IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-029 [2017] NZHC 781

BETWEEN	THE QUEEN
Appellant	

AND	
JAMES LAWRIE Respondent	

Hearing:	10 and 26 April 2017	

Appearances:	
Z R Johnstone for the Appellant
P I Pati for the Respondent	

Judgment:	
26 April 2017	

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
Z R Johnstone, Crown Solicitors, Auckland
P Pati, Public Defence Service, Manukau

THE QUEEN v LAWRIE [2017] NZHC 781 [26 April 2017]

Summary

[1]       The respondent, James Lawrie, pleaded guilty to 12 aggravated robberies and

three assaults with intent to rob.  He was sentenced to six years’ imprisonment on 21

December 2016.

[2]       The Crown now appeals against Mr Lawrie’s sentence on the basis that it is

manifestly inadequate and wrong in principle.

Background

Facts

[3]       Mr Lawrie’s offending took place between 30 May 2016 and 28 July 2016, a period of almost two months.  There were 15 discrete incidents, which resulted in 12 charges of aggravated robbery1 and three charges of assault with intent to rob.2

[4]       Each aggravated robbery followed a similar pattern.   Mr Lawrie targeted service stations and dairies (and on one occasion a motel), and operated alone. Armed with a weapon, sometimes at night, he approached the counter and demanded cash and cigarettes from the person serving.  In seven of the aggravated robberies, he was armed with a small knife.  In five, he was armed with an imitation pistol which each of the victims thought was real.  On most occasions he also took with him a black bag in which he put the items he stole.  After each robbery, he ran from the store to his vehicle and left the area.

[5]       There was actual physical violence involved on two occasions. On the first occasion, Mr Thakar of Othello Superette chased Mr Lawrie out of the store with a broom, whereupon Mr Lawrie turned around and lunged at him, cutting both his hands with the knife he was carrying.  Mr Thakar received minor lacerations to his hands as a result.  On the second and more serious occasion, Mr Mistry of Poonan Dairy  grabbed  hold  of  the  bag  in  which  Mr  Lawrie  was  putting  money  and
cigarettes.  Mr Lawrie tackled him to the ground and punched him approximately 20

1	Crimes Act 1961, s 235(c). This offence carries a maximum penalty of 14 years’ imprisonment.
2	Crimes  Act  1961,  s  236(1)(b).	This  offence  carries  a  maximum  penalty  of  14  years’
imprisonment.

times about the head and body.  Mr Mistry received a haemorrhage to the left eye, swelling  around  the  nasal  bridge  and  damage  to  his  upper  incisor  tooth  which resulted in him subsequently losing that tooth.

[6]       The other victims report ongoing emotional harm.  Some thought they were going to die during the robbery; some now have difficulty sleeping and are more apprehensive at work as a result.  In terms of the quantum of property stolen, police estimate that across all 12 of these robberies, Mr Lawrie took property worth a total of $30,245.19.

[7]       The three assaults with intent to rob occurred in similar circumstances to the aggravated robberies, except Mr Lawrie did not succeed in taking any property.  This was because the victim either escaped to a back room, pressed a panic button, or chased Mr Lawrie out of the store with a weapon.  On two occasions, Mr Lawrie was armed with a knife, while on the third occasion he was armed with the imitation pistol.  At one dairy a woman was working on the shop floor with her 12-year-old son, and Mr Lawrie threatened to kill her son if she did not hand over money.

Mr Lawrie’s background

[8]       This is a most unfortunate case.  Mr Lawrie is thirty five years old.  His only previous conviction is for driving with excess blood alcohol as a person under the age of 20, which occurred in 2001 when he was 19.   He received a first warning under the three strikes regime as a result of the present convictions.3

[9]       Prior to the spree of offending which is the subject of this appeal, Mr Lawrie reports that his relationship had ended and his ex-partner ceased all contact with him. This meant that Mr Lawrie also lost contact with his two-year-old son, with whom he had a strong emotional bond.  He also lost his job of eight years standing after spending excessive amounts of time away from work trying to locate his son.  After this, he reports that his life spiralled out of control and he became depressed.  An
acquaintance introduced him to methamphetamine, and, as so often is the case, he

3	Sentencing Act 2002, s 86B.

became addicted.   This crime spree had the primary purpose of funding his drug addiction.

