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You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2005 >> [2005] NZCA 249

Growden v R [2005] NZCA 249 (25 October 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA67/05
CA84/05
CA133/05
CA174/05

THE QUEEN

v

HAYDEN LEE GROWDEN
CAMERON LEE ASHBY
SHAUN DAVID AUSTIN
BEN JOSEPH ATKINSON

Hearing: 17 October 2005

Court: Chambers, Potter and Doogue JJ

Counsel: A M M Schulze for Growden and Atkinson
S J Lance for Ashby
P T Birks for Austin
M D Downs for Crown

Judgment: 25 October 2005

JUDGMENT OF THE COURT

A. Leave to appeal by Messrs Ashby, Austin and Atkinson is granted but the appeals against sentence are dismissed.

B. The appeal against sentence by Mr Growden is allowed.

The sentences of ten years imprisonment with a minimum non-parole period of five years are quashed.
In their place are substituted concurrent sentences of nine years nine months imprisonment, with a minimum non-parole period of four years ten months.

____________________________________________________________________

REASONS
(Given by Potter J)

Table of Contents

Para No
Introduction [1]
Background [5]
National Park [7]
Athenree [12]
Okere Falls [17]
Sentencing [21]
Submissions for the appellants [33]
Submissions for the Crown [41]
Discussion [46]
Outcome of appeals [52]

Introduction

[1] The appellants appeal against sentences of ten years imprisonment with a minimum period of imprisonment of five years imposed on each of them by Judge P W Cooper in the District Court at Rotorua on 10 February 2005 following guilty pleas being entered by all four appellants to three charges of aggravated robbery.
[2] The appeals are on the basis that the sentences imposed are manifestly excessive. It is contended that the starting point taken by the Judge was too high and the discount allowed for the mitigating factors, in particular early guilty pleas, was insufficient. Mr Growden further submits that the Judge was wrong in not allowing a further discount to recognise reparation of $1,000 paid by him.
[3] The appellants do not take issue with the imposition of a minimum period of imprisonment and accept that the basis adopted by the sentencing Judge of 50% of the sentence imposed was appropriate. However, they say that the minimum period of imprisonment should be reduced to 50% of a lesser sentence.
[4] The Crown resists the appeals.
[5] Messrs Ashby, Austin and Atkinson apply for leave to appeal out of time. There is no prejudice and the Crown does not oppose. Leave is granted.

Background

[6] The appellants have been friends for a number of years and reside in the area including the townships of Te Aroha, Waihi and Paeroa. They are users of methamphetamine and cannabis. During the period 30 September 2004 and 12 October 2004 the appellants engaged in three aggravated robberies to provide money and assets to fund their drug habit and enable them to meet drug debts. The manner in which they proceeded was similar in each of the three incidents. Under cover of darkness they located a vehicle in a remote situation which they believed would have occupants with money and possessions, smashed their way into the vehicle and then used violence and threats to extort money and property from the terrified occupants. Weapons were carried and used. In each case a tyre or tyres of the victims’ vehicle was slashed so that they could not pursue the appellants as they departed from the crime scene. Their victims suffered both physical injury and extreme emotional harm.

National Park

[7] The victims in this case were a German couple who were keen trampers. They hired a camper van from Maui Rentals and travelled through the North Island, eventually arriving at about 6.30 p.m. on 30 September 2004 at the Mangatepopo car park area which is the starting point for the walk across the Tongariro Crossing in the Tongariro National Park. The Mangatepopo car park is situated at the end of a seven kilometre dead-end gravel road. They parked their camper van intending to stay overnight and commence their walk the following day.
[8] At about 5.30 a.m. on 1 October 2004 the female victim awoke to the sound of footsteps and voices outside the camper van. She looked out and saw three or four persons standing on the gravel road about three metres away from the camper van. She watched these persons walk off towards some other vehicles in the car park area. Shortly afterwards she heard voices again and footsteps around the camper van. The front driver and passenger windows were smashed and also the window in the camper van’s sliding door. Glass fragments showered the interior of the camper van. The female victim described it as like a "commando raid".
[9] Two of the appellants opened the front door of the camper van and removed backpacks and other property. Mr Austin, armed with a metal crowbar, opened the side door and stepped inside. He swore at the victims, demanding money and instructing them to put a blanket over their heads so they could not identify him. The female victim recognised him as one of the persons she had seen earlier outside the camper van. The fourth person was outside the camper van searching through some of the victims’ property.
[10] Mr Austin used the crowbar to threaten the victims and then to strike them both. They suffered injuries as they tried to defend themselves against blows directed at their heads. The male victim was injured on his right wrist and the female victim was struck on her elbow causing a laceration. The victims felt powerless, confronted in the confined interior of the camper van by Mr Austin wielding the metal crowbar.
[11] The appellants left with three packs belonging to the victims containing a large amount of equipment and clothing with a value of approximately $25,000. They were seen leaving the car park at speed in a red square shaped four-door sedan motor vehicle. The victims went to get help but found they were delayed as one of the tyres of their vehicle had been slashed and punctured with a sharp object.

