidence and feelings of insecurity, to the stoic.Little imagination is needed to understand the effects of the threats which were sufficiently plausible to cause the tellers to respond as they did.

[5] A pre-sentence report appends the respondent's list of previous offending which includes offences of dishonesty and indecency.The probation officer assessed the respondent's risk of reoffending to be high given his previous offending and failure to comply with previous non-custodial sentences.The respondent recounted a downward spiral involving consumption of large quantities of alcohol and drugs.The respondent claimed to be prepared to deal with his addiction by taking part in a drug and alcohol programme at Odyssey House.The probation officer described some insight into the factors leading to the respondent's offending but assessed his motivation to do so as low.

[6] The sentencing Judge fixed a three year prison term as appropriate to reflect the totality of the offending and its aggravating features but thought it desirable that the respondent remain at Odyssey House where he had been on bail for five months after being on remand in custody for the previous three months.She cited R v Russell-Green T 3/91 HC Rotorua 9 April 1991, Fisher J and Benson v R CA49/90 30 March 1990 in support of an argument that a strict regime of residential treatment such as that provided by Odyssey House might be treated as comparable with time spent in full custody.She allowed a reduction of 12 months to reflect remorse said to be shown by the respondent and the fact that he had given himself up voluntarily to the police.The sentence of supervision was conditional on the condition of the respondent's continued residential attendance at Odyssey House.

[7] In the case of bank robbery the temptation of easy money, the vulnerability of bank staff and the immediacy of the trauma to which they and members of the public are exposed normally requires a policy of stern deterrence entailing imprisonment. The respondent's concession relieves us from more detailed consideration of the point that in quite exceptional circumstances a term of supervision conditional on performance of a suitable rehabilitative programme may be permitted even in the case of an aggravated robbery: R v Pike (CA 289/87 26 November 1987).

[8] In terms of R v Mako [2002] 2 NZLR 170 (CA), for the case of an analogous aggravated robbery, involving commercial premises, the threat of violence and the theft of a large sum of money, the starting point in respect of the robbery of $10,000 on 24 November 2001 would, as the Crown submit, be in the range of 5 to 6 years, for the other robberies 4 to 5 years.Treating the offending as simple rather than aggravated robbery, although at the more serious end of the former, a reduction would be appropriate in each case.We therefore accept that for the 24 November robbery the appropriate starting point is in the range of 4.5 to 5 years and for the other robberies 3.5 to 4 years, while for the charge of demanding with menaces, which lacks the element of theft, a term of 2.5 years is an appropriate starting point.

[9] The offending took place before and the sentencing shortly after the Sentencing Act 2002 came into force.That measure is to be applied, subject to keeping the sentence within the limits of what could have been imposed under the previous law, as required by s6.

[10] Section 7 of the Sentencing Act 2002 conveniently lists the purposes of sentencing which were recognised by the common law.Those of present relevance are of holding the offender accountable for harm done, here to the tellers and members of the public in the bank as well as the banks which have suffered economic loss; promotion in the offender of sense of responsibility for an acknowledgement of the harm, a matter of importance in view of the respondent's minimising his offending saying "It's not like I took money off kids"; providing for the interests of the victims that they should see that justice is done, denouncing the offender's conduct; deterring the offender and others; and protecting the community from the offender.

[11] Section 8 of the Act requires that the Court take into account the gravity of the offending, its seriousness compared with other types of offences, the general desirability of consistency with appropriate sentencing levels in similar cases, the affect on victims.The sentence must impose the least restrictive outcome appropriate in the circumstances.

[12] By s9 the Court must take into account the threats of violence, the financial loss, the impact on the victims, the vulnerability of the tellers given their position of employment, the element of premeditation, the respondent's previous offences, the fact of four different offences affecting four separate banks and the risk of reoffending.

[13] We are satisfied that leave to appeal must be granted.The s7 elements of deterrence and protection of the community justify treating the conduct on the count 2 lead sentence as aggravated by the respondent's previous offending, the fact of the three other offences, and the fact that the proceeds of the robberies have been dissipated.Those factors warrant an increase of two years to the 4.5 to 5 year starting point.Mitigating factors are the prompt volunteering of the respondent's offending; and his immediate plea of guilty, which together warrant a 2 year deduction.The fact that this is a Solicitor-General's appeal would warrant our fixing the sentence at the low point of the resulting 4.5 to 5 year term and consequently a sentence of 4.5 years on count 2.On counts 1 and 4 the sentence would be of 3.5 years and on count 3, 2.5 years, all concurrent.To recognise the period already spent at Odyssey House in accordance with the authorities cited in paragraph [6] those terms are reduced respectively to 4, 3 and 2 years respectively.

[14] In R v Brown CA 238/02 25 September 2002 guidance was given as to the approach to minimum sentences under s86.We are of the view that the multiple offending falls outside the ordinary range and, given the risk that the respondent will reoffend, warrants a minimum non-parole period of 2 years to ensure that the respondent undergo a substantial period of institutional control.For the reasons stated in paragraph [13] that will be set at 2 years.

Solicitors

Crown Solicitor, Auckland