CLARK V POLICE HC TIM CRI-2008-476-000030 [2009] NZHC 362 (26 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
TIMARU REGISTRY
                                                              CRI-2008-476-000030



                          TRACEY ELIZABETH CLARK



                                             v



                       
               POLICE



Hearing:       17 March 2009

Appearances: M J Knowles for Appellant
             C A O'Connor for Crown

Judgment:      26 March 2009


             INTERIM JUDGMENT OF HON. JUSTICE FRENCH


Introduction


[1]    This is an appeal against
sentence.


[2]    Following pleas of guilty in the District Court, the appellant was convicted of
what the sentencing Judge described
as one charge of aggravated robbery and one
charge of supplying cannabis. The Judge sentenced the appellant to concurrent terms
of
imprisonment of four and a half years and six months respectively.


Police Summary of Facts


[3]    The police summary of facts
stated the factual background as follows



CLARK V POLICE HC TIM CRI-2008-476-000030 26 March 2009

[4]     The appellant had known
the victim for some four months. The victim was
involved in a cannabis operation and they had an arrangement whereby in exchange
for sexual services, he would pay her with cannabis on some occasions and on other
occasions in cash.


[5]    The appellant confided
in a male associate about the victim's cannabis
operation. She then entered into discussions with this other person about a plan
to
enter the victim's house, steal his recently harvested cannabis, and sell it, dividing
the profit between them.


[6]    On the
morning of 29 May 2008, the appellant and her co-accused carried out
a reconnaissance of the victim's address. The appellant later
made contact with the
victim and set up a meeting that evening, proffering sex in order to gain entry to the
house. She later drove
to the address in her vehicle with the co-accused. The latter
was armed with a butcher's knife belonging to the appellant. The appellant
entered
the victim's house while the co-accused waited in the car outside. Once inside, the
appellant made sure the back door to
the house remained unlocked.


[7]    Some minutes later, the co-accused entered the house via the back door. He
was armed with the
butcher's knife and wearing a bandanna covering his nose and
mouth. He confronted the victim. The victim got to his feet whereupon
the co-
accused punched him and knocked him to the floor.


[8]    The co-accused then set about viciously assaulting the victim,
kicking him
several times in the head and face after the victim had collapsed to the floor.


[9]    The appellant went into the
victim's bedroom and located approximately 8
ounces of cannabis plant in the wardrobe which she removed.


[10]   Meanwhile, the
co-accused continued with the assault on the victim inflicting
several more kicks to the victim's face and head. He then straddled
the victim and
stabbed him repeatedly in the head and face using the butcher's knife

[11]   The appellant witnessed the attack
and made no effort to intervene. To her
knowledge, there were two young children asleep in the house.


[12]   At the conclusion
of the attack, the co-accused left the victim semi-conscious
and bleeding on the floor while he too went to the victim's bedroom.
The co-accused
ransacked the room and removed other items of property. He took these items as
well as the cannabis plant which the
appellant had found and then left the house.


[13]   The appellant remained at the scene. Once the co-accused had gone, she
called
the emergency services. The victim was taken to hospital. The appellant then
gave false information to the police about what had
happened in an attempt to deflect
suspicion away from herself and her co-accused.


[14]   After the robbery, the appellant sold
the stolen cannabis in exchange for cash,
receiving several hundreds of dollars.


[15]   Injuries sustained by the victim included
severe swelling and bruising to his
hands and face, in particular his lips and eyes. One of his eyes was completely closed
over, while there were four deep lacerations to the head and face as a result
of being
stabbed. All the stab wounds required stitching. The repeated kicking caused severe
concussion, bruising to the left arm
and the right side of the torso. The victim
continues to suffer from ongoing physical and psychological effects.


[16]   In June,
the appellant was interviewed again by police and this time admitted
her involvement. She claimed she had nothing to do with the
beating of the victim
and was unaware he was going to be assaulted in such a fashion.


[17]   For his part, the co-accused told
police the idea had been hatched by the
appellant.


[18]   The appellant had one previous conviction for violence although at the
lower
end of the scale, with other convictions relating to dishonesty offences.


The Judge's decision

[19]   In imposing a sentence
of four and a half years' imprisonment, the Judge
adopted the following reasoning process.


