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Court of Appeal of New Zealand |
Last Updated: 30 December 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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Respondent |
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BETWEEN
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Appellant |
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Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
[1] The appellants, Dennis Bullen and Lynne Jackson, were convicted following a jury trial in the District Court at Blenheim on charges of aggravated robbery and aggravated injuring.[1] At sentencing Judge Zohrab took the same starting point of five years and nine months’ imprisonment for both appellants.[2] Seeing little reason to move from this starting point, the Judge sentenced Mr Bullen to five years and nine months’ imprisonment and Ms Jackson to five years and six months’ imprisonment, the modest difference attributable to Ms Jackson’s time spent on electronically monitored bail.[3] Mr Bullen was also ordered to pay $1000 emotional harm reparation.
[2] Mr Bullen and Ms Jackson appeal their sentences. Both say that the starting point was too high, resulting in manifestly excessive sentences. In addition:
- (a) Ms Jackson says that the Judge fixed the starting point for her in reliance on factual findings that were not available on the evidence, and did not take into account the limited role she played in the violence suffered by the complainant; and
- (b) Mr Bullen says that the Judge erred in failing to give any discount in recognition of his remorse and his offer of $1,000 to the complainant’s family for emotional harm.
[3] Ms Jackson was out of time to bring her appeal and sought an extension of time to do so. As the delay is explained by Ms Jackson’s difficulties in obtaining legal representation and there was no objection by the Crown, we grant the application for an extension of time to file the notice of appeal.
The offending
[4] The complainant, Colin Farrell, was a 60 year old decorator and plasterer who also dealt in drugs. He was suffering from Chronic Obstructive Pulmonary Disease for which he took medication. Ms Jackson was a long-time friend of Mr Farrell and aware of his illness and the fact that he needed medication.
[5] In late 2015 Ms Jackson contacted Mr Farrell and arranged to purchase cannabis from him. She proposed to Mr Bullen that he participate in the venture. At some point the plan to purchase the cannabis from Mr Farrell became a plan to rob him of it. Mr Bullen co-opted a younger man, Mr Guler, to provide “muscle”.
[6] On 22 December 2015 Mr Bullen, Ms Jackson and Mr Guler drove to the Wairau Valley near Blenheim. Mr Bullen had given Mr Guler cable ties to use on Mr Farrell if necessary. During the journey there was some discussion about stealing Mr Farrell’s medication, as well as the cannabis.
[7] Ms Jackson directed Mr Farrell to a lay-by, described by Judge Zohrab as relatively secluded though not totally remote. Mr Farrell was surprised and unhappy about Mr Bullen’s and Mr Guler’s presence. Ms Jackson allayed his fears. She got into the rear passenger seat of Mr Farrell’s vehicle. Mr Bullen got in the front passenger seat. When the cannabis was produced Mr Guler expressed doubt over the amount, went to the driver’s side and removed the car keys from the ignition. He then pulled Mr Farrell out of the car, cable tied his hands behind his back, punched and kicked him, and pushed him to the ground. Mr Farrell lost two teeth and suffered lacerations to his face and bruising. The experience was all the more frightening for him because he had breathing difficulties. Ms Jackson was also pushed to the ground in a charade intended to confuse Mr Farrell as to what was really happening.
[8] Mr Bullen and Ms Jackson took the cannabis and returned to their vehicle. Mr Guler searched Mr Farrell’s vehicle and took his medication, phone and sunglasses. The three then returned to Mr Bullen’s house, leaving Mr Farrell injured and still tied up.
[9] Mr Guler pleaded guilty and gave evidence for the Crown at trial. Mr Farrell gave evidence at trial, but had died by the time sentencing took place.
Starting point
Sentencing in the District Court
[10] The Judge took the guideline judgment of R v Mako as the basis for identifying the relevant factors for the purpose of fixing an appropriate starting point.[4] He considered these to be: a reasonable degree of planning and premeditation; multiple offenders; a significant degree of violence; detention of the complainant; medication was stolen; the complainant was vulnerable given his health; and, significant physical and emotional impact.[5]
[11] The Judge treated the verdict as indicative of the jury’s finding that the violence was a probable consequence of the plan to rob Mr Farrell and regarded all three offenders as equally culpable in their differing roles. Ms Jackson had breached the trust Mr Farrell had in her as a close friend and used her knowledge of him, including his illness, to her advantage in instigating the plan. Mr Bullen, who claimed just to be the driver, was closely involved in the plan, had enlisted Mr Guler and provided the cable ties. Mr Guler had inflicted the actual violence.
