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Court of Appeal of New Zealand |
Last Updated: 7 December 2018
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BETWEEN |
KANE JAMES ELLIOTT Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
7 November 2018 |
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Court: |
Clifford, Dobson and Mander JJ |
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Counsel: |
C D Bean for Appellant C A Brook for Respondent |
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Judgment: |
27 November 2018 at 11.15 am |
JUDGMENT OF THE COURT
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REASONS OF THE COURT
(Given by Mander J)
[1] Kane Elliott appeals a sentence of eight years’ imprisonment imposed on him for two aggravated robberies and an associated charge of aggravated wounding.[1] He argues the sentence was manifestly excessive. The Crown accepts the appeal must be allowed because the sentencing Court failed to provide credit for Mr Elliott’s guilty pleas. However, the second aspect of the appeal, namely that the starting point for the sentence on the lead offence was too high, is contested.
Background
[2] On 13 August 2017, Mr Elliott with the assistance of associates robbed two superettes. Around midday, he and two other men went to the Aberdeen Superette. One of the associates remained in a stolen getaway vehicle while Mr Elliott and the other man entered the shop. They were disguised and armed with a knife and a screwdriver. They stole the cash register and returned to the vehicle.
[3] As they left the scene, their vehicle struck the sole employee of the Superette who had come out of the shop. He was knocked to the ground when the car was reversed in a sharp turn as the employee tried to approach the rear door. He suffered a broken leg. That event gave rise to the aggravated wounding charge.
[4] In the evening, Mr Elliott, together with three others, went to the Southern Cross Superette in the same stolen car. Three of the men, including Mr Elliott, went into the Superette. Again, the robbers were disguised and armed with a knife and a screwdriver. One of two employees present triggered a panic alarm. Mr Elliott struck him in the arm with the screwdriver, although that did not result in any significant injury. The offenders stole the cash register and some cigarettes before leaving the scene.
The sentencing
[5] The sentencing Judge took a starting point of six years’ imprisonment for the Aberdeen Superette aggravated robbery. From that starting point, a two-year uplift was applied to reflect the aggravated wounding charge. A further uplift of two years’ imprisonment was imposed for the aggravated robbery of the Southern Cross Superette. This resulted in a total 10-year starting point.[2]
[6] A 20 per cent discount was extended in recognition of Mr Elliott’s youth (he was 19 years at the time of sentencing), remorse, and his prospects for rehabilitation.[3] Notwithstanding a negative pre-sentence report, the Judge was prepared to take into account a letter written by Mr Elliott which the Judge considered showed some insight and prospects for rehabilitation.[4] The final effective sentence was one of eight years’ imprisonment.
The appeal
[7] The appeal is brought on two bases:
- (a) The starting point for the Aberdeen Superette robbery was too high.
- (b) A discount should have been provided for the guilty plea.
The starting point in relation to the aggravated robbery of the Aberdeen Superette
[8] In R v Mako, this Court provided sentencing guidance for aggravated robberies.[5] In respect of an aggravated robbery of the type the subject of this appeal, this Court observed:
[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.
[9] Essentially, the submission made on behalf of the appellant by Mr Bean was that the aggravated robbery of the Aberdeen Superette did not fall into the category of a “bad case”. While accepting the aggravated wounding of the shopkeeper required an uplift, it was submitted no physical violence had occurred in the store, nor were any customers present. Mr Bean submitted a four-year starting point should have been taken for the aggravated robbery. When combined with the two-year uplift for the aggravated wounding, a six-year term for the entire incident at the Aberdeen Superette more accurately reflected Mr Elliott’s culpability.
[10] Ms Brook, on behalf of the Crown, acknowledged the six-year starting point could be considered stern. However, she submitted that any concern that the starting point for the Aberdeen Superette offending may have been too high is offset by the way the Judge approached the balance of the sentencing exercise:
- (a) The uplift of two years’ imprisonment for the separate aggravated robbery of the Southern Cross Superette could be considered lenient. During that robbery, the shop’s employees were confronted by a number of offenders, and one of them was assaulted by Mr Elliott. Standing alone, that robbery would likely have attracted a starting point of five years’ imprisonment.
- (b) Additionally, Mr Elliott was on bail at the time these robberies were committed. He was also subject to a sentence of intensive supervision. No uplift for these aggravating features was made in calculating the overall starting point. Ordinarily, such features would attract an uplift.
[11] We are required to look at the overall effect of the sentence rather than its component parts.[6] However, while acknowledging that other aspects of the sentencing were favourable to Mr Elliott, we have a residual concern that the combined eightyear starting point for the Aberdeen Superette offending is too high. When this serious offending is assessed as a whole and the principle of totality taken into account, we consider that notwithstanding the modest uplift for the Southern Cross Superette robbery, the overall 10 year starting point was marginally outside the available range. We consider a nineyear starting point would have been appropriate.
No discount for guilty pleas
[12] No allowance was made for Mr Elliott’s guilty pleas. The Crown accepts the sentencing Judge erred by omitting to provide such a discount, and that the 25 per cent credit provided as part of a declined sentence indication was appropriate. Mr Elliott pleaded guilty to the charges that are the subject of the appeal four days later.