[10]     Mr Lawrie has written a letter of abject apology to his victims in which he says that he made the “biggest mistake of [his] life”.   He was willing to attend restorative justice meetings with them, but they have declined to participate.  He says that he is in some ways relieved at having been caught, as imprisonment has forced him to address his drug addiction which was at the heart of all his offending.

Sentencing in the District Court

[11]   On 21 December 2016, Mr Lawrie appeared for sentence before Judge McNaughton  in  the  District  Court.4       He  had  previously  received  a  sentence indication.

[12]	The Judge cited the following aggravating features of the offending: (a)	the degree of planning and premeditation;
(b)	the use of weapons, namely a knife and an imitation pistol; (c)	actual violence in two of the offences;
(d)	the quantity of property stolen (around $30,000); and

(e)	the significant impact of the offending on the victims.

[13]     The Judge  elected not  to  discuss  in  detail  the cases  cited  to  him  at  the sentence indication hearing.  He commented that the starting point would have to be higher than that in R v Lisiate5 and R v Davis,6 two cases referred to him in submissions.   He considered that the appropriate sentencing range for each of the offences  was  somewhere  between  three  and  a  half  and  five  and  a  half  years’
imprisonment.   However, he noted that combining 15 separate sentences for 15

4	R v Lawrie [2016] NZDC 26262.
5	R v Lisiate CA35/03, 4 December 2003.
6	R v Davis CA472/00, 20 March 2001.

separate charges on a totality basis was a “completely unscientific exercise”.  The

Judge commented:7

[At] a certain point the number of extra charges was not going to increase the otherwise appropriate sentence or starting point. At a certain point the curve on the graph would flatten out and seen in that way it seemed to me the minimum appropriate sentence was 12 years’ imprisonment … sentences above that level are reserved for the most serious violent offending, usually committed by offenders with a significant track record of serious violence and terms of imprisonment, and usually involving severe trauma and injury to the victims and … your offending was simply not in that league.

[14]     The Judge discussed the mitigating factors personal to Mr Lawrie.  Among other things, he commented on Mr Lawrie’s apology letter to his victims, his new relationship which was a positive influence in his life, and the circumstances that had contributed to his methamphetamine use.

[15]     Having  settled  on  a  starting  point  of  12  years’ imprisonment,  the Judge discounted that by 25 per cent to reflect Mr Lawrie’s early guilty plea.   He also discounted by a further 25 per cent to reflect Mr Lawrie’s previous good character and lack of previous convictions.  Accordingly he imposed an end sentence of six years’ imprisonment.

[16]     Finally, the Judge declined to impose a minimum period of imprisonment

(MPI).  He stated as his reasons:8

So far as deterrence was concerned … I seriously doubt we would ever see you back before the Court again … as to general deterrence of aggravated robberies in South Auckland, that is now at epidemic levels, at the rate of two a day … I seriously [doubt] that a severe sentence in your case was going to deter anyone out there already doing it from committing that type of offence … the only reason for imposing a minimum period of imprisonment now would be to denounce the offending and perhaps that is appropriate but I would require further argument before I did that.

Grounds of Appeal

[17]     The Crown appeals against Mr Lawrie’s sentence on the ground that it was

manifestly inadequate, for the following reasons:

7	At [5].
8	At [6].

(a)	the starting point of 12 years failed adequately to reflect the totality of the offending;

(b)	the  25  per  cent  discount  for  lack  of  previous  convictions  was excessive;

(c)	the  discount  for  guilty  pleas  was  incorrectly  calculated  from  the starting point rather than from the nominal end sentence; and

(d)	an MPI should have been imposed.

Appellant’s submissions

Starting point

[18]     The Crown submits that a starting point of between four and five and a half years’ imprisonment would have been appropriate for each of the twelve robberies. It relies on a passage from the decision in R v Mako (the guideline sentencing judgment for aggravated robbery):9

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 the face covered.  There is no actual violence.  A small sum of money is taken.  The starting point should be around four years.   Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[19]   It says that inevitably concurrent sentences were appropriate but that a substantial uplift was necessary to reflect the totality of the offending and the fact that it was repetitive, persistent, premeditated and involved actual and threatened
violence.

9	R v Mako [2000] 2 NZLR 170 (CA) at [56].

[20]     The Crown submits that it was wrong in principle to say that, after a certain point, the addition of extra charges does not affect the starting point.   While it accepts that sentencing is not a mathematical exercise in which starting points are simply added one to another, it says that the starting point which was ultimately adopted had to reflect the totality of Mr Lawrie’s offending and that one of 12 years did not adequately do so.