[12] In fixing the starting point the Judge considered a number of cases, treating the offending as being less serious than R v Young,[6] in which this Court approved a starting point of seven years’ imprisonment for the serious premeditated aggravated robbery of a service station, but much more serious than Tecofsky v Police,[7] in which the starting point was three years’ imprisonment for a charge of aggravated robbery in which the victim was lured to an isolated spot for the purposes of the robbery.[8] He settled on a starting point of five years and nine months’ imprisonment for all three offenders.
Was the starting point too high?
[13] On appeal, both Mr Bullen and Ms Jackson maintain the Judge set too high a starting point, having wrongly identified the extent and nature of the aggravating features. Mr Bamford for Ms Jackson also argued that the Judge drew inferences that were not properly available to him on the evidence regarding the degree of planning and in attributing the “callous” theft of the medication to Ms Jackson because of her knowledge.
[14] Ms Gould, for Mr Bullen, and Mr Bamford both contended that most of the factors identified in Mako were absent in this case: there had been no significant planning, no weapons or disguises, no members of the public present, no premises targeted, no gang involvement and no significant amount of property taken. Ms Gould argued that there were only two obvious aggravating features in the case, namely the impact on the victim, accepted to be reasonably high, and the use of actual violence (even though it was inflicted by Mr Guler). Ms Gould described the offending as being that “the offenders met up with the victim, intimidated him and stole his cannabis and left” and characterised it as “mean spirited and cowardly but ... not anything more than that, apart from the beating inflicted by Guler”.
[15] We do not accept these submissions. The Judge was entitled to form the view he did as to planning and premeditation. The evidence supported his view that Ms Jackson instigated the plan to meet Mr Farrell at a suitable place on the pretext of buying cannabis but actually to rob him of the drugs. The evidence was that Mr Bullen extended the plan to include Mr Guler’s involvement for physical back-up in anticipation of a struggle. Mr Guler specifically mentioned the possibility of a knife being used, presumably by Mr Farrell. Ms Jackson agreed to Mr Guler’s involvement. Mr Bullen provided the cable ties intended to be used to restrain Mr Farrell. Ms Jackson clearly intended to use her influence to allay Mr Farrell’s suspicions. The plan may not have been especially sophisticated, but nor was it an impulsive robbery with little prospect of success.
[16] Nor did the Judge make any error in his assessment of Ms Jackson’s part in the theft of Mr Farrell’s medication. The Judge’s finding that Ms Jackson was the instigator of this aspect of the robbery was plainly available from the fact that only she knew Mr Farrell and that he needed medication and, from Mr Guler’s evidence, that the theft of the medication was talked about in the car on the way to meet Mr Farrell. Indeed it was the only available inference. We agree with the Judge’s conclusion that all parties were equally culpable despite their differing roles.
[17] The other factors identified by the Judge were also significant in the overall criminality. Mr Farrell was an older man and very unwell, a fact known to the offenders. He was confronted with three offenders, one of whom was young, fit and there specifically to provide “muscle”. The plan anticipated that Mr Farrell would be detained to facilitate the robbery and that happened. Violence was a probable consequence of the plan and that happened. The injuries were moderately serious, particularly the loss of teeth. Mr Farrell’s medication was stolen. He was left tied up in a manner that prevented him from freeing himself and in a relatively secluded location.
[18] In these circumstances, the fact that several of the aggravating factors listed in Mako were absent — no weapons or disguises were used, there were no members of the public present, no premises targeted, no significant amount of property taken and there was no gang involvement — is of no moment. The features that were present meant that this offending was rightly viewed as moderately serious.
[19] We turn, then, to consider whether the starting point taken by the Judge was appropriate for the offending just described. Ms Gould argued that, given that Mr Bullen was also liable as a party on the injuring charge, a four and a half year starting point was appropriate for the aggravated robbery charge. Mr Bamford submitted that a starting point of around five years would have been appropriate.