Athenree

[12] The victims in this instance were a father and son from England who had come to New Zealand with a view to seeking out a suitable place for the family to settle as they were considering immigrating to New Zealand. They took a Pacific Rental camper van from Auckland and at about 10 p.m. on 11 October 2004 stopped in a rest area in the Athenree Gorge so that the father who was driving, could get some rest.
[13] The appellants had gathered that evening at Mr Growden’s home in Te Aroha. They consumed liquor and took liquor with them when they started out on a "cruise". They travelled in Mr Growden’s red BMW and as well as the alcohol, had on board a heavy metal crowbar and a small wooden handled axe.
[14] At about 1 a.m. on 12 October 2004 while passing through the Athenree Gorge they noticed the victims’ camper van. They drove into the rest area and parked behind some trees out of sight of the camper van. They approached the camper van and looked inside before smashing the windows of the camper van using the crowbar and the axe. The victims who had been asleep, were woken by the smashing glass and were terrified, particularly the son who was aged 12 years. The appellants forced entry into the camper van and used the crowbar to threaten both victims, yelling and swearing at them and demanding money.
[15] The father was struck across the right side of the face with the crowbar which inflicted a gaping laceration over his right eye which bled profusely. He was struck three more times in the face. A second of the appellants entered the camper van with the axe. The victims handed over all that the appellants asked for. The father was then manhandled out of the camper van while Mr Ashby and another of the appellants further threatened the son, demanded money and took property from him. Outside the camper van the father was threatened that both he and his son would be taken down to the river and drowned if they did not hand over all their money.
[16] After about ten minutes the appellants were disturbed by the headlights of an approaching vehicle. They quickly left taking with them two suitcases full of personal clothing and toiletries, cash, $1,000 in travellers cheques and other items. They slashed all the tyres of the camper van. The victims ran down the road for about a kilometre when they became aware of lights from an approaching vehicle. They were terrified that it was the appellants and dived into a roadside ditch. The father was struck on his nose and chin and suffered further injury. They later returned to the road, flagged down a passing logging truck and were taken to the Waihi Police Station and subsequently to Tauranga for medical attention.

Okere Falls

[17] The victim in this incident was a New Zealand national recently returned from England who, prior to the incident, was travelling in his 1998 Holden Vectra station wagon along State Highway 33 towards Tauranga. At about 11.30 p.m. on 11 October 2004 he stopped in a rest area near Okere Falls approximately 25 kilometres east of Rotorua. The appellants, having left the previous victims in the Athenree Gorge rest area, were driving towards Rotorua and saw the station wagon parked in the rest area near Okere Falls.
[18] At about 3.30 a.m. they parked a short distance from the vehicle and threw a rock through the rear window on the driver’s side. They then smashed the remaining windows of the vehicle, which woke the occupant who described the noise of the shattering glass as like "thunder and hail". He turned on the interior light of the station wagon and saw a figure carrying a metal crowbar, together with three other persons outside his vehicle. All were yelling and demanding money. One of the appellants threatened to smash his teeth in. In answer to their demands the victim pushed his bags outside through the smashed windows. He also handed over his wallet and advised his PIN number in answer to the demands of one of the men. He was asked if there were drugs in the car to which he replied no. He was repeatedly referred to as a tourist and when he advised that he was a New Zealander from Wellington, he was told that he didn’t belong "up here" as it was the appellants’ territory.
[19] The appellants rummaged through the victim’s property leaving most of it strewn on the ground but taking credit cards and selected items. They then left, having slashed the tyres of his vehicle. The victim escaped from his vehicle and flagged down a passing logging truck heading towards Rotorua. He rode in the logging truck towards Rotorua and at the Te Ngae Shopping Centre on the eastern outskirts of Rotorua saw the appellants at the ASB ATM machine. The logging truck driver drove into the car park in an attempt to prevent the appellants from leaving. Although this was not successful they were stopped by Police a short distance down the road.
[20] Charges were laid on 12 October 2004. Guilty pleas were entered on 22 November 2004.

Sentencing

[21] After outlining the background facts, the Judge addressed the effect on the victims of these aggravated robberies, referring to the victim impact reports, which he said set out in graphic detail the physical and emotional trauma that the victims sustained. He also referred to the physical injuries and the financial loss each of the victims had suffered. Of the attack on the father and son in the Athenree Gorge he stated:

The terror involved in being subject to a sudden attack with such violence targeting not only an adult, but a 12 year old boy, cannot be overstated. The physical and emotional trauma to both is clearly ongoing. The 12 year old saw his father being attacked with the crowbar. He begged you to leave his father alone. He believed it when it was said that he would be taken down to the river and drowned.

