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THOMPSON v R [2004] NZCA 213 (6 September 2004)

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THOMPSON v R [2004] NZCA 213 (6 September 2004)

Last Updated: 14 September 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/04

THE QUEEN

v

JUSTIN FREDERICK THOMPSON

Hearing: 30 August 2004

Coram: Anderson P
John Hansen J
Randerson J

Appearances: C J Tennet for Appellant
M R Heron and J L S Shaw for Crown

Judgment: 6 September 2004

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction

[1] On 11 December 2003, Judge Harding sentenced the appellant to five and a half years imprisonment on a charge of aggravated robbery. The appellant’s co-offenders, Storm Aneru Shortcliffe and his brother Littleman Warlord Putahi Shortcliffe, were each sentenced by the same Judge to a term of six years imprisonment. All three had pleaded guilty prior to trial. At the time of the offending, the appellant was 17 years of age, Littleman Shortcliffe was 19, and Storm Shortcliffe was 21.
[2] The notice of appeal was not signed by the appellant until 26 April 2004 and was filed three months late. The appellant seeks leave to appeal out of time against his sentence. The grounds of appeal are:

a) The sentence was manifestly excessive and/or inappropriate;
b) The sentencing Judge erred in:

i) Failing to give an adequate discount for the appellant’s age;
ii) Failing to take into account that the appellant pleaded guilty at an earlier stage than the co-offenders;
iii) Placing too much weight on the appellant’s previous convictions;
iv) Failing to give the least restrictive sentence in the circumstances; and
v) Failing to give adequate recognition to the lesser role and greater mitigating features of the appellant when compared with his co-offenders.

The facts

[3] The appellant pleaded guilty on 18 November 2003. Immediately thereafter, his then counsel wrote to the Crown solicitors informing them that the appellant disputed a number of points in the summary of facts. The Crown solicitors responded, advising that they did not intend to call evidence on the disputed issues. Unfortunately, the summary of facts was not amended for sentencing purposes and there is now some doubt about exactly what took place at sentencing.
[4] Mr Tennet (who represented the appellant at the time of sentencing) informed us that the Crown accepted that the disputed facts should not be taken into account for sentencing purposes. But despite inquiries made at our request, it has not been possible for the counsel representing the Crown at sentencing to confirm what occurred. We comment that, wherever possible, an amended summary of facts should be prepared as agreed by counsel or determined by the court.
[5] As matters have transpired, there is only one area of disputed fact which has potential relevance for sentencing purposes. The appellant denies that he used a weapon in the course of the assault which took place during the aggravated robbery. However, for reasons which we shortly relate, that does not affect the outcome of this appeal.
[6] Leaving aside other areas of factual dispute, the essential facts for sentencing purposes were that the appellant and one of his co-offenders went to an address in Katikati on 6 January 2003 and purchased cannabis from one of the occupants. In the early hours of the following morning, the appellant and both his co-offenders returned to the address with a view to stealing cannabis belonging to the occupants. All three had been drinking.
[7] The house was in darkness and the three occupants were asleep. One of the group knocked on the door and was told by one of the victims to go away. Instead the appellant and his co-offenders stayed outside the address for about ten minutes during which time they found a piece of wood, a socket set power bar, and a truck jack. Littleman Shortcliffe armed himself with a golf club. Storm Shortcliffe smashed the middle pane of the rear door, allowing the appellant to reach in and unlock the latch. All three then entered the lounge area. The appellant immediately started assaulting one of the occupants who was still asleep on a couch in the lounge. He struck him about the body, head, and shoulders. We accept the Crown’s description of this assault as gratuitous as the victim had done nothing to provoke the appellant.
[8] The summary of facts states that the appellant was using a pipe (a term apparently used interchangeably to describe the power bar) in the course of this assault. As earlier noted, the appellant’s then counsel disputed this fact although we note that the appellant told the probation officer subsequently that, when he thought one of his co-offenders was in trouble, he picked up the power bar (which was just inside the front door) and ran inside. He admitted "charging into the house" and that he had "started beating people up". We also note that the victim impact statement records that the occupant assaulted by the appellant received numerous cuts and bruises to his body which the Crown submitted was consistent with the use of a weapon.
[9] Whether the appellant actually used a weapon is of little moment because he was part of a group of assailants who were armed. Being aware of that fact, he took a leading role in the assaults which occurred. His co-offender, Littleman Shortcliffe, used the cut down golf club to intimidate the other two occupants who had been woken by the commotion. Storm Shortcliffe punched one of the occupants on the mouth. A search was made of one of the bedrooms in the house and 30 tinnies of cannabis plant material and a packet of tobacco were stolen. The assailants were in the house for about six or seven minutes and, as they left, they smashed a large window in the lounge as well as other windows.
[10] Apart from the occupant who was struck by the appellant, another occupant received a cut to the back of the head that required two stitches, as well as bruising about the face. The third occupant received a swollen lip. The incident caused the three occupiers to leave the address and they have not returned.

