IN THE COURT OF APPEAL OF NEW ZEALAND
CA222/2012
[2012] NZCA 334
BETWEEN
BROCK ROBERT NORTON
Appellant
AND
THE QUEEN
Respondent
Hearing:
19 July 2012
Court:
O'Regan P, Potter and MacKenzie JJ
Counsel:
R M Gould for Appellant
P K Feltham for Crown
Judgment:
26 July 2012 at 4 pm
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
_______________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
BROCK ROBERT NORTON V R COA CA222/2012 [26 July 2012]
Introduction
[1]
The appellant, Mr Norton, and his co-accused, Mr Solomon, were found
guilty after a District Court jury trial on one count of aggravated robbery. They were
also charged with one count of wounding with intent to cause grievous bodily harm,
but were acquitted on that charge. Mr Norton was sentenced by the sentencing
Judge, Judge Davidson, to a term of imprisonment for three years and Mr Solomon
was sentenced to a term of imprisonment for two and a half years. 1 Mr Norton
appeals against the sentence imposed on him.
Issues on appeal
[2]
The issues on appeal are framed by the three grounds of appeal, which are:
(a)
the starting point adopted by the Judge of two and a half years was
too high;
(b)
insufficient regard was paid to the appellant’s personal circumstances;
(c)
an unfair disparity of sentence arose as between the appellant and
Mr Solomon.
[3]
Counsel for the appellant, Ms Gould, argued that when all of these factors
were taken into account, an end sentence of two years imprisonment or less ought to
have been imposed. In that event, other sentencing options would have become
available. Ms Gould argued strongly that, given the appellant’s preparedness to
make real efforts to rehabilitate himself, a rehabilitative sentence involving intensive
supervision, combined with a length of community work, ought to have been the
outcome in the present case.
[4]
We will consider each of the three grounds of appeal in turn, but before doing
so we will briefly summarise the factual background and the approach taken by the
District Court Judge at sentencing.
1
R v Solomon and Norton DC Wellington CRI-2011-085-3131, 5 April 2012.
Factual background
[5]
The incident leading to the charges against the appellant and Mr Solomon
happened in March 2011. The appellant was 19 at the time; Mr Solomon was 35.
Together, they went to the flat occupied by the victim. It seems they believed that
the victim had damaged a tyre on Mr Solomon’s motor vehicle and they were
seeking to obtain compensation for the damaged tyre. Each was armed, the appellant
with a hammer and Mr Solomon with a piece of wood.
[6]
There was conflicting evidence as to how the appellant and Mr Solomon
entered the victim’s flat. In sentencing, Judge Davidson resolved this conflict by
concluding that the victim had opened the door to his flat and let both offenders in.
[7]
Once in his bedroom, both offenders began demanding compensation for the
damaged tyre. The victim said he was not responsible. The offenders did not accept
this and began rummaging through his property and making threats. The appellant
was seen to be brandishing the hammer. The victim said he saw one of the offenders
take a cellphone. Because this theft was accompanied by threats of violence while
both offenders were armed, it constituted an aggravated robbery.
[8]
Immediately after the cellphone was taken, the offenders went to leave the
victim’s bedroom, but a confrontation then occurred. The victim was hit on the head
with the piece of wood and received nasty head injuries, and Mr Solomon was
stabbed by the victim several times. The blow to the head was the foundation of the
wounding charge. Judge Davidson concluded that the jury must have decided that
the Crown had not eliminated the possibility of self defence, hence the acquittal of
both offenders on that charge.
[9]
After this confrontation in the bedroom, the offenders left the property but the
victim followed them and another altercation occurred outside.
Mr Solomon
received further injuries in this altercation. The appellant had possession of the
cellphone and was seen to throw it into some bushes before both offenders left for
the hospital. At the hospital an iPod belonging to the victim’s flatmate was found in
Mr Solomon’s possession.
District Court sentencing
[10]
At sentencing, counsel for the appellant sought an adjournment to allow for
the investigation of the possibility of the appellant entering into a residential
programme in Hamilton (Tai Aroha), in which he would be closely monitored. It
was argued that this could be facilitated through a sentence of supervision. The
Judge refused the adjournment. He referred to the psychological assessment, in
which the conclusion was reached that the appellant was at very high risk of
reoffending and that controlling the appellant in the community would require
extremely intense management. Ms Gould argued in this Court that the Judge ought
to have allowed the adjournment.
