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Court-Clausen v R [2020] NZCA 488 (15 October 2020)

Last Updated: 19 October 2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA332/2020
[2020] NZCA 488

	BETWEEN	WILLIAM MATIU COURT-CLAUSEN Appellant
	AND	THE QUEEN Respondent

Hearing:	29 September 2020
Court:	Collins, Mallon and Ellis JJ
Counsel:	R M Mansfield for Appellant C Ure for Respondent
Judgment:	15 October 2020 at 10.00 am

JUDGMENT OF THE COURT

The appeal against sentence is allowed.
The sentence of nine years’ imprisonment imposed in the District Court is quashed and substituted with a sentence of seven years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] Mr Court-Clausen appeals the sentence of nine years’ imprisonment imposed by Judge Ingram in the District Court at Tauranga after he pleaded guilty to a charge of aggravated robbery.^[1] The essence of the grounds of appeal is:

(a) the starting point of 11 years’ imprisonment adopted by the sentencing Judge was excessive; and

(b) insufficient credit was given for personal mitigating factors.

It is contended these errors and omissions led to a sentence that was manifestly excessive.

Background

[2] Mr Court-Clausen was deported from Australia in 2017 pursuant to s 501 of Australia’s Migration Act 1958. He had been convicted in Australia in relation to a variety of offences and sentenced to terms of imprisonment in 2014 and 2016. The longest sentence was one year and eight months’ imprisonment for driving offences and possession of a prohibited drug.
[3] Soon after his arrival in New Zealand, Mr Court-Clausen joined the Comanchero Gang (the Comancheros).
[4] On the evening of 19 July 2018, Mr Court-Clausen and other Comancheros travelled from Auckland to Mount Maunganui. The group used two cars and arrived at Mount Maunganui at about 4.00 am. Their objective was to enter the house of a suspected drug dealer and take whatever drugs and money they could find. The plan misfired however when Mr Court-Clausen and his associates broke into the home of an innocent couple, who lived near the target address.
[5] At about 4.20 am on 20 July 2018, the victims, who are a couple in their sixties were woken to the sound of people climbing over their front fence. This was soon followed by the victims’ front door being forced open with a sledgehammer. The male victim tried to escape via the garage. His exit was, however, blocked by a large man dressed in black and wearing a balaclava, who pointed a shotgun at the victim as he endeavoured to escape. The male victim was then forced onto the floor of the garage while an offender pointed a gun at him and demanded “money and drugs”. The male victim’s eye was hit, and he was threatened and told his dog would be shot if he did not comply with the assailants’ demands.
[6] In the meantime, the female victim was accosted in the couple’s bedroom by two of the offenders. They were also dressed in black and wearing balaclavas. The assailants forced the female victim to the floor and pointed a firearm at her. She was told on several occasions she would be shot if she did not “shut up”. At one point an offender put a sock into the female victim’s mouth.
[7] The victims tried to explain that they did not have any drugs and that only a small amount of cash was in the house. That cash comprised $40 in the female victim’s wallet. The intruders then obtained from the male victim the combination of a safe and endeavoured to open it.
[8] Throughout the ordeal, the victims were threatened with death and beatings. Guns and weapons were pointed at them. The disturbance caused a neighbour, who happened to be a police officer to alert police, who soon arrived at the property armed only with tasers and pepper spray. When the police entered the property, they were confronted by the armed intruders. One of the offenders threw an object at a police officer, striking her on the head. The police then tried to use their tasers and pepper spray devices to gain control of the situation. The intruders escaped and ran to a getaway vehicle that was parked in a nearby street.
[9] A police chase then ensued, through central Mount Maunganui and Blake Park. At one stage someone in the escape vehicle threw a loaded shotgun from the car. The offenders then drove through some bollards and abandoned their escape vehicle at Bay Oval. They then got into another vehicle that belonged to the friend of one of their associates. The offenders then continued their efforts to escape while being pursued by a number of police vehicles. At one stage, the offenders drove on the wrong side of a major road in Mount Maunganui. The offenders abandoned the second car and escaped across a golf course and Tauranga Airport. Police dogs and the Armed Offenders Squad were unable to track them.
[10] Later that morning, Mr Court-Clausen was endeavouring to hitchhike out of Tauranga. A vehicle, that happened to be driven by a police officer, stopped and picked him up. Mr Court-Clausen was arrested. He claimed to have been dropped off at Mount Maunganui, following an argument he had with a friend.
[11] The vehicles used in the offending were located. Cash, drug paraphernalia, passports and other evidence of criminal offending were found in those vehicles.