The Judge’s sentencing remarks

[11] The Judge noted that the appellant and the co-offenders had all pleaded guilty shortly before trial. The Judge considered the aggravating features to be the use of weapons; the unlawful entry into a private dwellinghouse by night; the needless damage to property including the smashing of windows; and the fact that there was a degree of premeditation.
[12] The Judge noted that the appellant had 14 District Court convictions preceded by 12 instances of charges being proved in the Youth Court; Littleman Shortcliffe had 19 previous convictions since the year 2000, including a previous one for aggravated robbery; and Storm Shortcliffe had 40 previous convictions since 1996, including 12 for burglary.
[13] The Judge referred to the leading tariff decision of this court in R v Mako [2000] 2 NZLR 170 and noted that all counsel acknowledged that the kind of offending required a starting point of seven years imprisonment or more: paragraph [58]. With reference to the same case, the Judge noted that while age is normally a significant factor to be taken into account, those who have accumulated considerable lists of previous convictions cannot expect leniency in sentencing for a serious aggravated robbery.
[14] With reference specifically to the appellant, the Judge noted that he had an abusive home environment and some medical problems. The appellant was considered to have a high risk of re-offending with major substance abuse issues and he had absented himself from two residential drug programmes on earlier occasions. The Judge recorded the view of the probation officer that the appellant was apathetic towards his criminal behaviour.
[15] The Judge noted the Crown’s acceptance that the appellant was not materially involved in the pre-planning of the offending and that although he had a weapon with him, it was not one which he had taken to the scene. He also recorded the Crown’s acceptance that the appellant had not been involved in "bottling" one of the occupants.
[16] The Judge then expressed the view that, as a matter of general principle, fine distinctions should not be made between co-offenders although he accepted the submission made by counsel for the appellant that there was "just enough" to justify a difference between the appellant and his co-offenders. There was relatively little to be taken into account by way of mitigation in view of the late plea and the fact that the youth of the offenders was "substantially cancelled out" by the previous convictions.
[17] The Judge took a starting point of between seven and eight years and concluded that the proper sentence for the appellant was five and a half years imprisonment and six years for each of his co-offenders.

Consideration of the grounds for appeal

[18] Although Mr Tennet raised a number of issues, the key points raised were:

a) Whether the starting point of seven to eight years was too high;
b) Whether sufficient recognition was given to the appellant’s age and guilty plea; and
c) Whether there should have been a greater differential between the appellant’s sentence and those of his co-offenders.

