IN THE Court of appeal OF new Zealand
	
CA787/2012
[2013] NZCA 296

BETWEEN	
NATHAN BRIAN CARRUTH
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
10 June 2013	

Court:	
O'Regan, MacKenzie and Miller JJ	

Counsel:	
C J Tennet for Appellant
M J Lillico for Respondent	

Judgment:	
10 July 2013 at 11 am	

	
JUDGMENT OF THE COURT
A	The appeal is allowed.
B	The sentences imposed in the District Court are quashed.  In their place, we impose a sentence of three years’ imprisonment on the charge of aggravated robbery, a concurrent sentence of one year’s imprisonment on the charge of demanding with menaces and a concurrent sentence of one month’s imprisonment in relation to the review of the sentence of community work.  The total sentence is therefore one of imprisonment for three years.  
____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)
Introduction
[1]	Mr Carruth was convicted after a District Court jury trial on charges of demanding with intent to steal and aggravated robbery.  He was sentenced by the trial Judge, Judge MacAskill to a term of imprisonment for three years and four months.  In addition he was sentenced to a cumulative sentence of two months’ imprisonment as a result of a review of a sentence of community work.
Grounds of appeal
[2]	Mr Carruth now appeals against sentence.  The grounds are:
(a)	Counsel error: Mr Carruth says his lawyer failed to advise him of the elements of the offence of aggravated robbery.  He says that this deprived him of the opportunity to plead guilty to the offence he thereby lost the opportunity to obtain a credit for a guilty plea.
(b)	Disparity: Mr Carruth says that his co-offender, his brother Teariki Kura, was given a lower sentence and the disparity between the sentence imposed on Mr Carruth and that imposed on his brother is such that there was a disparity justifying the intervention of this Court.  
(c)	The sentence was manifestly excessive: This ground is based on a number of factors, including the starting point being too high, an uplift for previous offending being wrong and excessive, no credit being given for remorse and the two month additional sentence arising from the review of community work, itself, manifestly excessive.
Facts
[3]	Judge MacAskill set out in his sentencing notes a detailed analysis of the facts.  Although it is long, we reproduce it here because it helpfully sets out the Crown and defence cases, and describes the involvement of both Mr Carruth and his co-offender and brother, Mr Kura.  The Judge’s analysis was as follows:
[7]	The Crown’s case depended on the reliability of the complainant’s account, Mr Woodward’s account.  The jury’s verdicts show in my opinion that it accepted that account.  So I take the facts found by the jury to be these:
(a)	As to the charge of demanding with menaces, on Monday 28 November 2011 Carruth and an associate went to Suva Street in Riccarton to the home of the complainant, Mr Woodward, and his partner, Mr Yong.  Carruth asked to speak to the complainant inside.
(b)	As the three of you sat at the kitchen table, Carruth calmly said that he had been contracted to do harm to the complainant’s hands.  He did not like the idea of doing that, as it sounded as if it was out of malice.  He had to keep his bosses happy.  He said that if the complainant gave him $5,000, later reduced to $3,000, took a week off work and made it clear that he had hurt his hands, he would forget it.
(c)	When the complainant indicated that he would have difficulty in raising even $3,000, Carruth pointed at his, Mr Woodward’s, entertainment centre and TV and suggested that it would be worth $3,000.  Carruth said that he would look around the house while his associate kept an eye on him.  When he came back, Carruth said that harming the complainant’s hands made sense when he saw the saxophone.  When asked when he could get the money, the complainant said that the earliest would be Thursday.
(d)	Carruth then took the complainant around the house with him.  Carruth told the complainant not to use his cell phone.  He pointed to objects in the music room and said that they would be worth money.  Carruth took the complainant’s driver licence and said he would keep it until he got the money.  Carruth said he would be back on Thursday at mid-day and to make sure he had the money.  If the complainant had the money he would get his licence back.  The associate was a “big guy”.  He told the complainant not to call the police and told Carruth not to take his driver licence.  The complainant’s concern was to get you out of the house without being hurt.
