THE QUEEN v LEE FRANKLIN DELEGAT [2003] NZCA 10 (24 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA327/02

THE QUEEN

v

LEE FRANKLIN DELEGAT

Hearing: 24 February 2003

Coram: Blanchard J

Baragwanath J

Goddard J

Appearances: P J Mooney for Appellant

A Markham for Crown

Judgment: 24 February 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]

The appellant pleaded guilty in the District Court at New Plymouth to four counts of aggravated robbery and four counts of kidnapping. He was sentenced in the High Court to an effective 13 years imprisonment and ordered to serve a minimum term of eight and a half years. The appellant appeals his sentence, but accepts the imposition of some minimum term.

Factual background

[2]	The appellant’s convictions resulted from events that occurred over the three week period between 3 June 2002 and 23 June 2002, when the appellant was on parole. During this period the appellant and his accomplice carried out four armed robberies on commercial premises, purloining cash and some personal items from employees. The first incident occurred at 11.15pm on 3 June at the Whangamata Club. The appellant and his accomplice first staked out the club and then entered, concealed in dark clothing and balaclavas and carrying a sawn off shotgun. The firearm was presented at two female employees, who were forced to lie face down on the floor while the intruders took $9,455 in cash from the bar safe and cash and bankcards from the two employees. The women were then locked in the bar room store following threats of bodily harm.They were able to escape some time later and alerted the police.
[3]	The second robbery occurred at 12.45am on 15 June at the East Side Tavern in Hamilton. Again, after observing the premises for several hours, the appellant and his accomplice entered wearing dark clothing and balaclavas and brandishing a sawn off shotgun. This time the firearm was presented at two male employees who were ordered to lie face down on the ground while $19,391 in cash was taken from gaming machines, the bar area and an unlocked safe.The employees were taken into a bar chiller and told to lie face down and wait for five minutes. They were later found by security guards inside the chiller where they had been confined for a good deal longer than five minutes, obviously unable to escape..
[4]	The third robbery took place at the Te Puna Tavern near Tauranga at 11.20pm on 22 June. Following the now familiar pattern, after observing the premises the appellant and his accomplice entered wearing dark clothing and balaclavas and carrying a shotgun. Three female employees were ordered to lie on the ground while the intruders gathered $2,386 in cash and took from them some personal effects.The women were locked in a storage room.
[5]	The last robbery took place at the Tree House Bar and Café in New Plymouth at 11.30pm on 23 June. The appellant and his accomplice followed the same pattern of surveillance and concealment and again brought along a shotgun. On entering, two female employees were confronted and, after being threatened with “I will shoot you”, were instructed to open the safe. The contents of the safe were emptied into a rubbish bin, then the women were locked in a bar chiller and directed to remain there for 10 minutes. The Judge in his sentencing notes recorded that the appellant had, in what he referred to as a moment of “rare charity”, furnished the women with jackets after they complained of the cold. The women escaped from the chiller some time later through an avenue of which the appellant was aware.
[6]	The appellant was subsequently located by the police at a house in Normanby after an extensive search and made full admissions.

The sentencing decision

[7]	Approaching the matter overall, the Judge identified a starting point of 16 years, after taking into account the aggravating factors of the case, the totality of the offending, the case law and the appellant’s criminal history. The appellant has appeared in court more than 13 times for sentencing on burglary and dishonesty related matters since 1998.The Judge then made a reduction of three years for the guilty plea and the assistance the appellant had given the police.
[8]	The aggravating factors identified by the Judge were the degree of planning and premeditation, the treatment of victims which included threats to discharge the firearm, the amount of money stolen (around $50,000 most of which has not been recovered), the temporal proximity of the crimes, the long term trauma and distress experienced by some of the victims, and the use of a weapon, both as an instrument of intimidation and to enforce threats. The Judge accepted for the purposes of sentencing that the appellant was not aware that the firearm was loaded, but thought this made little difference and referred to evidence to the contrary which was given to the police by the accomplice.
[9]	The starting point was arrived at by first looking separately at each aggravated robbery charge. The Judge considered that, in light of the aggravating factors and the appellant’s substantial criminal history, the starting point for a particular aggravated robbery of this character should be 10 years imprisonment. The Judge placed reliance on R v Mako [2000] 2 NZLR 170, a decision of this Court, where it was recognised that a starting point of 10 years may be appropriate for “serious organised robberies” involving dangerous weapons and terrorising conduct. In Mako itself, the Court began with a starting period of eight years and increased this to nine because the accused had presented a firearm at a police officer.
[10]	The Judge observed that the present case was “strikingly similar” to the circumstances in Mako, but considered that the distinguishing feature was that the appellant had obtained entry into the premises forcibly. In the end he added six years to the 10 year term to reflect the totality of the four robberies and the frequency of the offending.The Judge declined to be limited by the starting point of 12 to 14 years suggested by the prosecutor because he thought this “inadequate”.
[11]	The Judge also considered that an effective net sentence of 13 years was consistent with R v Stevens (CA12/98, 23 February 1998) and R v Huriwaka (High Court, S1/92). In Stevens this Court upheld a sentence of 12 years for a series of four bank robberies which occurred during business hours and involved the use of weapons. The accused had committed three of the robberies while on bail and pleaded guilty to all the charges. The Judge regarded the appellant’s offending in this case as “distinctly worse” because of the treatment of the victims and the appellant’s criminal history. In Huriwaka Hammond J imposed a 12 year term of imprisonment on an accused who had pleaded guilty to five charges of aggravated robbery over a two month period. A starting point of 14 years had been identified and two years discount given for mitigating factors. The Judge in the present case noted that he had given the appellant three years discount.
[12]	Finally, the Judge recognised that an effective sentence of 13 years was at the “upper end of the recognised scale”, but said that it was still less than the maximum penalty for one charge of aggravated robbery. The sentence was transposed into the individual charges as follows: eight years imprisonment for the Whangamata Club robbery and five years for each of the robberies at the East Side Tavern, Te Puna Tavern, and the Tree House Bar and Café. The first and second terms of imprisonment, of eight and five years respectively, were imposed cumulatively and the third and fourth terms imposed concurrently. The Judge also imposed a term of four years imprisonment for each kidnapping charge, to be served concurrently.