[19] We are not persuaded that the starting point was too high. In terms of R v Mako this case falls clearly within category 2 described in paragraph [58]:

[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. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[20] While home invasions are no longer the subject of specific statutory penalties, the fact that a private dwellinghouse is unlawfully entered remains a seriously aggravating factor. It is specifically referred to as an aggravating factor in s 9(1)(b) of the Sentencing Act 2002. It matters not that the occupants may have been in a tinnie house as Mr Tennet suggested. They are entitled to the protection of the law in the circumstances disclosed by this offending in the same way as any other citizen.
[21] Dealing with the issue of the appellant’s youth, Mr Tennet accepted that the appellant was not a first offender who appeared generally motivated to reform and who might therefore be eligible to a significantly reduced sentence: R v Mako, paragraph [66]. However, he submitted that youth and the prospects of rehabilitation could be taken into account under the preceding paragraph [65] because this was not a case where the appellant was directed by adults. We set that paragraph out in full:

[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 an unlikelihood of reoffending.

[22] We do not detect any error by the Judge in dealing with this issue. The appellant first came to the attention of the courts in 1999 when he was aged 14. He appeared on a number of occasions thereafter in the Youth Court on a series of charges including, most frequently, theft and burglary. From early 2002 he began appearing in the District Court once he had turned 17 years of age. Thereafter, he had a series of convictions for theft, burglary, wilful damage, and unlawful entry to property. On 14 November 2002 he was convicted and sentenced on a charge of unlawful entry to a property and given 18 months supervision. At that time, he was given a final warning.
[23] Just over two weeks later, on 3 December 2002, the appellant was found to be unlawfully in a building and was sentenced on 23 December 2002 to come up for sentence if called upon within nine months. Within a fortnight of his sentencing for that offence, the offending which is the subject of this appeal occurred.
[24] We accept the Crown’s submission that the appellant could not reasonably have expected leniency on account of youth given his total history. Whether or not he had been directed by adults is irrelevant in these circumstances. He had been treated extremely leniently up to the time of the latest offending and had been given a final warning. Notwithstanding that, he continued to offend as he had done consistently since first appearing in the District Court. Given his failure to address his substance abuse problems and the probation officer’s assessment of his lack of motivation to change, there was no justification for any substantial discount for the appellant’s age.
[25] We reach a similar conclusion on the issue of a discount for his guilty plea. There is simply no substance in the appellant’s submission on this point. The date scheduled for depositions was 9 May 2003. The appellant failed to appear and a warrant was issued for his arrest. His co-offenders did appear and were committed for trial on 1 December 2003. They pleaded guilty on 13 November 2003, just two weeks before trial.
[26] The appellant appeared on 5 September 2003 and a depositions date was scheduled for 24 October. He appeared on the new date for depositions and was committed for trial. It was then proposed that his trial would proceed on 1 December 2003, at the same time as his co-offenders. At a callover on 18 November 2003, the appellant was arraigned and pleaded guilty.
[27] We confess to having some difficulty in following Mr Tennet’s argument on these facts. The submission seems to be that the appellant should have received greater credit than the others because he pleaded guilty when first arraigned.
[28] We are unable to accept Mr Tennet’s proposition. To do so would be to reward the appellant for failing to appear at the original depositions date. The short facts are that the three accused were all charged simultaneously; they all pleaded guilty within a few days of each other; and those pleas came only about two weeks prior to trial. There is no basis to distinguish between the appellant and his co-offenders in this respect and, in view of the lateness of the guilty pleas, relatively little weight could be given to them.
[29] In the circumstances, we are not persuaded that the sentence was excessive, let alone manifestly so. The Judge correctly identified the aggravating features. This was a case involving a group of offenders gaining entry into a private dwellinghouse at night, the use of weapons, and relatively serious violence against all three occupants. Although not mentioned by the Judge, a further serious aggravating factor in the appellant’s case was his immediately prior history, including the final warning given to him only a fortnight before.
[30] There remains the issue of disparity. Here, Mr Tennet submitted there were three substantial points of difference between the appellant and his co-offenders. One of these was the timing of the guilty pleas which we have already rejected as unsupportable. The second alleged difference was in relation to the summary of facts. Even assuming in the appellant’s favour that he did not actually use a weapon on one of the occupiers, he entered the property knowing that his co-offenders were armed; he initiated the assault on the first occupier encountered; and throughout the incident he was obviously a willing party to what happened. His role was at least equal to, if not greater than, the others in terms of culpability. We are unable to see any proper ground for differentiating between the appellant and his co-offenders on the basis of their relative involvement in the offending.
[31] The third ground relied upon in support of the disparity argument was that the appellant had fewer convictions than the others. The Judge was aware that the appellant had fewer convictions. He also correctly noted that Littleman Shortcliffe had a previous conviction in 2001 for aggravated robbery for which he received a term of imprisonment of 18 months. Storm Shortcliffe also had a previous conviction for aggravated assault in September 2000. In that respect, they could both be differentiated from the appellant who did not have any prior convictions for violence. On the other hand, each of the offenders had a significant number of convictions for crimes of dishonesty, including burglary, theft, and unlawful entry to property. As well, the appellant’s unfortunate history immediately prior to the current offending was a negative factor which tended to offset the more serious records of the co-offenders for matters of violence.
[32] The test for disparity is as stated by this court in R v Lawson [1982] 2 NZLR 219, 223, namely "whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong in the administration of justice".
[33] We also note that the age difference between the appellant and Littleman Shortcliffe was only seven months so there was little reason to differentiate the appellant on that account.
[34] We are not satisfied there was any valid basis to differentiate the appellant from his co-offenders beyond the six month margin the Judge allowed.

