Holmes-Libbis v R [2020] NZHC 3100 (23 November 2020)

Last Updated: 9 December 2020

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

CRI-2020-404-358 [2020] NZHC 3100

BETWEEN	ALEXANDER HOLMES-LIBBIS Appellant
AND	THE QUEEN Respondent

Hearing:	23 November 2020
Appearances:	H Cheeseman for Appellant S O’Connor for Respondent
Judgment:	23 November 2020

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

Solicitors:

Crown Solicitor, Auckland Counsel:

H Cheeseman, Auckland

HOLMES-LIBBIS v R [2020] NZHC 3100 [23 November 2020]

• [1] Mr Holmes-Libbis pleaded guilty in the District Court to charges of aggravated robbery and being in possession of methamphetamine. On 17 August 2020 Judge D J Sharp sentenced him to three years four months imprisonment.¹ Mr Holmes- Libbis appeals against sentence on the basis that the Judge failed to give an adequate discount for his guilty pleas. He says this resulted in an end sentence that was manifestly excessive.

The charges

• [2] The charges were laid as a result of an incident that occurred in the early hours of 18 August 2019. On that date Mr Holmes-Libbis and another associate robbed a bar situated in Rosedale. He was in a relationship at that time with one of the female staff members working in the bar, and the two of them formulated a plan by which the premises were to be robbed.

• [3] Mr Holmes-Libbis’ partner was working in the bar on the evening in question. As she and the female bar manager were closing the premises and counting the evening’s takings, Mr Holmes-Libbis and an associate smashed their way into the bar using a hammer. They then confronted the bar manager and Mr Holmes-Libbis’ partner and demanded cash. Both were disguised because they were wearing masks. They took cash that was in open view and then forced the bar manager to open the safe so that further cash could be obtained. At one stage during the robbery Mr Holmes- Libbis’ co-offender placed a sheathed knife to the throat of the bar manager in a threatening manner. Not surprisingly, the incident terrified the bar manager. She is receiving counselling to deal with the after-effects of the incident. As a result of the robbery Mr Holmes-Libbis and his associate made away with approximately $12,500 in cash.

• [4] When the police searched Mr Holmes-Libbis’ address on 11 September 2019, they found two small plastic self-sealing bags in Mr Holmes-Libbis’ bedroom containing a total of four grams of methamphetamine.

¹ R v Holmes-Libbis [2020] NZDC 18102.

The sentence

• [5] The sentence the Judge imposed was constructed during two hearings. The first was a sentence indication hearing on 24 April 2020.² During that hearing the Judge adopted a starting point for the charge of aggravated robbery of six years imprisonment. No challenge is taken to the starting point having regard to the observations made by the Court of Appeal in R v Mako at [56].³

• [6] The Judge then added an uplift of three months to reflect the fact that the offending had occurred whilst Mr Holmes-Libbis was subject to release conditions following his release from prison after serving a sentence imposed on dishonesty charges on 30 May 2018. The Judge increased the starting point by a further three months to reflect the fact that Mr Holmes-Libbis has numerous previous convictions for offending involving dishonesty. In applying both uplifts the Judge observed that he was conscious Mr Holmes-Libbis would be required to serve the whole of the end sentence because this was “second strike” offending under the so-called “three strikes” legislation. This produced a sentence of six years six months imprisonment before taking into account mitigating factors personal to Mr Holmes-Libbis.

• [7] The Judge then applied a discount of 12 months, or 15 per cent, to reflect the fact that Mr Holmes-Libbis was desirous of undertaking rehabilitative efforts to address his addiction to methamphetamine, and also to reflect the fact that he will be required to serve the end sentence in full. The Judge noted that given he is just 25 years of age, this will be a serious hardship for him.

• [8] From the resulting sentence of five years six months imprisonment the Judge indicated he would allow “the full 25 per cent” in relation to the discount to be applied for guilty pleas. The Judge did not specify an indicated end sentence and said that it was possible that he would be able to apply further discounts for other mitigating factors identified at sentencing.

² R v Holmes-Libbis DC Auckland CRI-2019-044-3193, Sentence Indication dated 24 April 2020.

³ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [56]

• [9] At sentencing, the Judge commenced by observing that the starting point he had adopted at the sentence indication hearing was one of four years two months imprisonment. The Judge then applied a further discount of ten months to reflect additional mitigating factors identified in material presented at sentencing. This included not only the submissions of counsel but also a report prepared under s 27 of the Sentencing Act 2002. The Judge said this had given him further insight into the extent to which the offending had been driven by Mr Holmes-Libbis’ addiction to methamphetamine. This brought the sentence to one of three years four months imprisonment.

The appeal

• [10] The sole ground of appeal is that the Judge failed to apply the discount for guilty pleas in accordance with the method determined by the Court of Appeal in Moses v R.⁴ This requires the discount for any guilty plea to be applied to the end starting point⁵ rather than from the sentence produced after applying discounts for other mitigating factors.

• [11] The Judge clearly applied a discount of 17 months to the sentence of five years six months imprisonment at the sentence indication hearing. That sentence had been obtained after applying the uplifts for personal aggravating factors and applying the discount of 12 months for rehabilitative efforts and the other mitigating factors referred to at the sentence indication hearing. Had the Judge applied the approach mandated in Moses, the result would have been a discount of 19.5 months because it apply to the sentence of six years six months imprisonment that the Judge identified after taking into account aggravating factors personal to Mr Holmes-Libbis but before taking into account mitigating factors personal to him.

⁴ Moses v R [2020] NZCA 296.

5. Being the starting point produced after any increase for aggravating factors personal to the defendant.

Decision

• [12] The Judge’s sentencing notes suggest that the further discount of ten months applied at sentencing was in part to reflect a recalculation of the discount for guilty pleas. I take this from the following passage in the Judge’s remarks:⁶

[8] Those thing[s] said, I take what I said at the sentence indication of four years and two months’ sentence and I will reduce that to a total sentence of three years and four months. The discounts that are received are the direct result of the submissions filed, noting the recalculation of your credit for guilty plea, the things that you have done and the contents of the s 27 report.

...

(Emphasis added)

• [13] In any event the real difficulty for Mr Holmes-Libbis so far as the appeal is concerned is the fact that the Judge had applied a relatively small uplift to reflect the fact that the offending had occurred whilst Mr Holmes-Libbis was subject to prison release conditions and to reflect his previous convictions. As I have already observed, the Judge adopted this approach because he was aware Mr Holmes-Libbis would be required to serve the whole of any end sentence.

• [14] Secondly, the Judge gave what might be described as a generous discount of 12 months, or 15 per cent, to reflect the mitigating factors identified during the sentence indication hearing. He then gave a further discount of approximately 13 per cent to reflect additional mitigating factors identified at the sentencing hearing. This means that Mr Holmes-Libbis received discounts amounting to 22 months, or approximately 28 per cent, to reflect mitigating factors other than guilty pleas. I consider this combined discount means the end sentence of three years four months imprisonment cannot be described as manifestly excessive even if the Judge did not include any recalculated credit for guilty pleas in the discount given at sentencing.

• [15] I therefore consider the end sentence of three years four months imprisonment is well within the available range after taking into account aggravating and mitigating factors personal to Mr Holmes-Libbis.

⁶ R v Holmes-Libbis, above n 1.

Result

• [16] The appeal against sentence is accordingly dismissed.

Lang J