R v HANNA [2004] NZCA 253 (7 October 2004)

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R v HANNA [2004] NZCA 253 (7 October 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA201/04

THE QUEEN



v



SAMUEL HANNA

Hearing: 23 September 2004

Coram: McGrath J
Goddard J
Salmon J

Appearances: F E Guy for Appellant
J K W Blathwayt for Respondent

Judgment: 7 October 2004

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1]	This is an application by the Solicitor-General for leave to appeal against sentence.
[2]	The respondent pleaded guilty to one count of aggravated robbery and two counts of kidnapping on arraignment at a High Court callover on 22 March 2004. The offending to which he pleaded guilty took place on 4 November 2002. The delay in entering the pleas arose because the admissibility of evidence of scientific analysis of a blood sample taken from the respondent required to be determined pre-trial.
[3]	The respondent was sentenced to seven years imprisonment for the aggravated robbery and to concurrent sentences of three years imprisonment on each of the kidnapping charges. At sentencing the Crown sought an order for a minimum period of imprisonment pursuant to s86(2) of the Sentencing Act 2002. However the sentencing Judge, MacKenzie J, declined to impose a minimum term of imprisonment.
[4]	The sole ground of appeal is against the refusal to order a minimum period of imprisonment. The grounds advanced are that the Judge erred in his application of s86(2) and in the exercise of his discretion under that section.

Facts

[5]	At about 10.00pm on 4 November 2002 a Porirua shopkeeper closed his business premises and drove the short distance to his home. As he unlocked the front door of his house he was shoved through the door by two balaclava clad intruders wearing surgical gloves. Inside he was pushed to the ground and punched in the back of the head. One of the intruders then demanded money from him and also instructed him to "open the safe". The shopkeeper’s wife, who was upstairs with their two sleeping grandchildren, heard the commotion and came to the top of the stairs. The other intruder ran up the stairs to her, grabbed her by the head and covered her mouth. He then pulled her down the stairs whilst threatening that harm would come to her husband should she make any noise. He continued to hold her tightly while the first intruder punched her husband in the face several times. In the course of this assault the husband received a deep cut to his thumb which, it would appear, was caused by a knife held by his assailant. The first intruder then repeated "open the bloody safe". The husband took him to the garage where the safe was kept and attempted to open the safe but could not. The offender then held the knife (which had a blade 3-4 inches long) towards the husband and repeated "open the safe you Hindu or I will cut your bloody throat" and then said "I will give you 10 seconds to open the safe and then I’ll cut your fingers off one by one". However, the victim could not open the safe. A torch was obtained from the kitchen and a further unsuccessful attempt made to open the safe by both the victim and the offender. The victim then gave the offender $400-$500 cash. The offender also cut open the victim’s pockets to search them and found two $20 notes.
[6]	Both victims were then bound and gagged with packing tape which caused the female victim difficulty in breathing. One of the offenders unsuccessfully tried to force the rings off her fingers whilst binding her hands. During the struggle the victims noticed that one of the offenders got a towel and wiped up blood spots from the entrance floor before binding his hand with it. As the two offenders left they instructed the victims not to "call the police or else we’ll come back".
[7]	DNA analysis of a blood sample from the respondent matched the DNA profile of blood found inside a surgical glove later obtained. On the outside of the same glove there was DNA that matched the DNA of the male victim. Swabs of blood taken from the access door to the victims’ garage were also identified as matching the respondent’s DNA.
[8]	The respondent denied any involvement in the offending up until the time at which the DNA evidence was ruled admissible at trial. At that point conviction became inevitable. The respondent has, however, consistently refused to name his co-offender who has not yet been identified.

Sentencing

[9]

MacKenzie J rejected the appellant’s denial that he had been the offender who was in possession of a knife that evening. He also rejected the respondent’s attempt to play down his role in the offending, preferring the Crown’s submission that the respondent was the prime mover, that he knew of the existence of the safe, that he was armed with a knife, and that it was he who had initiated the intimidation and violence. MacKenzie J noted the severe effect of the offending on the two victims and that the relevant sentencing principles included denunciation, deterrence and protection of the community. He then referred to the aggravating features, which he listed as follows:

... The offence involved the actual use of violence and the threatened use of the knife, and in fact the victim did suffer a cut. The offence involved unlawful entry into, and unlawful presence in, the dwelling-house. There was a high level of premeditation and planning in that you had singled out the victims because you knew there was a safe on the premises. And there is also, by way of aggravation, your previous history. You have between 1983 and today amassed over 100 previous convictions. You have numerous convictions for assault, a charge of possession of a knife, demands to steal, and other convictions. I accept, however, your counsel’s submission that his is the first occasion that you have appeared in offending as serious as this.