(e)	After talking to his partner, friends and associates (including a police officer) and Citizen’s Advice, the complainant reported the incident to the police the next day.  He took time off work.  He told his employer why.  He feared gang involvement.  I hasten to say that there is no indication of gang involvement here.
(f)	As to the joint charge of aggravated robbery, on Tuesday 29 November Carruth and Kura – the two of you are brothers – went to the complainant’s address.  The complainant stepped outside and spoke to Carruth.  He told Carruth that he did not have the money because the bank would not give it to him.  Carruth said that he was not there to hurt him and that his friend Kura was.  But, to prevent that from happening, they were going to go in and take his stuff.  Carruth agreed that the complainant should tell Mr Yong to stay in his office and not to call the police.  The complainant knew that Mr Yong was already calling the police, as they had previously arranged.
(g)	Carruth got into the car and the complainant helped Kura open the gate.  The two of you then came in and proceeded to take the entertainment unit and TV and other electrical appliances.  The complainant assisted by unplugging cables.  He did not take property out to the car.  He was concerned that you might go into his partner’s office and discover he was gay and that you might be violent.  He gave up the property rather than get a hiding.
(h)	Carruth said he was going into the bedroom and that Kura would keep an eye on him.  During this time, Kura said “Oh, $3,000”, punched his fist into his palm and said, “You know, you’re lucky”.  He, the complainant, took this as a threat.
(i)	Carruth came back with the complainant’s iPad and said he wanted another laptop and asked for the PIN number to the complainant’s credit card, which he had already taken.
(j)	Kura then ran in and reported that the police were there.  As the three walked out, Carruth told the complainant to tell the police that the accused were “repo men”.  Carruth told the police that, “We are ‘repossession’”.  The police recovered the property from the car.
(k)	The complainant denied that Carruth mentioned a debt of any kind.  He did not owe anyone a debt.  He did not owe any debt to a former workmate, Sonya Burgess, as alleged by Carruth, and he was not trying to pay it.  He did not agree to the taking of the property.
[8]	There were strong indicators that the complainant’s account was true.  They included these:
(a)	His complaint to the police after the first incident.
(b)	That Carruth did take the complainant’s drivers licence.  His explanation for having done so, to identify the complainant, was plainly untrue.  
(c)	Carruth admitted that he had taken the complainant’s PIN number.  
(d)	Sonya Burgess credibly said in evidence the complainant did not owe her any money and she had not asked Carruth to collect any such debt.
[9]	Mr Carruth, your case was essentially this:
(a)	In November 2011 one of your jobs was working for The Debt Collectors Ltd.  Your boss was Peter Urbani.
(b)	In early November 2011, Sonya Burgess came to your house with a mutual friend.  Burgess told you that the complainant owed her $3,000.  She did not say what the debt was for.  You asked, you said, but she did not elaborate.  She gave you the complainant’s contact details.  No fee was discussed.  There was no discussion about her getting property instead of money.
(c)	You brought the debt to Mr Urbani’s attention.  Mr Urbani advised you to see if the debt existed.  You said that you mentioned the debt to Peter Urbani but could not remember what he said.  You said that when you visited the complainant you were working for Mr Urbani.  However, Mr Urbani said in evidence that you were not working for him in pursuing what he thought was a bizarre debt, for sexual services.
(d)	On 28 November you decided to visit the complainant to check it out.  He went with a friend, the man I have referred to a moment ago.  You denied that you took him as “muscle”.  At the door, you told the complainant that they had to have a discussion about a debt that was possibly owed by him to your client.  You and your associate were invited inside.  You mentioned the $3,000.  The complainant said he would check his bank and try and sort the money out.  You noticed the complainant’s wall unit that had a TV and other electrical stuff on it.  You suggested this would cover the debt.  You denied that you said you had been contracted to harm the complainant’s hands.  The complainant gave you a specific time to come back, you thought because the complainant did not want his partner to be there.
(e)	You asked the complainant for his licence so that, you claimed, you could take a copy for identification.
