Green v Police [2014] NZHC 444 (12 March 2014)

Last Updated: 25 March 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000058 [2014] NZHC 444

BETWEEN DANIEL ROBERT GREEN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 March 2014

Appearances: W D McKean for Appellant

C M Gisler for Respondent

Judgment: 12 March 2014

_{(RESERVED) JUDGMENT OF ANDREWS J}

This judgment is delivered by me on 12 March 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

WRMK Lawyers, Whangarei

Crown Solicitor, Whangarei

GREEN v NEW ZEALAND POLICE [2014] NZHC 444 [12 March 2014]

Introduction

[1] The appellant has appealed against the sentence imposed on him by Judge A-M Bouchier in the District Court at Whangarei, on 29 November 2013.¹ The appellant says that the Judge adopted a starting point on the lead charge that was too high, leading to the end sentence on that charge (following the discount for his guilty plea) being manifestly excessive.

Background

[2] The appellant was sentenced on four charges. The first and second charges in time related to events on 18 July 2013. At about 3am Mr Green shot a .303 rifle outside his dwelling two or three times, one shot causing minor damage to the building. The Police found the rifle along with a .22 calibre rifle, an air rifle, and ammunition. The appellant did not have a firearms licence. The appellant was charged with unlawful possession of a firearm, and discharging a firearm in a dwellinghouse.

[3] The third charge was of theft. On 16 August 2013 the appellant, with an associate, stole grocery items valued at $600 from a supermarket.

[4] The fourth charge was aggravated robbery. On 17 August 2013 at about

7:30pm the appellant, together with an associate, drove to a dairy. The associate waited in the car while the appellant, armed with a sawn-off shotgun (which was unloaded), entered the store and demanded money and cigarettes from the shop attendant. He also threatened the attendant by saying, twice, “Hurry up, don’t make me use it”. The attendant complied and the appellant took $765.00 in cash and

$879.50 worth of cigarettes. The female shop attendant was extremely shaken and upset.

[5] After being arrested, the appellant admitted the aggravated robbery and other charges.

[6] The appellant has a number of previous convictions, including common assaults in 2012 and 2008, assault with intent to injure in 2008, and male assaults female also in 2008. The appellant also a number of convictions for driving with excess breath alcohol that are not relevant to the present charges.

District Court sentencing

[7] The Judge took the charge of aggravated burglary as the lead offence at sentencing. The Judge identified the use and threat of a weapon, a modest level of premeditation, and the extent of the damage (which, while not big, was large for a dairy’s profits) as aggravating features of the offending. The Judge gave no value to the fact that the firearm was unloaded, citing the lack of impact this has on the victim, who does not know whether the firearm is loaded or not.

[8] The Judge referred to the guideline judgment of the Court of Appeal in R v Mako, but considered that the example given at [56] of the judgment did not apply in the appellant’s case, as in that example, although it referred to the robbery of a small store under threat of a weapon, a knife was envisaged.² The Judge found that a sawn-off shotgun was significantly more dangerous in an aggravated robbery of a dairy.

[9] The Judge also considered that it was more by good luck than by good management that there were no members of the public in the dairy, and noted that the summary of facts included a statement that the appellant did not ensure that there was no one else there.

[10] A starting point of five years imprisonment was adopted. The Judge allowed a full discount of 25 per cent for the appellant’s early guilty plea, citing it as the only mitigating feature. The Judge then applied an uplift of six months for the firearms offending. No uplift was applied in respect of the theft charge. The Judge referred to the appellant’s previous convictions, but did not apply any uplift for them.

[11] The concurrent sentence of one year’s imprisonment was imposed on the charge of possession of a firearm, and current sentences of three months imprisonment imposed on each of the charges of theft and discharging a firearm.

Appeal submissions

[12] Although Mr McKean had initially submitted, in his written submissions, that the Judge erred in finding that the appellant did not ensure that there were no members of the public in the dairy, the appeal proceeded on a single basis. This was that the Judge erred in setting the starting point at five years, rather than four years imprisonment. Thus the appeal focused on consideration of [56] of Mako:

[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 the five years, and in bad cases six years, should be the starting point.

[13] Mr McKean submitted that the facts of this case fitted neatly within the example set out by the Court of Appeal and that the starting point should have been, as suggested by the Court, four years imprisonment. He submitted that the Judge’s error lay in saying:³

[29] So, taking those factors and considering paragraph 56 of R v Mako whilst premeditation is envisaged there, that mentioned a knife. Here we have got a sawn-off shotgun, which is a significantly more dangerous weapon in the hands of a person who is robbing a small dairy than a knife, and therefore, in my view, that warrants a start point of five years’ imprisonment.

[14] Mr McKean submitted that the issue is whether an unloaded sawn-off firearm is a “significantly more dangerous weapon” than is a knife. He further submitted that even if an unloaded sawn-off shotgun could be distinguished from a knife (as being more dangerous) he submitted that that would not justify a starting point of five years rather than four.

[15] Mr McKean accepted that a firearm, whether loaded or unloaded, will be terrifying for the victim. The victim does not know whether the firearm is loaded or unloaded. But, he submitted, the issue is that in fact, an unloaded firearm is not able to inflict a gunshot wound, so cannot be said to be “significantly more dangerous” than a knife.

[16] Mr McKean also referred to the Court of Appeal’s discussion in Mako of loaded and unloaded firearms. The Court of Appeal said:⁴

[39] The number and types of weapons and how they are brandished will bear upon the level of culpability. It is not to be assumed necessarily that the more potentially lethal the weapon the more serious the offence, although there will be greater danger of harm to a greater number of people where a loaded firearm is presented. The danger of knives in the hands of nervous or aggressive offenders when confronted by the unexpected is all too familiar. Similarly the insidiousness of threats by horrible weapons such as syringes or harmful substances must not be minimised. The actual or potential danger should be evaluated, but not merely assumed from the nature of the target premises. Generally the use of unloaded firearms (though no comfort to the victims) gives rise to less danger – but it can be noted in the case under appeal an loaded weapon still led to shots having to be fired by the Police in a residential area. It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any risk the victims might react in ways dangerous to themselves or others believing they are in mortal danger.

[17] Mr McKean submitted that in the circumstances of the present offending, an unloaded firearm was at about the same “level of danger” as a knife would have been. While he accepted that an uplift (he suggested three months) could be applied to take account of a firearm instilling more fear than a knife, he submitted that the uplift from four years to five years was simply too great.

[18] For the respondent, Ms Gisler submitted that the starting point was appropriate, and within the range available to the Judge under Mako. She submitted that the Court of Appeal in Mako had emphasised that the criminality of any aggravated robbery offence is to be assessed by the particular combination of features involved, with no over-emphasis of any one feature. Regarding the submission that an unloaded firearm should not have been seen as “significantly more dangerous” than a knife, Ms Gisler referred to the Court of Appeal’s comment

at [39] of Mako, where it is noted that the impact on the victim is “no less because they are in fact not loaded”. Ms Gisler also referred to the Court of Appeal’s judgment in Tukaki v R,⁵ where the Court of Appeal said:⁶

... the firearm may not have been loaded but it was capable of inflicting serious harm, even unloaded. Patrons were led to believe that it was loaded. Mr Te Rangi inflicted a terrifying ordeal on the staff and patrons of the club and there is no basis on which to minimise the seriousness of it.

[19] Ms Gisler submitted that the use of a firearm was properly regarded as a significant aggravating feature, as it was used to frighten the shop attendant with the threat to use it. Together with premeditation (at a modest level) and the extent of loss, damage or harm (probably large in terms of the dairy owners’ profit) a five year starting point was justified. Ms Gisler referred, in particular, to the Judge’s comment that “a shortened shotgun has no legitimate purpose whatsoever and is primarily

used as a weapon of fear”.⁷ She submitted that this was sufficient to distinguish (in

terms of level of “danger”) between a shotgun and a knife, and was sufficient to increase the starting point to five years.

[20] Finally, Ms Gisler submitted that Mako is a guideline judgment, and Courts must assess the criminality of any offending on the basis of the features involved, on a case by case basis. On that approach, she submitted, a starting point of five years imprisonment in the present case could not be said to be excessive.

Approach on appeal

[21] Section 250 of the Criminal Procedure Act 2011, provides that the Court must allow an appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

⁵ _{Tukaki v R [213] NZCA 411.}

⁶ _{At [14].}

⁷ Sentencing judgment, at [8].

Discussion

[22] The Court of Appeal noted in Mako when describing the elements of an aggravated robbery that an “offensive weapon” (for the purposes of s 235(c) of the Crimes Act 1961) includes imitation and unloaded firearms.⁸ As noted earlier, in respect of unloaded firearms, the Court commented that although there is generally less danger, it should be kept in mind that the offender’s aim is to convince victims that the firearms are loaded, and the impact is no less if they are in fact not loaded.

[23] In addition to Tukaki, a number of cases have considered sentencing where an unloaded, or imitation, firearm has been presented. In R v Nodwell, the Court of Appeal found that the use of an unloaded firearm can be a threat to the victim, who may react to the threat that would endanger their own or the public’s safety.⁹

[24] In Christofides v R, no leniency was given for the use of an imitation firearm.¹⁰ In that case the offender was disguised, stole a small sum of money by threatening the shop attendant with an imitation firearm. The starting point was four years three months.

[25] The same approach was taken in R v Boyd,¹¹ and in R v Giddens,¹² where an imitation gun did not detract from the sophistication of the offence. In Boyd, the lone offender used an imitation pistol and took $1,300 in money and cigarettes. Aggravating features of the offending were identified as being the threat of violence with the use of a weapon and disguise, and the fact that the offender was on parole. The sentencing Judge’s starting point of five years imprisonment was upheld on appeal. In Giddens, an imitation hand gun was used, and the shop attendant realised the gun was fake, and no money was taken. The Court found there was little premeditation, no real weapon, nothing stolen, no violence inflicted, and the victim

_{was not distressed. The starting point there was four years imprisonment.}

⁸ R v Mako, n 2, at [33].

⁹ _{R v Nodwell CA475/99, 8 March 2000.}

¹⁰ _{Christofides v R [2011] NZCA 126.}

¹¹ _{R v Boyd CA89/83, 24 June 2003.}

¹² R v Giddens CA165/00, 26 June 2000.

[26] In Barnett v Police, the appellant had robbed a service station in disguise, while an associate waited in a car.¹³ The appellant used an unloaded gun and told the shop attendant he would not be harmed. The starting point of five years took into account all aggravating factors, which included use of a disguise and use of a weapon. That starting point was upheld on appeal.

[27] Mr McKean submitted that these were examples of the different aggravating factors being taken into account. He submitted that they do not assist in relation to the central issue here which is as to the extent to which the presentation of an unloaded gun is a more serious aggravating feature than is the presentation of a knife. That particular issue, he submitted, had not been considered in any of the authorities.

[28] In the cases I have cited, the guidelines in Mako were referred to. None of them distinguished between the inherent “dangerousness” of an unloaded or imitation gun as opposed to a knife in referring to the Mako example. In my view, it is clear from the offence provision (s 235(c) of the Crimes Act) and the comments in Mako, as well as the approach taken in subsequent cases, that the threat created from something that appears to be an offensive weapon is the same, regardless of the actual danger inherent in the weapon or in the object that appears to be a weapon.

[29] But did the Judge err in finding that the unloaded shot-gun was a “significantly more dangerous weapon” than a knife would have been? As Mr McKean pointed out, the starting point of five years represented a 25 per cent uplift from the suggested four year starting point. In the present case, this was the most significant aggravating feature, as the appellant went into the dairy on his own, was not wearing a disguise, did not inflict any actual harm, and took a relatively modest amount of money (albeit of significance to the owner). I have concluded that, when considered against the starting points adopted in the cases I have referred to, a five year starting point can be seen as high, and indeed above the available range. I have concluded that the appropriate starting point would have been four

_{years and four months imprisonment. When the discount of 25 per cent is applied,}

¹³ Barnett v Police HC Tauranga CRI-2005-470-34, 8 September 2005.

the resulting sentence on the aggravated robbery charge is three years three months imprisonment.

[30] There was no challenge to the uplift of six months applied in respect of the appellant’s other offending, which leads to a final overall sentence of three years and nine months.

Result

[31] The overall sentence of four years and three months imprisonment is quashed and replaced with a sentence of three years and nine months imprisonment.

Andrews J