[21]     It also submits that comparison to other cases involving fewer aggravated robberies indicates that a starting point of higher than 12 years was required.   It submits that a starting point of between 13 and 14 years’ imprisonment would have been appropriate.

Credit for lack of previous convictions

[22]     The Crown submits that the discount of 25 per cent for Mr Lawrie’s previous good  character  was  excessive  and  wrong  in  principle.    Other  than  his  lack  of previous convictions and expressions of remorse, there was no evidence of his previous good character.   In particular, there was no evidence of his positive contribution to society.  A discount in the vicinity of 15 per cent would have been appropriate.

Discount for guilty pleas

[23]     The Crown does not dispute the quantum of the discount awarded for Mr Lawrie’s guilty plea (25 per cent).  However, it submits that the Judge erred in his approach to the relevant discount by applying it to the starting point of 12 years. The conventional approach would have been to first apply the 25 per cent discount for good character, reaching a nominal sentence of nine years, and then to apply the 25 per cent discount to that nominal sentence.  Such an approach would have resulted in an end sentence of six years nine months imprisonment rather than the six years adopted.

MPI

[24]     Referring  to  s 86(2)  of  the  Sentencing  Act  2002,  which  governs  the imposition of an MPI, the Crown submits that the operative purposes in this case are deterrence and denunciation.   It submits that although recognising the epidemic levels of aggravated robbery in South Auckland, the Judge fell into error by failing to recognise the need for a deterrent and denunciatory response in Mr Lawrie’s case.

[25]     The Crown contends that release after serving one third of his sentence (i.e. after two years)10  would be an insufficient response to the gravity of Mr Lawrie’s offending.   It says an MPI of at least 50 per cent of the sentence imposed was required.

End sentence

[26]     Taking the suggested starting point of between 13 and 14 years and applying a discount of 15 per cent for good character,  the Crown says that  the adjusted sentence should have been 11 to 12 years. After the discount for guilty pleas, it says that a final sentence in the range of eight to nine years’ imprisonment is appropriate. Given that this is a Solicitor-General’s appeal, the Crown says that a sentence of eight years should be adopted, with an MPI of 50 per cent.

[27]     Further, the Crown does not consider that if the appeal is allowed, it is in the interests of justice for Mr Lawrie to be given leave to vacate his guilty pleas.11

Respondent’s submissions

Starting point

[28]     For Mr Lawrie, Mr Pati submits that the starting point of 12 years adopted was appropriate.

[29]     Mr Pati submits that maximum penalties are reserved for the most serious of cases. He contends that the offending was carried out in an unsophisticated manner;

10	This is the presumption under the Parole Act 2002, s 84(1).
11	Referring to the Criminal Procedure Act 2011, s 252.

the locations were largely opportunistic; and any planning was minimal.   He emphasises that there were no severe injuries and says the losses were limited to the value of the goods taken.

[30]     Mr Pati also disputes that the cases relied on by the Crown are comparable to the present offending.  He refers in particular to:

(a)       R v Collett,12  where the offenders committed aggravated robberies in which they demanded not only cash but also pseudoephedrine.   In sentencing, the Judge observed that the production of methamphetamine was an enormous problem for society, comments which I can only echo.   Mr Pati says that this is an important distinguishing feature.   Further, the multiple offenders in Collett entered with semi-automatic rifles, balaclavas, gloves and knives.

(b)       R v Moke,13  where the offending was more sophisticated in that the offenders tied up the victims and removed CCTV footage.  They were also armed with baseball bats and a cut-down semi-automatic rifle. One victim required hospital treatment after being struck on the head with a bat. Again multiple offenders were involved.

Credit for mitigating factors personal to Mr Lawrie

[31]     In relation to the credit, Mr Pati submits that the 25 per cent discount for mitigating factors was warranted.  Even if not found to be justified for previous good character alone, it was justified on the grounds of other mitigating factors personal to Mr Lawrie.  Mr Pati highlights the following:

(a)     An unfortunate sequence of events which led to Mr Lawrie’s methamphetamine addiction and then this offending,  including the loss of his previous relationship and contact with his two-year-old son.  He says methamphetamine numbed his pain but at the same time
deprived him of his moral compass.

12	R v Collett CA83/04, 30 August 2004.

(b)       His new relationship provides him with the support that he needs to overcome his addiction.   He wants to be a figure of respect for his family when he comes out of prison, and to work with at-risk youth.