Conclusion

[35] For the reasons stated, we conclude that no grounds are established to disturb the sentence. In the circumstances, the application for leave to bring the appeal out of time is dismissed.

Solicitors:
Crown Solicitor, Auckland

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[3]	The appellant pleaded guilty on 18 November 2003. Immediately thereafter, his then counsel wrote to the Crown solicitors informing them that the appellant disputed a number of points in the summary of facts. The Crown solicitors responded, advising that they did not intend to call evidence on the disputed issues. Unfortunately, the summary of facts was not amended for sentencing purposes and there is now some doubt about exactly what took place at sentencing.
[4]	Mr Tennet (who represented the appellant at the time of sentencing) informed us that the Crown accepted that the disputed facts should not be taken into account for sentencing purposes. But despite inquiries made at our request, it has not been possible for the counsel representing the Crown at sentencing to confirm what occurred. We comment that, wherever possible, an amended summary of facts should be prepared as agreed by counsel or determined by the court.
[5]	As matters have transpired, there is only one area of disputed fact which has potential relevance for sentencing purposes. The appellant denies that he used a weapon in the course of the assault which took place during the aggravated robbery. However, for reasons which we shortly relate, that does not affect the outcome of this appeal.
[6]	Leaving aside other areas of factual dispute, the essential facts for sentencing purposes were that the appellant and one of his co-offenders went to an address in Katikati on 6 January 2003 and purchased cannabis from one of the occupants. In the early hours of the following morning, the appellant and both his co-offenders returned to the address with a view to stealing cannabis belonging to the occupants. All three had been drinking.
[7]	The house was in darkness and the three occupants were asleep. One of the group knocked on the door and was told by one of the victims to go away. Instead the appellant and his co-offenders stayed outside the address for about ten minutes during which time they found a piece of wood, a socket set power bar, and a truck jack. Littleman Shortcliffe armed himself with a golf club. Storm Shortcliffe smashed the middle pane of the rear door, allowing the appellant to reach in and unlock the latch. All three then entered the lounge area. The appellant immediately started assaulting one of the occupants who was still asleep on a couch in the lounge. He struck him about the body, head, and shoulders. We accept the Crown’s description of this assault as gratuitous as the victim had done nothing to provoke the appellant.
[8]	The summary of facts states that the appellant was using a pipe (a term apparently used interchangeably to describe the power bar) in the course of this assault. As earlier noted, the appellant’s then counsel disputed this fact although we note that the appellant told the probation officer subsequently that, when he thought one of his co-offenders was in trouble, he picked up the power bar (which was just inside the front door) and ran inside. He admitted "charging into the house" and that he had "started beating people up". We also note that the victim impact statement records that the occupant assaulted by the appellant received numerous cuts and bruises to his body which the Crown submitted was consistent with the use of a weapon.
[9]	Whether the appellant actually used a weapon is of little moment because he was part of a group of assailants who were armed. Being aware of that fact, he took a leading role in the assaults which occurred. His co-offender, Littleman Shortcliffe, used the cut down golf club to intimidate the other two occupants who had been woken by the commotion. Storm Shortcliffe punched one of the occupants on the mouth. A search was made of one of the bedrooms in the house and 30 tinnies of cannabis plant material and a packet of tobacco were stolen. The assailants were in the house for about six or seven minutes and, as they left, they smashed a large window in the lounge as well as other windows.
[10]	Apart from the occupant who was struck by the appellant, another occupant received a cut to the back of the head that required two stitches, as well as bruising about the face. The third occupant received a swollen lip. The incident caused the three occupiers to leave the address and they have not returned.

