HEMOPO v R [2016] NZCA 242

DRAFTHEMOPO v R [2016] NZCA 242 [2 June 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA569/2015[2016] NZCA 242BETWEEN KEPA WIREMU HEMOPOAppellantAND THE QUEENRespondentHearing: 9 May 2016Court: Harrison, Simon France and Woolford JJCounsel: I A Jayanandan for AppellantK S Grau for RespondentJudgment: 2 June 2016 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)Introduction[1] Following a seven-day trial before Judge Down and a jury in the Auckland District Court between 15 and 23 June 2015, the appellant, Mr Kepa Hemopo, was found guilty of one charge of aggravated robbery. On 2 September 2015 he was convicted and sentenced to eight years' imprisonment. Mr Hemopo originally appealed against both conviction and sentence, but in her written submissions filed in court his counsel advised the Court that he no longer wished to pursue his appealagainst conviction and abandoned that aspect of his appeal. Mr Hemopo's appealtherefore proceeded just as an appeal against sentence.Background[2] The following account is taken from the Crown summary of the evidence at trial. On 28 October 2013 the two victims, a 24-year-old man and his pregnant partner, were at their home address in Papakura. Mr Hemopo and his brother, with concealed faces, arrived at the address and knocked on the door. The male victim opened the door and was confronted by the two men who demanded drugs. The male victim attempted to close the door, but Mr Hemopo and his brother forced their way inside.[3] Having pushed past the male victim, Mr Hemopo noted that the female victim was attempting to call the police on her mobile phone. He therefore forcibly took the mobile phone off her. At this stage the male victim pushed Mr Hemopo'sbrother to the ground. It was then that an unidentified third man entered their house, went to the kitchen and pulled a large knife from the kitchen block, threatening the victims with it. On seeing the third man with the knife, the male victim stopped resisting, raised his hands above his head and asked the men what they wanted.[4] Mr Hemopo's brother walked over to the male victim and punched him in the side of the head, then put him in headlock and continued to punch him. The three men then forced the victims to sit on a couch. The man with the knife gave the malevictim what he described as "a little shunt in the back with it". He said the tip of theblade touched him. The male victim, fearing for the safety of him and his partner, told the men to take what they wanted, but said that there were no drugs or money in the house.[5] The three men began to ransack the house in search of drugs. After they established that there were no drugs or money in the house, the men gathered up thevictim's electronic goods, which included a PlayStation, televisions, mobile phones and laptop computers and began to load them into the male victim's car. One of the three men then drove away in the car with the stolen items, stating he "was going todrop it off to the dog", before returning with the empty car. Another of the mensearched the bedroom and found a cricket bat, which he brought to the lounge. Mr Hemopo took the cricket bat, threatened the male victim with it and hit him in the legs several times. The victims were told that they could buy their property back for $200 before the men left the house.The District Court sentencing[6] Judge Down took a starting point of nine years' imprisonment for the offending based on the guideline judgment of R v Mako, where this Court stated:1[52] What we have said about these features amply demonstrates that the criminality in any aggravated robbery offence must be assessed by the particular combination of features of which it is composed. The assessment must be made as a matter of judgment unconstrained by overemphasis on one feature such as the nature of the target premises.[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.[7] There was no discount available for a guilty plea. The only factor warranting a discount for Mr Hemopo was therefore his youth.[8] Mr Hemopo was 21 years old at the time of sentencing, but was only 19 years old at the time of the offence. Judge Down indicated that for a first offender of that age a normal discount for youth may be in the region of two years. However,because of Mr Hemopo's previous convictions, Judge Down limited the discount for youth to one year's imprisonment.2 He therefore sentenced Mr Hemopo to eight years' imprisonment.The appeal[9] Ms Jayanandan argued that the sentence was manifestly excessive for three reasons. First, she submitted that Judge Down adopted a starting point which was too high because he wrongly accepted a number of matters as aggravating, or double1 R v Mako [2000] 2 NZLR 170 (CA).2 R v Hemopo [2015] NZDC 17635 at [24].counted them, and had regard to irrelevant factors such as the clothing worn by Mr Hemopo and his brother.[10] Secondly, Ms Jayanandan submitted that Judge Down did not give sufficient discount for Mr Hemopo's youth and prospects of rehabilitation as well as his time spent on electronically-monitored bail.[11] Third, and finally, Ms Jayanandan submitted that Judge Down did not apply the least restrictive outcome principle when determining the length of the final sentence of imprisonment.DecisionStarting point[12] Judge Down specifically mentioned three factors that he considered were aggravating factors and which justified a starting point more than the seven-year period referred to by this Court in R v Mako: (1) it was a home invasion; (2) actual violence was used; and (3) there was a degree of detention.3[13] Ms Jayanandan conceded that the fact the offending involved a home invasion was clearly an aggravating factor. She submitted, however, that the other two aggravating factors referred to by Judge Down, namely the actual use of violence and a degree of detention, were already included in the starting point of seven years or more suggested by this Court in R v Mako. In effect, she said that these two aggravating factors were double counted by Judge Down, first, in the adoption of the seven year or more starting point and, secondly, by the two-year uplift to bring the starting point to nine years' imprisonment.