McKee v R [2014] NZCA 337 (22 July 2014)

Last Updated: 31 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA489/2013 [2014] NZCA 337
BETWEEN	CAVELL ROBERT MAXWELL MCKEE Appellant
AND	THE QUEEN Respondent

Hearing:	10 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	M S Fernando for Appellant C A Harold for Respondent
Judgment:	22 July 2014 at 11 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

[1] Following his trial before Judge Dawson and a jury in the Auckland District Court, the appellant was convicted of aggravated robbery and supplying methamphetamine. Subsequently, the Judge sentenced him to an effective term of eight years’ imprisonment.^[1]
[2] The appellant originally appealed against both his conviction and sentence. However, the conviction appeal has been abandoned. He contends that the sentence of eight years’ imprisonment was clearly excessive, as a result of the Judge adopting too high a starting point and failing to make adequate allowance for remorse and steps taken by the appellant towards rehabilitation.
[3] The notice of appeal was filed late due to communication difficulties between counsel and the appellant. The respondent does not oppose an extension of time to file the appeal and we extend the time accordingly.

The facts

[4] In the early afternoon of 24 March 2011, the appellant entered a jewellery shop situated on West Coast Road, Glen Eden in West Auckland. Present in the shop were its owner (the male victim) and his 74 year old mother (the female victim).
[5] On initially entering the premises, the appellant asked the male victim if he had any watches for sale. The male victim replied that he was out of watches. At that stage the appellant left, but shortly afterwards he returned.
[6] On his return, he made his way to the back of the shop where the male victim was working at a workbench. He pointed a double barrelled shotgun at the male victim and said, “this is a hold up, it’s real, I’m on P, I’m nervous”, adding that he would shoot if he had to. He then asked the male victim on a number of occasions whether there was a “silent alarm”. As he did so, he held the shotgun against the male victim’s head. He then told the male victim to lie down on the floor, which he did. At this point, the female victim entered the shop, returning from the toilet at the rear of the premises. The appellant pointed the gun at her and told her to lie down. The male victim told her to do so, that it was “serious” and “for real”. The female victim then got herself down onto the floor where she lay face down. The appellant leant over the male victim, pulling his arms back behind his back and handcuffing him with metal handcuffs which the male victim said were very tight. The appellant then tied the female victim’s hands behind her back with cable ties.
[7] The appellant removed jewellery displayed in the shop front window. The male victim said that he had pleaded with the appellant, saying “that’s my life’s work out there”, and told him that he would be “ruining” his life. The appellant responded that the male victim had insurance and would be covered at which the male victim told him that he would not be covered for what the appellant was taking. The appellant then emptied some of the cabinets inside the shop.
[8] The female victim also gave evidence at the trial. She described the appellant yelling at her, telling her to get on the floor and then hearing her son say do as he says. She described the appellant yanking her shoulders back before tying her hands with cable ties. Her evidence corroborated the detail of the events that followed as given in the male victim’s evidence. She confirmed that she had required ambulance assistance because she suffered with asthma, had been left hyperventilating and, as she put it, “really traumatised” by the attack.
[9] The offending significantly impacted both victims. Goods to the value of approximately $100,000 were stolen. The male victim had to close his business and was on a sickness benefit at the time of sentencing. He achieved a pay-out of about $40,000 from his insurance company. None of the stolen jewellery was recovered. He suffered from sleeping difficulties and anxiety and sought help from a psychologist. The female victim required ongoing physiotherapy and treatment for injuries to her back and shoulders.
[10] When spoken to by the police, the appellant denied the robbery. In the course of his interview, he admitted dealing in methamphetamine. At the trial, the defence run was that someone else had committed the robbery. It was contended that there had been no supply of methamphetamine on the one occasion about which the Crown was in a position to call direct evidence.
[11] Both defences were rejected by the jury.