Sentencing decision

[12] Mr Court-Clausen pleaded guilty 17 months after he was arrested. He was sentenced by Judge Ingram on 8 June 2020 at the same time as one of his co-offenders, Mr Moke. The sentencing Judge had presided over the trial of two of the offenders who had pleaded not guilty. That trial resulted in a hung jury. A retrial has yet to take place.
[13] In setting the starting point of 11 years’ imprisonment, Judge Ingram emphasised the following facts:

(a) The victims were a vulnerable couple, who were held at gunpoint in their own home, assaulted, bruised and at the time, feared for their safety. The physical violence was described by Judge Ingram as being “moderate”.^[2]

(b) The offending was carefully planned and involved four, possibly five offenders travelling from Auckland in two vehicles, one of which was a rental car. The other car had been taken without the owner’s permission. Evidence of the planning included the use of disguises, a sledgehammer and firearms. The Judge said that this was “easily the most carefully planned and professionally executed aggravated robbery of its type that [he was] aware of in New Zealand”.^[3]

(c) The offending involved “a gang engaged in intelligence gathering, and directing gang members to carry out aggravated robberies of private [dwelling houses]”^[4] for the purpose of obtaining drugs and money.

[14] The choice of the 11 years’ starting point was also influenced by:

(a) the Judge’s application of the principles articulated by this Court in R v Mako;^[5]

(b) the fact the offending involved a home invasion, which was a particularly aggravating feature of this case;

(d) s 8(d) of the Sentencing Act 2002, which requires the imposition of a sentence “near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed”. Judge Ingram considered the offending to be more serious than most cases, although not the most serious.^[6]

[15] Judge Ingram added three months’ imprisonment to reflect Mr Court-Clausen’s history of criminal offending.
[16] From the adjusted starting point of 11 years and three months’ imprisonment, Judge Ingram deducted:

(a) 15 months (11 per cent) to reflect personal mitigating factors set out in a report prepared pursuant to s 27 of the Sentencing Act. We discuss that report at [31]–[40].

(b) 12 months (10 per cent) to recognise Mr Court-Clausen’s guilty plea entered 17 months after he was charged.

These deductions produced an end sentence of nine years’ imprisonment.

Arguments on appeal

[17] In submitting that a starting point of nine years’ imprisonment is appropriate in this case, Mr Mansfield, counsel for Mr Court-Clausen, emphasised the following points:

(a) The level of physical violence inflicted upon the victims in this case was at the lower end of the spectrum of violence for offending of this kind.

(b) Judge Ingram overstated the level of planning, which was no more than was evident in a number of cases, such as Royal v R,^[7] Manuel v R^[8] and Tiori v R.^[9] We refer to those cases at [22]–[25].

[18] Mr Mansfield also criticised what he said was the inappropriately modest discount for the factors set out in the s 27 report.
[19] Ms Ure, for the Crown, submitted that the starting point adopted by Judge Ingram, while at the upper limit, was nevertheless within the range that was reasonably available. Ms Ure also submitted that the discounts provided by Judge Ingram were appropriate.

Analysis

Starting point

[20] It is one of the fundamental principles of sentencing in New Zealand that courts “must take into account the general desirability of consistency with appropriate sentencing levels ... in respect of similar offenders committing similar offences in similar circumstances”.^[10]
[21] There are three decisions of this Court, which provide a useful indication as to the appropriate starting point in this case.

Royal v R

[22] In Royal, an 11-year starting point was held by this Court to be appropriate. That case concerned three intruders, who broke into a home. They were dressed as police officers and were armed with a sledgehammer and firearms. Once inside the home the intruders bound and gagged six members of the family who occupied the home and subjected one occupant to a vicious assault. The assault was described in the following way by this Court:^[11]

... a middle aged male occupant [was taken] into the kitchen where an element of the stove was turned on, and instructions given that the victim should sit on it. He refused to do so and subsequently was threatened and punched to the floor, where he received kicks to the head and body ... The offender took a knife from a kitchen [drawer] and slashed his victim’s upper body and thighs, ... causing cuts to his clothing and to his body.

Manuel v R

[23] In Manuel, this Court upheld a starting point of 10 years and three months’ imprisonment for a case in which three intruders broke into a farm cottage where the victim and his 17-year-old girlfriend were sleeping. All three intruders were carrying firearms. The victim was hit to the back of his head and dragged into the lounge and struck a number of times with the butt of a gun. While the victim lay naked on the floor, “the assailants wrapped a piece of cloth around his neck and pulled his head from the ground with the cloth... He was then tied up. He was put on a chair, still naked, and had his arms tied behind his back with an electrical lead”.^[12] The victim suffered a laceration to the back of his head, bruising and fractures to one of his feet and other injuries. He required multiple stitches and was unable to work for three months.