(f)	You came back the next day, an earlier day than arranged, out of concern and to suggest time payment.  You invited Kura to go with you for the ride on his way to a WINZ appointment.  You told Kura that you were going to check on a debt, that you were going to pick up some money for a debt collection.
(g)	At the door the complainant told you that he could not come up with the money and offered the wall unit. The complainant invited the two of you in.  The complainant passed stuff to Kura and took the rest out to the car himself and you touched only the iPad.
(h)	You claimed you did not take the complainant’s credit card.  You did not suggest that you had told the complainant the name of the creditor.  You said that at no time did you, or your other associate or Kura threaten the complainant.  You did not tell the complainant who he was working for, your name or introduce your associate.  You did not show any documents or say what the debt was for.  You conceded that you may have taken the PIN number for the complainant’s Visa card.
[10]	Mr Kura, you said that you had previously done a couple of debt collection jobs for Mr Urbani.  You had known Burgess for some years and at that time you were seeing her about once a week.  You recalled her complaining about a person at work but she did not mention his name and Carruth was not there at the time.  You were not present when Carruth offered to deal with the complaint.
[11]	On 29 November 2011, Carruth offered to give you a ride to WINZ.  You went to the complainant’s address.  Carruth said that he was picking up money from a friend.  You did not hear Carruth’s conversation with the complainant at the door.  Carruth told you that the complainant owed some money but he was going to pay in another way.  The complainant said he just wanted to get rid of the bill.  You were instructed by Carruth and the complainant to take the TV, which the complainant handed to you.  You put the TV and other items in the car.  You recalled making a gesture and mentioning $3,000 but said it was not threatening.
[12]	The complainant had not told you that you should not be in the house.  You did not go there to rob him.  You denied going there as “muscle”.
[13]	The Crown’s case was that the alleged debt was an explanation created after the event.  Ms Burgess’ grievance against the complainant explains how Carruth came to visit him.  The defence case was that Burgess did not tell Carruth of the debt and that this supported Carruth’s assertion that he approached the complainant about the debt.
[14]	I conclude that the jury accepted the Crown’s case.  The two of you had backgrounds of at least occasional debt collectors for Mr Urbani, likely at the intimidatory end of the scale of legitimacy and illegitimacy.  You were both aware that Ms Burgess had a grievance against the complainant arising out of their former co-employment.
[15]	Carruth, you and your associate, on what might be described as a speculative foray, called on the complainant and found him vulnerable.  You intimidated him into agreeing to pay $3,000, not for any debt owed to Ms Burgess, but to avoid harm.  You did not say anything about any debt, to whom it was owed or what it was for.  You played the role of enforcer rather than legitimate debt collector.  You knew there was no debt to Ms Burgess, you had no instructions from her to collect any debt and you had no arrangement to pay anything to her.  You were simply an opportunist.  You saw a chance to extract money from the complainant and you took it.
[16]	Kura, it is not clear that you were in on this from the beginning, but the jury’s verdict shows that it accepted that you knew what was going on when you went with Carruth to the house.  You did go to the address to add weight to the intimidation and to assist with the taking of the complainant’s property.  
[17]	I conclude that the two of you calculatedly kept this event low key, without overt violence, to play the part of debt collectors, but the threat of violence underlay your whole approach.  Possibly, you rationalised your actions upon the basis that the complainant “owed” Ms Burgess.  You may have thought you were giving the appearance, in fact the illusion, that you were debt collectors but that is not the impression you gave the complainant and for good reason.  You were no more debt collectors than bank robbers in clown suits are comedians.
Sentencing remarks
[4]	The Judge noted that Mr Carruth had continued to maintain in his interview with the probation officer that no violence had been offered and that he, Mr Carruth, had not gone to the complainant’s house to aggravate the complainant but to collect a legitimate debt: in other words he still maintained the version of events that the jury rejected.  The Judge then noted that, notwithstanding the comments to the probation officer, Mr Carruth confirmed at sentencing that he now understood the meaning of the charges and apologised for wasting the Court’s time in defending them and for what Mr Carruth himself described as his poor attitude in giving evidence.  The Judge acknowledged the admission of culpability but said it was too late to be taken into account as a mitigating factor.  The Judge did, however, acknowledge that Mr Carruth had expressed remorse in a letter he had written for the purpose of sentencing, and that the testimonials provided indicated that he was a good family man capable of becoming a law abiding and productive member of society.  