[20]   First, he identified the aggravating
features of the offending as being:


       a)      The significant role played by the appellant in the planning of the
       
       robbery


       b)      Her post- robbery conduct in selling the cannabis


       c)      The fact a knife was used which
the appellant had supplied


       d)      The fact the robbery occurred in a domestic house where young
               children
were sleeping


       e)      The fact there was a vicious and sustained attack


       f)      The impact on the victim


[21]
  The Judge said he accepted the appellant's role in the violence was less than
the co-accused but found there were no mitigating
features in the offending


[22]   Having regard to the aggravating features and the decision of R v Mako
 [2000] 2 NZLR 170, the Judge said he considered an appropriate starting point was
in the range of around seven and a half years to eight years.


[23]
  As regards mitigating factors relating to the offender personally, the Judge
identified the guilty plea and the later co-operation
with the police. He said he also
acknowledged that the appellant took some steps to call the emergency services but
went on to say
"against that attempt at appearing to be a good samaritan is your
callous activity later in selling the cannabis."


[24]   The Judge
concluded by saying that the appellant was entitled to what he
described as a significant discount for her early guilty plea and
co-operation from the
starting point. He did not specify the amount of the discount but to have arrived at

an end sentence of four
years and six months from a starting point of between seven
and a half to eight years represents, in effect, a deduction of 3 to
4 and a half years,
or expressed in percentage terms a discount of 46% to 56%.


Grounds of appeal


[25]   On appeal, no issue is
taken with the sentence imposed in respect of the drug
offending.


[26]   The basis of the appeal is that the sentence of four and
a half years'
imprisonment imposed in respect of the robbery was manifestly excessive and / or
wrong in principle.


[27]   In support
of that submission, counsel Mr Knowles advances the following
arguments


       a)      An error of principle occurred at the outset
because the appellant was
               convicted of robbery simpliciter whereas the Judge sentenced on the
               basis
of aggravated robbery.


       b)      Without hearing any evidence, the Judge found that the appellant
               knew the
co-accused had a knife and contemplated using it in the
               course of the robbery.


       c)      The Judge was wrong
to say there were no mitigating features in
               relation to the offending when there was a very significant mitigating
               factor, namely that the appellant had asked the co-accused to stop the
               violence and had remained behind
to call the emergency services and
               assist the victim.


       d)      The Judge was also wrong to discount these
actions by reference to
               the subsequent conduct in selling the cannabis, not least of all
               because, contrary
to what the Judge assumed, the cannabis she sold
               was not the cannabis taken in the robbery.

       e)     The Judge
also failed to take into account a significant mitigating
              factor, namely that the appellant had been subjected to violence
by the
              co-accused on two occasions in the two days leading up to the
              robbery. This violence occurred
following the appellant's initial
              refusal to assist the co-accused in his scheme to rob the victim


The Court's ruling

[28]   Turning to the first issue, namely whether the appellant should have been
sentenced on the basis that the offence was robbery
simpliciter.


[29]   The offence of aggravated robbery is defined by s235 of the Crimes Act
1961 in the following terms:

     
 Every one is liable to imprisonment for a term not exceeding 14 years who--

       (a)   robs any person and, at the time of, or
immediately before or
       immediately after, the robbery, causes grievous bodily harm to any person;
       or

       (b)   
being together with any other person or persons, robs any person; or

       (c)     being armed with any offensive weapon or instrument,
or any thing
       appearing to be such a weapon or instrument, robs any other person.




[30]   The appellant signed the information
saying she pleaded guilty to the offence
"charged in the within information."        What the information alleged was the
commission
of "an offence against Crimes Act 1961 section 235(a) and section
66(1) in that [s]he (jointly offended with Bradley Torbett) robbed
Mark William
Wallace of cannabis plant, electronic scales, lighting equipment, a cell phone, DVD
player, digital camera and a freeview decoder".


[31]   As
to the circumstance of aggravation, the information refers to s235(a).
However, the police summary of facts refers to s235(c). The
Judge also had before
him the Crown sentencing memorandum and written submissions from the
appellant's then counsel.      For its
part, the Crown memorandum refers to s235
without identifying any sub section, while the written submissions on behalf of the

appellant
state only that "the prisoner faces sentence on charges of aggravated
robbery (secondary party)."


[32]   The submissions also confirm
that at the sentencing, the appellant strongly
disputed ever knowing her co-accused was in possession of the knife or intended
violence.


[33]   However, as mentioned above, the Judge expressly sentenced the appellant
on the basis that she had supplied the co-offender
with the knife and knew he was
armed. There was no contested facts hearing.


[34]   Under s24 of the Sentencing Act 2002, it was
only possible for the Judge to
rely on those disputed facts without a contested facts hearing, if they were facts that
were essential
to a plea of guilty. They could only be essential to a plea of guilty if
what the appellant had pleaded guilty to was s235 (a) or
(c), but not if what she had
pleaded guilty to was the offence under s235 (b) or robbery simpliciter.


