Joblin v R [2011] NZCA 585 (21 November 2011)

Last Updated: 30 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA502/2011 [2011] NZCA 585

BETWEEN CARL ISAAC JOBLIN Appellant

AND THE QUEEN Respondent

Hearing: 9 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: P B McMenamin for Appellant J E Mildenhall for Respondent

Judgment: 21 November 2011 at 2.30 pm

JUDGMENT OF THE COURT

Order made extending the time for appeal but the appeal is dismissed.
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REASONS OF THE COURT
(Given by Miller J)

Introduction

[1] The appellant was sentenced to an effective term of two years seven months imprisonment for his leading role in violent offending in which the victim was detained, beaten and subjected to threats and extortion. He appeals his sentence, saying that the starting point was too high and insufficient discount was given for mitigating factors. In the result, he says, his sentence was too long relative to that of the other principal offender, Raymond Richard Keenan, who had pleaded guilty to additional charges arising from the same incident yet was sentenced to two years four months imprisonment.
[2] There were four offenders, the other two being female associates (Sarrah Kylie Floyd and Stephanie Jane McGrath) of Mr Joblin and Mr Keenan. Mr Keenan was sentenced in June 2010 after a sentencing indication.[1] The other offenders all pleaded guilty on the second day of their trial after the Crown had abandoned some of the charges to which Mr Keenan had pleaded guilty. They were sentenced together on 16 December 2010.[2]

The facts

[3] In September 2009 the victim associated with the offenders several times. He would buy them alcohol and cigarettes. On 27 September they chose to attack him, apparently for monetary gain. Judge Callaghan’s summary of the incident is not controversial:

[11] For the complainant things started off innocently enough at your flat Miss McGrath. You all went with him so he could fill up his car and then he drove you initially to Dunsandel. It would be inappropriate for me not to take into account that following the initial trip in the car to the service station he, in my assessment of the summary of facts and all the information I have had, was not effectively free to leave. While he was not illegally detained, and I mean whilst you are not guilty of kidnapping him at the earlier point, in my assessment he was in de facto detention because he was not free to leave but of course the kidnapping or the unlawful detention charge does not arise until he tried to escape.

[12] You went to Dunsandel and then to Rakaia. He went into the Rakaia Service Station and this was after Mr Joblin had assaulted him somewhere in the Dunsandel region on the way there. He was told to go in to buy cigarettes. His transaction was declined and then you went on to Ashburton and he was told to drive to the Ashburton Hotel, clearly to get some alcohol. It was closed. He was then told to drive to the New World Supermarket. He was told to get money out of the cash machine which was out of service and then you drove to the MSA Bottle Store in Havelock Street, Ashburton. He was told to go in and buy some liquor. He got out of the vehicle, went to the door, found it was closed, ran across to the police station. That was also closed. He banged on the door. He tried to get attention, picked up the after hours telephone number and at that point you, Mr Joblin, along with Mr Keenan got out of the vehicle, grabbed him from outside the police station, pulled him into the back seat and drove off. You went to South Street, Ashburton. The vehicle was parked up with the lights off. In this secluded industrial area you, Mr Joblin, and Mr Keenan proceeded to punch the complainant about the head and the body. He lost consciousness and then at the end of this when he regained consciousness, Mr Keenan, who has been sentenced, presented a knife to him and made a threat to him. The knife was located later.

[13] You, Mr Joblin, then told the complainant that you were taking him to an ATM machine to get $400 out and the vehicle was then driven by you to the East Street BNZ ATM and Miss McGrath accompanied the complainant to the machine. He was unable to draw any cash as it was an overdrawn account and then he was told he would have to fill the car up with petrol and you drove him to the Mobil Service Station in Ashburton. He got in the door even though you, Mr Joblin, tried to stop him doing that or at least you were going in with him and the only inference I can draw is you were trying to stop him doing that. When you got in you were asked to leave by the service station attendant. The complainant had told the service station attendant to ring the police. The police arrived. Miss Floyd you then drove the complainant’s vehicle taking it back towards Christchurch. You were stopped by the police and processed obviously for drink driving.

[4] It will be seen that the appellant played a central role in the incident at the Ashburton Police station and the events that followed.

Mr Keenan’s sentencing

[5] Mr Keenan was sentenced by the same Judge on two counts of kidnapping, two of demanding with menaces, one of assault, one of threatening to cause grievous bodily harm, one of injuring with intent to cause grievous bodily harm, and one of being party to the unlawful taking of the motor vehicle. The two kidnapping charges respectively alleged detention between Dunsandel and Ashburton, and at Ashburton. A starting point of four and a half years imprisonment was adopted in a sentencing indication given on 30 April 2010, but that was reduced on sentencing to four years, the Judge having accepted that Mr Keenan was not necessarily the mastermind behind the offending. In mitigation, a great deal of remorse had been expressed by Mr Keenan. He had attended a Stopping Violence programme of his own volition, and he had been on very restrictive bail conditions. He had intimated a desire to plead guilty at an early stage, while some exploratory work was being undertaken by his counsel, and the Judge was prepared to give him a 28 per cent discount based on the judgment of this Court in R v Hessell.[3] His effective sentence was two years and four months imprisonment.