[11]
The Judge noted that Mr Norton committed the offence soon after having
been released from an earlier sentence of imprisonment and while on bail for another
theft charge and for breaching the release conditions attaching to the earlier term of
imprisonment. These were all aggravating features. In addition, the Judge noted that
the fact that the offending happened in the victim’s bedroom in which he was
confined and could not escape was an aggravating factor. As was the fact that the
offenders were armed and made threats.
[12]
The Judge noted that the appellant’s recent history of offending involved a
robbery committed on 20 December 2009, demanding with menaces a week later on
27 December 2009, a robbery on 2 August 2010 and the present offending
(aggravated robbery) on 14 March 2011.
[13]
In setting the starting point, the Judge acknowledged that the offending did
not fall readily into the more commonly encountered categories of aggravated
robbery. The Crown sought a starting point of at least four years with further uplifts
to recognise the aggravating factors, while Ms Gould submitted on behalf of the
appellant that the starting point should be in the vicinity of 18 months imprisonment.
[14]
The Judge said that if the offending had occurred in public then the starting
point would have been between 18 months imprisonment and three years
imprisonment. But it did not happen in public, it happened in a confined space (the
victim’s bedroom). The Judge thought that this made the offending more serious
than an aggravated robbery in the street, but thought it was not as serious as a home
invasion. He set a starting point of two and half years imprisonment.
[15]
The Judge then applied an uplift in the case of the appellant of six months
imprisonment, reflecting the aggravating factors of offending while on bail and on
release conditions and in breach of both, and previous convictions for similar
offending within a relatively short space of time. He did not make any allowance for
mitigating factors and the end sentence was therefore three years imprisonment. In
the case of Mr Solomon the Judge did not apply an uplift, though Mr Solomon did
have a number of previous convictions. However Mr Solomon had a better record of
compliance with community based sentences and was not on bail at the time of the
offending. His end sentence was therefore two and a half years imprisonment.
[16]
In the appellant’s case, he had already received a first strike warning in
November 2010, and thus the Judge ordered that the sentence of three years
imprisonment be served without parole.2
He also sentenced Mr Norton to
imprisonment for one month (concurrent) for theft and convicted and discharged him
on the charges relating to breach of release conditions and failing to answer bail.
The Judge ordered that the psychological report and drug and alcohol assessment
presented at sentencing be referred to the prison authorities to assist in the
appellant’s management.
Was the starting point too high?
[17]
The essence of Ms Gould’s argument on this count was that the level of
culpability inherent in the appellant’s offending was lower than that of a participant
in an aggravated robbery on the street. She accepted that the fact that the offending
took place in the victim’s bedroom was significant, particularly as he was
outnumbered by his assailants, but said that the aggravated robbery occurred only
after the offenders had failed to obtain compensation for the damaged tyre. She said
this meant that the offending was spontaneous, haphazard, and not a planned event.
Ms Gould argued that the starting point should have been closer to the 18 month
2
Under s 86C(4)(a) Sentencing Act 2002.
level proposed in R v Mako3 for spontaneous low level offending of this kind. She
said that the lower level of culpability was highlighted by the fact that the appellant’s
intent in taking a weapon to the address was misguided rather than aggressive, he
played a lesser role in the events in the bedroom and took only a low value item that
he discarded on fleeing the address.
[18]
Ms Gould also took issue with the Judge’s characterisation of the fact that the
appellant was armed as an aggravating feature, given that this was an ingredient of
the charge of aggravated robbery.
[19]
For the Crown, Ms Feltham supported the starting point set by the Judge.
She said the Judge, having presided at the trial, was in a good position to evaluate
the degree of culpability of the offenders. She pointed to the premeditation (the fact
that weapons were taken to the address), the fact that two offenders committed the
robbery on one victim, the nature of the weapons (particularly the hammer wielded
by the appellant) and the fact that the offending involved unlawful entry into a
private home as factors supporting the degree of seriousness attributed to the
offending by the Judge.
[20]
We agree with Ms Gould that care needs to be taken to avoid treating as an
aggravating factor matters that are inherent in the offending. But the presence of
weapons is an obvious factor in the assessment of culpability and we do not consider
that there was any error in the way the Judge assessed culpability and set the starting
point by reference to this Court’s decision in R v Mako. In our view a starting point
of 18 months to two years, as suggested by Ms Gould, would not have properly
reflected the seriousness of the offending.
Did the Judge give insufficient regard to the appellant’s personal
circumstances?
[21]
There is no doubt that the appellant has an appalling history of offending.
The pre-sentence report characterised him as posing high risk of reoffending and a
high risk of causing serious harm to future victims. Ms Gould accepted this, but
3
R v Mako [2000] 2 NZLR 170 (CA).
pointed us to a number of matters which indicated that the appellant is facing up to
the need to rehabilitate himself and submitted that there are real signs that he can be
successful in doing so.
[22]
Ms Gould placed before us (without objection from the Crown) an affidavit
from Geoffrey Winter, a lay pastor from Hamilton, who has worked extensively with
the appellant’s brother, who also had a bad history of offending but who has now
turned his life around and been converted to Christianity. Mr Winter expressed a
willingness to support the appellant, with help from the appellant’s brother who
could now operate as a good role model (contrary to what has happened in the past).
Mr Winter referred to the Tai Aroha programme in Hamilton, which would provide a
residential rehabilitation placement for the appellant, providing a basis for intensive
supervision with the support of both Mr Winter and of the appellant’s brother.
[23]
Ms Gould said that the appellant had shown his willingness to rehabilitate by
his successful participation in a ten week Salvation Army course, which showed the
potential for success of intensive supervision where the appellant is closely
monitored, as he would be in the Tai Aroha programme. She pointed out that the
pre-sentence report writer had been wrongly provided with a summary of facts that
disclosed more serious offending than is reflected in the jury’s verdict, and therefore
wrongly characterised the appellant’s attitude as an attempt to minimise offending.
[24]
Ms Feltham accepted that the appellant had had a traumatic upbringing, and
that he had now expressed a motivation to address his offending. But she said his
very poor offending record and very high risk of offending meant that he was not
properly eligible for a substantial discount for personal factors. She pointed to the
comments of this Court in R v Mako4 in relation to the possible extension of leniency
to young offenders in circumstances where there is a realistic prospect of
rehabilitation. But she said this is available only to first offenders, not to those with
an extensive offending record such as the appellant’s.
[25]
We accept Ms Feltham’s submission that the appellant’s record counted
against any discount for personal factors. In saying this, we do not wish to minimise
4
At [65]─[66].
his apparent readiness to address his offending and to turn his life around. While a
prison sentence will prevent rehabilitative efforts taking place in the community, he
will have available to him programmes inside the prison system that will assist with
rehabilitation, and we strongly urge him to take advantage of those programmes. We
note that the psychological assessment before the sentencing Judge indicated that
treatment programmes for men who are assessed as presenting a high risk of
reoffending violently were available both inside prison through the Special
Treatment Units and in the community (in programmes such as Tai Aroha). In
addition, treatment programmes for drug and alcohol abuse are also available both
inside and outside prison.
[26]
The sad reality for the appellant is that his record of offending and the
seriousness of the current offending do not provide any proper basis for a significant
discount for personal factors and for the adoption of a community-based sentence
allowing for rehabilitative efforts to take place in the community. The prison term
imposed by the Judge was inevitable in the circumstances. The appellant has had
relatively lenient treatment and was, in our view, treated very fairly by the Judge on
this occasion. We see no error in the Judge’s decision not to make any allowance for
personal factors.
Was there disparity with Mr Solomon’s sentence?
[27]
We do not think there is anything in this ground of appeal. Mr Solomon’s
sentence involved the Judge taking the same starting point as for the appellant,
reflecting that each had a similar role in the offending. Mr Solomon was older than
the appellant, but did not have a record of previous offending of the same
seriousness as that of the appellant and was not on bail or on release conditions at the
time of the offending. There was a clear basis for distinguishing between the
sentences imposed on Mr Solomon and the appellant respectively.
Result
[28]
Our conclusion is that the sentence imposed by the Judge appropriately
reflected the culpability of the appellant and the personal mitigating and aggravating
factors. We do not think a sentence other than imprisonment was available on the
facts of this case. Our conclusion in that regard makes it unnecessary to engage in
any detail with Ms Gould’s submission as to the desirability of a sentence of
intensive supervision and community work. We reiterate, however, our exhortation
to the appellant to take advantage of all programmes available to him in prison and
to take up the offer made to him by Pastor Winter for residential care and support
when his sentence ends. The appellant’s older brother has shown him the way in this
regard.
[29]
The appeal is dismissed.
Solicitors:
R M Gould, Blenheim for Appellant
P K Feltham for Crown