THE QUEEN v ROBERT CRAIG WATSON [2003] NZCA 242 (24 October 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA224/03

THE QUEEN

v

ROBERT CRAIG WATSON

Hearing: 14 October 2003

Coram: McGrath J

GoddardJ

Laurenson J

Appearances: D C Ruth for Appellant

J M Jelaś for Crown

Judgment: 24 October 2003

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1] The appellant pleaded guilty on arraignment to one count of aggravated burglary and was discharged on a related count of aggravated robbery, both charges arising from the same series of events.Both counts were jointly laid and involved two co-accused.One co-accused, Craig Healey, pleaded guilty at an early stage to both charges and was sentenced to 7½ years imprisonment from a starting point of 10 years imprisonment.Mr Healey has since died.The other co-accused, Robert Spicer, was found guilty of aggravated robbery by a jury and is currently awaiting sentence.

[2] The appellant was sentenced in the District Court on 29 May 2003 to 6 years imprisonment for his role in the aggravated burglary.This sentence was computed from a starting point of 10 years imprisonment (the same starting point as that identified by the sentencing Judge as appropriate in Mr Healey’s case) with a 4 year discount given in recognition of the appellant’s latish guilty plea, as well as “minor credit” for his non-complicity in the theft of money from the victim.

[3] The appellant’s appeal is brought on the ground that the sentence of 6 years imprisonment is manifestly excessive, when considered in relation to the sentence of 7½ years ultimately imposed on Mr Healey for aggravated robbery and aggravated burglary.We will refer to the grounds in more detail shortly but specifically, it was argued that the starting point of 10 years imprisonment, fixed by reference to a particular passage in R v Mako [2000] 2 NZLR 170, amounted to an error by the sentencing Judge.That error was said to arise because the sentencing regime provided for in Mako was referable only to the crime of aggravated robbery, whereas no tariff has been indicated for the crime of aggravated burglary.Further error was said to have arisen because the “home invasion” provisions then in force had required the express computation of a home invasion component in calculating sentence for an aggravated robbery of a private dwelling, but these provisions had been repealed by the Sentencing Act 2002.It was further argued that the Judge had erred assessing a number of factual matters and consequentially had failed to adequately distinguish the appellant’s situation from that of Mr Healey.The appellant’s submission was that he had played a lesser role than Mr Healey.

[4] The appellant and Mr Healey were sentenced by different judges.However, the judge who sentenced the appellant had Mr Healey’s sentencing notes available to him and expressly referred to them.

The evidence

[5] The essential facts were taken by the sentencing Judge from the depositions statements and oral evidence given at the preliminary hearing, as well as from the summary of facts prepared by police.

[6] The victim, who has died since the preliminary hearing, was aged 55 years at the time of the offending.He had recently undergone major surgery for cancer and been prescribed morphine sulphate tablets as part of his post-operative care.At about 11.45am on the morning of 2 February 2002 he encountered Mr Spicer, who was known to him, at a local supermarket and after some conversation Mr Spicer offered to carry the victim’s shopping home for him.The Crown’s case was that this offer was made so that Mr Spicer could ascertain where the victim lived.It was also the Crown’s case that Mr Spicer masterminded the events that followed shortly after.

[7] At about 12.05pm that day the appellant and Mr Healey knocked at the victim’s front door.Both were wearing balaclavas and each was said to be carrying a weapon.These weapons were described by the victim as a large knife and a “screwdriver type object”.Both men pushed their way into the victim’s flat, closing the door behind them and one demanded morphine from the victim.The victim took the men into his bedroom, where his dresser drawer was gone through and his wallet taken out and $290 removed from it.The victim’s evidence about these events, as given by him at the preliminary hearing, was as follows:

Q. What happened after [Mr Spicer] left?

A. Ten minutes later I got a knock on the door, opened the door, and was confronted by two males wearing balaclavas, the front one brandished a fairly lengthy looked like a chisel and the other had a knife.

...

Q. What happened as soon as you opened the door?

A. The comment was made I narked on one of their friends, they knew I had just got out of hospital, they knew I had stitches and they wanted my morphine.

Q. What did you reply to them?

A. I told them the only medicine I had was in my bedroom.

...

Q. I understand you led the two men into your bedroom?

A. I did.

Q. What happened when you were in the bedroom?

A. The knife was held to my throat while my medicine was gone through, I told them the only morphine I had was 8 tablets I had in a container, then they went through my drawers, come across my wallet which had $290 in it.

...

Q. What did you say?

A. I just said not my money for Christ’s sake not my money.

Q. And was anything else said in response to that by the defendants?

A. No they threw the wallet in the corner but at that stage I seemed to have lost the plot and tried to fight both of them off.