(c)       He has only one previous minor and unrelated conviction 16 years ago.

(d)       He was an active member of his church until the breakdown in the relationship with his previous partner, and was second in charge at Flyaway Logistics for eight years prior to losing his job.

(e)       While in prison, Mr Lawrie has received a certificate of achievement for  his  contribution  as  a  kitchen  hand,  and  has  enrolled  in  a programme for New Zealand History and Literacy Support as well as Media Studies.

(f)	Mr Lawrie has taken all available steps to address his drug addiction.

He completed a Community Drug and Alcohol course while awaiting sentencing, and will in due course be moved to a Drug Treatment unit in prison.

(g)       He is deeply remorseful.  He made full admissions in respect of the offending and accepts responsibility for it.  He has provided a letter of apology to his victims and was eager to undergo a restorative justice process, but his victims declined.  The pre-sentence report assesses his remorse as genuine and places him at a low risk of reoffending.

[32]	Mr Pati refers to R v Kekesi, in which a discount of 45 per cent was awarded for mitigating factors.14	He submits that the combination of personal mitigating
factors detailed above justify the 25 per cent discount that was awarded.

14	R v Kekesi [2016] NZHC 1872.

Discount for guilty pleas

[33]     Mr  Pati  acknowledges  that  the  Judge  erred  in  applying  the  25  per  cent discount  for  a  guilty  plea  to  the  starting  point  rather  than  to  the  nominal  end sentence.

MPI

[34]     Mr Pati submits that the Judge took all relevant considerations into account, including  the  seriousness  of  the  offending;  made  a  balanced  assessment;  and properly reached the conclusion that an MPI was not warranted.  He says that the Crown’s contention is essentially that an MPI should be automatic given the prevalence of aggravated robbery offending in South Auckland.

[35]     Mr Pati points to the features that made an MPI unnecessary in this case: Mr Lawrie lacked previous relevant convictions; he presented with genuine remorse; he was motivated to rehabilitate himself; he had support from his new partner; and he was assessed as having a low risk of re-offending.

[36]     He further submits that even without an MPI, the discretion to release Mr Lawrie after he has served one third of his sentence remains with the Parole Board. There are ample measures in place to ensure that public safety is not compromised.

Approach to Crown appeal against sentence

[37]     The approach to an appeal against sentence is that in s 246 of the Criminal Procedure Act 2011, which provides for the prosecutor's right to appeal against a sentence.   The principles governing a Crown appeal against sentence are well established:

(a)	An appellate court is more reluctant to increase than it is to reduce a sentence.15	It  will  generally only do  so  in  clear-cut  cases  where
compelling reasons are presented.16

15	R v Wihapi [1976] 1 NZLR 422 (CA) at 424.

(b)       A sentence should not be increased on a Crown appeal unless, on a review of the facts and circumstances of the case, it is clear that the sentence imposed in the lower court was manifestly inadequate or wrong in principle.17

(c)       An  appellate  court  will  not  lightly  interfere  with  the  sentencing Judge’s discretion to take a merciful approach or adopt a course designed to achieve rehabilitation.18    This applies even in cases that would normally call for a deterrent approach.19

(d)       An appellate court is less likely to interfere where the sentencing Judge has imposed a community-based sentence and its conditions have been complied with than when an inadequate custodial sentence is in issue.20

[38]     These principles must be borne in mind when considering whether to disturb the sentence imposed by the sentencing Judge.

Analysis

Starting point

[39]     Judge McNaughton adopted a starting point of 12 years, which the Crown considers manifestly inadequate

[40]     In assessing whether this starting point is appropriate, I begin with R v Mako, which is the tariff judgment for aggravated robbery.  It identifies certain aggravating and mitigating factors particular to that offence.21     I consider the following to be
aggravating features of Mr Lawrie’s offending:

17	See Police v Lang [2015] NZHC 3107 at [13]; Tutakangahau v R [2014] NZCA 279, [2014] 3
NZLR 482 at [26]–[36].
18	R v Wihapi, above n 15, at 424.
19	R v Wihapi, above n 15, at 424.
20	Police v Lang [2015] NZHC 3107 at [21]; see R v Parker CA246/87, 29 April 1988; and R v
Peters CA309/85, 11 April 1986.
21	At [35]–[51].