[13] We do not intend to depart from the Crown’s concession. However, we observe that the provision of the maximum discount for a guilty plea at the stage of a sentence indication, while, as we understand the position, not out of the ordinary in the District Court, is generous when compared with the guidance provided in R v Hessell.[7]
[14] Taken together with the 20 per cent credit for youth, remorse and the prospect of rehabilitation, the end sentence when adjusted for the guilty plea discount should have resulted in a term of five years and four months’ imprisonment.
Possible adjustment for sentence having to be served without parole
[15] While not raised by the appellant, the Crown drew our attention to the requirement that Mr Elliott must serve his sentence without parole.[8]
[16] In September 2016, Mr Elliott robbed a liquor store. He stole a bottle of whiskey and punched the store manager twice in the face. Mr Elliott, who was aged 18 years at the time, received a sentence of intensive supervision combined with community work.[9] He was also given a stage1 warning, as required by the Sentencing Act 2002.[10]
[17] Because the aggravated robberies were committed by Mr Elliott after he had received a first warning, they constitute stage-2 offences.[11] As a result, the determinate long-term sentence of imprisonment imposed for that offending is required to be served without parole.[12]
[18] In Barnes v R, this Court held that notwithstanding the absence of any express exception to the requirement that a stage-2 offender serve his or her sentence without parole, a sentencing court in some limited situations was entitled to be cognisant of that consequence.[13] Because of the comprehensive approach to sentencing required by the detailed provisions of the sentencing legislation, this Court considered Parliament must have intended a sentencing court to approach sentencing in a way that avoided a disproportionately severe or manifestly unjust outcome. Ordinarily, sentencing will take place without consideration of an offender’s eligibility for parole. However, in exceptional cases, for a genuine sentencing purpose and to avoid manifest injustice, a sentencing court may take parole eligibility into account.
[19] The sentencing Judge in the present case considered whether to adjust the sentence in accordance with the guidance provided in Barnes. After noting Mr Elliott’s equivocal prospects of rehabilitation, he declined to do so.[14]
[20] Ms Brook submitted the sentencing Judge had been wrong to limit his consideration of Barnes only to the prospects of Mr Elliott’s rehabilitation because that was not the only reason articulated in that case as justifying a discount to reflect a stage-2 offender’s loss of parole. The nature of the first-strike offending in that case had played a particularly important role.[15] Ultimately, the issue devolves to whether the sentence requires adjustment to avoid a manifestly unjust sentencing outcome.[16]
[21] While it was responsible for the Crown to raise the issue for our consideration, we do not consider the sentencing Judge erred in declining to adjust the sentence to reflect Mr Elliott’s loss of parole. We accept the justification for making such an adjustment is wider than an offender’s potential rehabilitation. However, we are not convinced, having regard to the other purposes of the Sentencing Act, that this is the type of exceptional case recognised in Barnes which Parliament would have expected the statutory direction of non-parole to result in some modification of the sentence to avoid manifest injustice.
[22] Mr Elliott’s earlier offending was less serious. He was convicted of a nonaggravated robbery. However, that offending falls into the same category of criminal conduct as his later offending, namely the robbery of a small business which involved acts of violence. Unlike the appellant in Barnes, Mr Elliott, despite his youth, was again before the Court for similar serious offending as a repeat offender.
[23] As Ms Brook observed in her written submissions, if any adjustment was to be contemplated, it would necessarily be modest. Unlike in Barnes where an adjustment carried the potential to place the end sentence into a category which offered different rehabilitative approaches, Mr Elliott would still be subject to a long-term sentence of imprisonment.
[24] In declining to make any adjustment, we also note that despite the relevance of the previous robbery conviction no uplift was imposed to reflect Mr Elliott’s recidivism. We hasten to add that none was needed having regard to the consequences of his conviction for a stage-2 offence.
Result
[25] The appeal is allowed.
[26] The sentence of eight years’ imprisonment imposed in respect of the aggravated robbery of the Aberdeen Superette (charge 4) is quashed and substituted with a sentence of five years and four months’ imprisonment.
[27] The respective concurrent sentences of two years’ imprisonment in respect of aggravated wounding (charge 5) and the aggravated robbery of the Southern Cross Superette (charge 6) remain.
[28] The effective total sentence is therefore one of five years and four months’ imprisonment. The full term of the sentence must be served without parole.
Solicitors:
Bean Law,
Hamilton for Appellant
Crown Law Office, Wellington for Respondent
[1] R v Elliott [2018] NZDC 15430 at [21].
[2] At [13].
[3] At [17].
[4] At [20].
[5] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).
[6] See Ripia v R [2011] NZCA 101 at [15].
[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]–[77].
[8] Sentencing Act 2002, s 86C(4)(a).
[9] Police v Elliott [2016] NZDC 24854.
[10] Sentencing Act, s 86B(1).
[11] Section 86A.
[12] Section 86C(4)(a).
[13] Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
[14] R v Elliott, above n 1, at [20].
[15] Barnes v R, above n 13, at [58].
[16] At [53] and [56].
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