Brown-Aldridge v Police [2012] NZHC 1852 (27 July 2012)

High Court of New Zealand

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Brown-Aldridge v Police [2012] NZHC 1852 (27 July 2012)

Last Updated: 18 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-205 [2012] NZHC 1852

SHANE BROWN-ALDRIDGE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 24 July 2012

Appearances: B Murphy for the appellant

J Blythe for the respondent

Judgment: 27 July 2012

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Mr Shane Brown-Aldridge, was sentenced by Judge Tremewan in the District Court at Waitakere on 16 December 2011 to two years and six months’ imprisonment. Mr Brown-Aldridge had pleaded guilty to one charge of assault with intent to rob. Mr Brown-Aldridge now appeals against that sentence as

_{being manifestly excessive, having been given leave to do so out of time.}

BROWN-ALDRIDGE v POLICE HC AK CRI-2012-404-205 [27 July 2012]

Mr Brown-Aldridge’s offending – the facts

[2] On 6 April 2011 Mr Brown-Aldridge was one of four young males who entered and attempted to rob a dairy in New Lynn. Kieran Reid was the first of the four to enter. He, in effect, gave the all clear to the others. Mr Brown-Aldridge then entered, holding a knife. He was followed by Messrs Fa’atiga and Sauvao. Mr Brown-Aldridge confronted Mrs Patel, who owned and operated the dairy with her husband. He demanded money. Mr Patel appeared from the back of the shop, took a hockey stick and knocked the knife from Mr Brown-Aldridge’s hand. At that point the group of four left the dairy. Mr Reid and Mr Fa’atiga threw eggs at Mr Patel. As they did so, Mr Fa’atiga also hit Mr Patel over the head with a sign from outside the dairy.

[3] The four were driven away in a vehicle driven by a Mr Doherty. They were found a short time later in a nearby house.

[4] Mr Aldridge-Brown pleaded guilty on 29 July 2011. By the time he was sentenced on 16 December 2011, the Judge had given a sentencing indication to his co-offenders Reid, Sauvao and Doherty. The Judge indicated that, as matters then stood, a sentence of two and a half years was likely for each of Mr Sauvao and Doherty, and a sentence of two years as regards Mr Reid. The Judge took a four year starting point in each case, and allowed discount for guilty pleas and for youth and related factors. On the same day as Mr Brown-Aldridge was sentenced, the Judge also gave Mr Fa’atiga a sentencing indication of two and a half years.

The Judge’s sentencing decision

[5] Very much in line with the sentence indications she had already given, the Judge sentenced Mr Aldridge-Brown to two and half years’ imprisonment. She did so on the basis of a starting point of four years for the offending, based on the

_{guideline judgment of Mako.}[1] _{As the Judge had in her sentencing indications with}

Mr Sauvao, Doherty and Fa’atiga, she allowed Mr Aldridge-Brown a discount of 25

per cent for his guilty plea with a further six months’ allowance for youth.

[6] Mr Brown-Aldridge’s co-offenders Reid and Sauvao were subsequently sentenced by the Judge on 24 January 2012: Mr Reid to six months’ community detention, 150 hours’ community work and 18 months’ intensive supervision, Mr Sauvao to eight months’ home detention and 150 hours’ community work. In sentencing each of Reid and Sauvao, the Judge referred to the particular circumstances which had enabled her to give a sentence less than that previously

indicated. In the case of Mr Reid the Judge explained matters this way:[2]

I gave a sentencing indication back in October last year and on that day I indicated that I saw your case as being somewhat different from the other offenders involved in this matter for the reasons which I explained on that day and the Crown who represent the police in this case, accepted what I had said about that.

It has been effectively agreed today that because of the special characteristics that you have as a person and because of some other matters that are spelt out in the pre-sentence report, I cannot deal with you today by way of sentence of community detention, community work and intensive supervision and that is how I am going to deal with you.

[7] In the case of Mr Sauvao, the Judge explained matters in this way:[3]

At the end of that hearing it was my decision that a sentence of two and a half years of imprisonment should be imposed for that offending, which was serious offending for the reasons I explained in my sentencing indication decision.

However, for reasons which I do not need to go into in any detail, the Crown, who represent the police in this matter, have re-considered your case and, because of some positive features now in relation to your situation as the Crown sees it, they are of the view that a sentence of two years or even less is now available to you. As I have said to you on a previous occasion, what this means, in effect, is that I am able to now consider a sentence such as home detention.

[8] Mr Doherty subsequently pleaded not guilty and, after trial, was found not guilty on 12 July 2012. Mr Fa’atiga gave assistance at his trial.

[9] Mr Fa’atiga was then sentenced on 13 July 2012 to eight months’ home detention. Explaining why she was in a position to give a lesser sentence than that previously indicated, the Judge explained matters this way:[4]

The other matter which I should mention which has also caused some delay relates to the fact that I actually did give you a sentencing indication on

16 December 2011, which was an indication of a term of two and a half

years’ imprisonment. However, following that indication having been given, you then assisted the police with their inquiries. In fact you gave evidence at trial in relation to this offending as to the role of a co-accused. It so happens that he was acquitted at trial but, in any event, the Crown (who really represent the police here today) accept that you are as a matter of law entitled to some credit for the steps that you took as regards to giving evidence.

The bottom line there is that the Crown now accept that a more appropriate sentence in your case is one of two years’ imprisonment, or possibly even a little less. What that means is I am now in a position to revise the indication I earlier gave you and impose a lesser sentence. In point of fact, I am now able to impose a sentence such as home detention on you which I note was a sentence that I did impose on one other of your co-offenders.

Analysis

[10] Mr Brown-Aldridge appeals principally on the basis of the disparity between the sentence imposed on him (two and half years’ imprisonment) and the non- custodial sentences imposed on each of his co-offenders. I think reference needs only to be made to the Judge’s sentencing notes, as set out above, where she discusses the reasons for the individual sentences imposed on Messrs Reid, Sauvao and Fa’atiga to establish that that submission has little if any strength. Mr Sauvao and Mr Fa’atiga were each indicated the same starting point sentence. They were given lesser sentences because of the assistance they provided to the police. Mr Reid was indicated a lower starting point sentence, and as matters ultimately transpired received a sentence of home detention. Mr Brown-Aldridge was given the opportunity to co-operate with the police, but failed to do so. As Judge Tremewan

recorded in her sentencing notes:[5]

Mr Cagney has said to me, Mr Brown-Aldridge, that you did give some thought about assisting the police with the prosecution in relation to particularly one of the group of five offenders who is yet to take

responsibility, it seems, for his role. Another of the five of you has in point of fact, I note in passing, given such assistance and has been entitled to credit for his decision. Having considered your position, it has been your decision that you will not offer such assistance. I simply leave that matter there. It stands to reason that you are not therefore entitled to the credit that you might have received had you made a different decision about that.

[11] I therefore do not consider that an appeal based on disparity can be sustained.

[12] Moreover, I think the Judge arrived at a fair and reasonable sentence. The guideline authority of Mako on offending of this nature is clear. It relevantly provides:[6]

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 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 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.

[13] As Ms Blythe for the Crown submitted, Mr Brown-Aldridge may have been fortunate, given that he carried and presented the knife used in the attempted robbery, that he was not given a higher starting point for his sentence than his co- accused. He was, fairly in my view by the Judge, given credit not only for his guilty plea but also for his youth.

[14] I note that Ms Murphy arranged for further letters of support to be provided to me relating to Mr Brown-Aldridge. I do not think such letters of support, provided after a sentencing has already taken place, add much if anything to the matters she was able to advance in Mr Brown-Aldridge’s favour. In like vein, Ms Murphy also submitted that, in sentencing Mr Brown-Aldridge, the Judge might have given greater credit for what Ms Murphy described as the progress he had generally made in addressing his lifestyle issues that were reflected in this offending. I acknowledge that Ms Murphy did not make too much of that submission. I do not

_{think it was suggested that it could be argued that the sentence imposed on}

Mr Brown-Aldridge (even if that had been a ground of appeal) was manifestly excessive because of that. The Judge did have regard to Mr Brown-Aldridge’s personal circumstances, as reflected in the credit she gave him.

[15] Mr Brown-Aldridge no doubt regrets his decision not to provide assistance to the police now that he has seen the advantages it provided to his co-accused. He was given the choice at the time. Unfortunately for him, he now has to live with the consequences of his decision. Ms Murphy explained that, after he had been sentenced and when he did not have legal representation, Mr Brown-Aldridge may have wanted to change his mind on the assistance point. Even accepting that, it is not clear to me how that now helps. It confirms that Mr Brown-Aldridge may have changed his mind, but the position was clear when he was sentenced.

[16] This appeal is dismissed.

“Clifford J”

Solicitors:

B Murphy, Barrister, Waitakere for the appellant ([e-mail]) Meredith Connell, Auckland for the respondent ([e-mail])

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[1] R v Mako [2000] 2 NZLR 170 (CA).

[2] R v Reid DC Waitakere CRI-2011-090-005146, 24 January 2012 at [2] – [3].
[3] R v Sauvao DC Waitakere CRI-2011-090-005145, 24 January 2012 at [4] – [5].

[4] R v Fa’atiga DC Waitakere CRI-2011-090-008416 and 009693, 13 July 2012 at [2] – [3].
[5] Police v Brown-Aldridge DC Waitakere CRI-2011-090-007810, 16 December 2011 at [17].

[6] R v Mako [2000] 2 NZLR 170 (CA) at [56].