[5]	The Judge commented in relation to both Mr Carruth and Mr Kura that the continuing inability they had shown to recognise the clear criminality of their behaviour required the Court to place emphasis on the need for personal deterrence.  
[6]	The Judge took as the lead charge the aggravated robbery count and sentenced Mr Carruth on a totality basis.  He took a starting point of three years’ imprisonment, comprising two years for the aggravated robbery with an uplift of one year for the demanding with menaces.  This took into account the aggravating factors of the offending, including premeditation, the fact that the complainant was targeted in his own home, the fact that property to the value of between $6,000–$7,000 had been taken and that the complainant had been intimidated by threats of serious harm.  
[7]	The Judge applied an uplift of four months for the aggravating factors relating to Mr Carruth’s previous violent offending.  This increased the starting point to three years and four months.  That was the sentence for the aggravated robbery.  He imposed a sentence of 12 months’ imprisonment, to be served concurrently, on the demanding with menaces charge.  
[8]	On the review of community work, the Judge cancelled the sentence of 100 hours of community work and substituted a cumulative sentence of two months’ imprisonment.  Thus the overall sentence was imprisonment for three years and six months.  
Sentencing of co-offender
[9]	The Judge said that he considered that Mr Kura was “nearly equally culpable” with Mr Carruth in relation to the aggravated robbery.  However he accepted that Mr Carruth had taken the leading role: Mr Kura was “the heavy”.  The Judge said he did not think that Mr Kura should be treated more leniently just because he played a more passive and silent role.  He therefore took a starting point that was four months lower than that which had applied to Mr Carruth to reflect this slightly lesser role.  That meant he took a starting point for the count of aggravated robbery of one year and eight months.  He then added an uplift of four months for aggravating factors relating to previous violent offending.  He did not consider that there were any mitigating factors justifying any reduction from that sentence and imposed a sentence of two years’ imprisonment.  He refused to convert this to a sentence of home detention.  
Guilty plea discount
[10]	Counsel for Mr Carruth, Mr Tennet, argued that Mr Carruth’s trial counsel, Mr Rout, had acted incompetently by not explaining to Mr Carruth the elements of the charge of aggravated robbery, and had thereby deprived Mr Carruth of the opportunity of pleading guilty and obtaining a discount on his sentence.  
[11]	In support of this ground of appeal an affidavit was filed by Mr Carruth outlining his complaints against his lawyer, and Mr Rout filed an affidavit in reply.  Mr Carruth and Mr Rout were both cross-examined before us.  
[12]	The dealings between Mr Carruth and Mr Rout prior to the trial can be summarised in the form of a chronology as follows:
16 May 2012: Mr Rout was assigned to act for Mr Carruth (Mr Carruth’s previous lawyer did not have the necessary classification to deal with the trial of the charges faced by Mr Carruth).  
18 May 2012: Mr Rout and Mr Carruth met to discuss the case.
23 May 2012: Mr Rout forwarded the disclosure received from the police to Mr Carruth.  Mr Carruth says he did not receive the letter enclosing the disclosed material.  
1 June 2012: Mr Carruth failed to appear at a callover and Mr Rout wrote to him, inviting him to make an appointment with Mr Rout so that Mr Rout could take full instructions and advising him to make a voluntary appearance to avoid arrest.  Mr Carruth did make the voluntary appearance on that day, after receiving a telephone message from Mr Rout.  Mr Rout also advised Mr Carruth that his trial was to commence on 23 July 2011.
9 July 2012: Mr Carruth rang Mr Rout from Jordan but it became apparent that Mr Carruth would not be in New Zealand when the next callover occurred on 13 July 2012.  
	13 July 2012: Final callover.  Mr Rout advised the Court of the fact that Mr Carruth was in Jordan and arranged that the warrant for Mr Carruth’s arrest that was issued by the Court would lie in court until 23 July 2012, and that the trial would commence one day later than scheduled on 24 July 2012.  This followed advice from Mr Carruth that he could not arrive back in New Zealand before the morning of 23 July 2012.  
	23 July 2012: Mr Carruth arrived back in New Zealand met with Mr Rout.  Mr Rout and Mr Carruth discussed the trial and in particular the availability of the witness “Sonya”.  As it transpired, Sonya, far from giving evidence supporting Mr Carruth’s case, gave evidence for the Crown against him.  
	24 July 2012: the trial commenced.  
[13]	What is apparent from this brief summary, and was clearer from the elaboration we obtained through the affidavits and cross-examination, is that any problems of communication between Mr Carruth and Mr Rout were principally Mr Carruth’s fault.  He did not take up the invitation to visit Mr Rout to provide him with full instructions.  Then he left the country without telling Mr Rout and did not return until 23 July, the day on which his trial was meant to have started.  His discussions with Mr Rout on that day focused on the evidence he could obtain to bolster his defence, rather than on any issue of pleading guilty.  
[14]	At the very best for Mr Carruth, it could be argued that, if the Court were to accept that Mr Rout failed to explain to him the elements of the offence, Mr Carruth would have lost the chance to plead guilty on the morning of the trial.  That would have possibly provided a small discount on sentence, but it would have been insubstantial.  However, we do not think that even that scenario is borne out by the evidence before us.  
[15]	Mr Carruth said that he first learned about the elements of the offence of aggravated robbery during the Judge’s summing-up, and it was at that time he realised that he should have pleaded guilty.  It is true that in the letter to the victims that Mr Carruth wrote just prior to sentencing, he apologised not only for his offending but also for putting him through the court process “and wasting your time when I was guilty”.  However, his pre-sentence report records that Mr Carruth had stated that he had not gone to the victim’s address to aggravate the victim, but had gone there to collect a debt.  Mr Carruth was reported as having said that he should have gone through proper procedures but did not, that he had gone in blindly and was now in jail.  He maintained that no one had been hurt, the property had been returned and it had been done in a non-threatening way.  
[16]	In other words, Mr Carruth was maintaining, well after the trial and after the apparent revelation to him of the nature of the charge he faced in the Judge’s summing-up that he had not committed the offence and that the position he had taken at the trial, as recorded in the Judge’s sentencing notes, was still his position.  In those circumstances we do not see any evidential foundation for a conclusion that Mr Carruth would have pleaded guilty in the event that he had been provided with full advice about the nature of the offending.  
[17]	We observe that, given that the very best result for Mr Carruth from pursuing this line of argument was a small discount reflecting what he might have got if he had pleaded guilty at the beginning of the trial, his decision to attack his trial counsel in the way he did was unfortunate.  It is clear that there was a breakdown in the relationship between counsel and client, because Mr Carruth also wrote a letter containing stinging criticism of his counsel immediately after the trial and before sentencing.  But it is noteworthy that this criticism was about alleged shortcomings in the way the defence was conducted, not about a failure to explain the elements of the offence so that a guilty plea could be entered.  
[18]	That leads us to have doubts about the truthfulness of Mr Carruth’s allegations against his counsel.  In the circumstances, we do not believe his counsel should have been faced with the burden of defending his performance.  As this Court said in R v Clode, allegations against trial counsel should not be made if there is not a proper foundation for them.  In this case the attack on Mr Rout was wholly disproportionate to the nature of the alleged shortcoming, and the evidence available demonstrated that the allegations were unlikely to be substantiated in fact.  
Disparity
[19]	As is apparent from the Judge’s sentencing notes, the sentence imposed on Mr Kura was lower than that imposed on Mr Carruth.  This is partly explained by the fact that Mr Carruth faced two charges relating to two separate incidents, whereas Mr Kura faced charges only relating to the second incident.  When that factor is taken into account, the difference in treatment between them is that the starting point of two years for the aggravated robbery charge on its own was applied to Mr Carruth, whereas the starting point of one year and eight months was applied to Mr Kura.  