The appellant’s sentencing

[6] The appellant initially faced substantially the same charges to which Mr Keenan pleaded guilty; in particular, there were two charges of kidnapping, two of demanding with menaces, and one of injuring with intent to cause grievous bodily harm. But after his trial began the Crown agreed to withdraw one charge of kidnapping, one of assault and one of demanding with menaces, and the charge of injuring with intent to cause grievous bodily harm was reduced to one of injuring with intent to injure. That left one charge of kidnapping, one of injuring with intent to injure, one of assault and one of demanding with menaces, together with two summary charges (breach of bail and intentional damage), to all of which the appellant pleaded guilty.
[7] After summarising the facts the Judge noted that aggravating features of the offending were the presence of four offenders, each complicit in the others actions. There was some premeditation for each offender once the complainant was hauled into the car and taken away. He accepted that the appellant did not use the knife or know that Mr Keenan was going to present it.
[8] Naturally Mr McMenamin sought to persuade the Judge that the reduction in the number and severity of charges justified a lower starting point than that applied to Mr Keenan. In particular, the maximum sentence for injuring with intent to injure was only five years. The Judge took the view, however, that the overall criminality of the offending was not much altered. We refer for example to paragraph [11] of his sentencing notes,[4] in which he made the point that there was really one enduring detention which began at Dunsandel. He found that the appellant was “not far below Mr Keenan in responsibility save for the difference in the assault charge or the injuring with intent charge and the reduction in the number of charges”.[5] He focused on the lead incident, which he saw as the incident outside the Ashburton Police Station, and the subsequent assault in the car and the detention. As will be apparent from his summary of the facts at [12] and [13],[6] the appellant was heavily involved in those events. He adopted a starting point of three years and three months, nine months less than that for Mr Keenan, and increased it by one month for the summary charges.
[9] In mitigation, some allowance was made for remorse, although the Judge found it hard to gauge the quality of the appellant’s remorse and was satisfied that it did not match that of Mr Keenan. Some allowance was made for restrictive bail conditions and a generous discount of 15 per cent was given for the guilty pleas, applying the Supreme Court’s decision in Hessell v R.[7]

The starting point

[10] Mr McMenamin emphasised that the appellant feels a sense of injustice at ending up with a longer sentence than Mr Keenan although he pleaded guilty to fewer charges, one of which was materially less serious. He argued that a starting point of two years was warranted, half that in Mr Keenan’s case, because Mr Keenan had pleaded guilty to two kidnappings against one and an offence of injuring with intent to cause grievous bodily harm, which attracted a maximum of 10 years imprisonment.
[11] We see no error in the Judge’s approach. He correctly made an overall assessment of the criminality of each offender. Mr McMenamin did not suggest that he was wrong to focus on particular parts of the overall series of events when assessing culpability. In relation to the kidnappings, the Judge correctly concluded that in substance there was only one continuing detention. The starting point was materially lower for the appellant than it was for Mr Keenan, reflecting the latter’s use of the knife and the reduction in charges.

Mitigating factors

[12] There is nothing in the submission that the Judge understated the appellant’s remorse relative to that of Mr Keenan. The latter demonstrated tangible acceptance of responsibility by offering to plead guilty at an early stage. We were told that there had been negotiations with the Crown, but there is nothing to show that the appellant ever offered before trial to plead guilty to the charges on which he was eventually convicted. It was open to the Judge to conclude that Mr Keenan’s remorse had been tangibly demonstrated in other ways as well, and was deeply felt. Against that, the probation officer in the appellant’s case reported that while he appeared genuinely remorseful he also minimised the offending. The appellant wrote to the Judge expressing remorse, but his letter emphasised the impact of the offending and restrictive bail conditions on himself and his family.
[13] Finally, we observe that much of the difference between the effective sentences imposed upon the two men is attributable to the much larger guilty plea discount which the Judge appropriately applied to Mr Keenan.

Decision

[14] We are not persuaded that the appellant’s sentence was manifestly excessive. The notice to appeal was filed out of time but the delay is explained. An order is made extending the time for appealing but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Keenan DC Timaru CRI-2009-009-14999, 9 June 2010.
[2] R v Joblin DC Christchurch CRI-2009-009-14999, 16 December 2010.
[3] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[4] Quoted at [3], above.
[5] At [23].
[6] Quoted at [3] above.
[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.