Foster v R [2012] NZCA 575 (7 December 2012)

Last Updated: 13 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA472/2012 [2012] NZCA 575

BETWEEN REBECCA ROSE FOSTER Appellant

AND THE QUEEN Respondent

CA528/2012

AND BETWEEN TAN ROPITINI Appellant

AND THE QUEEN Respondent

CA543/2012

AND BETWEEN TAI GORRIE Appellant

AND THE QUEEN Respondent

Hearing: 17 October 2012

Court: Arnold, Andrews and Dobson JJ

Counsel: R A Harrison for Appellant Foster M Starling and K J McCoy for Appellant Ropitini P J Butler for Appellant Gorrie F E Cleary for Respondent

Judgment: 7 December 2012 at 10 am

JUDGMENT OF THE COURT

1. Mr Ropitini’s appeal against sentence (CA528/2012) is allowed. The sentence of 10 years’ imprisonment is quashed and a sentence of nine years’ imprisonment is substituted, comprised as follows:
   • On counts 2 and 3, five years’ imprisonment, to be served concurrently.
   • On counts 5, 6, 7 and 8, four years’ imprisonment, concurrent within themselves but cumulative on the sentence on counts 2 and 3.

The minimum period of imprisonment of five years’ imprisonment is quashed.

2. Mr Gorrie’s appeal against sentence (CA543/2012) is allowed. The sentence of five years’ imprisonment is quashed and a sentence of four years’ imprisonment is substituted, comprised as follows:
   • On count 2, two years’ imprisonment.
   • On count 5, two years’ imprisonment, to be served cumulatively on the sentence on count 2.

100. Ms Foster’s appeal against sentence (CA472/2012) is allowed. The sentence of two years, six months is quashed and a sentence of two years, one month’s imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] The three appellants, along with two co-offenders, faced a variety of charges relating to offending that occurred in February and May 2011. They entered guilty pleas as follows:

(a) Mr Ropitini: two counts of aggravated robbery, two counts of assault with intent to rob, one count of burglary and one count of threatening to cause grievous bodily harm.

(b) Mr Gorrie: one count of aggravated robbery and one count of assault with intent to rob.

(c) Ms Foster: one count of assault with intent to rob.

[2] MacKenzie J imposed the following sentences:[1]

(a) Mr Ropitini: 10 years’ imprisonment with a minimum period of imprisonment (MPI) of five years.

(b) Mr Gorrie: five years’ imprisonment.

(c) Ms Foster: two years, six months’ imprisonment.

[3] The appellants now appeal against the sentences imposed upon them.

Factual background

(i) February offending

[4] There were two separate incidents on 9 February 2011, the victims being Messrs Gordon and Morris. Mr Ropitini met with Mr Gordon on 4 February and discussed the possibility of supplying him with $6,000 worth of cannabis. Mr Gordon then contacted Mr Morris to see whether he would finance the purchase. When Mr Morris said he would, the two of them agreed to travel to Blenheim to complete the deal. In fact, however, Mr Ropitini did not intend to supply them with cannabis – he simply intended to rob them of the $6,000. Mr Ropitini instructed Mr Gorrie, Ms Foster and another co-offender, Mr Marzola, to carry out the robbery when they met Messrs Gordon and Morris, ostensibly to consummate the deal.
[5] At approximately 1 am on 9 February, Mr Gorrie, Ms Foster and Mr Marzola met Messrs Gordon and Morris in a car park in Blenheim. They asked Messrs Gordon and Morris to follow them to a gravel lay-by outside Blenheim to complete the deal. When they arrived there they asked one of the two to go with them in their car to another location to complete the deal. As Mr Morris was the one with the money, he decided to go with them. Ms Foster drove the car, with Mr Marzola in the front passenger seat and Mr Gorrie in the rear seat beside Mr Morris. Mr Morris showed the occupants the $6,000, anticipating that the deal was about to be consummated. However, as they continued to drive, Mr Morris became concerned that he was being set up. They stopped at a remote location, where Mr Marzola threatened Mr Morris with a tyre iron and demanded the money. However, Mr Morris escaped by jumping down a hill into the bush and hiding. He sent a text message to Mr Gordon, who later came with some friends and picked him up. Messrs Gordon and Morris then returned to Mr Gordon’s home in Kaikoura.
[6] Throughout the incident, Mr Ropitini and Mr Marzola were communicating via text messages about the plan. At the same time, Mr Ropitini was sending text messages to Mr Gordon about the deal, even after Mr Morris’ escape.
[7] Later that day Mr Ropitini contacted Mr Gordon and assured him that he had nothing to do with the attempted robbery. He said that they could complete the drug deal in Kaikoura. Messrs Ropitini and Marzola, together with the fifth co-offender, Mr Fotu, and one other person, travelled by car to Mr Gordon’s home in Kaikoura. Mr Marzola took a baseball bat in the car, having attempted unsuccessfully to acquire a firearm also. When they arrived, Mr Ropitini went into the house, but Mr Morris refused to show him the money or to deal with him. Mr Ropitini took Mr Gordon outside and attempted to persuade him to talk Mr Morris round, but Mr Gordon refused. Mr Marzola then got out of the car and attacked Mr Gordon. Mr Gordon broke free and ran for help but was tackled by Mr Fotu. Messrs Ropitini and Marzola then kicked and punched Mr Gordon while Mr Fotu went inside the house and stole a PlayStation 3. When Mr Gordon called for help, some of his friends came out and were confronted by Mr Fotu wielding the baseball bat. Because they thought that the arrival of the police was imminent, Mr Ropitini and his associates fled the scene but were apprehended shortly afterwards. Mr Gordon was hospitalised after the attack, suffering bruising and concussion.

(ii) May offending

[8] Messrs Ropitini, Gorrie and Fotu, together with an associate, formed a plan to rob a house in Glover Crescent, Blenheim, to obtain drugs, money and other property. Apparently, one of the occupants was known to them. The plan was to take two vehicles: Messrs Ropitini and Fotu would go into the house to commit the burglary while Mr Gorrie and the associate kept a lookout from the other vehicle.
[9] At 9 am on 2 May 2011, an occupant of the house, Mr Blackmore, noticed Mr Gorrie’s vehicle drive slowly past the house. Shortly after another vehicle arrived at the house. Messrs Ropitini and Fotu got out and ran to the front door, where they were met by Mr Blackmore. Mr Ropitini pushed Mr Blackmore aside, saying that they were patched Mongrel Mob members and that, if Mr Blackmore involved the police, the Mongrel Mob would “smash” him. Mr Ropitini also told Mr Blackmore to tell his flatmate that they wanted $2,500 and would be back to collect it. While this was going on, Mr Fotu searched the house and garage for drugs. Finding none, he stole some other items from the property. Mr Gorrie and the associate kept watch all the while.
[10] Messrs Ropitini and Fotu later drove to a property at Litchfield Street, Blenheim. They went to the front door where they were met by a 16-year-old male who asked them what they wanted. They said they were looking for a particular person. Messrs Ropitini and Fotu threatened the young man and pushed their way into the house. Mr Ropitini kept the victim confined to a chair while Mr Fotu located and stole a chainsaw belonging to another occupant of the address. They then left the property, telling the victim that they were patched members of the Mongrel Mob. Later that day when the victim and a female flatmate were driving along the road, Mr Ropitini followed them in his vehicle and signalled for them to pull over. They pulled over and got out of their vehicle. Mr Ropitini demanded to know where the person he had been seeking earlier was and asked the victim if he had gone to the police. The victim’s flatmate said that they did not know the whereabouts of the person and asked that they be left alone. Mr Ropitini became agitated and threatened the flatmate. He ultimately returned to his vehicle after telling the victim and his flatmate that he was going to ram their car. He drove his car at the victim’s car, stopping just short of it, and then drove off.

Summary

[11] Accordingly:

(a) Mr Ropitini was involved in all of the offending.

(b) Mr Gorrie was involved in the first incident on 9 February 2011 and in the first incident on 2 May 2011.

(c) Ms Foster was involved in the first of the February incidents.

[12] We will not deal with the Judge’s sentencing at this point. Rather, we will deal with it in the context of discussing each of the appeals in turn.

Mr Ropitini’s appeal

[13] MacKenzie J observed that Mr Ropitini had played an active role in both the planning and execution of all the offending. The Judge considered that an appropriate starting point for the two counts of assault with intent to rob resulting from the February offending was eight years’ imprisonment. For the counts resulting from the May offending (two counts of aggravated robbery, and one count each of burglary and threatening to cause grievous bodily harm) he took a starting point of seven years. These were to be cumulative. The Judge then reduced the total cumulative starting point from 15 to 11 years’ imprisonment to reflect the totality principle.[2] The Judge applied an uplift of nine months to take account of Mr Ropitini’s 43 previous convictions (including four convictions for burglary and one for aggravated robbery) and of the fact that the May offending occurred while Mr Ropitini was on bail. Finally, the Judge deducted one year, nine months by way of discount for Mr Ropitini’s guilty plea (a discount of around 15 per cent). This produced an end sentence of ten years’ imprisonment. The Judge imposed an MPI of five years to reflect Mr Ropitini’s major role in offending that he considered to be serious.
[14] For Mr Ropitini, Mr Starling raised three points:

(a) the starting point was excessive;

(b) the Judge erred in his application of the totality principle; and

(c) an MPI was not justified in the circumstances.

Starting point and totality

[15] Mr Starling challenged only the starting point adopted for the February offending, namely eight years. There is a difficulty with this approach, however. Through a series of steps, MacKenzie J adopted a starting point of 11 years for all the offending. What really matters, then, is not the individual steps, that is, the individual starting points and the discount given for totality, but the figure ultimately arrived at, namely 11 years’ imprisonment. To illustrate the point, the Judge deducted four years from the combined starting point of 15 years to reflect totality. This was a generous allowance. A piecemeal approach that focuses on one individual element rather than the totality carries the risk that an artificial result will be reached. Accordingly, we will approach the matter from an overall perspective.
[16] As we have said, the two assault with intent to rob charges arose out of the two incidents on 9 February and the remaining charges (two counts of aggravated robbery and one count each of burglary and threatening to do grievous bodily harm) out of the May incidents. The guideline judgment for aggravated robbery is R v Mako.[3] In the present case there were multiple robberies or attempts to rob; each involved some planning and preparation; each involved multiple offenders; in each case, there were threats of violence and intimidation of the victims; the impact on two of the victims was particularly significant as it contributed to their decision to leave New Zealand; and in the two February incidents a weapon was produced (the tyre iron and the baseball bat); in the second of the February incidents, blows were aimed at Mr Gordon’s head, albeit not with a weapon. All these were aggravating factors. Mr Ropitini was the instigator of all the offending, and although he was not present at the first of the 9 February incidents, he kept in touch with what was happening by text message.
[17] On the other hand, these incidents involved, as much as anything, stand-over tactics. As criminal enterprises, they were unsuccessful. To the extent that violence was used (as opposed to threats of violence), it was at the lower end of the scale.
[18] This Court said in Mako:

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

The offending at issue had these characteristics to a greater or lesser extent, although no single incident combined them all. On balance, we consider that the starting point of 11 years was within range in this case, albeit at the uppermost limit.

[19] Turning to personal aggravating and mitigating factors, the Judge imposed an uplift of nine months to reflect Mr Ropitini’s criminal record and the fact that the May offending was committed while Mr Ropitini was on bail. Mr Ropitini was 23 years of age and had 43 previous convictions. Most of his convictions related to comparatively minor offending. However, as the Judge noted, there were four convictions for burglary and one for aggravated robbery. Mr Ropitini had been sentenced to home detention on these charges. We agree that a modest uplift was required in this case, especially because the May offending occurred while Mr Ropitini was on bail. However, we consider that nine months is excessive, particularly having regard to the fact that the 11 year starting point adopted by the Judge was at the extreme end of the range. Accordingly, we impose an uplift of three months to reflect personal aggravating factors.
[20] Finally, we consider that Mr Ropitini should have received a modest discount for personal mitigating factors. Mr Ropitini has two young children to whom he is attached and impressed the pre-sentence report writer as being articulate and a person “of some intelligence and potential”. He is still a young man. The pre-sentence report notes that Mr Ropitini has drug and alcohol abuse problems that he needs to address and that, if he does not do so, he will pose a serious risk of re-offending. He will have the opportunity to address these problems in the course of his imprisonment and, if he is successful, he is likely to pose little risk in the future. Accordingly, and despite the fact that Mr Ropitini did not take the opportunity that was previously given to him to turn his life around, we consider that Mr Ropitini should have been given a discount of six months for personal mitigating factors. As a consequence, we consider that the starting point should be reduced by six months to reflect this. This reduces the sentence to 10 years, nine months. Applying the same deduction for the guilty plea as the Judge granted, namely one year, nine months, produces an end sentence of nine years’ imprisonment.

MPI

[21] Section 86(2) of the Sentencing Act 2002 provides that a court may impose an MPI if it is satisfied that the usual parole eligibility period is insufficient for the purposes of accountability, denunciation, general or specific deterrence or the protection of the community. The Judge was satisfied that the usual non-parole period was insufficient to meet the purposes of denunciation and deterrence.
[22] Mr Starling submitted that there was nothing exceptional about Mr Ropitini’s offending to warrant the imposition of an MPI. However, as Ms Cleary for the Crown pointed out, this Court has put the proper approach as follows:[4]

... where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, the Court may confer a degree of reality on the sentence and the overall outcome by imposing a minimum period of imprisonment.

[23] For the reasons set out above concerning Mr Ropitini’s personal circumstances, we do not consider that an MPI is warranted in this case. The nature of the offending is, in our view, adequately recognised by the end sentence of nine years. As we have said, Mr Ropitini is still a young man, with potential. We consider that he should be encouraged to make the effort to realise that potential even though he has not done so in the past. The best way to incentivise him is to afford him the opportunity to demonstrate to the Parole Board after he has served a third of his sentence that he is undertaking meaningful change in his life, so that he will not pose a significant risk to the community in the future.
[24] Accordingly, we allow Mr Ropitini’s appeal. The sentence of 10 years’ imprisonment is quashed and a sentence of nine years’ imprisonment is substituted. The MPI of five years is quashed.

Mr Gorrie’s appeal

[25] In relation to Mr Gorrie, MacKenzie J said:[5]

... you were in both the February and May offending, but played a relatively minor role in each. I would adopt a starting point of four years for your role in each of the February offending and three years for your role in the May offending, giving a cumulative starting point of seven years. Adjusting that for totality, I would reduce the starting point by one year and six month[s], to give a total starting point of five years and six months.

[26] Given Mr Gorrie’s record (he had almost 100 convictions, including Youth Court convictions for offences including dishonesty, burglary and violence) and because the May offending occurred while he was on bail, MacKenzie J imposed an uplift of six months. He then applied a reduction of one year to reflect Mr Gorrie’s guilty plea, resulting in an end sentence of five years’ imprisonment.
[27] On behalf of Mr Gorrie, Mr Butler submitted that Mr Gorrie was involved in only the first of the February incidents, as the Judge recorded at [28]–[29] of his sentencing notes. However, when sentencing Mr Gorrie, the Judge referred to him as being involved in both of the February incidents.[6] Looking at the first of the February incidents, Mr Butler submitted that Mr Gorrie was a secondary party and that, while there were aggravating features to the offending, the victim, Mr Morris, had not been struck with the tyre iron and had escaped with his funds intact. The endeavour failed. He pointed to the disparity with Ms Foster, who was also involved as a secondary party in the first February incident but received a starting point of three years’ imprisonment.
[28] On the basis of the passage quoted at [25] above, the Judge does seem to have overlooked the fact that Mr Gorrie was involved only in the first of the February incidents. Like Ms Foster, he was not a central player in the incident. While we accept that Mr Gorrie’s culpability is greater than Ms Foster’s, we consider that his starting point should have been less than four years. Given the conclusion that we have reached concerning Ms Foster’s appeal, we fix that starting point at three years’ imprisonment.
[29] There was no challenge to the Judge’s starting point of three years for Mr Gorrie’s involvement in the May offending. The result is a cumulative starting point of six years’ imprisonment. To this we apply the reductions and uplift applied by the Judge – a reduction of 18 months to reflect totality, an uplift of 6 months to reflect personal aggravating factors and a discount of 12 months to reflect the guilty plea. That produces an end sentence of four years’ imprisonment.
[30] Accordingly, we allow Mr Gorrie’s appeal. We quash his sentence of five years’ imprisonment and substitute a sentence of four years’ imprisonment.

Ms Foster’s appeal

[31] In relation to Ms Foster, MacKenzie J adopted a starting point of three years for her involvement in the first February incident. He did not consider that there were any personal aggravating circumstances requiring an uplift. He gave a discount of six months to reflect Ms Foster’s guilty plea, producing an end sentence of two years, six months’ imprisonment.
[32] On behalf of Ms Foster, Mr Harrison argued that the starting point was too high given the circumstances. He submitted that Ms Foster was present in the car simply because her boyfriend at the time, Mr Gorrie, was unable to drive the car as he did not have a licence. He submitted that Ms Foster thought that they were simply doing a drug deal and did not appreciate that there would be an attempt to rob Mr Morris until it happened. He said that for an assault with intent to rob of this sort a starting point in the vicinity of two to three years is appropriate. Given Ms Foster’s secondary role and lack of knowledge as to what was planned, there should have been a significantly lower starting point than that adopted in the case of Mr Gorrie. Further, she should have received greater credit for her guilty plea and should also have received credit for the 15 months she spent on bail, subject to a curfew. The end result should have been a community-based sentence of some sort.
[33] We start from the position that Ms Foster entered her guilty plea on the basis of a summary of facts which described her role as a secondary party to the offending. Accordingly, she must be treated as a knowing party to the offending, albeit in a secondary role. Given her minor role, we consider that a starting point of three years’ imprisonment was too high. The appropriate starting point is, in our view, two years, six months. We would allow a discount of five months for the guilty plea, to produce an end sentence of two years, one month. We do not accept that any further discount is required to reflect the amount of time that Ms Foster spent on bail.
[34] Accordingly, we allow Ms Foster’s appeal. We quash her sentence of two years, six months’ imprisonment and substitute a sentence of two years, one month’s imprisonment.

Decision

[35] Accordingly:

• (a) Mr Ropitini’s appeal against sentence (CA528/2012) is allowed. The sentence of 10 years’ imprisonment is quashed and a sentence of nine years’ imprisonment is substituted, comprised as follows:
  • On counts 2 and 3, five years’ imprisonment, to be served concurrently.
  • On counts 5, 6, 7 and 8, four years’ imprisonment, concurrent within themselves but cumulative on the sentence on counts 2 and 3.

The minimum period of imprisonment of five years’ imprisonment is quashed.

(b) Mr Gorrie’s appeal against sentence (CA543/2012) is allowed. The sentence of five years’ imprisonment is quashed and a sentence of four years’ imprisonment is substituted, comprised as follows:

• On count 2, two years’ imprisonment.
• On count 5, two years’ imprisonment, to be served cumulatively on the sentence on count 2.

(c) Ms Foster’s appeal against sentence (CA472/2012) is allowed. The sentence of two years, six months’ imprisonment is quashed and a sentence of two years, one month’s imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Ropitini [2012] NZHC 1927.
[2] Sentencing Act 2002, s 85(2).

[3] R v Mako [2000] 2 NZLR 170 (CA). In R v Whata [2008] NZCA 204 at [16]–[17] this Court said that guidance could be taken from Mako when sentencing for assault with intent to rob, with appropriate adjustment.
[4] R v Gordon [2009] NZCA 145 at [15].
[5] At [64].
[6] See the extract from the sentencing notes quoted at [25] above.