(a)       Premeditation: while there is no evidence of detailed planning over a sustained period, the offending could not be described as wholly spontaneous or opportunistic.  Mr Lawrie took with him a black bag to put the stolen items in, as well as a weapon, demonstrating a degree of forethought.  He also parked his vehicle a short distance away so that he could make a quick escape.

(b)       Weapons: a knife is a potentially lethal weapon, especially, as the Court of Appeal commented in Mako, “in the hands of nervous or aggressive offenders when confronted by the unexpected”.22    Mr Lawrie  also  used  an  imitation  firearm  in  six  of  the  incidents. Although  this  was  only  an  imitation  weapon,  the  impact  on  the victims was no less: some report that they thought they were going to die.23

(c)       Actual violence: as described above, there was actual violence on two occasions.   In particular, Mr Mistry was severely beaten around the head and body.

(d)       Impact on victims: as well as the physical injuries to Mr Thakar and Mr Mistry, many of the victims described ongoing trauma as a result of the robberies.   Fear and a lack of trust in their customers will continue to affect them in their day-to-day work.   One young man working in the store at the time of one of the robberies has resigned from his job as a result.

(e)       Quantity of property stolen: as noted above, the Police estimate the value of the property stolen to be $30,245.19 – a significant sum.

(f)	A number of the offences occurred at night.

[41]	With the exception of the time of offending, Judge McNaughton cited each of these aggravating factors in sentencing Mr Lawrie, and adopted a starting point of

four  to  five  and  a  half  years  for  each  individual  offence.    A  more  orthodox approach24 would have been to identify the most serious of the aggravated robberies as the lead offence and fix a starting point for it, uplifting the sentence to reflect totality.  The robbery involving Mr Mistry who was repeatedly punched around the head and body in a sustained and violent attack was the most serious, and in my view warranted a starting point of six years imprisonment.  That is at the upper end of the
range suggested in Mako for robbery of a small retail shop with weapons and serious violence but is justified by the level of violence involved.25    It was in the words of the Court of Appeal a “bad” case.

[42]     More significant, however, is the question of the proper adjustment to reflect totality. The Court of Appeal in Mako observed that “[multiple] offending involving separate incidents … gives the criminality an added dimension which must be accorded full response on totality principles”.26   It is not a mathematical exercise in which sentences for each individual charge are simply totalled up.27     Instead, a
judgment exercise, informed by the case law, is required.  In terms of such case law the scale of Mr Lawrie’s offending is unprecedented.  However, there are a number of cases which do provide some points of comparison.

[43]     In R v Lisiate, referred to by Judge McNaughton, Mr Lisiate was found guilty on  four  counts  of  aggravated  robbery.    Acting  with  others,  he  targeted  service stations and demanded money from the attendants, armed with a machete or a pistol. The violence was limited to threats.  The sentencing Judge said that each individual charge would attract a starting point of between four and six years’ imprisonment, but given the totality of the offending, a starting point of between 10 and 12 years’ imprisonment  was  appropriate.   This  was  upheld  by the  Court  of Appeal.    Mr Lawrie’s offending is more serious than that in Lisiate, given that physical violence was involved not only in respect of the lead offence but also one of the further robberies relevant to the uplift assessment, and there were three times as many
robberies involved.

24	And one which assists greatly in appellate consideration.
25	At [56], where the Court suggests four to six years.

[44]     In R v Davis, also referred to by Judge McNaughton, Mr Davis was sentenced on six charges of aggravated robbery, one charge of attempted aggravated robbery and one charge of unlawfully taking a motor vehicle.  The aggravated robberies all targeted small businesses.   Mr Davis operated alone, demanding cash from store assistants while armed with an air pistol and disguised in a balaclava and hooded raincoat.   No actual violence was used.   The Court of Appeal held that a starting point of 10 years’ imprisonment would be appropriate.   I consider that the present offending is significantly more serious, given the violence referred to.

[45]     In  R  v  Collett,  Mr  Collett  pleaded  guilty  to  four  charges  of  aggravated robbery and four charges of unlawfully taking a motor vehicle.  The Judge adopted a starting point of 11 years imprisonment which was upheld by the Court of Appeal.  I agree with Mr Pati that this case is not particularly useful for comparative purposes given  that  the  Court  of Appeal  was  influenced  by  the  prevalence  of  pharmacy robberies  within  the  context  of  methamphetamine  manufacture.     The  Court considered that pharmacy owners deserved special protection, and described methamphetamine, accurately in my view, as a scourge on society.   This case is therefore in a special category.