Q. What did you do?

A. I attempted to kick the window in to try and get help, kept calling for help, the stereo was broken then I was.

Q. How did your stereo get broken?

A. By me kicking it trying to put it through the window, then I was pushed onto the bed and my head was pushed down face first and I felt I was losing it.

Q. Consciousness?

A. Yes.

...

Q. What happened to you while you were lying in that position?

A. They were telling me to shut up, pretty loud, I felt as though there was a lot of pressure on my back whether they were putting their knees into my back I don’t know.

Q. Do you recall anything happening to your head area?

A. Based about, I don’t know if it was fists or the butt of the handle I don’t know.

Q. But you recall being hit in the head area?

A. I was yes.

Q. Whilst lying on the bed do you recall anything else happening to you or being done to you?

A. The only thing I remember is falling onto the floor then they started tying [my wrists] with speaker cable.

...

Q. After your wrists had been tied what did the two men do?

A. One leant over me and said if I went to the Police they would be back.

Q. Do you recall if they were looking for anything of any kind?

A. They were looking for one of their weapons.

Q. How do you know that?

A. Because it was right beside me under my bed when I was lying on the floor.

Q. What was that?

A. The number one, the chisel.

Q. I understand at about that point the two men left?

A. They did.

Q. What did you do?

A. I bashed on the window to attract attention as there were people coming up the driveway to visit friends down the back and I went from there out into the lounge and that is where I took the wiring off my wrists and collapsed inside the lounge door.

...

Q. As a result of this incident what injuries if any did you receive?

A. The stitching had been opened up from my chest to my pubic line, but since then the stitching has burst open possibly [by] me trying to fend these guys off and I had a cut round the face and above the eye and I was a bit sore put it that way.

[8] As it transpired, the appellant was detained by one of the persons arriving at the property to visit the neighbouring flat.The Police were then called and the appellant taken into custody.On being searched he was found to have a chisel-like instrument concealed in his clothing and to be in the possession of a balaclava and gloves.He was also found to have fresh scratches on his face and chest.

[9] The appellant denied having either a knife or the chisel with him whilst at the victim’s flat and said that he had simply gone around there with a mate to talk to the victim about “narking and tampering with kids”.The essence of his statement was as follows:

Q. Did you have a knife and chisel with you?

A. No.

Q. Did the person you were with have either a knife or chisel?

A. I’m not sure.

Q. Did you hit the person at the address?

A. No.

Q. Who hit him then?

A. I don’t know.He was banging his head around.I don’t know how he got the cut to his head.

Q. Did you go there to rob him of his medication?

A. I didn’t even know he was on medication.The guy that lived there was the one who mentioned his medication.

Q. How did it come about that he mentioned it?

A. When I walked in I said “you know why we are here”.He said “do you want my pills?”I said “we are here because of you narcing and tampering with a friend of mine’s kid.I don’t want your pills”.That is when it started going out of control because of the other person I was with.

...

Q. Do you want to say anything more about this incident?

A. Yeah.I went round there, not to bash a person, just to warn a person about tampering with kids, as I have one myself.And to tell him not to narc on people.I had no intention of robbing the guy. I don’t know if the other guy with me did or why he did what he did.

Q. How did you get the scratches on your face and chest?

A. It would have been from the people holding me at the house.

Q. Did you have a balaclava and gloves on?

A. Yeah.I had them on because I didn’t want this person ringing the Police because I have just done a 8 year leg.

[10] Through counsel at sentencing the appellant repeated his assertion that he had not been carrying a weapon at the time he entered the victim’s house.He said he had simply uplifted an item which had been discarded by Mr Healey during the struggle and had carried it out of the property with him when leaving.He also repeated through counsel that he had only gone to the victim’s house to confront him over an alleged child molestation and “narking” and had not gone there to steal drugs.Those aspects of the victim’s evidence were not however challenged at the preliminary hearing and nor was there any challenge to their inclusion in the summary of facts.Therefore, whilst it is conceivable that these issues might have been the subject of challenge in cross-examination at trial (had the victim not died and a trial taken place) the evidence of the victim on those matters stands unchallenged.His evidence establishes that both of the men who confronted him at the front door of his flat were in possession of weapons at the time, the “front one” being described as brandishing a chisel.On that basis the sentencing Judge was entitled to find as a fact that both the appellant and Mr Healey were armed when they broke into the victim’s house with the intention of taking his property from him.