[22] The Judge referred to the personal circumstances of each of the appellants, they being aged at the time of sentencing between 22 and 28 years of age and all having previous convictions.
[23] Mr Ashby, as well as Youth Court appearances, has seven convictions for burglary and numerous other dishonesty offences since 1994, and in 1995 convictions for arson and assault with a weapon. The Judge noted that Mr Ashby had been using methamphetamine excessively for a period of time but was highly motivated to address his underlying drug problem. He noted expressions of remorse and positive testimonials in Mr Ashby’s favour.
[24] Mr Atkinson has numerous previous convictions including 20 for dishonesty, of which 11 are serious property offences and burglary. He too is a long-term user of drugs.
[25] Mr Austin, as well as numerous appearances in the Youth Court, has 16 previous convictions for dishonesty, four for assault, two with possession of weapons. He is a heavy user of methamphetamine.
[26] Mr Growden also has numerous previous convictions including Youth Court appearances. His convictions include 53 for dishonesty, many of them for burglary. He has convictions for assault with intent to injure, common assault, unlawful possession and discharge of a firearm. The Judge remarked that in his favour is the fact he was employed and well thought of but is a heavy user of drugs, "P" in particular and is assessed by the Probation Service as of high risk of re-offending. He noted the sum of $1,000 raised by Mr Growden’s family and paid towards reparation.
[27] The Judge held that all the appellants were equally culpable. While they may have done different things in the commission of the offences, it was towards a common end and all were involved fully in the common purpose.
[28] He identified the aggravating factors as follows:
• The use of weapons: the crowbar at National Park, the crowbar and an axe at Athenree Gorge, and a crowbar at Okere Falls.
• The force of numbers employed.
• The fact that actual violence was meted out to the victims at National Park and Athenree Gorge.
• That injuries were caused in those two offences. There was also the potential for more serious injury when weapons such as a crowbar and an axe are employed.
• The targeting of camper vans, tourist vehicles, in remote areas (referring to the Maungatapopo car park, and the Athenree Gorge rest area).
• There were threats to drown the complainant and his son at Athenree Gorge. There was the attack on that man in the presence of his son.
• The fact that there were three separate offences.
• In the camper van offending, an element of home invasion.
• The profound impact on the victims.
• It was what could almost be described as the use of terror tactics: a sudden violent attack; a sudden smashing of windows; a force of numbers; threats and actual violence.
[29] The Judge stated that the only mitigating factor, although an important one, were the guilty pleas and acceptances of responsibility by all the appellants.
[30] The Judge referred to the benchmark Court of Appeal judgment in R v Mako [2000] 2 NZLR 170 where the Court identified that for forced entry into premises at night by a number of offenders seeking money, drugs or other property, with violence against the victims and where weapons were brandished, would require a starting point of seven years imprisonment or more, even if no serious injuries were inflicted. Further, that where a private house is entered the starting point would be increased because of the element of home invasion. The Judge took the view that there was an element of home invasion in relation to these aggravated robberies.
[31] He noted that ordinarily cumulative sentences would be required because there were three separate sets of offending but that regard had to be had to the totality principle to avoid a sentence that was so crushing that it left the appellants without hope.
[32] He considered that an appropriate starting point for sentencing on a totality basis would be 13 years and that an allowance for the guilty pleas would reduce the sentence to ten years imprisonment in each case. He considered that starting point appropriate to denounce the appellants’ offending, to deter the appellants and others from committing such crimes and to hold the appellants accountable to society and to the victims for what they had done. He imposed a minimum non-parole period of five years in each case. He directed that the sum of $1,000 paid by Mr Growden as reparation should be distributed equally among all the victims but considered that the seriousness of the offending overshadowed the small token represented by the reparation of $1,000.

Submissions for the appellants

[33] For the appellants it was submitted that the starting point taken by the sentencing Judge was too high by about 12-18 months. Further, that the discount of 23% was insufficient given that guilty pleas were entered pursuant to s 153A Summary Proceedings Act at the pre-depositions stage and that the appellants, except for Mr Atkinson, acknowledged their part in the offending and were co-operative with the Police. It was submitted that taking the normal range of discounts for guilty pleas as being between one-quarter and one-third, in this case a full discount of one-third should have been given.
[34] It was further submitted that this offending fell more appropriately within the category identified at [56] of Mako – robbery of a small retail shop by demanding money under threat of use of a weapon after ensuring no customers are present, with or without assistance from a look-out of an accomplice waiting to facilitate getaway. Counsel acknowledged, however, that offending in this category, where the Court of Appeal stated the starting point should be around four years, involved no actual violence and that in cases where the shopkeeper was confined or assaulted or confronted by multiple offenders five years and in bad cases six years, should be the starting point.
[35] For Mr Austin, Mr Birks submitted that the category in [57] of Mako, for robbery of taxi drivers, was closer to this case, where a starting point between four and five years is appropriate if a weapon is presented or physical violence is employed.
[36] Counsel referred to R v Lisiate CA35/03 4 December 2003 where the appellant was involved in five aggravated robberies targeting service stations and a dairy. One or two offenders entered the premises with their faces disguised and armed with a machete or pistol. Cash, cigarettes and pre-pay phone cards were demanded. No actual violence was used. Lisiate was convicted following trial of four of the alleged aggravated robberies. The sentence imposed was ten years. The Court of Appeal held that for the four serious aggravated robberies of which Lisiate was convicted, the sentence of ten years was not outside the range open to the Judge, although it might have been at the top end of the range. Relevant factors were the gravity of the offending, the appellant’s past offending history, the need to protect the community and the immediacy with which Lisiate offended after having been released on parole. A minimum non-parole period of five years was substituted on appeal for the two-thirds minimum period of imprisonment imposed at sentence.
[37] It was submitted for the appellants that the case of Lisiate was more serious, involving four aggravated robberies, the use of disguises, clear evidence of planning, there was no guilty plea and Lisiate was on parole when he offended. It was accepted that in Lisiate there was no actual violence.
[38] Reference was also made in written submissions to R v Collett CA83/04 30 August 2004 where, following guilty pleas, a sentence of seven years imprisonment was imposed for four charges of aggravated robbery. It was noted that the Court considered pharmacists to be a vulnerable class (not unlike taxi drivers) requiring protection from the Courts.
[39] It was submitted that in contrast, the offending in this case did not involve the targeting of a class of persons. Mr Lance suggested that rather than being planned or targeted at tourists, this offending was random. He submitted that when people parked in public areas they could not expect the same protection as might be expected in a home or dwelling such as a cabin, located in a private area.
[40] Mr Birks, alone among the appellants’ counsel, had suggested in his written submissions that no minimum period of imprisonment should have been ordered under s 86 of the Sentencing Act 2002. When he presented his oral submissions, however, he confirmed that this ground of appeal was abandoned. All the appellants’ counsel accepted that Judge Cooper was entitled to impose a minimum period of imprisonment in this case and all counsel accepted that a 50% minimum period of imprisonment (as adopted by the Judge) could not be challenged.