The sentence

[12] The Judge identified a number of aggravating aspects of the offending. The first was that the appellant had threatened violence with a shotgun, which was a particularly dangerous weapon. He noted that the appellant told the victims that it was loaded and that he had handled both victims very roughly. The offending had caused significant loss. Jewellery to the value of $100,000 had been taken, $60,000 of which was not covered by insurance. Both victims had suffered ongoing psychological and physical trauma. He also observed that the offending had been marked by a considerable degree of cruelty, noting that one of the victims had “lost control of a bodily function due to the terror” induced by the appellant’s conduct. He observed that both victims were particularly vulnerable because they were older people, noting that the female victim was 74 at the time of the offending.
[13] Further, he identified that there had been a high degree of premeditation. The robbery had been planned for some months and the appellant had grown a beard for the purposes of disguise.
[14] The Judge noted references to remorse in the pre-sentence report. However, he was not prepared to accept that the remorse was genuine referring in that respect to a “long history of similar repeat, ongoing offending”.^[2] Having referred to relevant authorities, the Judge took a starting point of seven years’ imprisonment, uplifted that by nine months to reflect the charge of “possession of methamphetamine” and by three months to reflect the appellant’s prior record of offending. This resulted in an effective term of eight years’ imprisonment, which was the sentence imposed on the aggravated robbery charge. On the charge of supplying methamphetamine, the Judge imposed a sentence of nine months’ imprisonment directing that it be served concurrently.

The appeal

[15] The principal submission advanced on appeal is that the Judge erred in adopting a starting point of seven years for the robbery. Mr Fernando submitted that a starting point of four and a half to five years would have been appropriate. Mr Fernando also submitted that the Judge had erred in not allowing a discount for remorse, and to acknowledge the appellant’s attempts to rehabilitate himself by “reaching to God”.
[16] Mr Fernando pointed out that at one stage in his sentencing remarks the Judge referred to sentencing the appellant “for possession of methamphetamine”. Mr Fernando pointed out that there was no charge of possession of methamphetamine and submitted that the Judge had erred in sentencing the appellant for a non-existent charge. However, there is no doubt about the charge that was before the Court and at the end of his sentencing remarks the Judge specifically said that:

[17] For the charge of supplying a class A drug, namely methamphetamine, you are sentenced to nine months’ imprisonment to be served concurrently.

We are satisfied that the earlier reference to sentencing for “possession of methamphetamine” was a simple mistake.

[17] In advancing the contention that the seven year starting point for the aggravated robbery charge was too high, Mr Fernando relied principally on this Court’s decisions in Christofides v R^[3] and Molia v R.^[4] In Christofides, the appellant wearing sunglasses and a bandanna pointed an imitation pistol at a shopkeeper’s head and demanded money. He took $300, but as a result of the offending the shopkeeper closed his business. A starting point of four years three months’ imprisonment was considered appropriate.
[18] Molia involved the aggravated robbery of a dairy. Mr Molia and an associate wore gloves and covered their faces. Mr Molia pointed a slug pistol at a member of the public outside the dairy, telling him to stay where he was. The offenders then entered the dairy. Mr Molia pointed the pistol at the dairy owner and told him to hand over money in the cash register. This Court held that a starting point of four and a half years would be appropriate to reflect the fact that there were two offenders, two members of the public were caught up in the events and property valued at $6,000 in cash and cigarettes was taken.
[19] The offending in both Christofides and Molia was held to be of the kind contemplated by this Court in the following passage of the judgment in R v Mako:^[5]

[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[20] However, in our view, the facts of the present case are worse than those in both Christofides and Molia, and we consider that the offending can be seen as falling within the more serious category identified at [54] of Mako where reference was made to:

