EDITORIAL NOTE: NO SUPPRESSION APPLIED.
IN THE DISTRICT COURT
AT DUNEDIN
CRI-2016-012-002144
[2017] NZDC 1204
THE QUEEN
v
LOGAN WILLIAM HEYDON
Hearing:
24 January 2017
Appearances:
R D Smith for the Crown
E L Higbee on behalf of J A Westgate for the Defendant
Judgment:
24 January 2017
NOTES OF JUDGE K J PHILLIPS ON SENTENCING
[1]
Mr Heydon, you are for sentence on a charge that ‘together’ with the two men
that are in the dock with you and others, all of whom were armed, robbed the victim
of money and cannabis. You face that charge having pleaded guilty to it on the basis
that you were the driver of one of the motor vehicles that took your ‘friends’ and
‘compadres’ to the scene of where this aggravated robbery took place and then drove
them away after. In doing what you were doing, you also allowed the transport of
weapons that were used during the course of the robbery. You are a party to the
principal offender’s actions.
[2]
I intend to go through the facts at this point in time in your sentencing. For
the purposes of your co-offenders, Mr Unahi and Mr Davis, the fact summary I now
give is for them as well.
[3]
The victims live in a flat in North East Valley. Two of your group planned to
rob the house. You were recruited, with another person, as the drivers. You were not
R v HEYDON [2017] NZDC 1204 [24 January 2017]
coerced into doing that. You were a volunteer. As I pointed out in the sentencing
indication, you majorly regret your involvement in the matter but the text messaging
the police obtained as part of their investigation makes your position clear. You
knew what was going to happen. You parked the car you were driving down the
road from the victims’ house. The other vehicle was parked in a similar place. Four
males got out of the vehicles and went into the house. Those males were all carrying
weapons. You knew that. The four males were disguised. You knew that. During
the course of the time they were in the house, you acted as a lookout. Weapons that
were taken included a pistol (which I am now told, and the Crown is in the position
it has to accept) was an inoperable BB gun but no-one other than the person carrying
that knew that; a fence paling; a knife; an axe; and a wheel brace. They could only
be seen to be weapons taken with an intention to subdue or overcome any resistance
to what was planned. One of the reasons why your sentence is somewhat less than
the others is that I accept you did not go into the house. In the house, the gun was
pointed at the female victim. The occupants were herded into the lounge. In the
victim’s bedroom after the victim was awoken, he had a gun pointed at his head. He
was questioned about drugs. There were various threats made as to what was going
to happen to the victims. $450 cash and an ounce of cannabis was taken. I read the
summary of facts and note the fear that was evident in these victims was to the
extent where the female victim was in the house, the lounge of her home,
whimpering with terror. The four spent 10 to 15 minutes in the house. I understand
from what Mrs Stevens, counsel for Mr Davis, says, is that he went in after the gun
was pointed but there were various matters that happened in the house, including the
presentation of the firearm and the female victim having a knife held to her throat by
Mr Davis. They came out of the house. You drove the men with the wheel brace
and the axe away from the scene to a pre-organised meeting place, where you all met
up again. There was a split of the money and the drugs.
[4]
In my written sentencing indication notes, I went through the submissions I
received from Mr Smith and Mr Westgate (your senior counsel, on the day of the
indication, Mr Higbee appearing for you on behalf of Mr Westgate today).
R v Mako1 was the base for the indication you received. I refer particularly to
1
R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272
para [58] of that decision. I had to first consider and arrive at a starting point as to
the principal offenders. I then had to assess your role in accordance with the facts
and the authorities.
[5]
Mr Smith’s position for the Crown was that the starting point for the principal
offenders would be in the vicinity of eight to 10 years’ imprisonment but he was
prepared to accept a starting point at the lower end of the range. He suggested to me
a starting point for your sentence would be eight years, with the principals nine to
10 years. He says there should be a 20 percent credit maximum and an end of six
years and four months. We discussed the matter. Mr Smith agreed a sentencing
indication guilty plea credit of 25 percent and there should be a further allowance for
remorse.
[6]
Mr Westgate’s submission was the principals starting point was seven years.
He said there was no actual physical harm.
One just reads the victim impact
statements to see physical harm, emotional harm and psychological harm. It seems
to me they are all one and the same thing. I did not accept Mr Westgate’s submission
as to the principals’ starting point. I accepted the argument that you, as being the
driver, played a lesser role. The authorities I read indicated a starting credit of
somewhere in the vicinity of 15 percent or 12 months. I noted the credits claimed by
Mr Westgate. You are 20 years of age, Mr Heydon. I gave you a small degree of
youth credit.
I accepted you had good character in relation to serious violent
offending, only having been convicted of driving offences. At 20 years of age,
maturity is approaching. Good character is a matter where it relates to serious
violent offending. I allowed a 10 percent credit. I have read carefully the letters
from specialists and doctors in relation to your health and mental health. Your drug
use of course has led to a number of your mental health issues. I allowed you five
percent for that. I allowed 25 percent for your guilty plea and five percent for the
question of remorse, a total of 45 percent.
[7]
The principal offenders’ starting point was eight years’ imprisonment. I gave
you a credit of 12 months for your lesser role in the matter. Credits of 45 percent
brought me to an end point of three years and 10 months. I accepted at once that
type of sentence of imprisonment on a young man was going to be difficult and
severe. I allowed a further four months and indicated to you, which you accepted by
your plea, three years and six months’ imprisonment. Mr Higbee today says to me
that you went to restorative justice and you make an offer of amends. With due
respect to the offer of amends, it is a token only and there can be no credit offered for
that. I accept in reality the overall sentence I indicated to you had regard to your
rehabilitation prospects. One would hope that this is a lesson for life. I note you
attended restorative justice.
[8]
Mr Smith, for the Crown today, really accepts the indication. I suppose in a
way he has to but he did not take argument or umbrage with the way in which I had
done those calculations. Mr Higbee (quite surprising to me) did. I considered the
end point for your sentence merciful but he claims further credit for the fact you
attended restorative justice. In the end, I acknowledge your letters. I acknowledge
the basis of the arguments put to me by Mr Higbee.
[9]
What I have to take into account is the victim impact statements I have had
from these victims after the indication was given. The impact upon them has been
of, and to, a high level.
Anxiety.
The male victim says it has shaken “his
foundations”, what he believed was right and proper and what he believed were his
supports. He no longer really has them. What he does say, however, and I will
mention this again in relation to Mr Unahi, that the restorative justice process has
helped him and given some of his “power” back. The female victim has had
nightmares. Her social life really was terminated. She was too scared to come out
of her room for nearly two weeks. Her anxiety issues were exacerbated. She has
lost trust in people. She had to attend counselling but again found the restorative
justice process with Mr Unahi to be healthy.
[10]
I have no doubt whatsoever you are remorseful.
How much of it is
self-remorse I do not know but in the end when I assess it all, and accept to a certain
degree what Mr Higbee has told me and look at the issues relating to the other two, I
am satisfied I should make a very small reduction in my indication.
[11]
On the charge of being a party to an aggravated robbery, you are sent to
prison for three years and four months. I have already given you a three strikes
warning.
K J Phillips
District Court Judge