The Queen v Tryselaar [2003] NZCA 70; (2003) 20 CRNZ 57 (2 April 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA52/03THE QUEEN

v

JOSHUA MARK WILLIAM TRYSELAAR

Hearing: 27 March 2003

Coram: Keith J Robertson J Doogue J

Appearances: J K W Blathwayt for the Appellant
M F Laracy for the Crown

Judgment: 2 April 2003     

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1] The 18 year old appellant appeals against a sentence of 6 years’ imprisonment imposed on him after a plea of guilty for aggravated robbery of a small wine and spirits store in which a tomahawk was used as a weapon against a customer. The only issue is whether the sentence imposed was manifestly excessive having regard to the circumstances.

Background

[2] The robbery was undertaken at the instigation of the appellant. A friend agreed to be the driver of the vehicle to be used. The appellant took the tomahawk with him. He wrapped a long sleeved t-shirt around his head. He eventually entered the premises and discovered there were two people in the shop. He hit one of the two, a customer, on the head with the blade of the tomahawk, using full force. That victim immediately fell to the ground. The appellant then had the other person in the shop, the proprietor, open the till. The appellant took just over $1,000 from it. He also took two bottles of whisky. The person who was hit with the tomahawk required hospitalisation and received surgical treatment involving both an internal and 15 external stitches. By good luck he suffered no permanent physical damage. Understandably, both victims were deeply affected by the incident.
[3] The present offending took place on 21 November 2002. The appellant was identified a few days later from a video film taken at the premises. When apprehended by the police the appellant admitted the majority of the facts although he endeavoured to minimise his part in the offending. He showed no remorse at that time. The proceeds of the robbery were not recovered. The appellant pleaded guilty immediately upon being charged on 12 December 2002.
[4] The appellant had been before the Court twice earlier in 2002 for offences of burglary and other offences of dishonesty and other offending. On 5 June 2002 he was sentenced to one year’s imprisonment in respect of two burglaries and two other offences. The present offending took place soon after his release from prison.
[5] The probation officer in the pre-sentence report assessed the appellant’s risk of re-offending as high and his motivation to address the factors that contributed to his offending as low to moderate.
[6] The sentencing Judge after reviewing the facts noted that the offence was planned and deliberate and carried out with extreme and unnecessary violence to the customer in the shop. As a result he considered that there was need for a very strong element of deterrence and a real need to consider the protection of the community. He noted as aggravating factors the unprovoked and dangerous use of the weapon by the appellant while he was within the term of his previous sentence of imprisonment. He noted as mitigating factors age, the appellant’s troubled and disturbed background and the plea of guilty. He accepted that although the appellant had not displayed any remorse at any time that that could to some extent be some sort of bravado as in one interview the appellant had expressed concern about what had happened. The Judge took into account the extreme effect on the victims with the customer hit by the tomahawk suffering a severe injury, fortunately without longstanding physical effects, and the owner of the shop being so shocked by what had occurred that he felt unable to continue with the business.
[7] In assessing the appropriate sentence the sentencing Judge took into account the factors identified in R v Mako [2000] 2 NZLR 170. He took the view that a starting point for the sentence in the region of 8 years was appropriate. He gave the appellant credit for the mitigating factors already outlined and imposed the sentence under appeal.

The Appeal

[8] It is first submitted that the appellant received insufficient credit for his early acknowledgement of his offending and his guilty plea when they were combined with his age and his remorse. It is also submitted that the starting point of 8 years was too high. It is submitted there was an absence of most of the aggravating features listed in Mako as there was no detailed planning, one robber, one weapon, a single member of the public present in a small retail premises, limited property stolen, no associated offending, no gang element and no multiple offending. Hence it is submitted that the circumstances of the offending brought it within the range of 4 to 6 years for a starting point in terms of a robbery of a small retail shop. It is said that that is consistent with Mako: paragraph [56]. It is accepted that there was violence and that the member of the public present was injured and that that warranted a deterrent sentence, with the considerable impact on the victims. It is submitted that there clearly was remorse as the appellant attempted suicide almost immediately on being remanded in custody and later expressed his intention to undertake rehabilitative programmes when in prison. Counsel referred us to a passage in the interview of the appellant. After being told that the interviewer had watched the security tape of the shop and was sure the appellant was the offender, the appellant responded by crying and stating he was sorry and asking whether the man injured was all right.
[9] In essence, the submission is that there was nothing to take the case beyond the range of 4 to 6 years in terms in terms of the category identified in Mako.