[46]     In R v Moke, Mr Moke pleaded guilty to six charges of aggravated robbery. He and two others had targeted service stations disguised and armed with a baseball bat and a cut-down semi-automatic rifle.  On various occasions the offenders bound the attendant’s arms and legs and removed surveillance tapes.  On one occasion, they struck an employee on the head with a baseball bat.  The employee later required hospital treatment.  The Court of Appeal accepted that a starting point of 11 years’ imprisonment was appropriate.  I consider the present offending more serious than that in Moke: although  the level of premeditation as evidenced by the physical restraint of the attendants and removal of CCTV footage was higher in that case, there is a substantially greater number of offences in this case.  As in Moke, there was also a threat to kill involving one of the victim’s young children who was present at the time of the offending.

[47]     R v Kirk is a particularly recent decision of the High Court delivered on the day this appeal was originally set down for hearing.28   I provided copies to counsel who requested that the case be adjourned for two weeks to allow further instructions to be taken. The hearing therefore resumed today, 26 April 2017.

[48]     In  that  case  Ms  Kirk  and  Ms  Vaeafisi  had  both  pleaded  guilty  to  six aggravated robberies, which they participated in together with other members of an organised criminal gang. Three of the robberies targeted dairies and takeaway shops; two were home invasions; and one occurred on the street.   On each occasion, the offending was carefully planned in advance; multiple offenders were involved; and often multiple weapons were brandished.  Explicit threats were made, but there was no actual physical violence. The same District Court Judge who presided in this case adopted a starting point of seven years for the lead offence (one of the home invasion robberies) and uplifted it by three years to reflect the totality of the offending.  He therefore adopted an overall starting point of ten years.

[49]     The Crown appealed to the High Court, contending (among other things) that the starting point was manifestly inadequate.  Toogood J agreed, commenting that the Judge was “far too lenient” in adjusting the starting point, in light of the totality of the offending, to only 10 years.   He noted the prevalence of serious offending against shopkeepers and service station attendants at night.  His comments are apt in
the context of Mr Lawrie’s offending when he said:29

People  who  are  often  alone  in  their  business  premises  at  night  are particularly vulnerable and must be protected also.   The victim impact statements presented in this case, which describe the distress and anxiety caused by the offending, speak eloquently in support of that approach.

[50]     Toogood  J  considered  that  the  overall  seriousness  of  the  six  robberies warranted a starting point of 12 to 13 years’ imprisonment.   Although there are elements which distinguish the offending in Kirk from Mr Lawrie’s offending, I nevertheless consider Mr Lawrie’s offending to be overall slightly more serious:
although he did not invade any private dwellings,30  he committed twice as many

28	R v Kirk [2017] NZHC 673.
29	At [63].
30	See Mako, above n 9, at [58], where invasion of a private house at night is considered an aggravating factor.

robberies as Ms Kirk and Ms Vaeafisi and, in addition to that demonstrated in the lead offence, there was actual violence involving Mr Thakar.

[51]     On my own analysis of the relevant cases, therefore, Mr Lawrie’s offending – adjusted for totality – required a starting point of between 13 and 13 and a half years. Because this is a Solicitor-General’s appeal I adopt the lowest point in that range.

[52]     I do not consider that the District Court Judge made a correct assessment in respect of totality.  Instead he commented that, “[at] a certain point the number of extra charges was not going to increase the otherwise appropriate sentence or starting point”.  This was contrary to the Court of Appeal’s statement in Mako that where there are multiple offences, a full response on totality principles must be given. Anything less amounts, in my view, to a discount for bulk offending.  In my further view the fact that the present offending involves 12 incidents of aggravated robbery, as opposed to the four to six in the cases I have referred to, certainly elevates it in terms of seriousness above those cases.

[53]     In reaching that conclusion I take into account, in the same way that Toogood J  did  in Kirk,31   the need  for the Court  to  recognise deterrence and  community protection as important sentencing factors in this type of offending.  An uplift of a least seven years was necessary to reflect the 11 other aggravated robberies one of which (that involving Mr Thakar) would of itself have justified a starting point of five to five and a half years’ imprisonment on account of the time at which it
occurred (7.55 pm in winter, i.e. nightime), the use of a weapon, actual violence and the value of goods and money taken ($2,003 in cash and $1,049 of cigarettes).

Credit for mitigating factors personal to Mr Lawrie

[54]     The Crown submits that the discount of 25 per cent for Mr Lawrie’s previous good character was excessive.   Mr Pati puts forward evidence of other mitigating features that might justify a 25 per cent discount even if it is not warranted strictly on
the grounds of good character alone.

31	At [66].

[55]     In King v R, the Court of Appeal commented:32

The rationale for recognising good character as a mitigating factor is its recognition that a fall from grace is punishment in itself; and the greater potential   for   rehabilitation   where   community   involvement   and   good character attest to a reduced probability of reoffending.

[56]     In R v Findlay the Court of Appeal applied a discount of 25 per cent for previous good character, recognising Mr Findlay’s longstanding commitment to the local community. 33   In particular, Mr Findlay had given considerable service to the Anglican Church, at both a local and national level.  However, service to the wider community is not the only basis on which a discount for previous good character may be given: the Court of Appeal also applied a 25 per cent discount in Davidson v R, recognising Mrs Davidson’s life of devoted service to her family.34    Friends and family paid generous tributes to her kindness, honesty and industry.

[57]     The evidence of good character in this case is not as compelling as that in Findlay or Davidson, but I accept it is relevant that Mr Lawrie held a position of responsibility in his job over nine years and was an active member of his church. The evidence is that he was a contributing and decent member of society before his descent into drug addiction.   Even if these factors are not sufficient to warrant a discount of 25 per cent, there are other mitigating features which, taken together, could in my view, properly justify such a discount.  Mr Lawrie demonstrated what
the District Court Judge, correctly in my view, considered to be genuine remorse,35

and has offered to make amends.36   He has taken active steps to overcome his drug addiction, completing a Community Drug and Alcohol course while awaiting sentencing.

[58]     Mr Pati pointed me to R v Kekesi, in which a 45 per cent discount was awarded for Mr Kekesi’s previous good character, as well as his honesty and co- operation with police and desire to rehabilitate himself.37    I consider 45 per cent to
have been a particularly generous response but it nevertheless provides support for

32	King v R [2015] NZCA 475 at [30].
33	R v Findlay [2007] NZCA 553 at [91]–[92] and [102].
34	Davidson v R [2011] NZCA 356 at [18]–[19].
35	Sentencing Act, s 9(2)(f).
36	Sentencing Act, s 10 at [10]-[12].
37	R v Kekesi, above n 14. A further 25 per cent was awarded for Mr Kekesi’s early guilty plea.

the much lesser discount in Mr Lawrie’s case.   In my view that discount was not manifestly excessive and given that this is a Crown appeal I decline to interfere with what was clearly a desire on the part of the sentencing judge to take a merciful approach in all of the circumstances of the case.

[59]     However,  I emphasise  the  fact  that  I do  not  consider Mr  Lawrie’s  drug addiction in itself a mitigating factor.  Mr Pati has sought to rely on that addiction as numbing his “moral code”.  The courts have been consistent in recognising that the fact  that  offending is  committed to  sustain  addiction  will  not  be regarded  as  a mitigating factor.38

Discount for guilty pleas

[60]     I accept that the Judge erred in applying the guilty plea discount to the starting point of 12 years, rather than the nominal end sentence after discount for other mitigating factors.  The Supreme Court has made it clear that a reduction in sentence for a guilty plea is applied “once all other matters have been evaluated and a provisional sentence reflecting them has been decided on”.39   With long sentences this error can have a significant effect.  In the present case it resulted in a sentence nine months shorter than should have been imposed on the Judge’s own 12 year starting point.

Conclusions on sentence

[61]     On   that   basis   I  consider   a   sentence   of   seven   years   three   months’ imprisonment was appropriate and that the six year sentence imposed was indeed manifestly inadequate.  The question arises as to whether I should then make some final discount to reflect the fact that this is a Crown appeal.

[62]     In Kirk, Toogood J did make such an adjustment from an indicated six to seven  years’  imprisonment  to  a  final  sentence  of  five  years  and  six  months’
imprisonment.40   Were I to make a similar adjustment in this case it would probably

38	R v Davis, above n 6, at [20].
39	Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].
40	R v Kirk, above n 28, at [87].

bring the sentence to a level approximating that which it should have been on the District Court Judge’s own starting point but applying the correct approach to discount for Mr Lawrie’s guilty pleas.