Submissions for the Crown

[41] Mr Downs submitted that the category in Mako adopted by the sentencing Judge was appropriate, and emphasised that cases falling within that category would in terms of Mako require a starting point of seven years or more. He submitted that the aggravating features identified by the sentencing Judge made this a serious case within this category in Mako. He referred to the use of actual violence and that it was completely gratuitous, there being no resistance whatsoever from the victims, who complied completely with the appellants’ demands. Injuries were inflicted and there was the potential for more serious injuries because the blows were directed towards the head, as evidenced by the defence injuries in the case of the German tourists and the deep laceration suffered by the father in the Athenree Gorge incident. He noted the actual physical injuries and the deep psychological effects suffered by the victims from what could only be described as a violent attack using terror tactics. He submitted that the targeting of these vehicles in remote areas was deliberate and that the first aggravated robbery was well planned with similar tactics being adopted for the second and third robberies.
[42] These were three separate serious incidents in which each of the offenders performed a designated role. It was submitted that the situation was not comparable to that in Lisiate and that decision was not helpful. Rather it was appropriate to proceed from the touchstone provided in Mako where the Court, although dealing with a single incident, recognised that multiple offending involving separate incidents gives the criminality an added dimension which must be accorded full response on totality principles and in that respect, maximum sentences apply for each offence.
[43] It was submitted that the particular seriousness of the totality of the offending, the high level of culpability on the part of each of the appellants and the need to protect the public were required to be reflected in the sentence imposed.
[44] Mr Downs submitted that if approached arithmetically, based on a seven years minimum starting point in accordance with Mako and three separate incidents, a starting point of 21 years is reached. He submitted that on a totality basis, the starting point adopted by the sentencing Judge of 13 years was fully justified, indeed 14 years would not have been inappropriate.
[45] The Crown accepted that the guilty pleas were entered at a very early stage but in the face of a strong prosecution case. It was submitted that the discount allowed by the sentencing Judge was within his discretion.

Discussion

[46] We consider that this offending falls squarely within the category in [58] of the judgment in Mako which was adopted by the sentencing Judge:

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

[47] This was serious, planned offending (accepting, however, that the third incident in particular had an aspect of the opportunistic about it), in which the appellants, equipped with weapons, sought out vehicles in remote places where the victims would have no opportunity to resist the threats of the appellants and virtually no opportunity to obtain assistance. Further, there was an element of targeting of persons the appellants believed likely to have cash, credit cards and tradeable items such as video cameras and digital equipment. Actual violence was employed which had the potential to be more serious than it was, given the clear evidence that blows were aimed at the heads of the victims. The sentencing Judge accurately described the method of attack as "the use of terror tactics", demonstrated by the initial smashing of windows of the vehicles in each case, with the noise and shattering of glass that inevitably accompanied those acts. We also agree with the Judge that there was an element of home invasion. The victims were asleep in their vehicles, which were providing their shelter and security for the night.
[48] The offending in cases such as Lisiate and Collett was different in nature. The targeted premises, service stations and dairies, were in suburban areas. No actual violence was involved and while disguises were used, the planning in those cases fitted the intended crimes. The tactics adopted in the robberies by the appellants were planned to enable them to effect their intention of locating victims in situations where they would be defenceless, terrorising them, using violence and threats of violence and robbing them of their money and possessions.
[49] The sentencing Judge correctly identified the aggravating features of this offending. The starting point of 13 years was open to him.
[50] The Judge made allowance for the mitigating factors, in particular the early guilty pleas, which, as he stated, included acceptance of responsibility by the appellants for their actions. No separate discount for acceptance and acknowledgement of the offending is justified. It is not the law in this country that an early guilty plea always gives rise to a 33% discount on a guilty plea. This Court in Mako resisted "laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which [a guilty plea] might be entered": at [14]. This Court may at some point decide to issue a guideline judgment on guilty pleas: R v Hannagan CA396/04 at [25]. This Court noted in that case that the New South Wales Court of Criminal Appeal has delivered a guideline judgment on guilty pleas: R v Thomson (2000) 49 NSWLR 383. Under that guideline judgment, the range is 10-25% depending on the timing of the plea. Whether the maximum discount should be 25% or the 33% adopted by Britain’s Sentencing Guidelines Council may be a matter for debate. But what can be said is that the 23% discount Judge Cooper adopted is not out of line with New Zealand authorities, even for very early guilty pleas.
[51] However, in the case of Mr Growden we consider a further discount should have been allowed for the reparation of $1,000 paid. While we accept that in the circumstances of the offending overall, the reparation is "token" as described by the sentencing Judge, we also accept that from the perspective of Mr Growden it would not be insignificant. It is an offer of amends which pursuant to s 10(1)(a) of the Sentencing Act, the Court must take into account. We consider a further discount of about three months should be allowed, and the minimum term of imprisonment, adjusted to reflect this.