Crown response

[10] The Crown acknowledges that the Judge’s starting point of 8 years was at the high end of the range but submits that it was available in the light of the significant aggravating features of the offending. It is submitted that the discount for the mitigating features was unremarkable. The Crown relies upon what it says is the Judge’s merciful approach in deciding not to impose a minimum term of imprisonment on account of the appellant’s age. We put that submission entirely to one side. There was no basis on which a minimum term of imprisonment could have been imposed in the present case. The circumstances of this offending did not take it outside the ordinary range of offending of its kind, that is, aggravated robbery.
[11] The essence of the Crown’s submissions is that the starting point taken by the Judge is consistent with paragraphs [54] and [56] of Mako:

[54] Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels. The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

[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 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.

[12] As mentioned the Crown accepts that 8 years was at the top of the range but having regard in particular to the unnecessary violence against the innocent customer, which could have resulted in death or injuries far worse than those actually suffered, that there was every justification for it. It is the factor of actual unprovoked violence with the particular weapon that is said to justify the higher starting point than would normally be the case in respect of violence in a retail shop during the course of an aggravated robbery. It is said that the circumstances of the case bring it within paragraph [54] of Mako.
[13] The Crown submits that the discount taken by the sentencing Judge adequately reflected the mitigating circumstances and was within the Judge’s discretion.
[14] It is submitted that despite the submissions for the appellant very little credit could be warranted for his age. Again the Crown relies on what was said in Mako at paragraph [65] and [66]:

[65] Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. As noted in the judgment of the Full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and unlikelihood of re-offending.

[66] However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[15] The Crown also refers to other decisions of this Court; R v Bradnock CA 55/99, 28 April 1999 and R v Pehi CA 82/99, 28 April 1999, indicating that 18 year old offenders cannot expect the same type of consideration as younger offenders. In addition, the appellant was not a first offender but someone with 16 previous convictions who was still within the term of his last sentence of imprisonment at the time of the offending.

Discussion

[16] The first question is whether the starting point taken by the sentencing Judge was within his sentencing discretion in terms of Mako. It is certainly a case that fits more within the category identified in paragraph [56] than [54] of Mako. This was a small-scale robbery without all of the attributes recognised in paragraph [54] of Mako. However, that is not an end to the matter. As Mako recognises, the categories are not rigid and they indicate starting points and not finishing points. The quite unnecessary brutal violence to an innocent customer takes this case out of the type identified in paragraph [56] of Mako. That was an aggravating factor that entitled the sentencing Judge to increase the starting point before taking into account the mitigating factors. A further aggravating factor was that this serious offending was committed soon after the appellant had completed the custodial part of his earlier sentence. Those factors alone justified the sentencing Judge taking a starting point of greater than six years before taking the mitigating factors into account. However, we agree with the Crown submission that eight years was at the top of the scale available to him.
[17] We turn to the discount allowed for the mitigating factors, in particular the early plea of guilty and the remorse. Having regard to the nature of the offending and his criminal record the appellant’s age was hardly of relevance. We cannot say that a 25% discount was outside the sentencing Judge’s discretion, particularly given that conviction was almost inevitable having regard to the video film from which the appellant was identified. It was unexceptional. Another Judge may have given slightly more, another slightly less. It was within the 20 to 33% band that is common for early pleas of guilty, combined with remorse and other lesser factors.

Decision

[18] For the reasons given the appeal is dismissed.

Solicitors:
Wollerman, Cooke & McClure, Carterton for the Appellant
Crown Law Office, Wellington.