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Court of Appeal of New Zealand |
Last Updated: 20 June 2013
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson
J)
Introduction
[1] The Solicitor-General seeks leave to appeal against a sentence on the basis that it is manifestly inadequate. The sentence imposed, for a moderately serious aggravated robbery was nine months’ home detention with a cumulative sentence of two months’ home detention for an unrelated burglary.[1] It was argued for the SolicitorGeneral that two cumulative sentences totalling at least two years and four months’ imprisonment were required.
The offending
[2] On an afternoon in May 2011, the respondent (Mr Fidow) and an accomplice stationed themselves at an appropriate vantage point near a suburban shopping complex in Auckland. Mr Fidow saw a slightly built 82 year old woman, who was the victim of his aggravated robbery, leaving a hair salon and crossing the car park of the complex. Mr Fidow pushed the victim to the ground, attempting to remove a handbag that the victim was carrying over her shoulder. The victim held on to the bag but Mr Fidow pulled the bag with sufficient force to get it out of her grasp. He then ran from the scene with the bag. The victim suffered a broken hip that required surgery, a broken wrist, bleeding on the side of her nose and facial bruising.
[3] The victim was in hospital for approximately one month, requiring reconstructive surgery on her wrist and hip. A victim impact statement from her described the attack as having substantial and permanent adverse effects in that she has lost her independence, is unable to undertake tasks with the energy she had before, and is disabled.
[4] Mr Fidow’s offending was captured on CCTV. He was apprehended in June 2011 and admitted the robbery. He assisted Police by describing where the victim’s handbag had been disposed of. The handbag was then recovered although the $600 cash, which the victim described as having been her life’s savings, was not recovered. We were told that some money remained in the bag when it was retrieved, although Ms Inwood suggested that may have been because it was in a concealed compartment.
[5] Mr Fidow’s explanation for the aggravated robbery was that he needed money to buy alcohol and it appears that he used at least some of the money on the evening of the robbery for that purpose.
[6] The charge was not dealt with promptly in the District Court. At the time of the aggravated robbery in May 2011, Mr Fidow was on bail in respect of charges of unlawful interference with a motor vehicle, burglary and failure to answer District Court bail. Thereafter he had a chequered bail history and 14 months after the offending on 17 July 2012 Mr Fidow was given a sentencing indication in relation to the aggravated robbery charge.
[7] On that same afternoon, Mr Fidow, together with two associates, committed a burglary of a residence in the same vicinity in which the aggravated robbery had occurred the previous year. He was apprehended near the scene.
[8] Mr Fidow then pleaded guilty to the aggravated robbery on 20 July 2012 and was remanded in custody for sentencing on 30 August 2012. However, Judge P A Cunningham adjourned the sentencing on three occasions[2] before the sentencing was completed on 18 February 2013. By that time, Mr Fidow had also pleaded guilty to the burglary charge.[3]
The sentencing
[9] It appears that the Judge’s major concern in adjourning the sentencing was to have Mr Fidow assessed for an addiction to alcohol, and thereafter for him to commence a residential programme intended to address that addiction. By the time he was sentenced, Mr Fidow had been bailed to Odyssey House and was undergoing a residential course of treatment there. The sentencing Judge had a recent report on his somewhat mixed progress in that programme.
[10] Consistently with the sentencing indication, the Judge set a starting point in reliance on the category of street robberies provided for in R v Mako.[4] That decision recognised that starting points between 18 months’ and three years’ imprisonment will be appropriate where the robbery occurs with bullying or menacing conduct, but there is no actual violence. Higher starting points are likely where, as here, there was physical enforcement of threats of violence in the course of the robbery.
[11] The sentencing Judge identified as aggravating features the extent of harm and loss that was caused to the elderly victim, the fact that violence was used and that there was a measure of premeditation. The Judge had observed in her sentencing indication:[5]
It has all got a feel about it of lying in wait and, of course, a very vulnerable victim was selected by Mr Fidow.
