McIlroy v R [2016] NZCA 86 (5 April 2016)

Last Updated: 18 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA536/2015 [2016] NZCA 86
BETWEEN	ASHLEY MCILROY Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2016
Court:	Ellen France P, Keane and Dobson JJ
Counsel:	M J Phelps for Appellant D La Hood and R Georgiou for Respondent
Judgment:	5 April 2016 at 9.30 am

JUDGMENT OF THE COURT

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

2. The appeal against sentence is allowed. The minimum period of imprisonment of three years is quashed. The concurrent sentences of six years imprisonment on the aggravated robbery charge and one years imprisonment on the unlawful possession of a firearm charge otherwise stand.

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REASONS OF THE COURT

(Given by Ellen France P)

Introduction

[1] The appellant pleaded guilty after the first day of evidence in his trial on a charge of aggravated robbery and of unlawful possession of a firearm. He was sentenced by the trial Judge, Judge Adeane, to a sentence of six years imprisonment with a minimum period of imprisonment (MPI) of three years.^[1] The appellant appeals out of time against sentence. He says the Judge was wrong to impose an MPI.

Facts

[2] The incident giving rise to the charges occurred on 1 August 2014 and is summarised by Judge Adeane as follows:

[2] This was a dairy robbery. The [appellant] knew the premises; apparently he had previously been a customer there. He, ahead of committing the robbery, sought out some clothing to wear as a disguise. He obtained a scarf from a young woman friend and this was wrapped around his face. A .303 rifle was carried into the dairy. It was presented at the shopkeeper and a relatively small amount of money was taken.

Sentencing remarks

[3] Judge Adeane treated the offending as a more serious example of the category of robberies of small businesses discussed in R v Mako.^[2] This Court in Mako identified starting points ranging from four years up to six years for these types of robberies depending on the extent of aggravating features.^[3]
[4] The Judge saw it as aggravating that the appellant had been on “an alcohol and P binge” for a number of days before the incident.^[4] The night before he had a .303 rifle he was trying to sell and was showing it off to a number of young men at a party. Although there was another person involved in the robbery, that person’s role was limited to accompanying the appellant in the car that day.
[5] Importantly, for present purposes, the Judge did not accept the submissions made by the Crown that it was not possible to determine whether or not the gun used in the robbery was loaded. Rather, the Judge took the view the gun was “in all likelihood” loaded.^[5] Judge Adeane explained this conclusion in this way:^[6]

... we do know from the evidence that you were indiscreetly producing this gun for sale at a party the previous night and went further – demonstrating that it was loaded and the way in which it could be loaded. To accept that the gun was not loaded during the robbery, I would need to accept that despite your elevated and agitated state resulting from P saturation, despite your propensity for unlawful possession of firearms and for aggravated robbery, and despite your known previous resort to gratuitous violence against a shopkeeper, that you had had the presence of mind to unload that gun so that it could not discharge during what was a desperate and dangerous adventure. No sensible person would accept it. I consider it highly probable that this gun remained loaded, as it had been the night before, when you took it into the dairy.

[6] The Judge added there had been no contrary evidence from the appellant.
[7] Having considered the appellant’s personal circumstances and record of previous criminal offending, the Judge concluded the appellant’s propensity to serious violent offending was “deep-seated and longstanding”.^[7] The circumstances called for a sentence prioritising public safety ahead of rehabilitation. That conclusion led to the imposition of a six-year sentence on the lead offence of aggravated robbery with an MPI of 50 per cent, that is, three years. A concurrent term of imprisonment of one year was imposed on the charge of unlawful possession of a firearm.

The appeal

[8] The key points in the appellant’s challenge to the imposition of an MPI can be summarised as follows. First, Mr Phelps argues the evidence did not support the Judge’s conclusion it was likely the gun was loaded. Secondly, it is submitted the appellant’s criminal record does not indicate a propensity towards violent offending. Thirdly, Mr Phelps emphasises the appellant had shown he was able to function in the community because he was in full-time employment at the time of the offending. Finally, the Judge did not take into account the fact the appellant did, ultimately, plead guilty.
[9] The Crown supports the Judge’s approach essentially for the reasons he gave.

Discussion

[10] Given the Judge’s approach, the only issue on appeal is whether the Judge was right to conclude public safety required the imposition of an MPI. We can answer this question by considering the four matters raised by the appellant.