...The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

[21] In our view, the combination of aggravating features of the offending in this case could well have justified a starting point of eight years for the aggravated robbery alone, having regard to what is said in that passage.
[22] Although only the appellant was involved, this was a robbery of commercial premises, in which jewellery to the value of about $100,000 was taken. There were two victims, both traumatised by the offending, one of them an elderly woman for whom this would have been a terrifying ordeal. The victims were, as the Judge said, handled “very roughly”^[6] and there was, as he found, “a considerable degree of cruelty”^[7] in the offending. A lethal weapon was involved and presented to both victims, and although the record does not disclose whether or not the shotgun was loaded, the appellant said it was and there was no reason for the victims not to believe him. His threat to use it would have been taken very seriously having regard to what he said to them. There was a high degree of premeditation, the appellant having grown a beard for the purpose of disguising his identity. As a consequence of the offending, the male victim lost his livelihood.
[23] In the circumstances, the seven year starting point adopted by the Judge was a lenient one.
[24] Nor could there be any criticism of the uplift of nine months imposed in respect of the sale of methamphetamine. The appellant admitted to the police when interviewed that he was involved in drug dealing, and on the basis of that interview the police brought the charge of supplying methamphetamine as a representative charge covering the period between 1 January and 24 March 2011. In the interview, he referred to selling “quarters” and “halves”, referring to sometimes selling four “quarters” to four different people, making a $300 profit and later he said:

...some weeks I do well ... and then some months I struggle on dollar bags, 50 bags and...I’m on a roll like you know like I’m on a roll that I’m doing well and it’s working ... sometimes I can turn over you know a bit of coin you know ... hard working day couple of days and I can make you know a thousand dollars worth of gear or, or of money you know but that’s, that’s hard work ... it’s a lot of running around, a lot of texting, obviously you can see I, I got blisters on my fingers mate from texting you know like back and forth and also the thing is you got 10 people’s text’s coming in.

[25] Consistently with this, the appellant told the author of the pre-sentence report that he was a drug dealer, that he was very busy, would carry five cell phones just to keep up with his business and that it was stressful because he had to also keep track of money that was owed to him by people wanting drugs on credit. There was also evidence from the appellant’s former girlfriend that she had bought methamphetamine from the appellant. Having regard to the sentencing bands in R v Fatu^[8] it is likely that, considered on its own, the offending would have justified a starting point of at least two years’ imprisonment.
[26] The Judge did not go into detail in sentencing the appellant on the methamphetamine charge. All he said was the appellant had described himself as a drug dealer and the appellant’s own admissions plainly justified that conclusion. The nine month uplift on the sentence for the aggravated robbery to reflect the methamphetamine conviction was in our view well justified and it was, of course, a straightforward application of the totality principle set out in s 85 of the Sentencing Act 2002.
[27] The appellant did not challenge the three months’ uplift applied to reflect his history of offending. He has committed numerous offences, and has been regularly before the courts since 1992. His history includes burglary, firearms offences, threatening to kill and aggravated robbery as well as a number of offences under the Misuse of Drugs Act 1975. In the circumstances, a higher uplift than the three months allowed would have been justified.
[28] The history was such as to overshadow the rehabilitative steps recently taken by the appellant. If, as Mr Fernando submitted, the appellant has been motivated to improve his conduct by a new found commitment to God, that will stand to his credit (if maintained) when he comes before the Parole Board. Sensibly, it is too early for this consideration to have an influence on the sentence imposed having regard to the appellant’s record and the seriousness of the current offending.
[29] Nor, do we consider that the Judge erred in taking a sceptical attitude in respect of the appellant’s claimed remorse. In the pre-sentence report the appellant is recorded as saying that he had had time to reflect on his offending and his life while on remand. As a consequence, he wanted to “put his hand up and admit to his offending”. However, he was remanded for at least 18 months, and for most of that time he was in custody. Rather than admitting the offending, he defended the charges forcing the complainants to relive their ordeal at the trial. In these circumstances the Judge’s rejection of remorse as a mitigating factor was clearly appropriate.

Result

[30] We are satisfied that the sentence imposed was not excessive and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v McKee DC Auckland CRI-2011-090-5860, 5 June 2013 [Sentencing notes].

^[2] At [11].

^[3] Christofides v R [2011] NZCA 126.

^[4] Molia v R [2013] NZCA 512.

^[5] R v Mako [2000] 2 NZLR 170 (CA).

^[6] Sentencing notes, above n [1], at [7].

^[7] At [9].

^[8] R v Fatu [2006] 2 NZLR 72 (CA) at [34].