Collard-Vea v R [2018] NZHC 3269 (12 December 2018)

Last Updated: 17 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000350 [2018] NZHC 3269

BETWEEN	MARK COLLARD-VEA Appellant
AND	THE QUEEN Respondent

Hearing:	11 December 2018
Counsel:	RL Thomson for Appellant STL Teppett for Respondent
Judgment:	12 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 12 December 2018 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

RL Thomson, Auckland.

Crown Solicitor, Auckland.

COLLARD-VEA v R [2018] NZHC 3269 [12 December 2018]

The appeal

[1] Mr Collard-Vea and other young men unlawfully took a car and committed burglary and then aggravated robbery. The offending ended after an “extremely dangerous” Police chase.¹ Mr Collard-Vea was then only 17. He pleaded guilty 10 days before trial. Judge R J Collins imposed a sentence of two years and three months’ imprisonment.² Mr Collard-Vea appeals. He contends the sentence is manifestly excessive. Attention is confined to the starting point and guilty-plea discount; Mr Collard-Vea acknowledges the Judge’s discounts for youth and remorse were fair.

An all too common fact pattern

[2] On the evening of 3 August 2017, or perhaps in the early hours the next day, Mr Collard-Vea and two others stole a Mazda car in Pt Chevalier from outside a home. They drove it to a service station in New Lynn, arriving a little before 2 am. They broke inside the service station by smashing the glass door with a rock. And, stole packets of cigarettes. The attendant fled to the safe room. He activated what is described as a smoke device, presumably for protection.

[3] Mr Collard-Vea and his associates then drove to a service station in Sandringham. There, they again used a rock to smash their way inside. The attendant activated the panic alarm and fled to the safe room. One of the young men with Mr Collard-Vea repeatedly punched the attendant to the head, and once to the arm. Mr Collard-Vea and others stole cigarettes and till takings.

[4] Police encountered the stolen car at 2.37 am. Its driver—who is not identified in the summary of facts—did not stop. Police gave chase for a little under half an hour. Everyone was apprehended. Mr Collard-Vea declined to speak to Police.

[5] Unsurprisingly, the assaulted attendant describes the offending as “very distressing”. He left that job “due to emotional distress” and has not worked since. The other attendant has not been greatly affected. The car owner has felt “quite

¹ Summary of facts.

² R v Collard [2018] NZDC 9400.

anxious to know that someone was lurking around on my street in the early hours of the morning”. He remains worried when he parks his car on the road.

Sentencing

[6] The Judge adopted a four-year starting point in relation to the aggravated robbery, one he described by reference to an earlier sentencing as “rock bottom”.³ The Judge added 12 months for the balance of the offending. The Judge then discounted the sentence by:

(a) 30 percent for youth.

(b) 13 percent for remorse and Mr Collard-Vea’s offer to make amends.

(c) 20 percent for the guilty pleas.

[7] In other words, the Judge discounted the starting point by 43 percent for personal mitigating factors, and then applied a 20 percent discount across the balance for plea-entry.

Starting point

[8] Ms Thomson contends the overall starting point should not have exceeded four and a half years. She observes Simon France J adopted a four-year starting point on appeal in a broadly similar case: Reweti v R.⁴

[9] The Court of Appeal’s Full Court judgment in R v Mako is instructive. And binding:⁵

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 face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years.

³ R v Collard, above n 2, at [16].

⁴ Reweti v R [2018] NZHC 809.

⁵ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [56].

Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.

[10] Mr Collard-Vea’s aggravated robbery did not involve a weapon, but he and the co-offenders forced their way inside. Actual violence was administered therein (by a co-offender). The earlier burglary also involved forced entry. This factor and the attendant’s presence meant that offence was not far removed from robbery. So, however approached, a global starting point less than five years’ imprisonment was not available. Judge Collins rightly recognised as much.

[11] Which leaves Reweti, which I consider distinguishable. That aggravated robbery was less serious. A spanner was carried as a weapon, but there was no attempt to use it or forced entry. The attendant was not assaulted (although Mr Reweti appears to have assaulted an unrelated victim). And, there was no additional burglary—still less one bordering robbery. Or, a dangerous Police chase. This explains why Simon France J considered the aggravated robbery afforded sufficient head room to absorb the other offending in a four-year starting point. That approach is not possible here.

Guilty plea discount

[12] Ms Thomson responsibly accepted she could say little in support of this point. As observed, the Judge discounted the sentence by 20 percent even though the guilty plea came late and the evidence against Mr Collard-Vea was presumably strong. The Judge was right to describe this discount as “extremely generous”.⁶

Parole

[13] Ms Thomson noted Mr Collard-Vea has his first parole hearing next week. Nothing in this judgment is intended to influence that decision.

⁶ R v Collard, above n 2, at [20].

Result

[14] The appeal is dismissed.

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Downs J