The Queen v King [2009] NZCA 194 (21 May 2009)

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The Queen v King [2009] NZCA 194 (21 May 2009)

Last Updated: 27 May 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2009

[2009] NZCA 194

THE QUEEN

v

FONZIE KING

Hearing: 12 May 2009

Court: Ellen France, Priestley and Miller JJ

Counsel: G H Allan for the Crown
M B J Curran for Respondent

Judgment: 21 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Miller J)

[1] The Solicitor-General seeks leave to appeal against a sentence of 18 months imprisonment imposed on two charges of assault with intent to rob (at the time, s 235(1)(c) Crimes Act 1961).
[2] The crime was committed on 12 June 1996, when Mr King was aged 16, but he was not charged until he was identified through DNA analysis undertaken years later.
[3] Mr King tried to rob a small takeaways shop at Forest Lake, Hamilton. He approached the rear of the shop with a hammer and a beanie or balaclava, which he pulled over his face. He wore gloves. He seized the female proprietor, who was carrying a three-year-old child, outside the shop and told her to shut up. She struggled, and fell to the ground, where he knelt over her and placed his hand over her mouth. She kept trying to get up, still holding the child, and he pushed her down each time, with the child’s head hitting the pavement on one occasion.
[4] The male proprietor came to his wife’s assistance as Mr King, persisting in his efforts, ran into the shop. He swung the hammer several times at the male victim, one blow striking him on the left hand and another on the cheek. However, the couple were able to disarm him and turn the hammer against him, causing him a bleeding nose, and Mr King fled.
[5] The male victim suffered a fractured cheek bone and facial swelling. Another child of the couple, aged six, also witnessed the attack.
[6] Mr King denied involvement when told of the DNA match. He eventually pleaded guilty after the jury was empanelled and the Crown had opened its case at his trial in the District Court at Hamilton, saying he wanted to get it over with.
[7] Mr King had no convictions at the time of the offence, but managed to accumulate a number in the intervening years. They included nine for offences of dishonesty, including burglary, theft, and being in an enclosed yard. There were four convictions for assault between 2005 and 2008, and one in 1998 for possession of an offensive weapon.
[8] On 16 December 2008 Mr King was sentenced on the present charges and a charge of burglary in which his ex-partner was the victim. A disturbing feature of that offence was that he damaged a photograph of her by burning the image of her face.
[9] The presentence reports were sympathetic. At the time of the offence, Mr King’s parents had moved to Australia and he was living on the streets. The writer explained that Mr King was now in employment and living with a partner of four years, with whom he has two children. He presented as committed to his family and motivated to make lifestyle changes. He regretted the burglary but said he could not recall the assault. Treatment and counselling were recommended to address his propensity for violence.
[10] Judge Connell recorded that it was common ground that Mr King had to be sentenced for the assault as a first offender. Consideration was due to him because of the date of the offending and his age at the time. There were aggravating features of the offence: planning, use of the weapon, and the effect on the victims. He took a starting point of three years, reduced by 12 months having regard to age and Mr King’s circumstances. A further deduction of six months was made for the guilty pleas.
[11] The Judge took a starting point of 18 months for the burglary, reducing it by six months for the guilty plea and a further three months for totality. The cumulative sentence of nine months resulted in an effective sentence of two years, three months imprisonment. The burglary sentence is not the subject of any appeal.
[12] The Crown argues that a sentence of three to four years imprisonment was warranted on the assault with intent to rob charges. The starting point ought to have been five to six years. The robbery would have succeeded but for the victims’ stout resistance. No discount for youth was warranted when he was sentenced as an adult, there was insufficient recognition of deterrence, and the discount for the guilty pleas was too generous.
[13] In R v Donaldson (1997) 14 CRNZ 537 at 549-550, this Court held that a sentence should be increased on appeal only if it is clear that it was manifestly inadequate or the Judge based it on some error of principle. Care must be taken not to override the sentencing Judge’s discretion to exercise mercy or pursue a rehabilitative course, even in cases that would normally call for a deterrent approach.
[14] In R v Mako [2000] 2 NZLR 170, which was decided several years after the present offences, this Court took the opportunity to review tariffs for aggravated robbery, having concluded that the existing categories (R v Moananui [1983] NZCA 66; [1983] NZLR 537 (CA)) had been applied too rigidly in practice. Mako identified several categories of aggravated robbery, one of which was the robbery of a small shop by a person demanding money under threat of the use of a weapon. If the shopkeeper was assaulted, the starting point should be five years, or six years in bad cases. The starting points identified should be used flexibly, with allowances to be made for age and other mitigating factors. Youth need not be a mitigating factor; teenagers commit many aggravated robberies, and some appear for sentence with considerable lists of convictions. A significantly reduced sentence may be appropriate where a youth is relevantly a first offender and appears genuinely motivated to reform.
[15] The Crown’s preferred starting point in this case is based on Mako, but counsel agreed that it was appropriate to sentence Mr King having regard to sentencing practice and his circumstances at the time of the offence. There is force in Mr Curran’s argument that, pre-Mako, sentencing Judges enjoyed somewhat greater discretion in selecting end sentences for this class of offence. In Moananui the Court held (at 540) that for aggravated robberies of smaller premises, the upper and lower limits of the range of sentences tended to be “somewhat lower” than the six to eight years appropriate for more serious offences. The Court surveyed the appeals it had heard in recent years, noting that sentences as low as two and a half years had been upheld. We observe that the offenders brought almost all of the appeals surveyed, so they are not a representative sample of sentences passed.
[16] In this case, Mr King would have been sentenced as a very young first offender who was without family support. He might have been sentenced in the Youth Court, and some form of intervention would have been arranged to address his rehabilitation. He was also charged with assault with intent to rob, not aggravated robbery.
[17] Mr Allan’s argument that no discount was warranted for youth relies on the assumed rehabilitative potential of young first offenders. Mr King was no longer a youth when he came to be sentenced. Nor had he led a blameless life since 1996. However, youth also mitigates because young people may be considered less culpable, and the younger the offender the more important this factor. In Mr King’s case, there was also the apparent abandonment by his parents and absence of any other support. These factors mitigate culpability notwithstanding that the offence itself was not impetuous, or the result of juvenile peer pressure.
[18] As Mr Curran argued, there were also indications in the presentence reports that Mr King had matured to a point where the Judge might conclude his risk of reoffending was significantly reduced.
[19] For these reasons, we are not persuaded that Judge Connell erred in principle in his choice of starting point and the discount for youth and circumstances.
[20] The six-month discount for the guilty pleas was generous. A guilty plea entered at the door of the Court may attract little or no discount, especially where the Crown case is strong. But it is another thing to say that the Judge erred by giving a discount. Discounts of between 10 per cent and 33 per cent have been approved regularly by this Court: R v Fonotia [2007] 3 NZLR 338. We are not persuaded that the Judge erred in principle by giving the discount that he did.
[21] In the result, the sentences, although lenient, were not manifestly inadequate. Leave to appeal is granted, but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington