URUAMO v R [2023] NZCA 356

URUAMO v R [2023] NZCA 356 [10 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA98/2023[2023] NZCA 356BETWEEN LIAM URUAMOAppellantAND THE KINGRespondentHearing: 25 July 2023Court: Collins, Lang and Woolford JJCounsel: G H Vear and D J Taumihau for AppellantH D L Steele for RespondentJudgment: 10 August 2023 at 9.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 1 July 2022, following a jury trial in the Auckland District Court,Mr Liam Uruamo was found guilty and convicted of aggravated robbery.1 Hesubsequently pleaded guilty and was convicted of two unrelated charges of burglary.21 Crimes Act 1961, s 235(b); maximum penalty 14 years' imprisonment.2 Section 231(1)(a); maximum penalty 10 years' imprisonment.[2] On 13 January 2023, Mr Uruamo was sentenced to five years and five months'imprisonment on the above charges.3 He now appeals against that sentence on thebasis it is manifestly excessive.Factual backgroundAggravated robbery[3] On 6 November 2019, the appellant and one unidentified co-offender enteredRoop Darshan, an Indian fashion store located in Mt Roskill. Both offenders werewearing black face coverings to conceal their identities and were armed with hammers.They moved directly to the back of the store where jewellery was displayed in glasscabinets, used their hammers to smash the glass and began to steal a substantial amountof gold jewellery. Soon after, a third unidentified co-offender, also disguised andarmed, joined in smashing cabinets and stealing jewellery. A staff member activatedthe store's panic alarm and fog cannon security system. This caused all three offendersto flee from the store. The store's staff were not injured. The jewellery stolen wasvalued in excess of $200,000.[4] The appellant was subject to a sentence of home detention at the time of theaggravated robbery. He was later convicted of breaching home detention andsentenced to one months' imprisonment.Burglaries[5] On 14 June 2021, the appellant had been released from prison oncompassionate bail to attend his father's tangihanga. He was required to return toprison on 15 June 2021. He did not. He was at liberty for the next eight months andsubject to a warrant to arrest. It was during this time that he committed two burglaries.[6] On the morning of 7 December 2021, the appellant and two co-offenders brokeinto a residential address in Hillsborough by smashing a rear window leading into thebasement of the property. They took $2,000 in cash and power tools valued at $500.3 R v Uruamo [2022] NZDC 445 [Sentencing notes].While still inside the house, the offenders were disturbed by a witness, which causedthem to decamp from the address through a gate in the back fence.[7] On the morning of 21 January 2022, the appellant and an unidentified co-offender entered a residential address in Mangere by forcing a window open. Theytook items valued at over $10,000 and $1,500 in cash before leaving via the rear of theaddress.District Court sentence[8] After recording the facts of the aggravated robbery offending, and the effecton the victims, Judge Maxwell referred to the guideline decision for aggravatedrobberies of R v Mako.4 She then noted the Crown's submission that, in terms ofMako, the following aggravating factors applied: premeditation, the use of disguises,targeting premises, the presence of members of the public and the nature of theproperty stolen. The Judge said that she agreed with the Crown that, in thosecircumstances, a starting point of five years' imprisonment was justified.[9] The Judge then turned to the two burglary charges. She said she agreed withappellant's counsel that if the Court was to look at the two charges in isolation, astarting point in the order of two years and three months' imprisonment would bejustified.[10] Next the Judge noted that a discount of 25 per cent would be available for theappellant's guilty pleas to the two burglaries, which would reduce the starting point toaround one year and eight months' imprisonment.[11] An adjustment for totality was, however, required because the appellant wasbeing sentenced for the earlier aggravated robbery at the same time as the burglaries.The Judge determined that the starting point for the two burglaries should be furtherreduced from one year and eight months' imprisonment to a sentence of 12 months'imprisonment. That was then added to the starting point for the aggravated robbery4 R v Mako [2000] 2 NZLR 170 (CA).of five years' imprisonment to reach an adjusted starting point of six years'imprisonment.[12] The Judge then considered the availability of a discount for the appellant'spersonal circumstances. She had the benefit of two cultural reports under s 27 of theSentencing Act 2002, which she said made for "depressing reading". She noted thatthe following factors may have contributed to his offending: mental health issues,dysfunctional childhood factors, adverse childhood experiences, psychosocial factors,and undue influence and duress.