[14] We are, however, of the view that starting points of more than seven years'imprisonment continue to be appropriate for aggravated robberies involving invasion of a private home, notwithstanding the repeal of the Crimes (Home Invasion) Amendment Act 1999, which had increased the maximum penalties for crimes involving home invasion.3 At [17].[15] While this Court in R v Mako does make specific reference to the use of violence when suggesting a starting point of seven years or more for an aggravated robbery such as this, a sentencing judge is clearly able to refer to the violence involved in the offence when setting the starting point. This Court suggested seven years or more and the degree of violence will, of course, be relevant to how much more than seven years the starting point should be. This is not double counting.[16] In our view, Judge Down was also able to consider the detention of the victims to be a further aggravating factor. As this Court noted in R v Mako:[45] Associated offending such as vehicle conversion, detention or abduction of victims, and hostage-taking will add to the overall criminality and must be assessed for sentencing in totality.In this case, the victims were detained while their home was ransacked and while their property was taken away in their own car by one of the men who returned prior to the victims being released from their detention. It seems the detention was at least half an hour, a not insignificant period.[17] As to the clothing worn by Mr Hemopo and his brother, Judge Down said he was somewhat affected by the fact that they were wearing gang t-shirts, which would, in his view, have added to the intimidation, but he accepted that the offending was not, on the face of it, gang offending, so he did not propose to apply any kind of uplift for that.[18] In summary, we are of the view that the starting point adopted by Judge Down was within the range available to him given the aggravating factors and the considerable effect on the victims.Mitigating factors[19] As to the youth discount given by Judge Down of one year, we are of the view that Judge Down was well able to weigh the length of what he called a normal youth discount against the extensive criminal record of Mr Hemopo. In 2011 Mr Hemopo was found to have committed the offence of wounding with intent to cause grievous bodily harm and was sentenced in the Youth Court to social welfaresupervision. Since coming of age, Mr Hemopo has received seven convictions in the District Court, three of which involved violence in respect of which he received further supervision. He has also received separate sentences of community work for property and drug offences.[20] In those circumstances, we agree with Judge Down that any larger discountfor Mr Hemopo's youth and prospects of rehabilitation was inappropriate.[21] Ms Jayanandan also submitted that credit should have been given for the three and a half months which Mr Hemopo spent on electronically-monitored bail. Section 9(2)(h) of the Sentencing Act 2002 requires a sentencing Judge to take into account, to the extent applicable, time that an offender spent on electronically-monitored bail. Any discount for electronically-monitored bail is, however, a discretionary matter and there is no formula for determining sentencing credit.4 A separate discount for restrictive bail conditions will not always be required.[22] In this case, we are of the view that it was unnecessary to give a discount as Mr Hemopo was only on electronically-monitored bail for three and a half months before his non-compliance led to his remand in custody. Furthermore, soon after he was admitted to electronically-monitored bail, his conditions were varied to allow him to attend a Vocational Pathway in Distribution Level Two certificate at the Skills Update Training Institute, Mangere on Monday to Thursday between 8:30 am and 3:00 pm and on Friday between 9:00 am and 12:00 pm. Given the short time he was on electronically-monitored bail, and given that the conditions were not the most restrictive, a further discount was unnecessary.Least restrictive outcome[23] Finally, Judge Down did specifically refer to the principle that the least restrictive outcome should be imposed when he recorded that counsel for Mr Hemopo urged him to conclude that the least restrictive starting point in this case was seven years' imprisonment. However, Judge Down then stated that he had come4 Rangi v R [2014] NZCA 524 at [10].to the conclusion that seven years did not adequately reflect the aggravating factors in this case.[24] Furthermore, Judge Down chose not to uplift the starting point for Mr Hemopo's previous convictions and gave a substantial discount for Mr Hemopo'syouth to the extent that he was able to, given his previous offending.[25] We are, therefore, of the view that Judge Down did give due regard to the principle that the least restrictive outcome should be imposed.Result[26] Having been abandoned, the appeal against conviction is dismissed. The appeal against sentence is also dismissed.Solicitors:Crown Law Office, Wellington for Respondent