[35]   It is clear the appellant
understood she was pleading guilty to aggravated
robbery.


[36]   What is more difficult to determine is whether she was pleading
guilty to (a)
(b) or (c) of s235. As Mr Knowles submitted, the appellant was entitled to know
which aggravating feature it was that
the Crown was relying upon to convert the
robbery into an aggravated robbery.


[37]   In my view, the words of the information are
apt to describe a robbery that
comes within 235 (b); that is to say, it is aggravated because it was committed with
someone else
as discussed in Keen v R [2008] BCL 470.


[38]   I therefore find that the appellant pleaded guilty to and was convicted of the
offence of aggravated robbery under s 235(b) of the Crimes Act 1961.


[39]   In coming to that conclusion, I have not overlooked
the fact that the
information expressly refers to s235 (c). It also contains a reference to s66 ­ a
reference which would be unnecessary
for liability under s235(b): see R v Feterika

 [2007] NZCA 526. However, as was held in Sayer and Anor v Police  [1963] NZLR
221, the statutory reference endorsed on an information is strictly speaking not part
of the charge. In my view, as a matter of principle
where there is a conflict between
a section reference and the words in an information or indictment, it is the words that
must prevail
unless of course that would cause injustice.


[40]     In this case, there can been no injustice as regards conviction. While Mr
Knowles argued for the offence to be one of robbery simpliciter, he also
unreservedly accepted that on the facts the appellant was
guilty of aggravated
robbery under s235(b).


[41]     Having come to that conclusion, I next have to determine whether the
sentence
imposed by the Judge was within range for an offence under s235(b).


[42]     In order to be able to do that, I need of course to
be able to identify all the
relevant aggravating factors and mitigating factors ­ something that is problematic
given the dispute
over some key facts.


[43]     For, in addition to the issue of whether or not the appellant knew the co-
accused was armed with
the knife, Mr Knowles also raised the following factual
issues


                    (i) Two days before the robbery, the co-offender
assaulted the
                        appellant because she was refusing to take part in the robbery.
                        The
fact of the assault is mentioned in the pre sentence report
                        and, as Mr O'Connor responsibly accepted, would
have to be
                        considered a significant mitigating factor relating to the
                        offending if
it happened in the circumstances alleged. It was
                        however never put to the Judge by counsel and not taken
into
                        account.


                    (ii) The Judge found the appellant had made no effort to intervene
 
                      in the attack. The appellant however claims she told the co-
                        accused to stop but he
ignored her. The appellant also claims

                       the reason she gave the co-accused the cannabis was to get
     
                 him to stop.


                   (iii) The cannabis she sold was not the cannabis taken in the
               
       robbery. She never saw the stolen cannabis again after the co-
                       accused had left the house.       This
was an issue raised in
                       correspondence between counsel prior to sentencing. The
                       Crown
had asked whether a disputed facts hearing was sought
                       but apparently no response was ever forthcoming.


[44]
    The Crown strongly contests the various claims made by the appellant and
in particular is not willing to resile from its assertion
that she supplied the knife and
knew the co-accused was armed. Mr O'Connor referred me, for example, to text
messages the appellant
had sent both before and after the robbery which, he
submitted, are simply not consistent with her instructions to Mr Knowles.  
           Mr
O'Connor also submitted that in her first police interview, the appellant relied on the
bruising to her face to support
claims that, like the victim, she too had been attacked
by the unknown intruder.


[45]   In all the circumstances, I have decided
that the most just way of dealing with
this case is for me to adjourn the appeal and hold a disputed facts hearing ,
something that
is open to an appellate court to do ( R v Chicoine CA220/04, 21
March 2004)


[46]   The disputed facts hearing is to be held at
a date to be fixed by the Registrar
after consulting with counsel. It will be for counsel to determine precisely what facts
they
wish to canvass having regard to the requirements of s24 of the Sentencing Act
2002. Subject to that, I anticipate the hearing will
traverse the following issues :


                       1. Did the co-accused assault the appellant prior to the
              
            robbery because she was refusing to take part in the
                           robbery?


                       2. Did the appellant supply the co-accused with the knife?

   
                    3. Did the appellant know the co-accused was armed with the
                            knife?


           
            4. Did the appellant know the co-accused intended to use
                            violence in the course of the robbery
if necessary?


                        5. Did she endeavour to intervene to stop the attack?


                        6. What was
her motivation in calling the emergency
                            services?


                        7. Did she ever sell any
of the stolen cannabis?




Solicitors:
M J Knowles, Christchurch
Crown Solicitor, Timaru