Grounds of appeal

[11] In relation to the starting point of 10 years imprisonment adopted by the sentencing Judge, Mr Ruth submitted that the Judge had erred by fixing this starting point in accordance with the approach taken in para [58] of Mako, where this Court said that forced entry to premises at night by a number of offenders seeking money, drugs or other property, and involving violence against victims and the brandishing of weapons, would require a starting point of 7 years or more, and an increase to around 10 years if a private house was entered.Mr Ruth’s submission was that, as home invasion provisions had been repealed by the Sentencing Act 2002, there was no longer any requirement to add, as a specific component in sentencing, a discrete amount to cater for the “home invasion” element of crime because the situation is now covered by s9(1)(b) Sentencing Act 2002.Section 9(1)(b) provides that unlawful entry into or presence in a dwelling place is an aggravating factor that must be taken into account in computing an overall sentence.Mr Ruth submitted that although the sentencing Judge had not articulated an actual starting point in the appellant’s case or an additional component for the aggravating feature of the “home invasion”, an inference could probably be drawn that the Judge accepted a 7 year starting point with 3 years added for the home invasion component.

[12] Mr Ruth further submitted that the approach taken in Mako was relevant only to aggravated robbery, and that the crime of aggravated burglary had not traditionally attracted a particular approach.

[13] Mr Ruth also took issue with the sentencing Judge’s reference to the appellant and Mr Healey as having “a raging drug problem”.

[14] Mr Ruth pointed out that while the starting point for Mr Healey no doubt reflected his acknowledgement of guilt on two very serious charges, one of which was aggravated robbery, the appellant was for sentence on one charge only and it was not aggravated robbery.Taking into account the appellant’s denials that he was armed at the time or that he had gone to the victim’s house to steal drugs, as well as his lesser role in the offending, Mr Ruth submitted that a 7 year starting point with 3 years added for the home invasion component was manifestly excessive.

The sentencing judgment

[15] In the course of his sentencing judgment the District Court Judge expressly rejected the submission that the appellant had played a lesser role, or that the burglary had been carried out by him only for the purpose of “meting punishment out to a suspected child abuser”.On the contrary, the Judge thought it perfectly clear that both the appellant and Mr Healey had “quite a raging drug problem” and that both of them knew that the victim was likely to have morphine sulphate tablets in his possession and that was the focus of their visit to him.In respect of the correct approach to take in determining sentence, the Judge referred to the starting point of 10 years taken by the Judge in Mr Healey’s case, as being in line with the starting point indicated for such offending in Mako at the time Mako was decided.The Judge was however fully alive to the change in the legislation, and went on to state:

Now the law provides that home invasion is one of a number of aggravating circumstances.In point of fact so far as home invasion is concerned I really do not think that the law has changed very much at all.Home invasion has always been an aggravating factor and that is one of the reasons why the specific mention of it in the Criminal Justice Act before June of last year was removed.

[16] The Judge then referred to the appellant’s drug dependency and to his recall to prison on a number of previous occasions for failure to adhere to treatment conditions of parole.

[17] In relation to aggravating features, the Judge identified the actual use of violence; the fact that both men were armed; the violence had occurred in the victim’s home; the victim was particularly vulnerable and that was known to the offenders; and the offending was planned, as evidenced by the wearing of disguises.The Judge then turned to the one mitigating feature which was the appellant’s guilty plea.He said he would give significant credit for this and in recognition that the appellant was no longer charged with aggravated robbery as well.

[18] The sentencing notes conclude as follows:

... it was a planned attack on a vulnerable man for the predominant purpose of getting drugs.It was very serious offending which but for s6 of the Sentence Act might well have drawn a non parole period.I can see no reason materially to differ from His Honour Judge Noble overall in the degree of criminality.I assess yours as being the same as Healey except that you did not steal the victim’s money.That theft was, in my view, a mere incident to the greater purpose which was the theft of drugs.

The appellant’s circumstances

[19] The appellant has a relatively lengthy conviction list, including a number for drug offending as well as for burglary and receiving property.He also has a conviction for possessing a knife in a public place, but that was more than a decade ago.The District Court Judge did not seek to rely on the appellant’s conviction history, as it contains no convictions for serious violent offending.Nevertheless it lent some context to the sentencing exercise.

[20] The probation officer who wrote the pre-sentence report traversed the appellant’s history of drug dependency and related offending in some detail.He noted that the appellant’s life to date seemed to have been “blighted by his severe addiction to intravenous use of morphine, which has been his all consuming preoccupation for many years and the most significant cause of his offending”.He referred to the appellant’s recall to prison on a number of occasions for failing to adhere to treatment conditions of parole and to his first unsuccessful placement on a methadone programme in 1998. However, he noted that the appellant’s re-entry to the programme following his most recent release from prison in October 2001 appears to have been more successful and to have introduced a degree of stability in his life.He also noted that the appellant’s “attraction to adding illegal drugs to his methadone seemed to persist”.

[21] In terms of motivation and readiness to change, the probation officer acknowledged the appellant had good intentions and has evinced a stronger desire to tackle his drug addiction problems more robustly than in the past.However, the probation officer also assessed the appellant as having a high risk of re-offending which could only be diminished if his stated commitment to complete an intensive residential treatment programme were sustained.

