The Queen v Crawford and Nicolle [2009] NZCA 479 (16 October 2009)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Crawford and Nicolle [2009] NZCA 479 (16 October 2009)

Last Updated: 21 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA451/2009CA474/2009 [2009] NZCA 479THE QUEEN

v

SONNY CRAWFORDMARK STEVEN NICOLLE

Hearing: 13 October 2009

Court: Hammond, Ronald Young and Fogarty JJ

Counsel: J M Miller and S A Thistoll for Crawford
R M Gould for Nicolle
J Murdoch for Crown

Judgment: 16 October 2009 at 10 am

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] On the evening of 28 August 2008 the two appellants robbed the victim, an intoxicated alcoholic, in his room at a Wellington boarding house. After conviction by a jury of aggravated robbery and, with respect to Mr Nicolle, possession of a knife after the robbery, Mr Crawford was sentenced to four years and nine months’ imprisonment, and Mr Nicolle was sentenced to four years and five months’ imprisonment.
[2] In this appeal both appellants say the sentence was manifestly excessive. They both say Judge Harrop mischaracterised the offending in terms of R v Mako [2000] 2 NZLR 170 (CA), Mr Crawford raises disparity arguments and Mr Nicolle says the Judge should have given a larger deduction for his personal circumstances.

The facts

[3] The appellants and the victim were residents of a boarding house in Wellington. Mr Nicolle and the victim had been drinking for three days before the offending. During 28 August the victim invited the two appellants into his room and they began drinking. Mr Crawford then pushed the victim onto his bed and Mr Nicolle held a steak knife, which was about six inches long, to the throat of the victim. He had found the knife in the victim’s room.
[4] The appellants rolled the victim onto his front and searched his pockets. Mr Nicolle held the victim down while Mr Crawford took the wallet out of his jacket and $130 cash together with some tablets.
[5] Mr Crawford then removed the victim’s EFTPOS card from his wallet and demanded the PIN number. The victim disclosed the PIN number. Mr Crawford left the room with the EFTPOS card while Mr Nicolle stood by the door and stabbed the steak knife into the wall to make it clear that the victim could not leave.
[6] Mr Crawford was unable to obtain any cash with the EFTPOS card and returned to the victim’s room. The victim was struck on the head, knocked to the ground and kicked. Mr Crawford stomped on the victim’s nose with his boot. The two appellants then led the victim across the road to the petrol station in an attempt to gain access to the victim’s other bank accounts. The victim was able to have a petrol pump attendant ring the police and the appellants ran off.

Discussion

[7] The appellants’ first ground of appeal is that the Judge mischaracterised the offending as equivalent to a home invasion or worse. The appellants say that in terms of Mako this was more like a street robbery with a starting range of between 18 months and three years.
[8] As to this the sentencing Judge said:

[14] I think a starting point of five years can be fully justified here because this is clearly more serious than street robbery. This was, if not literally a home invasion, an aggravated robbery in what was Mr Appleton’s home. It was his room where he lived. He was entitled to feel safe there and, in a way, it is almost worse than a home invasion, to have somebody who you invite in and attempt to befriend, turn on you and attack you in this way. So, I see this as very different from a street robbery and, while I do accept that the injuries that were inflicted were relatively modest, those that were threatened were very serious and there was actual violence as well. I also take into account that this occurred over a period of time and it was an extremely fearful experience for Mr Appleton.

[15] Weighing everything up, I have decided that the least restrictive starting point that I can possibly justify is four and a half years’ imprisonment. As I have said, I think the Crown submission is difficult to fault and I do not consider I could be criticised if I adopted a sentencing starting point of five years but, I have taken on board some of the points made by the defence counsel, particularly about the lack of premeditation, the limited use of violence and the fact that a weapon, while present, was not actually used. Had Mr Appleton attempted to leave the room there is a strong suggestion that it would have been used.

[9] We reject the submission that these events were more akin to a street robbery than a form of home invasion. The events occurred in the victim’s home. The fact that this was a room in a boarding house makes it no less his home than a standalone residence. Each of the residents in such a boarding house were entitled to treat their rooms as their home.
[10] We accept that there was no unlawful invasion of the home by either of the appellants. They were invited into the home. It is in that sense that the Judge mentioned that it was almost worse than a home invasion. The victim had befriended the two appellants and they turned on him and robbed him. While this offending did not have unlawful entry into a home as an aggravating factor, it did have a breach of the trust the victim had in the appellants in inviting them into his home. The seriousness of the offending is not lessened by the fact that the appellants also lived in the boarding house.
[11] Starting sentences of 18 months to three years are intended for street robberies involving small amounts without actual violence: Mako at [59]. Where entry into premises is involved, with a number of offenders and with violence and weapons brandished, starting points of between seven years and ten years’ imprisonment were said to be appropriate in Mako (at [58]), with a term nearer the latter for invasion of private homes. The starting point in this case was significantly below those starting points.
[12] Here, the two appellants acted in co-ordination; the attack was on a vulnerable victim and continued for some time; it included the theft of his money and an attempt to get more money through his EFTPOS card; the robbery occurred in the victim’s home where he had invited his attackers; physical violence was used and the victim was threatened with the use of a knife; and finally, the impact on the victim was significant as the victim impact report identified.
[13] The starting sentence, therefore, of four years and six months’ imprisonment for the offending was well within the range available to the Judge.
[14] As to Mr Crawford the Judge increased the start sentence by three months to reflect the appellant’s past offending. He had an extensive criminal history including significant violence. The uplift could not possibly be criticised. The Judge saw no mitigating features and imposed a sentence for four years and nine months’ imprisonment.
[15] Mr Nicolle, as the Judge observed, had an even longer list of previous convictions than Mr Crawford but with less of a history of violence. The Judge also increased his start sentence by three months which again could not be criticised.
[16] The Judge concluded that some reduction in the start sentence was justified for Mr Nicolle. He took into account a letter expressing significant remorse written by Mr Nicolle, a certificate from the Salvation Army from his time in custody, and that the appellant had been a model prisoner and was determined to turn his life around upon release. The Judge said that these factors were sufficiently special to justify a reduction in the start sentence by four months leaving a sentence of four years and five months’ imprisonment.
[17] Mr Nicolle submits he should have received a more substantial reduction from the start sentence because of his personal circumstances. In particular the appellant mentioned his remorse, the fact he paid reparation to the victim, and his efforts at rehabilitation while in prison. Mr Nicolle received a four month reduction in sentence for these personal factors. This, as the sentencing Judge recognised, was somewhat unusual. The Judge made no error of principle and properly considered all relevant factors. The reduction in sentence given to the appellant was well within the discretion available to the Judge.
[18] Mr Crawford’s complaint is that he also intends to rehabilitate himself in prison and should also have had some form of deduction from his start sentence for his personal circumstances. He mentioned his study towards a counselling qualification.
[19] The Judge made a distinction between two appellants which was open to him. It could be said that Mr Nicolle was generously dealt with by the Judge. However, a modest reduction for the special features of Mr Nicolle’s situation was within the Judge’s discretion. Mr Crawford had no equivalent circumstances and no such reduction was justified.
[20] For the reasons given, therefore, the appeal will be dismissed.

Solicitors:
Crown Law Office, Wellington