Outcome of appeals

[52] The appeals by Messrs Ashby, Austin and Atkinson are dismissed.
[53] The appeal by Mr Growden is allowed. The sentence of ten years is set aside. A sentence of nine years nine months is substituted with a minimum non-parole period of four years ten months.
[54] We observe that, technically, Judge Cooper, did not comply with s 85(4) of the Sentencing Act when fixing the concurrent sentences. He accorded to each offence the sentence applicable to the totality of the offending. None of the appellants took any point concerning this, and for that reason we do not make technical adjustments to the sentences imposed on Messrs Ashby, Austin and Atkinson, nor in re-sentencing Mr Growden.

Solicitors:
H S Edward, Rotorua for Growden and Atkinson
Lance & Lawson, Rotorua for Ashby
Crown Law Office, Wellington

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[1]	The appellants appeal against sentences of ten years imprisonment with a minimum period of imprisonment of five years imposed on each of them by Judge P W Cooper in the District Court at Rotorua on 10 February 2005 following guilty pleas being entered by all four appellants to three charges of aggravated robbery.
[2]	The appeals are on the basis that the sentences imposed are manifestly excessive. It is contended that the starting point taken by the Judge was too high and the discount allowed for the mitigating factors, in particular early guilty pleas, was insufficient. Mr Growden further submits that the Judge was wrong in not allowing a further discount to recognise reparation of $1,000 paid by him.
[3]	The appellants do not take issue with the imposition of a minimum period of imprisonment and accept that the basis adopted by the sentencing Judge of 50% of the sentence imposed was appropriate. However, they say that the minimum period of imprisonment should be reduced to 50% of a lesser sentence.
[4]	The Crown resists the appeals.
[5]	Messrs Ashby, Austin and Atkinson apply for leave to appeal out of time. There is no prejudice and the Crown does not oppose. Leave is granted.

[7]	The victims in this case were a German couple who were keen trampers. They hired a camper van from Maui Rentals and travelled through the North Island, eventually arriving at about 6.30 p.m. on 30 September 2004 at the Mangatepopo car park area which is the starting point for the walk across the Tongariro Crossing in the Tongariro National Park. The Mangatepopo car park is situated at the end of a seven kilometre dead-end gravel road. They parked their camper van intending to stay overnight and commence their walk the following day.
[8]	At about 5.30 a.m. on 1 October 2004 the female victim awoke to the sound of footsteps and voices outside the camper van. She looked out and saw three or four persons standing on the gravel road about three metres away from the camper van. She watched these persons walk off towards some other vehicles in the car park area. Shortly afterwards she heard voices again and footsteps around the camper van. The front driver and passenger windows were smashed and also the window in the camper van’s sliding door. Glass fragments showered the interior of the camper van. The female victim described it as like a "commando raid".
[9]	Two of the appellants opened the front door of the camper van and removed backpacks and other property. Mr Austin, armed with a metal crowbar, opened the side door and stepped inside. He swore at the victims, demanding money and instructing them to put a blanket over their heads so they could not identify him. The female victim recognised him as one of the persons she had seen earlier outside the camper van. The fourth person was outside the camper van searching through some of the victims’ property.
[10]	Mr Austin used the crowbar to threaten the victims and then to strike them both. They suffered injuries as they tried to defend themselves against blows directed at their heads. The male victim was injured on his right wrist and the female victim was struck on her elbow causing a laceration. The victims felt powerless, confronted in the confined interior of the camper van by Mr Austin wielding the metal crowbar.
[11]	The appellants left with three packs belonging to the victims containing a large amount of equipment and clothing with a value of approximately $25,000. They were seen leaving the car park at speed in a red square shaped four-door sedan motor vehicle. The victims went to get help but found they were delayed as one of the tyres of their vehicle had been slashed and punctured with a sharp object.

[12]	The victims in this instance were a father and son from England who had come to New Zealand with a view to seeking out a suitable place for the family to settle as they were considering immigrating to New Zealand. They took a Pacific Rental camper van from Auckland and at about 10 p.m. on 11 October 2004 stopped in a rest area in the Athenree Gorge so that the father who was driving, could get some rest.
[13]	The appellants had gathered that evening at Mr Growden’s home in Te Aroha. They consumed liquor and took liquor with them when they started out on a "cruise". They travelled in Mr Growden’s red BMW and as well as the alcohol, had on board a heavy metal crowbar and a small wooden handled axe.
[14]	At about 1 a.m. on 12 October 2004 while passing through the Athenree Gorge they noticed the victims’ camper van. They drove into the rest area and parked behind some trees out of sight of the camper van. They approached the camper van and looked inside before smashing the windows of the camper van using the crowbar and the axe. The victims who had been asleep, were woken by the smashing glass and were terrified, particularly the son who was aged 12 years. The appellants forced entry into the camper van and used the crowbar to threaten both victims, yelling and swearing at them and demanding money.
[15]	The father was struck across the right side of the face with the crowbar which inflicted a gaping laceration over his right eye which bled profusely. He was struck three more times in the face. A second of the appellants entered the camper van with the axe. The victims handed over all that the appellants asked for. The father was then manhandled out of the camper van while Mr Ashby and another of the appellants further threatened the son, demanded money and took property from him. Outside the camper van the father was threatened that both he and his son would be taken down to the river and drowned if they did not hand over all their money.
[16]	After about ten minutes the appellants were disturbed by the headlights of an approaching vehicle. They quickly left taking with them two suitcases full of personal clothing and toiletries, cash, $1,000 in travellers cheques and other items. They slashed all the tyres of the camper van. The victims ran down the road for about a kilometre when they became aware of lights from an approaching vehicle. They were terrified that it was the appellants and dived into a roadside ditch. The father was struck on his nose and chin and suffered further injury. They later returned to the road, flagged down a passing logging truck and were taken to the Waihi Police Station and subsequently to Tauranga for medical attention.

[17]	The victim in this incident was a New Zealand national recently returned from England who, prior to the incident, was travelling in his 1998 Holden Vectra station wagon along State Highway 33 towards Tauranga. At about 11.30 p.m. on 11 October 2004 he stopped in a rest area near Okere Falls approximately 25 kilometres east of Rotorua. The appellants, having left the previous victims in the Athenree Gorge rest area, were driving towards Rotorua and saw the station wagon parked in the rest area near Okere Falls.
[18]	At about 3.30 a.m. they parked a short distance from the vehicle and threw a rock through the rear window on the driver’s side. They then smashed the remaining windows of the vehicle, which woke the occupant who described the noise of the shattering glass as like "thunder and hail". He turned on the interior light of the station wagon and saw a figure carrying a metal crowbar, together with three other persons outside his vehicle. All were yelling and demanding money. One of the appellants threatened to smash his teeth in. In answer to their demands the victim pushed his bags outside through the smashed windows. He also handed over his wallet and advised his PIN number in answer to the demands of one of the men. He was asked if there were drugs in the car to which he replied no. He was repeatedly referred to as a tourist and when he advised that he was a New Zealander from Wellington, he was told that he didn’t belong "up here" as it was the appellants’ territory.
[19]	The appellants rummaged through the victim’s property leaving most of it strewn on the ground but taking credit cards and selected items. They then left, having slashed the tyres of his vehicle. The victim escaped from his vehicle and flagged down a passing logging truck heading towards Rotorua. He rode in the logging truck towards Rotorua and at the Te Ngae Shopping Centre on the eastern outskirts of Rotorua saw the appellants at the ASB ATM machine. The logging truck driver drove into the car park in an attempt to prevent the appellants from leaving. Although this was not successful they were stopped by Police a short distance down the road.
[20]	Charges were laid on 12 October 2004. Guilty pleas were entered on 22 November 2004.

[22]	The Judge referred to the personal circumstances of each of the appellants, they being aged at the time of sentencing between 22 and 28 years of age and all having previous convictions.
[23]	Mr Ashby, as well as Youth Court appearances, has seven convictions for burglary and numerous other dishonesty offences since 1994, and in 1995 convictions for arson and assault with a weapon. The Judge noted that Mr Ashby had been using methamphetamine excessively for a period of time but was highly motivated to address his underlying drug problem. He noted expressions of remorse and positive testimonials in Mr Ashby’s favour.
[24]	Mr Atkinson has numerous previous convictions including 20 for dishonesty, of which 11 are serious property offences and burglary. He too is a long-term user of drugs.
[25]	Mr Austin, as well as numerous appearances in the Youth Court, has 16 previous convictions for dishonesty, four for assault, two with possession of weapons. He is a heavy user of methamphetamine.
[26]	Mr Growden also has numerous previous convictions including Youth Court appearances. His convictions include 53 for dishonesty, many of them for burglary. He has convictions for assault with intent to injure, common assault, unlawful possession and discharge of a firearm. The Judge remarked that in his favour is the fact he was employed and well thought of but is a heavy user of drugs, "P" in particular and is assessed by the Probation Service as of high risk of re-offending. He noted the sum of $1,000 raised by Mr Growden’s family and paid towards reparation.
[27]	The Judge held that all the appellants were equally culpable. While they may have done different things in the commission of the offences, it was towards a common end and all were involved fully in the common purpose.
[28]	He identified the aggravating factors as follows:
•	The use of weapons: the crowbar at National Park, the crowbar and an axe at Athenree Gorge, and a crowbar at Okere Falls.
•	The force of numbers employed.
•	The fact that actual violence was meted out to the victims at National Park and Athenree Gorge.
•	That injuries were caused in those two offences. There was also the potential for more serious injury when weapons such as a crowbar and an axe are employed.
•	The targeting of camper vans, tourist vehicles, in remote areas (referring to the Maungatapopo car park, and the Athenree Gorge rest area).
•	There were threats to drown the complainant and his son at Athenree Gorge. There was the attack on that man in the presence of his son.
•	The fact that there were three separate offences.
•	In the camper van offending, an element of home invasion.
•	The profound impact on the victims.
•	It was what could almost be described as the use of terror tactics: a sudden violent attack; a sudden smashing of windows; a force of numbers; threats and actual violence.
[29]	The Judge stated that the only mitigating factor, although an important one, were the guilty pleas and acceptances of responsibility by all the appellants.
[30]	The Judge referred to the benchmark Court of Appeal judgment in R v Mako [2000] 2 NZLR 170 where the Court identified that for forced entry into premises at night by a number of offenders seeking money, drugs or other property, with violence against the victims and where weapons were brandished, would require a starting point of seven years imprisonment or more, even if no serious injuries were inflicted. Further, that where a private house is entered the starting point would be increased because of the element of home invasion. The Judge took the view that there was an element of home invasion in relation to these aggravated robberies.
[31]	He noted that ordinarily cumulative sentences would be required because there were three separate sets of offending but that regard had to be had to the totality principle to avoid a sentence that was so crushing that it left the appellants without hope.
[32]	He considered that an appropriate starting point for sentencing on a totality basis would be 13 years and that an allowance for the guilty pleas would reduce the sentence to ten years imprisonment in each case. He considered that starting point appropriate to denounce the appellants’ offending, to deter the appellants and others from committing such crimes and to hold the appellants accountable to society and to the victims for what they had done. He imposed a minimum non-parole period of five years in each case. He directed that the sum of $1,000 paid by Mr Growden as reparation should be distributed equally among all the victims but considered that the seriousness of the offending overshadowed the small token represented by the reparation of $1,000.

[33]	For the appellants it was submitted that the starting point taken by the sentencing Judge was too high by about 12-18 months. Further, that the discount of 23% was insufficient given that guilty pleas were entered pursuant to s 153A Summary Proceedings Act at the pre-depositions stage and that the appellants, except for Mr Atkinson, acknowledged their part in the offending and were co-operative with the Police. It was submitted that taking the normal range of discounts for guilty pleas as being between one-quarter and one-third, in this case a full discount of one-third should have been given.
[34]	It was further submitted that this offending fell more appropriately within the category identified at [56] of Mako – robbery of a small retail shop by demanding money under threat of use of a weapon after ensuring no customers are present, with or without assistance from a look-out of an accomplice waiting to facilitate getaway. Counsel acknowledged, however, that offending in this category, where the Court of Appeal stated the starting point should be around four years, involved no actual violence and that in cases where the shopkeeper was confined or assaulted or confronted by multiple offenders five years and in bad cases six years, should be the starting point.
[35]	For Mr Austin, Mr Birks submitted that the category in [57] of Mako, for robbery of taxi drivers, was closer to this case, where a starting point between four and five years is appropriate if a weapon is presented or physical violence is employed.
[36]	Counsel referred to R v Lisiate CA35/03 4 December 2003 where the appellant was involved in five aggravated robberies targeting service stations and a dairy. One or two offenders entered the premises with their faces disguised and armed with a machete or pistol. Cash, cigarettes and pre-pay phone cards were demanded. No actual violence was used. Lisiate was convicted following trial of four of the alleged aggravated robberies. The sentence imposed was ten years. The Court of Appeal held that for the four serious aggravated robberies of which Lisiate was convicted, the sentence of ten years was not outside the range open to the Judge, although it might have been at the top end of the range. Relevant factors were the gravity of the offending, the appellant’s past offending history, the need to protect the community and the immediacy with which Lisiate offended after having been released on parole. A minimum non-parole period of five years was substituted on appeal for the two-thirds minimum period of imprisonment imposed at sentence.
[37]	It was submitted for the appellants that the case of Lisiate was more serious, involving four aggravated robberies, the use of disguises, clear evidence of planning, there was no guilty plea and Lisiate was on parole when he offended. It was accepted that in Lisiate there was no actual violence.
[38]	Reference was also made in written submissions to R v Collett CA83/04 30 August 2004 where, following guilty pleas, a sentence of seven years imprisonment was imposed for four charges of aggravated robbery. It was noted that the Court considered pharmacists to be a vulnerable class (not unlike taxi drivers) requiring protection from the Courts.
[39]	It was submitted that in contrast, the offending in this case did not involve the targeting of a class of persons. Mr Lance suggested that rather than being planned or targeted at tourists, this offending was random. He submitted that when people parked in public areas they could not expect the same protection as might be expected in a home or dwelling such as a cabin, located in a private area.
[40]	Mr Birks, alone among the appellants’ counsel, had suggested in his written submissions that no minimum period of imprisonment should have been ordered under s 86 of the Sentencing Act 2002. When he presented his oral submissions, however, he confirmed that this ground of appeal was abandoned. All the appellants’ counsel accepted that Judge Cooper was entitled to impose a minimum period of imprisonment in this case and all counsel accepted that a 50% minimum period of imprisonment (as adopted by the Judge) could not be challenged.