Arguments on appeal

[13]

The appellant challenges the starting point of 16 years adopted by the Judge, submitting that 12 to 14 years would be more appropriate. It was submitted that the starting point for an individual charge of aggravated robbery should have been seven to eight years, not the 10 years adopted by the Judge. In support of this submission Mr Mooney for the appellant, pointed to the following passage in Mako (para [58]):

Forced entry to premises at night by a number of offenders seeking money, drugs, or other property, violence against victims, where weapons are brandished, even if no serious injuries are inflicted would require a starting point of seven years or more...

[14]	It was submitted that when the totality and frequency of the offending was taken into account the starting point then should fall within the 12 to 14 year range. Counsel suggested that although there were four separate robberies they occurred so close together that they could be considered part of one criminal endeavour.
[15]	The appellant supported the three year deduction for mitigating factors and also made reference to Stevens, submitting that in many ways that case was worse than the present.
[16]	Ms Markham, for the Crown, submitted that it was open to the Judge to begin with a starting point of 10 years for the individual charges, given the aggravating factors, and that an effective sentence of 13 years was not excessive.She too referred to Mako for a starting point of eight years for an individual charge of robbery.It was submitted that the respondent in Mako was effectively treated as a first time offender and, in this case, there are two additional aggravating features, namely the appellant’s substantial criminal history and the fact that he was on parole at the time he committed the offences.
[17]	Counsel for the Crown also referred to R v McDonald (CA73/01, 17 May 2001) and R v Mita (CA446/97, 23 February 1998). In McDonald a starting point of 10 years was considered appropriate for first offenders involved in a well planned one-off aggravated robbery of two security guards when they were engaged in emptying an ATM machine.In Mita, the appellant pleaded guilty to four aggravated robberies which took place over one month.This Court observed that a starting point of 15 years may have been appropriate to reflect the cumulative weight of the offending with three years credit given for the guilty plea.In the end, the concurrent sentences of 12 years were reduced to 11 years because the Judge had erred in believing one of the robberies was committed whilst the appellant was on bail.

Decision

[18]	A very lengthy sentence of imprisonment was inevitable in this case.There were four serious robberies in which over $50,000 was stolen and employees – in three out of four instances, females – were threatened with a sawn off shotgun, which they would have believed was loaded.They were then locked up, which in itself amounted to a form of kidnapping.In two cases, the detention was in a chiller where the victims were at physical risk if unable to effect an escape.That indicates a callous attitude towards those victims.As might be expected, they have suffered mentally from their experience at the hands of the appellant and the other offender.That attitude of the appellant is also shown by the fact that, as well as robbing the employer, in two cases the appellant and his accomplice also robbed the employees of cash and personal effects, which is itself an aggravating feature.
[19]	Even if counsel for the appellant were right in saying that a 10 year starting point for the worst of the four offences was higher than the guideline given in Mako for such a robbery would indicate, we do not accept his criticism of the overall starting point of 16 years for the totality of the four separate incidents of offending.The Judge could in our view have reached that figure even if he had proceeded from a starting point for one offence of eight years, which Mr Mooney readily accepted he could not have criticised.
[20]	The total sentence had to reflect adequately the other three serious offences and to take into account the aggravating features just mentioned.It was also proper for it to reflect, as it did, the fact that Mr Delegat, a man of 33 years of age, had a lengthy criminal history with over 40 convictions for burglary and dishonesty, from which he had now moved to aggravated robbery.Moreover, it was a further significant aggravating feature that the offending occurred while he was on parole from a four and a half year sentence for burglary, and that the robberies were committed for a purpose – support of a drug habit – which was contrary to the parole condition requiring abstention from drug taking.
[21]	We do not accept Mr Mooney’s additional argument that a lighter overall sentence was appropriate because the robberies occurred as part of a “spree”, rather than being spaced apart more widely.We can see no logic in that argument which would merely encourage those considering this type of activity to commit robberies close together in time because that might attract a lesser punishment.These were quite separate robberies, not offending linked in either time or place and therefore properly to be regarded as part of one incident.
[22]	From the starting point of 16 years, the Judge made an allowance of three years for the appellant’s cooperation with the police and early guilty plea, and Mr Mooney rightly did not take issue with that aspect of the sentence.
[23]	We have studied the other authorities referred to by counsel but do not consider that the effective sentence of 13 years was out of line with them or in any way excessive for offences of this character and number.
[24]	There was no challenge to minimum non-parole period if, as is the case, the overall sentence were to stand.
[25]	The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington

Gordon & Mooney, Stratford