[12] The Crown argued as appropriate comparators the decisions of this Court in R v Ha’apai and R v Taimanu.[6] In Ha’apai, this Court upheld as “stern” a six and a half year starting point for a somewhat similar aggravated robbery which took into account Mr Ha’apai’s previous convictions. Mr Ha’apai had observed his victim receiving foreign currency and travellers’ cheques whilst they were standing at adjoining counters in a bank. The victim was an 85 year old woman who walked with the assistance of a walking frame. She was driven from the bank by her son, followed by Mr Ha’apai. Once she was out of her son’s car at her home, Mr Ha’apai pushed her from behind whilst she was negotiating a concrete path to her door. He took her handbag which contained US$2,000 in travellers’ cheques and €1,500 cash, escaping with the aid of an associate who was in a waiting vehicle. The victim sustained a fractured nose, a grazed and swollen forehead, two broken bones in her right hand and bruising and swelling in her left hand. She died six days after the attack whilst in hospital being treated for the injuries, but from a cause unrelated to the injuries.
[13] In Taimanu, the offender observed a 74 year old man winning $150 from a gaming machine. She followed the man into the men’s toilets and, after he had emerged from a cubicle there, grabbed the man, thrust his head against the wall, snatched his wallet and ran away. The sentencing Judge had adopted a starting point of three years and nine months, and on appeal a starting point of two years nine months’ imprisonment was adopted.
[14] Judge Cunningham considered Mr Fidow’s offending fell between these two comparators and adopted a starting point of three years and nine months’ imprisonment.
[15] Prior to the aggravated robbery, Mr Fidow had convictions for unlawful interference with a motor vehicle, burglary and a failure to answer District Court bail. The Crown did not seek an uplift for those previous convictions.
[16] The sentencing Judge first allowed a discount of 10 per cent for Mr Fidow’s rehabilitation. This depended on the report from Odyssey House suggesting that he was making some progress in a residential course there. It was implicit that the Judge wished to encourage that rehabilitation. The Judge had formed the view that Mr Fidow’s addiction to alcohol was a significant contributing factor in his offending, and therefore that treatment for the addiction was critical in minimising the risk of re-offending.
[17] The sentencing Judge next allowed a 10 per cent discount for Mr Fidow’s relative youth and for remorse. At the time of the aggravated robbery he had recently turned 18, and was 19 by the time he was sentenced. The sentencing Judge accepted that he was remorseful,[7] without explicit reference to any basis for that finding. Mr Fidow had presented the Court with a handwritten letter recording that he was remorseful and that he was seeking help “to change my bad greedy ways not only for myself but also for my family”. The Probation Officer’s Advice to the Court reported that Mr Fidow indicated remorse for the victim, but did not expand on how genuine such remorse was assessed to be. Mr Fidow had declined to be involved in a restorative justice process.
[18] The sentencing Judge added to this a further 20 per cent discount for the guilty plea. By adding each of these discounts together, the Judge deducted 40 per cent from the starting point of three years and nine months (45 months) to arrive at 27 months as the length of prison sentence that would be imposed.
[19] The sentencing Judge also considered that had she needed to, she could also take into account a period of some three and a half months in custody and a period of slightly less than two weeks on electronically monitored bail.[8] In this latter regard, the Judge relied on the decision in R v Hertnon.[9] However, it appears she did not quantify a separate discount for these matters. Instead, she made a reduction of four months for the length of time that Mr Fidow had been on restricted bail terms at Odyssey House.
[20] Although the Judge was not explicit at this point in her analysis, that last deduction would bring the appropriate prison sentence down to 23 months and her reasoning then went on to deal with the final stage of sentencing on the more serious charge of aggravated robbery, namely whether home detention was appropriately substituted. The Judge observed:[10]
It would be a pity to undo all the good work that has been done by you Darren and to sentence you to prison, particularly in view of your age. It is important that you be given the opportunity to serve a sentence which means that you will not be imprisoned.