[20] It is difficult to find comparable cases because, while some elements were comparable to a street robbery, the level of pre-meditation would justify a higher starting point than the 18 months to three years’ imprisonment generally appropriate for robbery with bullying or menacing conduct but no actual violence.[9] Higher starting points are to be expected where the robbery involves physical enforcement or threats of violence. Actual violence would take the starting point based on Mako above three years, as would high vulnerability with limited actual violence.[10]
[21] Ms Cooke for the Crown sought to draw comparisons with home invasion aggravated robbery cases such as Nuku v R[11]and R v Williams,[12] in which the starting points of nine and eight years’ imprisonment respectively were adopted, though accepting that the offending in those cases was much more serious than the present. She also suggested aggravated robbery of a small retail premises or of a taxi driver were available as comparisons on the basis that in both situations the robbery occurs under the pretext of a commercial transaction. In such cases, she submitted that starting points of five years and nine months’ imprisonment would be unremarkable; in Mako, the robbery of a small retail shop where detention, violence or multiple assailants are involved was regarded as justifying a starting point of five years’ imprisonment and up to six years in bad cases.[13]
[22] We do not accept that a starting point of five years and nine months’ imprisonment would necessarily be unremarkable for robbery of a taxi driver. In Mako the Court observed that aggravated robbery of a taxi driver, usually at night, with actual violence or presentation of a weapon, would attract a starting point of between four and five years.[14] In the example cited by Ms Cooke, Komene v New Zealand Police, a starting point of four and a half years was adopted where there was no lasting injury but actual violence (choking) and the presence of a knife.[15] Regardless, the taxi driver analogy is not of particular assistance given that the courts afford taxi drivers particular protection due to the vulnerable nature of the occupation.[16]
[23] We consider the closest comparable case is, in fact, Tecofsky v Police, to which Judge Zohrab referred, and Chapman v New Zealand Police, which involved Ms Tecofsky’s co-defendant.[17] These cases involved a plan by Ms Tecofsky, who was a close associate of the complainant, to pick the complainant up on the pretext of giving him a lift. Instead she drove to a pre-determined spot where Ms Chapman and another person were waiting. The complainant was punched about the head and his wallet stolen. Ms Tecofsky acted as an innocent victim but later when she and the complainant stopped the car to change drivers she drove off, leaving him stranded.
[24] Following guilty pleas by Ms Chapman and Ms Tecofsky, the sentencing Judge adopted a starting point of three years’ imprisonment. On Ms Chapman’s appeal MacKenzie J considered that her lesser role justified a starting point of only two and a half years. Ms Tecofsky abandoned her appeal in light of that decision, given that she had played the greater role in the offending. Notwithstanding that concession, Whata J went on to express the view that three years was appropriate as the starting point for Ms Tecofsky’s offending.
[25] As the Judge noted, the offending in the present case is more serious than Tecofsky because of the greater level of planning, the greater level of violence, the more serious injuries, the detention of the complainant and the fact that he was left tied up at the side of the road, the complainant’s general vulnerability (of which Ms Jackson was aware) and the gratuitous taking of medication. We agree with that assessment. However, we consider that, by comparison with Tecofsky, the starting point taken by the Judge was too high. A starting point of four and a half years would have been appropriate.
Discount for remorse
[26] The trial took place in November 2016 and Mr Bullen was sentenced on 10 January 2017. On 2 January 2017 Mr Bullen wrote to the Judge referring to the fact that Mr Farrell had recently passed away and expressing remorse for his offending. He offered, as a means of expressing his remorse and condolences to Mr Farrell’s family, to make a payment of $1,000.
[27] The Judge referred to Mr Bullen’s letter and offer of payment before addressing the starting point,[18] but did not mention it specifically when considering the issue of remorse:
[91] Both you and Ms Jackson have suggested that there might be discounts for remorse. I reject any suggestion of genuine remorse on the part of either of you. You, Mr Bullen, lied quite happily through the course of your interview ... There was plenty of time to apologise to this man, even the day after trial, after the verdict, but none of you could be motivated to do anything when it would have mattered and now that Mr Farrell is dead.
...
[94] For you, Mr Bullen, there will be an order for $1,000 emotional harm reparation to be paid within 21 days and I see no room for a discount.
[28] Ms Gould submitted that the Judge was wrong to reject Mr Bullen’s expression of remorse particularly because it was supported by a tangible act, the offer of $1,000.
[29] For the purposes of the appeal, Ms Gould provided affidavits sworn by Mr Bullen’s wife and adult children as well as by Mr Bullen himself. She acknowledged that it would have been helpful for Judge Zohrab to have had such material available at the time but indicated that the timing of the sentencing in early January, when she herself was not formally back at work but only in Blenheim for the sentencing itself, meant that this was not attended to. Ms Cooke did not actually oppose the filing of these affidavits, though did question why they could not have been produced at sentencing and did not ascribe any significance to the material. Although not fresh, we consider the affidavits are credible and cogent, and we therefore grant leave to adduce the affidavits of Mr Bullen and his family on appeal.
