R v Bothamley [2017] NZDC 9095 (28 April 2017)

Last Updated: 10 October 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT ROTORUA

CRI-2016-063-002351 [2017] NZDC 9095

THE QUEEN

v

ROBERT HILTON BOTHAMLEY

Hearing: 28 April 2017

Appearances: A Hill for the Crown

L Te Kani for the Defendant

Judgment: 28 April 2017

_{NOTES OF JUDGE P G MABEY QC ON SENTENCING}

[1] Robert Bothamley is before the Court for sentencing today on two charges arising from the same incident. He was tried by a jury together with his co-defendant, Mr Cougarche Joseph. They were both charged with kidnapping and aggravated robbery, each as principals. Each were convicted of kidnapping but Mr Bothamley only was convicted of aggravated robbery. The aggravated robbery charge was laid under s 235(b) Crimes Act 1961. The aggravation which elevated robbery to aggravated robbery was the fact that they were both together.

[2] The jury concluded that Mr Bothamley acted together with Mr Joseph in the robbery alleged in charge 3. That would have inevitably, on any logical analysis, led to a conviction for Mr Joseph of aggravated robbery where he was charged acting together with Mr Bothlamley. But the jury did not come to that conclusion. Their view that Mr Joseph was not proven beyond reasonable doubt to have acted together

_{with Mr Bothlamley in the robbery is entirely inconsistent with the fact that on the}

R v ROBERT HILTON BOTHAMLEY [2017] NZDC 9095 [28 April 2017]

previous charge they found that he did act together with Mr Bothamley in the robbery.

[3] I took that up with counsel at the trial. I did not enter a conviction on charge 3 for Mr Bothamley as I wished to explore the potential for me to amend charge 3, aggravated robbery, back to robbery where Mr Bothamley would be acting alone. However, I am satisfied that I cannot do that after verdict. Section 147(1) of the Criminal Procedure Act 2011 makes that clear and there are no other provisions in the Act which would enable me to amend the charge of aggravated robbery back to robbery. For that reason and on the invitation of counsel I have entered a conviction today on aggravated robbery for Mr Bothamley. He has already received a first strike warning at trial for the conviction for kidnapping and it is not necessary for me to repeat that for the conviction I now enter for aggravated robbery.

[4] The facts which relate to the charges are that in July 2016 the complainants for the kidnapping charges, [victim 1] and [victim 2], were in Taupō. They were driving a motor vehicle. They met with an associate who took them to an address. It was a ruse intended to bring them in to the presence of Mr Bothamley and Mr Joseph. They went to the address where upon Mr Joseph and Mr Bothamley came to the car from behind a building. Mr Bothamley opened the passenger’s door and threatened the driver with a hammer he was holding. He ordered him from the car and Mr Joseph escorted the other person inside. Mr Bothamley ordered the driver, [victim 1], out of the car. He then began searching the vehicle and asked [victim 1] where the drugs and money were. [Victim 1] said he did not have any. After the search Mr Bothamley demanded the keys from [victim 1] and ordered him into the house.

[5] By this point both complainants are in the house together with Mr Bothamley and Mr Joseph and also a female known as [name removed]. She gave evidence at trial. Once inside the house Mr Bothamley began yelling and demanding money saying that he had been looking for the complainants over the previous week. There was a suggestion that the demand for money had something to do with drug dealing but I am not satisfied either way of that and in any event it is irrelevant to the fact of the kidnapping and the subsequent robbery.

[6] Mr Bothamley continued with his demand for money telling the complainants they were not going anywhere until money was paid. Efforts were made to obtain money from third parties associated with the complainants but nothing came of that. Inside the house Mr Bothamley had the hammer and Mr Joseph had around his neck a knife which he played with in a manner which I am satisfied was intended to let the complainants know that he would use it if he had to or at least that he was there backing up Mr Bothamley and any attempt by them to leave would be thwarted. They said they felt they were powerless to leave and the jury clearly accepted that.

[7] As matters transpired people came and went from the house. At one point one of the complainants went and the other stayed. The end result, however, was that the vehicle, which they came to the property in, was retained by Mr Bothamley who said that it was now the property of the Mongrel Mob.

[8] At trial the charge of kidnapping against Mr Bothamley and Mr Joseph was proven to the satisfaction of the jury. Clearly the jury accepted that there was an unlawful detention against the will of the complainants over a number of hours. They were not free to leave and they were subject to threats and abuse by Mr Bothamley who demanded money and ultimately it was he that took the car.