[11]	The Judge noted that the appellant and the co-offenders had all pleaded guilty shortly before trial. The Judge considered the aggravating features to be the use of weapons; the unlawful entry into a private dwellinghouse by night; the needless damage to property including the smashing of windows; and the fact that there was a degree of premeditation.
[12]	The Judge noted that the appellant had 14 District Court convictions preceded by 12 instances of charges being proved in the Youth Court; Littleman Shortcliffe had 19 previous convictions since the year 2000, including a previous one for aggravated robbery; and Storm Shortcliffe had 40 previous convictions since 1996, including 12 for burglary.
[13]	The Judge referred to the leading tariff decision of this court in R v Mako [2000] 2 NZLR 170 and noted that all counsel acknowledged that the kind of offending required a starting point of seven years imprisonment or more: paragraph [58]. With reference to the same case, the Judge noted that while age is normally a significant factor to be taken into account, those who have accumulated considerable lists of previous convictions cannot expect leniency in sentencing for a serious aggravated robbery.
[14]	With reference specifically to the appellant, the Judge noted that he had an abusive home environment and some medical problems. The appellant was considered to have a high risk of re-offending with major substance abuse issues and he had absented himself from two residential drug programmes on earlier occasions. The Judge recorded the view of the probation officer that the appellant was apathetic towards his criminal behaviour.
[15]	The Judge noted the Crown’s acceptance that the appellant was not materially involved in the pre-planning of the offending and that although he had a weapon with him, it was not one which he had taken to the scene. He also recorded the Crown’s acceptance that the appellant had not been involved in "bottling" one of the occupants.
[16]	The Judge then expressed the view that, as a matter of general principle, fine distinctions should not be made between co-offenders although he accepted the submission made by counsel for the appellant that there was "just enough" to justify a difference between the appellant and his co-offenders. There was relatively little to be taken into account by way of mitigation in view of the late plea and the fact that the youth of the offenders was "substantially cancelled out" by the previous convictions.
[17]	The Judge took a starting point of between seven and eight years and concluded that the proper sentence for the appellant was five and a half years imprisonment and six years for each of his co-offenders.