[22] In summary, the probation officer expressed some support for a referral to the Odyssey House treatment programme for assessment of the appellant as suitable to undertake a residential programme in that institution, should the Court be prepared to entertain such an indulgence.

[23] On this basis, it is understandable that the sentencing Judge formed the view that the appellant had a real and ongoing problem with drug addiction.

Conclusion

[24] We deal with each of the challenged findings of the sentencing Judge in turn.First, the denial by the appellant in his statement to the Police, and through counsel’s submissions at sentencing, that he was armed during the aggravated burglary.This is simply not sustainable on the evidence.As noted earlier, there was no challenge to the victim’s evidence at the preliminary hearing that each of the accused was wearing a balaclava and carrying a weapon, one of the weapons being a “screwdriver object”.Nor was there any challenge to the summary of facts, which was to the same effect and which was accepted at the sentencing.Added to this is the fact that the appellant was found to be in possession of a chisel-like instrument when apprehended leaving the scene of the offending.The Judge was entitled to reject his assertion that this instrument was neither taken to the property nor used by him as a weapon during the confrontation with the victim in the course of which it had been dropped and retrieved.

[25] Secondly, the Judge’s finding that the aggravated burglary was motivated by a need for drugs is borne out on an assessment of the immediate background to the offending, by the fact that morphine was demanded of the victim (in the appellant’s presence even if not actually by him), by the fact that morphine sulphate tablets were in fact taken, and in the context of the appellant’s personal history of drug dependency and drug offending.Mr Ruth advised the Judge that the extent of the appellant’s involvement with drugs at that time of offending may have been his ingestion of Clonazepam a little earlier that day but that he did not have a current drug habit at the time.This advice was however able to be validly rejected by the Judge in light of what actually occurred and whilst the phrase “raging drug problem” may seem colourful it is not an inaccurate portrayal of the situation when consideration is had to the pre-sentence report, the appellant’s history and the events of the day.

[26] The Judge’s rejection of the appellant’s claim to have played a lesser role during the aggravated burglary was also substantiated on the evidence.Although the withdrawing of the charge of aggravated robbery in the appellant’s case, and the difference in sentencing outcome for Mr Healey, does reflect a distinction between the two offenders in relation to ultimate culpability, it is difficult on the facts to find any realistic distinction between the roles played by the two offenders, as both had gone armed and disguised to the victim’s home and morphine was demanded and taken.Thus premeditation and concert of action were evident.During the robbery the victim’s evidence was that one offender held a knife to his throat.Throughout his description of events however, the victim talked constantly of the action against him as having been taken by both men.We regard the fact that the demand for morphine was prefaced by a comment that the victim had “narked” on one of the offenders’ friends as subtracting nothing from the seriousness of the offending.

[27] In relation to the starting point of 10 years imprisonment, whilst this can be seen at the high end of the available sentencing range, it is nevertheless within range.In R v Rua (CA58/02, 24 October 2002), a case involving the crime of aggravated burglary, this Court referred with approval to the 10 year starting point identified in Mako for the offending there identified, and emphasised that it is “the particular combination of the variable features” that have to be assessed by the sentencer in each case in fixing start and end points for sentence.Although Mako was concerned with cases of aggravated robbery, the principles expressed therein are equally applicable to the crime of aggravated burglary.Both carry the same maximum penalty of 14 years imprisonment and have similar elements.Although an aggravated robbery may not necessarily involve intrusion into premises, an aggravated burglary inherently does.Where that intrusion is into a private dwelling house, that is an aggravating factor.It was so regarded by the courts prior to enactment of the home invasion legislation and is now expressly listed as an aggravating factor in the Sentencing Act 2002.

[28] Given the common features of crimes of aggravated burglary and aggravated robbery, the guidance in Mako is useful by analogy.In the present case the facts in Rua also provide useful contrast with the facts in the appellant’s case.In Rua the starting point of 10 years imprisonment adopted by the sentencing Judge was found to be too high and an appropriate starting point determined as 8 years imprisonment.However, this was on the basis that none of the offenders had taken any weapon to the house to be used as such, and the burglary only occurred after an impulsive act of violence by the appellant which was not planned.

[29] As we have already noted the sentencing Judge was alive to the requirements of s9(1)(b) of the Sentencing Act 2002 in determining a sentence that included the element of home invasion as an aggravating factor.The credit that he afforded to the appellant can be seen as generous in the circumstances, particularly when regard is had to the fact that the appellant was on parole at the time this offending was committed.The end sentence of 6 years imprisonment is well within range and would have been appropriate, even if a lower starting point of, say, 8 years imprisonment had been adopted.We find no disparity between the appellant’s sentence and that passed on Mr Healey.

Result

[30] The appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland