R v JOHN NATHAN BOYD [2003] NZCA 123 (24 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA89/03

THE QUEEN

v

JOHN NATHAN BOYD

Hearing: 19 June 2003

Coram: Glazebrook J

Heath J

Doogue J

Appearances: J M Ablett Kerr QC and S A Saunderson-Warner for Appellant

M F Laracy for Crown

Judgment: 24 June 2003

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]	This is an appeal against a sentence of 5 years’ imprisonment with a minimum non-parole period of 2½ years imposed after trial in the District Court at Dunedin in respect of an offence of aggravated robbery.
[2]	The appeal is upon the grounds that the sentence of imprisonment is manifestly excessive and that the minimum non-parole period is either wrong in law or manifestly excessive.

Background

[3]	The Judge, who was the trial Judge, sentenced on the basis that the appellant entered a dairy at Halfway Bush, Dunedin, with a disguise on and armed with a gun and took money and cigarettes.He found that the young female shop assistant did not suffer any actual physical violence but that the repercussions for her were real with recurring nightmares and other effects upon her.It is not in dispute that the appellant was holding a replica air pistol incapable of firing but that the shop assistant believed at the time it was a real gun.It was a brief episode.
[4]	The appellant said that he had no memory of the evening and did not give evidence.Following the trial he wrote to the victim and to the Court accepting the verdict of the jury and apologising to the victim.The Judge accepted that that indicated some remorse but regarded it as having limited weight as the victim had had to give evidence twice and the appellant could have considered a different course following the deposition hearing.
[5]	The Judge in sentencing took into account what was said by this Court in R v Mako [2000] 2 NZLR 170:

[56]A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[62]Once the appropriate starting point is fixed, adjustments can be made in mitigation to allow for such matters as pleas of guilty, assistance to the authorities, age and other personal circumstances. At the same stage matters of aggravation may warrant some increase. These could include the offender’s criminal history, the fact of bail or parole at the time of offending and the like. Some of these factors can present difficulties.

[63]For the same reasons as are fully reviewed in the judgments of the Court of Criminal Appeal of New South Wales in Henry, generally the fact that robbery is committed to feed a drug addiction should not be treated as a mitigating factor.

[6]	The Judge considered that there were few mitigating factors given that there was no guilty plea and the remorse was late. He noted that there was no likelihood of the shop owners, who were some $1,300 out of pocket, would be reimbursed as a reparation order was impractical.
[7]	The Judge took the view that there were considerable aggravating features given the threat of violence with the use of the weapon and the disguise and, in particular, the fact that the appellant was on parole at the time that the offending occurred.
[8]	The Judge concluded that the aggravating features outweighed the mitigating features and required some adjustment upwards from the 4 year starting point mentioned by this Court in Mako, see para [5] above.He took into account that the appellant had some diminished cognitive ability as a result of a serious head injury in 1996.He imposed the sentence under appeal.
[9]	The Judge expressed the view that he was required to have some regard to whether a minimum non-parole period should be set, notwithstanding that the Crown did not seek one.Without expressing any reasons, he said he regarded it as appropriate to set the minimum non-parole period under appeal.He did refer to programmes available to the appellant within the prison system but they could not be a justification for a minimum non-parole period.
[10]	The appellant was born on 28 February 1980 and was 22 at the time of the offending.He had been before the Courts on a number of occasions since 1996 and was on parole in respect of a sentence of imprisonment of 3 years relating to drug offences and burglary at the time of the offence.He had twice been sentenced for assault with intent to injure as well as for other crimes of violence.His propensity to violence and his apparent drug addiction problems were regarded as key factors relating to his offending.His risk of offending was considered by the probation officer to be high.There was also a risk of him becoming institutionalised in a prison lifestyle given that since 1998 he had served a sentence of corrective training and two sentences of imprisonment.A community-based sentence, which he completed successfully, came between those latter two sentences.

The appeal against sentence of imprisonment

[11]

The appellant submits that the sentence imposed should not have exceeded the 4 year starting point identified for offending of this type as in Mako.It is submitted that the starting point should have been 3 years with a sentence more of the order of 3½ years.It is said the offence was unsophisticated with only one person involved and the gun used was incapable of firing bullets and used solely as a prop in the robbery.The proceeds of crime were small although undoubtedly important for a small shopkeeper.It was emphasized it was a very brief episode of about 1 minute and that there was no actual violence.The personal circumstances of the appellant were also urged upon us, primarily his age, his head injury resulting in a 46% impairment to his functioning with the change in his cognitive ability, his motivation to be rehabilitated, which could only practicably be achieved by an intensive residential programme, and his remorse.

[12]

The problem for the appellant is that all these factors were firmly before the Judge who was the trial Judge.The appellant seeks to have us give them a greater weighting in respect of the mitigating circumstances and a lesser weighting in respect of the aggravating circumstances than that adopted by the trial Judge.However, given the circumstances of the offending and of the appellant, we cannot possibly say that a sentence of 5 years’ imprisonment was outside the Judge’s sentencing discretion.It is within the range recognised in Mako.The Judge was entitled to take the 4 year starting point adopted given the use of a weapon.The aggravating circumstances were significant and justified an additional term even after taking the mitigating circumstances into account.

Appeal against minimum non parole period

[13]	Section 86 Sentencing Act 2002 provides:

86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2)The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002.

(3)For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a)two-thirds of the full term of the sentence; or

(b)10 years.

(5)For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

[14]	The correct approach to s86 Sentencing Act 2000 was determined by this Court in R v Brown [2002] 3 NZLR 670; there it was said:

The prerequisite for imposing a minimum sentence is that the Judge is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment longer than one-third of the sentence imposed.The focus is on the circumstances of the offence.That would seem to preclude from consideration at this initial stage circumstances of the offender unrelated to the particular offence, such as criminal history.However, there are some characteristics of the offender which may constitute circumstances of the offence.It may be a circumstance of the offence that it was committed by the particular offender e.g. infanticide.The provision is intended to apply in circumstances where culpability is high.

[15]	An example where the application of this section to a serious case of aggravated robbery was upheld is R v Forrest CA 362/02, 3 March 2003.It was there recognised, as in Brown, that s86(2) requires the circumstances of the offence to be sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable.As s86(3) provides, the circumstances of an offence may be regarded as sufficiently serious if the Court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.
[16]	The sentencing Judge appears to have taken the view that he had to consider a minimum period of imprisonment under s86, notwithstanding that there was no request by the Crown for him to follow such a course.Certainly the Judge has a discretion to consider the exercise of the power vested in him under s86.However, if the Judge determines to consider the exercise of the power he must give the parties an opportunity to be heard.It is not clear in this case whether he invited submissions from counsel.If he did not do so the result would be contrary to natural justice and s27(1) of the New Zealand Bill of Rights Act 1990.
[17]	In any event he gave no reasons for imposing a minimum term of imprisonment.He was obliged to do so in accordance with the provisions of s31 Sentencing Act 2002.At the very least the substance of his reasons should have been clear.
[18]	In this case nothing has been put before us by the Crown to show that there is some circumstance of this offence which took it out of the ordinary range of offending of the particular kind.It was completely within the ordinary range.As is noted in Forrest and R v Moon,CA 366/02, 27 February 2003, s86 is for serious cases of their kind.This was undoubtedly an unpleasant case for the victim and for the shop owner.However, the aggravating features of the offence did not take it outside the ordinary range of offending of the particular kind.It is not an offence which justifies an order under s86 Sentencing Act 2000.

Result

[19]	The appeal against sentence is dismissed.The appeal against the minimum non parole period is allowed and that period is quashed.

Solicitors:

Crown Law Office, Wellington