[22]	We do not detect any error by the Judge in dealing with this issue. The appellant first came to the attention of the courts in 1999 when he was aged 14. He appeared on a number of occasions thereafter in the Youth Court on a series of charges including, most frequently, theft and burglary. From early 2002 he began appearing in the District Court once he had turned 17 years of age. Thereafter, he had a series of convictions for theft, burglary, wilful damage, and unlawful entry to property. On 14 November 2002 he was convicted and sentenced on a charge of unlawful entry to a property and given 18 months supervision. At that time, he was given a final warning.
[23]	Just over two weeks later, on 3 December 2002, the appellant was found to be unlawfully in a building and was sentenced on 23 December 2002 to come up for sentence if called upon within nine months. Within a fortnight of his sentencing for that offence, the offending which is the subject of this appeal occurred.
[24]	We accept the Crown’s submission that the appellant could not reasonably have expected leniency on account of youth given his total history. Whether or not he had been directed by adults is irrelevant in these circumstances. He had been treated extremely leniently up to the time of the latest offending and had been given a final warning. Notwithstanding that, he continued to offend as he had done consistently since first appearing in the District Court. Given his failure to address his substance abuse problems and the probation officer’s assessment of his lack of motivation to change, there was no justification for any substantial discount for the appellant’s age.
[25]	We reach a similar conclusion on the issue of a discount for his guilty plea. There is simply no substance in the appellant’s submission on this point. The date scheduled for depositions was 9 May 2003. The appellant failed to appear and a warrant was issued for his arrest. His co-offenders did appear and were committed for trial on 1 December 2003. They pleaded guilty on 13 November 2003, just two weeks before trial.
[26]	The appellant appeared on 5 September 2003 and a depositions date was scheduled for 24 October. He appeared on the new date for depositions and was committed for trial. It was then proposed that his trial would proceed on 1 December 2003, at the same time as his co-offenders. At a callover on 18 November 2003, the appellant was arraigned and pleaded guilty.
[27]	We confess to having some difficulty in following Mr Tennet’s argument on these facts. The submission seems to be that the appellant should have received greater credit than the others because he pleaded guilty when first arraigned.
[28]	We are unable to accept Mr Tennet’s proposition. To do so would be to reward the appellant for failing to appear at the original depositions date. The short facts are that the three accused were all charged simultaneously; they all pleaded guilty within a few days of each other; and those pleas came only about two weeks prior to trial. There is no basis to distinguish between the appellant and his co-offenders in this respect and, in view of the lateness of the guilty pleas, relatively little weight could be given to them.
[29]	In the circumstances, we are not persuaded that the sentence was excessive, let alone manifestly so. The Judge correctly identified the aggravating features. This was a case involving a group of offenders gaining entry into a private dwellinghouse at night, the use of weapons, and relatively serious violence against all three occupants. Although not mentioned by the Judge, a further serious aggravating factor in the appellant’s case was his immediately prior history, including the final warning given to him only a fortnight before.
[30]	There remains the issue of disparity. Here, Mr Tennet submitted there were three substantial points of difference between the appellant and his co-offenders. One of these was the timing of the guilty pleas which we have already rejected as unsupportable. The second alleged difference was in relation to the summary of facts. Even assuming in the appellant’s favour that he did not actually use a weapon on one of the occupiers, he entered the property knowing that his co-offenders were armed; he initiated the assault on the first occupier encountered; and throughout the incident he was obviously a willing party to what happened. His role was at least equal to, if not greater than, the others in terms of culpability. We are unable to see any proper ground for differentiating between the appellant and his co-offenders on the basis of their relative involvement in the offending.
[31]	The third ground relied upon in support of the disparity argument was that the appellant had fewer convictions than the others. The Judge was aware that the appellant had fewer convictions. He also correctly noted that Littleman Shortcliffe had a previous conviction in 2001 for aggravated robbery for which he received a term of imprisonment of 18 months. Storm Shortcliffe also had a previous conviction for aggravated assault in September 2000. In that respect, they could both be differentiated from the appellant who did not have any prior convictions for violence. On the other hand, each of the offenders had a significant number of convictions for crimes of dishonesty, including burglary, theft, and unlawful entry to property. As well, the appellant’s unfortunate history immediately prior to the current offending was a negative factor which tended to offset the more serious records of the co-offenders for matters of violence.
[32]	The test for disparity is as stated by this court in R v Lawson [1982] 2 NZLR 219, 223, namely "whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong in the administration of justice".
[33]	We also note that the age difference between the appellant and Littleman Shortcliffe was only seven months so there was little reason to differentiate the appellant on that account.
[34]	We are not satisfied there was any valid basis to differentiate the appellant from his co-offenders beyond the six month margin the Judge allowed.