[9] It may well be that the proper verdict for Mr Bothamley was robbery of the car; theft accompanied by violence or threats of violence. That is not a matter that I can address today. He has been convicted of aggravated robbery and, despite the inconsistency between the verdict for his conviction and the acquittal of Mr Joseph, I am obliged to sentence him as an aggravated robber. I fully expect that Mr Te Kani may raise this in the Court of Appeal and if I am correct in my perception that this is a truly inconsistent verdict then the Crown Law Office may take a view that the proper approach is to acknowledge the validity of the ground of appeal and promote a substituted verdict of robbery for Mr Bothamely. At the end of the day, however, the sentence may not greatly differ but that is not for exploration today.

[10] Mr Hill, who prosecuted the trial, has filed written submissions and maintains that I can approach the offending on a global basis and arrive at a start point. I much

prefer to look at the charges discretely and by that route and applying the totality principle, come to a final start point.

[11] Mr Hill, by reference to the guideline case of R v Mako1, identifies a number of aggravating factors relating to the aggravated robbery. This is not a particularly violent or grievous form of aggravated robbery. There was victim vulnerability but that is brought about by the kidnapping and of course there was loss. The position is that two men on the verdict of the jury acted together to acquire property from another and that translates from theft to aggravated robbery under the form charged.

[12] Mr Hill has referred to a number of cases which on their facts involve both kidnapping and aggravated robbery. He refers to Piper v R2, R v Wyatt3, Edwards and Skipper v NZ Police4 and Wakefield v Police5. He has carried out an analysis of those cases arriving at a start point for the combination of kidnapping and aggravated robbery of five years. He submitted to me on my enquiry that if he was proposing a start point for the charge of aggravated robbery alone it would be at least four years.

[13] Mr Te Kani does not take a serious issue with that. I agree that on a R v Mako analysis, although the examples in that case do not fit comfortably with the facts of this case to enable a clear classification, four years is an appropriate start point for the aggravated robbery taken as the lead charge. It would of course have been possible to take the kidnapping as the lead charge but that is not the approach I take. The kidnapping which was the precursor to the aggravated robbery and part of the design to get money or property from the complainants and is an aggravating factor.

[14] On a standalone basis the kidnapping may well justify a three year start point in Mr Bothamley’s case, he being the main player. However, I consider that on a totality basis an uplift of 12 months is appropriate to take me to a five year start point

_{for the totality of the charges.}

1 _{R v Mako [2000] NZCA 407; [2000] 2 NZLR 170}

2 _{Piper v R [2012] NZCA 104}

3 _{R v Wyatt [2009] NZCA 464}

4 _{Edwards and Skipper v NZ Police HC New Plymouth CRI-2009-443-000016, 21 September 2009}

5 Wakefield v Police HC Christchurch CRI-2008-409-169, December 2008

[15] Mr Bothamley has some previous convictions, none of which would justify an uplift.

[16] I have a pre-sentence report and Mr Bothamley openly admits in that report that at the time of the offending he was entrenched in a gang lifestyle. I understand him to be a member of the Mongrel Mob, as is Mr Joseph. But in the circumstances of this case their identity with the Mongrel Mob is not a factor that influences the sentence. This was not alleged as a Mongrel Mob venture or enterprise, it was two men acting together and the fact that they were members of the Mongrel Mob cannot in my view be factored in on any principled basis in determining the sentence. It may well be that the complainants were intimidated by their knowledge of that fact and that may have added to their fear, but apart from a statement made by Mr Bothamley as to his patch during the event and then saying subsequently that the car was now the property of the Mongrel Mob, this cannot be seen as a gang enterprise and I do not view it that way.

[17] The balance of the pre-sentence report for Mr Bothamley is uneventful. He is supported today by family. Mr Te Kani has passed on a request from Mr Bothamley’s father to see him in employment, possibly out of New Zealand. That is a quite proper response by a parent but the reality is I cannot accede to that because Mr Bothamley will be going to prison.

[18] There are no other mitigating matters which I can take into account and on totality I have reached a start point of five years’ imprisonment and that will be the end point.

[19] On the charge of aggravated robbery, you are sentenced to five years’

imprisonment.

[20] On the charge of kidnapping, you are sentenced to the same term. The total

term is five years’ imprisonment.

P G Mabey QC District Court Judge