[1] Grant Carpenter appeals against a sentence of two years and six months’ imprisonment imposed upon him in the District Court at Napier following a plea of guilty to one count of attempted aggravated robbery.[1]
[2] Mr Carpenter’s appeal is advanced on the ground that the sentence was manifestly excessive and that it should have been one of 18 months’ imprisonment.
[3] As this appeal is fact specific and does not raise any important issue of principle, it is appropriate to deliver judgment orally.

District Court

[4] One afternoon in November 2008 Mr Carpenter parked his car near a Four Square shop in Napier. He had earlier changed the vehicle registration plates. He disguised himself with a beanie together with a scarf and sunglasses. He carried a tomahawk.
[5] Mr Carpenter then entered the shop. He demanded that the two shop owners, who were the only occupants, open the till. When they refused, Mr Carpenter threatened them with the tomahawk by holding it above his head. The owners escaped. Mr Carpenter ran from the premises and escaped in his vehicle but was identified by members of the public.
[6] It was common ground that Mr Carpenter did not steal any items from the shop.
[7] Mr Carpenter was then aged 29 years. He was apparently suffering from an addiction to a range of drugs including methamphetamine. He had previous convictions. The most recent, for dealing in methamphetamine in September 2007, had resulted in a sentence of two years’ imprisonment.
[8] The sentencing Judge, Judge Moore, fixed a starting point of three years’ imprisonment. He came to that figure by adopting an appropriate starting point of four years’ imprisonment for the substantive offence of aggravated robbery. He applied the sentencing tariff decision in R v Mako.[2] He reduced the starting point by a year because the offence was inchoate or incomplete. He allowed discounts of four months for a late guilty plea and two months for Mr Carpenter’s payment of $1,000 for emotional harm reparation. The end sentence was two and half years.

Appeal

[9] Mr Jensen’s principal submission on appeal, as it was apparently in the District Court, is to the effect that, because the Crimes Act 1961 sets a maximum penalty for an attempt to commit a crime at one half of the maximum punishment for the substantive offence, by parity of reasoning the Judge should have reduced the starting point for Mr Carpenter’s sentence on the same basis from four years to two years.[3] Thus, he says, the Judge was wrong in principle to allow a deduction of one year. He describes it as treating the attempt as what he calls a mitigating factor. He says that a 50 per cent scaling process must always be applied.
[10] Originally, we understood from Mr Jensen’s written synopsis that he was advancing this proposition as an absolute or generic approach to sentencing for all attempted crimes. However, in oral argument this afternoon he has limited its application to the specific offence of attempted aggravated robbery.
[11] Additionally, Mr Jensen says, the allowance given for emotional harm reparation was insufficient, given that the offer to pay was a rare demonstration of contrition and should have been recognised by a reduction of (three or as varied in oral argument this afternoon, four) rather than two months.

Decision

[12] As Ms Laurenson submits for the Crown, sentencing for attempted crimes requires an overall assessment of the gravity of the actual offending and its consequences. The proximity of the offence to completion is also relevant. There is no sentencing principle which requires a Judge to apply to an attempted crime a rigid scale of half the appropriate starting point for the complete offence, whether for attempted aggravated robbery or any other attempted offence. Sentencing in this area is very much an exercise in evaluating the relationship between the attempt and the substantive crime.
[13] The fundamental flaw in Mr Jensen’s proposition was exposed in oral argument. When taxed, he submitted that his scaling principle would apply regardless of the facts. So, if Mr Carpenter had been apprehended outside the shop without entering or using a weapon or approaching the till, he would have received the same sentence as if he had completed the attempt in the manner of this offence. Universal adoption of this approach would lead to sentencing anomalies and unfairness; it would undermine the Judge’s obligation to assess the facts according to principles which allow for gradations of severity or culpability in fixing the appropriate sentence.
[14] While we accept that the Judge did not articulate his application of the orthodox approach, there is no challenge to his adoption of a four year starting point for the notionally completed offence of aggravated robbery. We are satisfied that the reduction actually applied of one quarter for the incomplete nature of the offending was appropriate. Mr Carpenter’s actions were as proximate as they could possibly be to completion. As the Judge observed, if Mr Carpenter “had taken so much as a lollipop” he would have been guilty of the full offence. In our judgment the starting point of three years cannot be challenged.
[15] Also it is irrelevant that the Judge only allowed a discount of two instead of three or four months for the emotional harm reparation. When mitigating factors are considered, Mr Carpenter may be counted as fortunate to have received a deduction of four months from the starting point for his guilty plea given its lateness and his failure to appear at a previous trial. Any arguable defect in the treatment of one mitigating factor was offset by the Judges treatment of another.
[16] Ultimately the question is whether or not the final sentence of two years and six months’ was manifestly excessive. We are not satisfied that the sentence was erroneous.

Result

[17] Mr Carpenter’s appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Carpenter DC Napier CRI-2009-041-83, 16 July 2010.
[2] R v Mako [2000] 2 NZLR 170.

[3] Crimes Act 1961, s 311.

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