[21] The Judge then satisfied herself on the basis of what appear to be essentially rehabilitative concerns that a substituted sentence of home detention, for what would otherwise have been a sentence of imprisonment, was appropriate for the aggravated robbery conviction.
[22] Having settled on the outcome for the aggravated robbery, the Judge then addressed the sentence for the burglary conviction. There was no consideration of whether that additional offending qualified the appropriateness of a sentence of home detention. Nor did the Judge settle on a starting point for a cumulative sentence that might have required the Judge to revisit whether the total sentence was above two years’ imprisonment, and therefore outside the range that might be substituted by a sentence of home detention.
[23] Instead, the Judge observed that:[11]
When I look at the offending in totality, I am satisfied that it does not exceed the maximum period of time for a home detention sentence of one year.
[24] Without fixing a starting point for the burglary conviction, and therefore without being able to assess the impact of the totality principle on the combined length of prison sentences for the aggravated robbery and burglary convictions, the Judge settled on an additional two months’ home detention for the burglary conviction.
Grounds for Solicitor-General’s appeal
[25] It was argued on behalf of the Solicitor-General that the 40 per cent cumulative discount became excessive because all components of it were quantified in one step. The Judge incorrectly gave Mr Fidow a 20 per cent discount for the guilty plea from the starting point by including it in the total calculation of the 40 per cent discount, rather than calculating it as 20 per cent of the sentence which resulted from taking the starting point and applying the two other discounts.
[26] Further, it was argued that the sentencing Judge had applied discounts for the inappropriate purpose of reducing the length of prison sentence sufficiently to enable a substitute sentence of home detention to be imposed when the sentencing analysis should not have been driven by that aim.
[27] Overarching these challenges was a criticism that the sentencing methodology miscarried when the Judge considered the appropriateness of home detention as a substitute sentence separately for the aggravated robbery, before assessing the totality of the sentence for all relevant convictions.
[28] In responding to each of those separate criticisms, Mr Winter had argued for Mr Fidow that each component of the discount was available to the sentencing Judge. Further, that any error by applying the total of all discounts, including that for a guilty plea, from the starting point, rather than applying the discount for his guilty plea to the reduced length of sentence otherwise arrived at, did not make a sufficiently material difference to render the final outcome a manifestly inadequate sentence. Accordingly, it was not an outcome in respect of which the Court should intervene.
[29] Ms Inwood’s criticism of the sentencing methodology described at [27] is well made, and we are satisfied that the sentencing process miscarried at that point. We are satisfied that leave should therefore be granted. Given the prospect of a finding that the Judge had erred in principle, we invited counsel to make submissions on the basis that we would consider a re-sentencing of Mr Fidow on the relevant convictions. Having considered the totality of written and oral submissions we received, we are satisfied that a re-sentencing is warranted. In doing so, it becomes unnecessary to consider the criticisms of the individual steps in the original sentencing decision.
Our re-sentencing analysis
[30] Bearing in mind that on a Solicitor-General’s appeal against sentence, the Court should intervene to the minimum extent that is appropriate to remove a manifest inadequacy in sentence, we consider that Ms Inwood’s proposed starting points and levels of discount for mitigating factors were appropriate in each respect.
[31] There was no challenge to the sentencing Judge’s starting point of three years and nine months’ imprisonment. Given the vulnerability of the victim, the extent of injuries caused and the lasting adverse impacts on her, a starting point that was higher by three months or more could not have been criticised.
[32] Discounts were appropriate for Mr Fidow’s relative youth, the remorse he had expressed including a promise to make reparation, and the rehabilitative steps he had taken with the Judge’s encouragement. It is questionable how realistic a commitment to pay reparation was for a young man in Mr Fidow’s position. Without a specific indication as to the source of such payments, the sentencing Judge had directed payments towards reparation at the rate of $15 per week from the end of the home detention sentence that the Judge imposed.
[33] Ms Inwood proposed that the extent of potential deductions for these mitigating factors should be offset in part by the pattern of offending whilst on bail. In the end, her analysis proposed the same level of discount for these factors as the sentencing Judge. The features affecting the extent of discount are relevant. Mr Fidow was on bail when the aggravated robbery was committed, and similarly was on bail, and had just interacted with the justice system by way of a sentencing indication, when the burglary was committed. As a matter of sequence, that factor might have appropriately been dealt with as an aggravating circumstance, but certainly warranted a reduction in the extent of discount that might otherwise be available for the mitigating circumstances, to the 20 per cent proposed on behalf of the Solicitor-General.
[34] The Solicitor-General’s analysis suggested a deduction of a further four months for the periods during which Mr Fidow had been on restrictive bail conditions. Again, that is, if anything, generous to him, given his somewhat chequered history of non-compliance with bail conditions. Between 10 October 2012 and 18 February 2013 Mr Fidow was bailed to Odyssey House, and a reduction more or less equivalent to that period would be appropriate.
[35] These two steps as proposed would result first in reducing the starting point from three years and nine months to three years’ imprisonment (ie the first 20 per cent) and the four months thereafter reducing it further to two years and eight months’ imprisonment.
[36] Lastly in the sequence of considerations, the Solicitor-General’s analysis conceded that a 20 per cent discount for Mr Fidow’s guilty plea was appropriate, bringing the end sentence on the aggravated robbery conviction to two years and one and a half months’ imprisonment.
[37] Turning to the burglary, Ms Inwood submitted there should have been a separate starting point recognised of one year’s imprisonment. She cited as a comparator the offending in R v Columbus in which case this Court characterised an opportunistic burglary “at the minor end of the scale” as warranting not more than a starting point of one year’s imprisonment.[12]
[38] Mr Winter disputed that Columbus was an appropriate comparator because a material part of the context there was that Mr Columbus was something of a recidivist burglar, where the consideration of deterrence was significantly more important.
[39] In contrast, he characterised Mr Fidow’s involvement as unfortunate because the associates he depended on for transport back from the court to the address at which he was then bailed were the instigators, and his lesser role was reflected in his being charged as a party.
[40] A striking feature is that Mr Fidow had just received a sentencing indication for aggravated robbery, which was treated as more serious because it had occurred whilst he was on bail. The Judge also sought to encourage rehabilitative initiatives, but Mr Fidow did not take steps to avoid further offending, again whilst on bail. We are satisfied that standing on its own, the burglary warranted a starting point of one year’s imprisonment.
[41] From that starting point, Ms Inwood proposed the same initial deduction of 20 per cent in relation to Mr Fidow’s youth and rehabilitative initiatives as applied for the aggravated robbery conviction. That extent of discount took into account the aggravating feature of the offending again having occurred whilst on bail. We agree.
[42] Ms Inwood proposed a deduction of 25 per cent for an early guilty plea. We accept that is also appropriate, if somewhat generous, given that the prosecution case on the burglary charge appeared to be a strong one because Mr Fidow and his cooffenders were apprehended near the scene, in the vehicle that had been observed at the scene at the time, and with stolen goods in it. Mr Fidow’s plea hardly made a significant concession because there do not appear to have been weaknesses in the prosecution case that might give rise to a real prospect of the charge not being proven. In those circumstances, virtually all of the 25 per cent discount was to give recognition for the saving in resources for all those who would be involved in a defended hearing, together with Mr Fidow’s remorse for his part in the offending.
[43] Accordingly, from a starting point of one year, the initial 20 per cent deduction would take the level to nine and a half months’ imprisonment, and 25 per cent off that to seven months’ imprisonment.
[44] Having dealt with the lesser convictions for breach of bail and breach of supervision by way of conviction and discharge, the Court would then come to an assessment of the totality of cumulative sentences of two years one and a half months for aggravated robbery, and seven months for burglary, totalling two years and eight and a half months’ imprisonment.
[45] The penultimate stage involves the “standing back” required by s 85 of the Sentencing Act 2002 to ensure that these cumulative sentences do not result in a total period of imprisonment that is wholly out of proportion to the gravity of the overall offending. Ms Inwood suggested a reduction at this stage from what would be a total of two years eight and a half months to two years five and a half months’ imprisonment. Again, that is conservative and appropriate in the context of a Solicitor-General’s appeal, and we adopt it.
[46] Finally, the re-sentencing exercise should take account of the length of the home detention sentence that Mr Fidow had served until his sentence was suspended by the lodging of the Solicitor-General’s appeal. That was a period between 18 February and 20 March 2013. Mr Winter did not contest Ms Inwood’s advice to us that Mr Fidow left Odyssey House where the home detention sentence was being served, around the date of the lodging of the Solicitor-General’s appeal and has been subject to no further restrictions since that time. In these circumstances, Ms Inwood proposed a deduction of one and a half months from the cumulative terms. Although one month’s home detention is equivalent to two months’ imprisonment in terms of the end sentence, the Crown cited two decisions of this Court where this formula was not applied when replacing a sentence of home detention with one of imprisonment.[13] The deduction in both of those cases was only one month higher than longer periods already served on home detention. Accordingly, on a proportionate basis, we agree that a deduction of one and a half months is appropriate here.
[47] The final outcome on re-sentencing is therefore that the terms of home detention imposed by the sentencing Judge are quashed and instead cumulative sentences totalling two years and four months’ imprisonment are imposed on the relevant convictions. This Court adopts particular caution when substituting a sentence of imprisonment on appeal when a non-custodial sentence has previously been imposed. In R v Donaldson,[14] this Court noted the potential “element of inhumanity” in sentencing someone, who has escaped imprisonment at first instance, to imprisonment on appeal. However, that result is justified where an error in principle warrants reconsideration of the entire sentencing exercise, and a sentence of imprisonment is the inevitable consequence of correcting that error.
[48] In apportioning the sentences, we would apply the totality credit to the longer term, and the credit for time served on home detention to the shorter. Accordingly, the finite sentences to apply from the date on which Mr Fidow surrenders himself to custody will be one year and 11 months on the aggravated robbery conviction, and five months on the burglary conviction.
Solicitors:
Crown Law Office, Wellington for Appellant
[1] R v Fidow DC Auckland CRI-2011-090-4496, 18 February 2013 [the sentencing notes].
[2] Subsequently adjourned on 10 October and 7 December 2012.
[3] This was entered at a callover on 19 October 2012.
[4] R v Mako [2000] 2 NZLR 170 (CA) at [59].
[5] R v Fidow DC Auckland CRI-2011-090-4496, 17 July 2012 (sentencing indication) at [25].
[6] R v Ha’apai CA294/05, 2 May 2006 and R v Taimanu CA377/02, 20 February 2003.
[7] Sentencing notes, above n 1, at [9].
[8] The three and a half months is the total of two periods that Mr Fidow spent in custody. The first was between 13 June 2012 and 6 July 2012, after he was arrested for failing to appear in the District Court on 7 March 2012 for his sentencing indication. He was initially denied bail but granted electronically monitored bail on 6 July 2012 until his sentencing indication on 17 July 2012. He was released on that day but apprehended soon after for the burglary, and remanded in custody for the second time until 10 October 2012, when he was released on bail to Odyssey House.
[9] R v Hertnon [2009] NZCA 518.
[10] Sentencing notes, above 1, at [13].
[11] Sentencing notes at [14].
[12] R v Columbus [2008] NZCA 192 at [16].
[13] In R v Tamatea [2012] NZCA 443, a four month discount was applied to reflect three months spent on home detention. In R v Pene [2010] NZCA 387, a five month discount was applied for four months spent on home detention and 51 hours of community work.
[14] R v Donaldson (1997) 14 CRNZ 537 (CA) at 550.
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