[63]     Ms Johnstone submits that where, in the assessment of starting point and discount for previous good character and remorse, a generous approach is adopted to reflect the fact that it is a Crown appeal no further discount should be made in that respect at the conclusion of the sentencing exercise.  In principle I agree with that submission.  To do otherwise effectively amounts to a double discount on account of the fact that the appeal is one brought by the Solicitor-General.  In Kirk it may well be  that  his  Honour  did  not  consider  that  he  had  fully  recognised  all  relevant discounts at earlier stages in his analysis and thus the final adjustment made by him. On the approach that I have adopted and in particular with regard to starting point and retention of the generous discount for good character and remorse I consider that a sentence of seven years and three months’ imprisonment fully reflects all considerations appropriate in the context of a Crown appeal.  I do not therefore make any final adjustment to the sentence.

MPI

[64]     I then  come  to  consider  whether  a  minimum  period  of  imprisonment  is appropriate.

[65]     Section 86 of the Sentencing Act 2002 governs the imposition of an MPI:

86	Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1)      If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve  a  minimum  period  of  imprisonment  in  relation  to  that particular sentence.

(2)        The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a)	holding the offender accountable for the harm done to the victim and the community by the offending:
(b)	denouncing the conduct in which the offender was involved: (c)	deterring the offender or other persons from committing the
same or a similar offence:

(d)	protecting the community from the offender.

[66]     The Court  must  adopt  a two-stage process  when  considering  whether  to impose an MPI.41   First, the Court must fix a nominal sentence length.  Secondly, as a separate exercise, the Court must consider whether that period is insufficient to hold the offender accountable; denounce his or her conduct; deter the offender and others; or to protect the community from the offender.

[67]     I  consider   that   an   end   sentence  of   seven   years   and   three   months’ imprisonment is sufficient for the purposes of s 86(2).  Although not a mitigating feature, Mr Lawrie’s offending was motivated by his drug addiction.   If he can overcome that addiction, which I accept he is highly motivated to do, he is not, in my view, in danger of reoffending.   That is confirmed by his pre-sentence report, in which he is assessed as being at low risk of reoffending if he maintains a drug-free lifestyle.

[68]     Moreover,   although   the   express   concerns   in   s 86(2)   are   punishment, denunciation and deterrence, there is still room for other sentencing considerations such as rehabilitation and reintegration.42   Judge McNaughton’s refusal to impose an MPI can be seen as a merciful approach, designed to allow Mr Lawrie at least the prospect  of  release  after  serving  one  third  of  his  sentence  and  thereafter  to commence his reintegration into society.  I do not consider it appropriate for me to interfere with such an approach on a Crown appeal.43   If Mr Lawrie fails to make the required progress in relation to his addiction that is inevitably a matter which the
Parole Board will wish to take into account.

41	See R v Brown [2002] 3 NZLR 670 (CA) at [35], although note the wording of s 86 of the
Sentencing Act 2002.
42	R v Lisiate, above n 5, at [25].
43	See R v Wihapi, above n 15, at 424.

Opportunity to vacate guilty plea

[69]     Section 252 of the Criminal Procedure Act 2011 provides:

252      Defendant may not withdraw guilty plea after sentence imposed on appeal

Except with the leave of the appeal court if that court considers it is in the interests of justice, a defendant who has received a sentence indication is not entitled to withdraw his or her guilty plea if a more severe sentence than that indicated is imposed on appeal.

[70]     This section has reversed the presumption that formerly existed in the case law, namely that where a sentence indication is provided and a more severe sentence is imposed on appeal, the defendant should always be given the opportunity to vacate his guilty plea.44    Now, the defendant does not have that opportunity unless the court “considers it is in the interests of justice”.   The Court of Appeal has recently commented that:45

…  where  there  is  a  significant  disparity  between  indication  and  final sentence, and where the plea has flowed from the indication, the accused person must be offered the opportunity to withdraw his or her plea.

[71]     I  consider  that  a  disparity  of  one  year  and  three  months’ imprisonment between the sentence indicated and imposed and the present sentence (equating to an uplift of approximately 20 per cent), means that it is in the interests of justice for Mr Lawrie to be given leave to vacate his guilty pleas.

Result

[72]     Mr Lawrie’s existing sentence is quashed and a sentence of seven years and three months’ imprisonment is substituted.

[73]     I give Mr Lawrie leave to vacate his guilty pleas.  Any application to do so is

to be made within 14 days of today’s date.

Muir J

44	See R v Smail [2007] NZCA 6, [2008] 2 NZLR 448 at [50].
45	Taylor v R [2013] NZCA 55 at [18].