Tiori v R

[24] In Tiori, the sentencing Judge adopted a starting point of 10 years. This Court reduced that starting point to eight years. That case involved four men breaking into a tinnie house in retaliation for an assault that one of the intruders had suffered. They were disguised and armed with a hammer and a slug gun. The intruders demanded the occupants lie on the floor and hand over their drugs and money. One victim was hit on the back of the head with the slug gun, and the barrel of the slug gun was pushed into his body and head. The summary of facts said the victims thought the assailants also had a single barrelled shotgun, but no weapon matching that description was found.
[25] Royal, Manuel and Tiori all involved defendants who carefully planned their crimes. All three cases involved the use of weapons and assailants who were disguised.
[26] We do not underestimate in any way the seriousness of the offending of Mr Court-Clausen and his associates. We unreservedly share the Judge’s concern that it involved a significant degree of planning and was executed in a way that must have caused considerable distress to the victims. Nevertheless, it is significant that Royal and Manuel involved the infliction of far greater injuries to the victims in those cases than occurred in the present case. The injuries to the victims in this case were more closely aligned to the victim in Tiori, where a starting point of eight years’ imprisonment was held to be appropriate.
[27] The extent to which a victim is injured is one very important factor in setting the starting point in a case such as this.^[13] While there were no lasting physical injuries to the victims, there was serious repeated threats made with loaded firearms. There was therefore a serious risk of grave harm. Another significant factor is the sophistication of the planning and execution of the offending.^[14] Also important is the motive for the offending which, in this case, was the desire to steal drugs and money. The offending was carried out at the behest of a criminal gang. This is a further aggravating factor.^[15]
[28] When we assess all of the factors associated with the offending in this case and compare those features to the cases we have summarised at [22]–[25], we are drawn to the conclusion that the starting point of 11 years’ imprisonment was too high. A starting point of 10 years would have more than adequately reflected the aggravating features of Mr Court-Clausen’s offending.

Uplift

[29] No issue can be taken with the modest uplift of three months’ imprisonment to reflect Mr Court-Clausen’s history of criminal offending.

Deductions

Guilty plea

[30] We agree with the 10 per cent deduction for the guilty plea entered by Mr Court-Clausen 17 months after he was charged.

Section 27 report

[31] The s 27 report portrays a 30-year-old man, who left school at 12 and whose childhood was marred by physical and sexual abuse from members of his whānau. Mr Court-Clausen still struggles to come to terms with the abuse which he suffered. This in turn has set the scene for his lifelong addiction to drugs and his impaired mental health.
[32] Upon being deported to New Zealand, Mr Court-Clausen found himself dislocated from most of his support networks in Australia, which he had developed since he was about 13 years of age. He joined the Comancheros “as a mechanism for support” in part because he was told he was ineligible for the unemployment benefit.
[33] Mr Court-Clausen’s wife and children have moved to New Zealand to be near him. The reality is, however, that his sudden deportation from Australia had the effect of dislocating him from his connections in Australia, which he had developed over a 15-year period, and placed him in New Zealand with little opportunity to reconnect with his New Zealand whānau and with tikanga Māori. Deportation in this case involved a double dislocation.
[34] Judge Ingram expressed a number of reservations about the s 27 report. His concerns were:^[16]

(a) The report writer did not set out his experience and qualifications.

(b) The report writer did not attend Court.

[35] Judge Ingram was critical of what he described as “the subversion of the statutory process” by the s 27 report being filed without the report writer being available to “allow the Court to carefully and accurately assess the reliability of the information provided in circumstances where defendants do not co-operate with probation officers”.^[17] We note, however, that the pre-sentence report that was before Judge Ingram did not indicate any lack of co-operation by Mr Court-Clausen with the probation service.
[36] Notwithstanding his reservations about the s 27 report, Judge Ingram provided Mr Court-Clausen with a discount of 15 months (11 per cent) to reflect the matters set out in the report.
[37] If Judge Ingram was concerned about the validity of any aspect of the s 27 report, then the preferred course would have been to provide an opportunity for the Judge’s concerns to be tested. This was particularly important in this case where there was nothing before the Court to support any misgivings about the contents of the s 27 report.
[38] We have examined the details of the s 27 report and consider it provides a useful lens with which to view Mr Court-Clausen’s path towards his offending. We also have no doubt the author of the s 27 report has accurately recorded Mr Court‑Clausen’s remorse, which is also something that was noted in the pre‑sentence report.
[39] In our assessment, a discount of 15 per cent for the personal factors set out in the s 27 report would appropriately reflect the principles of the Sentencing Act that require courts to have regard to an offender’s “personal”, “whanau” and “cultural background”.^[18]
[40] We therefore quash the sentence imposed in the District Court and substitute that sentence with one of seven years and six months’ imprisonment. That sentence is calculated in the following way:

(a) a starting point of 10 years and an uplift of three months for previous offending;

(b) deductions for guilty plea (10 per cent); and

These calculations produce a sentence slightly over seven years and six months’ imprisonment. We round the calculation down to seven years and six months’ imprisonment.

Result

[41] The appeal against sentence is allowed.
[42] The sentence imposed in the District Court is quashed and substituted with the sentence we have set out at [40].

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] R v Moke [2020] NZDC 10395 [Sentencing notes].

^[2] At [13].

^[3] At [10].

^[4] At [11].

^[5] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

^[6] Sentencing notes, above n 1, at [45].

^[7] Royal v R [2009] NZCA 65.

^[8] Manuel v R [2010] NZCA 285.

^[9] Tiori v R [2011] NZCA 355.

^[10] Sentencing Act 2002, s 8(e).

^[11] Royal v R, above n 7, at [3].