Use of a loaded firearm

[11] The relevant evidence from the trial on this topic came from Hone Midwood, the man who was in the car with the appellant on the day of the robbery. Mr Midwood gave evidence of the appellant’s attempts to sell the gun on the evening prior to the robbery. He told the Court the gun had a magazine. In answer to a question from Judge Adeane as to whether Mr Midwood saw any bullets for the gun, Mr Midwood said the appellant “was showing us the bullets, um, the morning of the robbery and a mag and how to put them in and load it up”.
[12] Although this evidence is not entirely clear, given the reference to loading “it” up, it was open to the Judge to reach the conclusion this was a reference to the gun being loaded. This factor accordingly supports the imposition of an MPI on the basis of a public safety concern.
[13] We interpolate here that there was some discussion at the hearing before us about the process adopted at sentencing. This topic arose because, as we have indicated, the Crown’s sentencing submissions proceeded on the basis it was not clear from the evidence whether or not the gun was loaded.^[8] The transcript of the sentencing hearing does not indicate that there was any discussion about whether or not the gun was loaded.^[9] However, apart from making the submission the evidence at trial was not clear-cut on the point, the appellant does not advance any other material that should have been taken into account by the Judge. We are satisfied any concerns about process have been met by the hearing of the appeal at which the findings available on the evidence were canvassed.

Previous convictions and subsequent conduct

[14] The other three factors raised by the appellant, namely, the impact of his previous convictions, his employment and guilty plea, can be assessed together.
[15] In describing a propensity for aggravated robbery, the Judge relied primarily on convictions arising out of a previous incident that took place in January 2007.^[10] The appellant was charged with aggravated robbery.^[11]
[16] It has to be said immediately that this was serious offending. The summary of facts reveals the appellant hit the male owner of the dairy involved with an iron bar causing the victim to fall to the ground. After he got to his feet, the appellant struck him again. The victim got hold of the bar and chased the appellant out of the dairy. One of the co-offenders punched the victim who again fell to the ground at which point the appellant went back into the store, scared away the female dairy owner and took a small amount of cash. As he was leaving the store, the male victim tried to grab his legs. The appellant fell over but on regaining his feet kicked the victim several times. Although the appellant was not yet 16 years old at the time, this matter was not dealt with in the Youth Court and the appellant was sentenced to a term of imprisonment of three years.
[17] It also has to be noted that the pre-sentence report writer similarly took a dim view of the risk posed by the appellant based on this previous offending. The risks of re-offending and causing harm to members of the public were assessed as high.
[18] However, there are a number of factors that tell against the reliance placed on this offending. First, as Mr Phelps emphasises, the appellant’s two co-offenders in the 2007 incident were both much older than him (one was 30 years old and the other 34). Secondly, there is a gap in offending of this nature. The first aggravated robbery occurred some seven and a half years previously, at a time when the appellant was aged 15 years and 10 months. Although there is a substantial number of minor convictions since then, there has been no similar offending. Thirdly, as the pre-sentence report writer also records, the appellant had been in employment prior to the index offending so there was some reintegration into the community. Finally, it is of some relevance that the appellant pleaded guilty, albeit belatedly. The authors of Adams on Criminal Law note a guilty plea is relevant in considering whether an MPI is necessary in terms of personal deterrence, given it may illustrate insight.^[12] Not too much can be made of this factor here but it is a part of the mix.
[19] These factors distinguish this case from the two cases relied on by the Crown to support the imposition of an MPI, namely, Anderson v R and Thompson v R, both of which involved more serious offending.^[13] The sentencing Judge in Thompson v R adopted a starting point of eight years imprisonment. In addition, the appellant in Anderson v R was on bail at the time of the offending and had previous convictions relevant to the imposition of an MPI.
[20] When all these matters are assessed, based on present information, we consider the Judge made more of the appellant’s perceived propensity for serious violent offending than was justified, and he was wrong to conclude the MPI was needed for public safety reasons. The Parole Board can of course consider any risk to public safety at the time the appellant becomes eligible for parole.

Result

[21] The application for an extension of time to appeal is granted. The appeal against sentence is allowed. The minimum period of imprisonment of three years is quashed. The concurrent sentences of six years imprisonment on the aggravated robbery charge and one years imprisonment on the unlawful possession of a firearm charge otherwise stand.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v McIlroy [2015] NZDC 8183 [sentencing remarks].

^[2] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [56].

^[3] At [56].

^[4] Sentencing remarks, above n 1, at [4].

^[5] At [11].

^[6] At [6].

^[7] At [10].

^[8] The summary of facts recorded the gun was loaded but it is accepted the summary was overtaken by the fact there was evidence at the trial.

^[9] The Judge is recorded as having indicated he was considering the imposition of an MPI because of the use of a firearm and the previous convictions.

^[10] There was an earlier incident of indecent assault on a female over 16 years but that incident took place in September 2005 when the appellant was aged 14. That matter was dealt with in the Youth Court. It is not relevant for present purposes.

^[11] For completeness we note the appellant was also charged with threatening to kill or cause grievous bodily harm, possession of an offensive weapon (a firearm) and possession of a knife in a public place following an incident on 7 October 2006. These charges were proved in the Youth Court.

^[12] Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [SA86.03]; and R v Nguyen [2009] NZCA 239 at [33].

^[13] Anderson v R [2014] NZCA 410; and Thompson v R [2015] NZCA 234.