[10]	MacKenzie J found few mitigating factors, observing that the only factor calling for a reduction in sentence was the guilty pleas.
[11]	Drawing on the guidelines in R v Mako [2000] 2 NZLR 170, MacKenzie J took as the starting point a sentence of nine years imprisonment for the aggravated robbery charge and reduced it by two years on account of the respondent’s guilty pleas. He then dealt with the issue of a minimum period of imprisonment as follows:

The Crown has submitted that I should impose a minimum non-parole period. To do that I must be satisfied that the circumstances take the offences outside the ordinary range. Offending of this nature is always very serious. I consider that your case fails by a very narrow margin to cross the threshold. I do not impose a minimum non-parole period.

Discussion

[12]	At the time the respondent was sentenced the applicable test was that set out in s86(2) of the Sentencing Act 2002, which provided:

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.

[13]	By way of example, s86(3) provided the following definition of what might be regarded as "sufficiently serious" to justify a minimum non-parole period:

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 that particular kind.

[14]	The definition in s86(3) was not however intended to be exhaustive, nor a substitution for the test in s86(2). As emphasised by this Court in R v Brown [2002] 3 NZLR 670 and R v M [2003] 3 NZLR 481, the focus remains on the test in s86(2). At page 671 of R v Brown the Court said:

... The central consideration is culpability which necessarily is increased in matters involving unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.

[15]

The comparison to be made between the particular features of an offence and the ordinary range of features generally implicit in such offending is to be made across the general range of that offending and not confined simply within the particular category of offending. Thus, in making the relevant comparison in relation to the offence of aggravated robbery, that comparison must be across the ordinary range of aggravated robberies and not, as the Judge appears to have done in this case, within the particular category identified in R v Mako [2000] 2 NZLR 170 as follows:

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, with violence against victims, where weapons are brandished would require a starting point of seven years or more even if no serious injuries are inflicted. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years

[16]	We accept Ms Guy’s submission that when one compares the facts of the appellant’s case with the facts of the ordinary range of aggravated robberies, this case clearly falls outside the ordinary range of offending.

The Judge’s finding that the appellant’s particular offending had "a number of aggravating features" that warranted a starting point "indeed close to 10 years" and his observation that "[o]ffending of this nature is always very serious", indicated the need for the imposition of a minimum term of imprisonment on a s86(3) comparison with the ordinary range of aggravated robberies. The "number of aggravating features" he identified evidenced offending with a high degree of culpability or seriousness requiring denunciation, punishment and deterrence beyond that which an effective minimum sentence of one-third could achieve.

[18]	In R v T CA251/02 31 October 2002, this Court confirmed (referring to the decision in R v Brown) that it would be an error of principle to include "within the ordinary range" cases that incorporate aggravating features. At paragraph 17 the Court said:

It was also said that where s86(3) is applied there must be a realistic approach to what is to be regarded as ordinary range of offending of the particular kind. Plainly if there is constructed an ‘ordinary range’ incorporating features of aggravation that recur in particular offending, the utility of the test will be eroded.

[19]	Similarly, in R v Helps CA45/03 27 May 2003, at paragraph 13, the Court said:

The "sufficiently serious" requirement is intended to limit the use of minimum sentences to cases of offending that are notable for aggravating features such that the legislative direction that (absent risk to the safety of the community) offenders are to be released after serving one third of their sentences, should be departed from.

[20]

To identify a case of aggravated robbery as sufficiently serious to come near the top of the 7-10 year range in R v Mako but then to find that the case was not sufficiently serious to justify a minimum period of imprisonment is prima facie a wrong exercise of the discretion under s86(2). Whilst the imposition of a minimum period of imprisonment is not to be automatically applied, even in the most serious category of case, the more serious the offending the greater the likelihood that the "sufficient serious criterion will be met indicating the need for the exercise of the statutory discretion in favour of a minimum non-parole period."

Significant aggravating factors will accordingly attract both a lengthy term of imprisonment as well as the imposition of a minimum period of imprisonment, its length turning on their extent. The imposition of the minimum term in these circumstances is the exercise of the judicial discretion having regard to the legislative intent of s86 of the Sentencing Act.

Result

[22]

The appeal is allowed. Given the seriousness of the aggravating features present in this case, a minimum period of imprisonment of two-thirds would have been appropriate. However, as this is a Solicitor-General appeal we do not order the respondent to serve a minimum term of imprisonment of two-thirds of his sentence, although we consider this would have been an appropriate minimum term, but substitute a minimum term of imprisonment of three years six months, to represent 50% of the total sentence imposed.

Solicitors:
Crown Law Office, Wellington
Wollerman Cooke, Carterton for Respondent