[30] In essence, Mr Bullen’s affidavit and those of his family describe Mr Bullen’s ill-health around the time of the offending, as a result of which he was using cannabis as well as prescription painkillers. Mr Bullen deposed that once in custody his health improved and his clouded thinking cleared. He began to reflect on his offending and asked his wife to sell his motorbike so that he could make an offer of emotional harm reparation.
[31] Ms Gould herself had filed an affidavit supporting Mr Bullen’s claim of having accepted responsibility for the offending and expressing remorse. Ms Cooke objected to this affidavit, and we accept her submission that the affidavit deals with evidence of a contentious nature and either ought not to have been filed or Ms Gould ought not to have appeared on the appeal.[19]
[32] It is a matter for the sentencing Judge to assess the genuineness of remorse expressed at sentencing.[20] However, s 10(1) of the Sentencing Act 2002 required Mr Bullen’s offer of $1,000 to be taken into account and that appears not to have been done;[21] having referred to the offer earlier, at the point of sentencing the Judge did not mention it but simply made the order requiring its payment as reparation.
[33] We consider that, had the Judge taken Mr Bullen’s offer into account and particularly if he had had the benefit of the additional material made available to this Court, he would very likely have taken a different view of Mr Bullen’s expressed remorse. Looked at overall, there is sufficient information to indicate that Mr Bullen’s thinking did become clearer while in prison and his decision to sell the motorbike and use the proceeds to offer as reparation to Mr Farrell’s family was a tangible expression of genuine remorse. This Court has indicated that an offer to make amends may be an indication of the presence of true remorse, warranting a separate discount.[22]
[34] Remorse and offers of reparation accepted as genuine by the Court tend to warrant a discount of around five to ten per cent from the starting point.[23] Given that Mr Bullen’s remorse is genuine and supported by a tangible offer accepted by the victim’s family, but nonetheless delayed and in the context of a not guilty plea, we consider a discount around the middle of this range to be appropriate. We would allow a discount of four months from the starting point of four and a half years’ imprisonment.
Result
[35] Ms Jackson’s application for an extension of time to file the notice of appeal is granted.
[36] Mr Bullen’s application to adduce further evidence on appeal is granted.
[37] The appeals against sentence are allowed.
[38] The sentence of five years and nine months’ imprisonment imposed on Mr Bullen for aggravated robbery is quashed and a sentence of four years and two months’ imprisonment substituted.
[39] The sentence of five years and six months’ imprisonment imposed on Ms Jackson for aggravated robbery is quashed and a sentence of four years and three months’ imprisonment substituted (allowing the same three month reduction for time spent on electronically monitored bail).
Solicitors:
Crown Law Office, Wellington for
Respondent.
[1] As well as some minor drugs charges.
[2] R v Jackson [2017] NZDC 185.
[3] Concurrent sentences of one years’ imprisonment for the aggravated injuring charge and one months’ imprisonment for the drugs charges were also imposed on Mr Bullen and Ms Jackson.
[4] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).
[5] R v Jackson, above n 2, [71]–[74].
[6] R v Young CA573/95, 28 March 1996.
[7] Tecofsky v Police [2013] NZHC 3376.
[8] R v Jackson, above n 2, at [76]–[77].
[9] R v Mako, above n 4, at [59]; and R v Fidow [2013] NZCA 209 at [10].
[10] R v Falanai [2013] NZHC 3239 at [19].
[11] Nuku v R [2016] NZCA 179.
[12] R v Williams CA392/97, 31 March 1998.
[13] R v Mako, above n 4, at [56].
[14] At [57].
[15] Komene v New Zealand Police HC Auckland CRI-2009-404-242, 7 October 2009.
[16] R v Finau [2003] NZCA 129; (2003) 20 CRNZ 333 (CA) at [9] and [20].
[17] Chapman v New Zealand Police [2013] NZHC 3301.
[18] R v Jackson, above n 2, at [69].
[19] In line with r 13.5.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
[20] Edri v R [2013] NZCA 264 at [28].
[21] It is also a specific mitigating factor that must be taken into account: Sentencing Act 2002, s 9(2)(f).
[22] Gould v R [2012] NZCA 284 at [30].
[23] See for example Gould v R, above n 22; McArthur v R [2013] NZCA 600; Mark v R [2016] NZCA 22; and Erickson v Ministry for Primary Industries [2017] NZCA 271, [2017] NZAR 1015.
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