[20]	Mr Tennet made much of the fact that the Judge had said that he would treat Mr Kura “as nearly equally culpable” as Mr Carruth.  However, the Judge immediately went on to refer to the fact that Mr Carruth had taken a leading role.  It is ironic that the discussion which apparently took place between Mr Rout and Mr Kura prior to the trial and the suggestion of a plea bargain was based on Mr Carruth’s effort to have the charges against his brother dropped, on the basis that his brother had only a minor role.  This can be contrasted with his current suggestion that his brother was equally culpable.
[21]	In the circumstances we do not see that disparity in the sense described in R v Lawson applies in this situation.  Mr Carruth had set up the aggravated robbery incident by his earlier involvement in visiting the complainant and threatening him, and when taken in the round the difference of four months in the starting point adopted for the sentence was not such as to create a perception in the mind of a reasonable minded person that something had gone wrong with the sentencing process.  
Manifestly excessive?
[22]	We will deal with the factors raised in support of the argument that the sentence was manifestly excessive one by one.  
Starting point too high
[23]	Mr Tennet said that the starting point adopted by the Judge of three years (on a totality basis for both offences) was out of step with the guideline judgment of this Court in R v Mako.  He emphasised that there had been no actual violence in this case, although on the jury’s findings there had been significant threats of violence.  However, we accept the submission of Mr Lillico for the Crown that, having regard to the significant invasion of privacy that the offending involved, the starting point was not out of line with R v Mako, when the additional count of demanding with menaces is taken into account.
No credit for remorse
[24]	Mr Tennet argued that Mr Carruth had shown remorse and should have been given credit for it.  The Judge had seen this as coming too late to be given any real value and had not provided any separate credit for it.  We do not see any fault in the Judge’s analysis, particularly having regard to the fact that the pre-sentence report recorded that Mr Carruth was still maintaining his innocence after the trial, which called into question the sincerity of the remorse he had expressed in his letter to the victims.  
Uplift for previous offending
[25]	The Judge applied an uplift of four months for “aggravating factors relating to you of your previous violent offending”.  Mr Tennet pointed out that Mr Carruth did not have any convictions for violent offences apart from one offence of injuring with intent to injure in 2004, for which he was sentenced to nine months’ imprisonment with leave to apply for home detention.  He said that the imposition of this uplift was in effect a double punishment for that earlier offending.
[26]	Mr Lillico said that, in addition to that one offence of violence, the past record of Mr Carruth also included offending involving charges of theft in 2003 and 2004 and a charge of presenting a firearm in 2010.  He said that an uplift of 11 per cent was not out of order in those circumstances.
[27]	We accept that the Judge erred in applying an uplift for previous violent offending when there was only one such incident and it was both relatively insignificant and relatively aged.  We do not consider there is any proper basis for an uplift in this case.  
Review of sentence
[28]	Mr Tennet said that a two month uplift for the review of the community sentence was wrong.  He said that the community work sentence was, in fact, only a sentence of 100 hours, which was a quarter of the available limit.  He noted that there was no charge of breach of that sentence, and that the Judge was wrong to impose a cumulative sentence, particularly one of two months’ duration.  Mr Lillico acknowledged the absence of a breach of community work charge and that it was difficult to equate 100 hours of community work with two months’ imprisonment.  We are satisfied that the Judge erred in this respect as well.
Result
[29]	Taking all these matters in the round, we accept that the Judge ought not to have applied the uplift of four months for prior offending and ought not to have added an additional two months to the sentence for the community work.  We consider that the effect of these errors is to make the sentence manifestly excessive and we therefore allow the appeal and reduce the sentence from three years and six months’ imprisonment to a sentence of three years’ imprisonment, as detailed in the Judgment of the Court.

Solicitors: 
Crown Law Office, Wellington for Respondent