[41]	Mr Downs submitted that the category in Mako adopted by the sentencing Judge was appropriate, and emphasised that cases falling within that category would in terms of Mako require a starting point of seven years or more. He submitted that the aggravating features identified by the sentencing Judge made this a serious case within this category in Mako. He referred to the use of actual violence and that it was completely gratuitous, there being no resistance whatsoever from the victims, who complied completely with the appellants’ demands. Injuries were inflicted and there was the potential for more serious injuries because the blows were directed towards the head, as evidenced by the defence injuries in the case of the German tourists and the deep laceration suffered by the father in the Athenree Gorge incident. He noted the actual physical injuries and the deep psychological effects suffered by the victims from what could only be described as a violent attack using terror tactics. He submitted that the targeting of these vehicles in remote areas was deliberate and that the first aggravated robbery was well planned with similar tactics being adopted for the second and third robberies.
[42]	These were three separate serious incidents in which each of the offenders performed a designated role. It was submitted that the situation was not comparable to that in Lisiate and that decision was not helpful. Rather it was appropriate to proceed from the touchstone provided in Mako where the Court, although dealing with a single incident, recognised that multiple offending involving separate incidents gives the criminality an added dimension which must be accorded full response on totality principles and in that respect, maximum sentences apply for each offence.
[43]	It was submitted that the particular seriousness of the totality of the offending, the high level of culpability on the part of each of the appellants and the need to protect the public were required to be reflected in the sentence imposed.
[44]	Mr Downs submitted that if approached arithmetically, based on a seven years minimum starting point in accordance with Mako and three separate incidents, a starting point of 21 years is reached. He submitted that on a totality basis, the starting point adopted by the sentencing Judge of 13 years was fully justified, indeed 14 years would not have been inappropriate.
[45]	The Crown accepted that the guilty pleas were entered at a very early stage but in the face of a strong prosecution case. It was submitted that the discount allowed by the sentencing Judge was within his discretion.

[47]	This was serious, planned offending (accepting, however, that the third incident in particular had an aspect of the opportunistic about it), in which the appellants, equipped with weapons, sought out vehicles in remote places where the victims would have no opportunity to resist the threats of the appellants and virtually no opportunity to obtain assistance. Further, there was an element of targeting of persons the appellants believed likely to have cash, credit cards and tradeable items such as video cameras and digital equipment. Actual violence was employed which had the potential to be more serious than it was, given the clear evidence that blows were aimed at the heads of the victims. The sentencing Judge accurately described the method of attack as "the use of terror tactics", demonstrated by the initial smashing of windows of the vehicles in each case, with the noise and shattering of glass that inevitably accompanied those acts. We also agree with the Judge that there was an element of home invasion. The victims were asleep in their vehicles, which were providing their shelter and security for the night.
[48]	The offending in cases such as Lisiate and Collett was different in nature. The targeted premises, service stations and dairies, were in suburban areas. No actual violence was involved and while disguises were used, the planning in those cases fitted the intended crimes. The tactics adopted in the robberies by the appellants were planned to enable them to effect their intention of locating victims in situations where they would be defenceless, terrorising them, using violence and threats of violence and robbing them of their money and possessions.
[49]	The sentencing Judge correctly identified the aggravating features of this offending. The starting point of 13 years was open to him.
[50]	The Judge made allowance for the mitigating factors, in particular the early guilty pleas, which, as he stated, included acceptance of responsibility by the appellants for their actions. No separate discount for acceptance and acknowledgement of the offending is justified. It is not the law in this country that an early guilty plea always gives rise to a 33% discount on a guilty plea. This Court in Mako resisted "laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which [a guilty plea] might be entered": at [14]. This Court may at some point decide to issue a guideline judgment on guilty pleas: R v Hannagan CA396/04 at [25]. This Court noted in that case that the New South Wales Court of Criminal Appeal has delivered a guideline judgment on guilty pleas: R v Thomson (2000) 49 NSWLR 383. Under that guideline judgment, the range is 10-25% depending on the timing of the plea. Whether the maximum discount should be 25% or the 33% adopted by Britain’s Sentencing Guidelines Council may be a matter for debate. But what can be said is that the 23% discount Judge Cooper adopted is not out of line with New Zealand authorities, even for very early guilty pleas.
[51]	However, in the case of Mr Growden we consider a further discount should have been allowed for the reparation of $1,000 paid. While we accept that in the circumstances of the offending overall, the reparation is "token" as described by the sentencing Judge, we also accept that from the perspective of Mr Growden it would not be insignificant. It is an offer of amends which pursuant to s 10(1)(a) of the Sentencing Act, the Court must take into account. We consider a further discount of about three months should be allowed, and the minimum term of imprisonment, adjusted to reflect this.

[52]	The appeals by Messrs Ashby, Austin and Atkinson are dismissed.
[53]	The appeal by Mr Growden is allowed. The sentence of ten years is set aside. A sentence of nine years nine months is substituted with a minimum non-parole period of four years ten months.
[54]	We observe that, technically, Judge Cooper, did not comply with s 85(4) of the Sentencing Act when fixing the concurrent sentences. He accorded to each offence the sentence applicable to the totality of the offending. None of the appellants took any point concerning this, and for that reason we do not make technical adjustments to the sentences imposed on Messrs Ashby, Austin and Atkinson, nor in re-sentencing Mr Growden.