[13] The Judge granted a 15 per cent discount to take into account the appellant'sbackground of deprivation and other personal factors. At the same time, she alsouplifted the sentence by four months for the appellant's criminal history and the facthe had offended while on sentence and on bail. The Judge concluded:5[30] So, taking into account the starting point of six years, reducing that by15 per cent, namely, just under 11 months, and then increasing that by fourmonths for aggravating factors, that leaves a final sentence of five years andfive months' imprisonment.Appellant's submissions[14] Counsel for the appellant, Ms Vear and Mr Taumihau, do not take issue withthe starting point adopted by the Judge. They submit, however, that insufficient creditwas given for mitigating factors — his youth, personal background, prospects ofrehabilitation and remorse. They also suggest that because the Judge converted whatshe had described as a 15 per cent discount into a reduction of 11 months beforeapplying the uplift of four months, the discount for personal mitigating factors was inreality only 14.47 per cent.Youth[15] The appellant was 22 years old at the time of the aggravated robbery and24 years old at the time of the burglaries. Counsel submits that his offending has manyof the hallmarks of youth, including showing a lack of self-control, an inability to5 Sentencing Notes, above n 3.consider alternative courses of action to provide for his family, a tendency to engagein risky behaviour, committing brazen daytime offending, and a vulnerability to peerpressure, noting that all offending had occurred in the presence of others.[16] While acknowledging that the appellant is at the upper end of the age range fora youth discount, counsel seeks a separate discount of five per cent.Personal background[17] As noted above, the Judge had two cultural reports under s 27 of the SentencingAct before her. Both reports detailed the appellant's history as involving anintergenerational loss of culture, language, and customs. The report written byMr Alexander El Amanni summarises the appellant's background as follows:Mr Uruamo was exposed to adverse childhood experiences, including being avictim of physical and sexual abuse, physical neglect, and householddysfunction as he and his family were forced to move around to differentrefuges to avoid the domestic violence of his father. He was unable to engagein school fully and ended up living on his own from age 13. To financiallysupport himself and pay rent, he began working from a young age. He hadseveral undue influences from family members who instructed him on how tocommit crimes to earn a living.He perceives undue pressure from society and his partner and her family toearn money and provide a good life for his children. Mr Uruamo also hasundue duress from antisocial peers who offer and encourage him to commitburglary and robbery with them.[18] Mr El Amanni concludes:To the writer, it appears Mr Uruamo's background has significantlycontributed to his offending. There appear to be causal links between hiscurrent charges and his mental well-being, dysfunctional childhood, [adversechildhood experiences], psychosocial dysfunction, Systemic MāoriDeprivation, and undue influences.[19] The Judge had granted a 15 per cent discount for all personal factors. Counselsubmits that a 15 per cent discount was warranted to recognise the effect of theappellant's background alone.Prospects of rehabilitation and remorse[20] Counsel submits that young people are more receptive to treatment andtherefore have better prospects of rehabilitation than adult offenders who find it moredifficult to alter entrenched behaviours. In the present case, counsel submits that theappellant has taken active steps while in custody to access the rehabilitativeprogrammes that are available. Prior to sentencing, the appellant had completedLife 101's Money & Me programme, had participated in the National WhakataetaeKapa Haka Competition 2022 and was undertaking the Dynamics of WhanaungatangaProgramme. After sentencing, he completed the Dynamics of WhanaungatangaProgramme, term one of the Auckland Prison Art Therapy Programme and the HeadStart Programme.[21] The appellant expressed remorse to Mr El Amanni about the aggravatedrobbery because he was now aware that the shopkeeper's elderly father was present.He also wrote a letter addressed to the Judge expressing his remorse.[22] Counsel submits that recognition ought to have been given for the appellant'sprospects of, and active steps taken towards, rehabilitation and his remorse. Anadditional discount of at least five per cent is said to be warranted for this factor.[23] In summary, counsel for the appellant submits that an overall discount of25 per cent was warranted, rather than the 15 per cent that was granted. A 25 per centdiscount would result in a sentence of four years and nine months' imprisonment,rather than the sentence of five years and five months' imprisonment, which is adifference of eight months.Discussion[24] The Court must allow the appeal if it is satisfied that, for any reason, there isan error in the sentence and that a different sentence should have been imposed.6 TheCourt will intervene where the sentence is manifestly excessive,7 but will not engage6 Criminal Procedure Act 2011, s 250(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].in "tinkering".8 The focus is on whether the sentence is within the appropriate range,rather than the process by which the sentence was reached.9Process[25] At the outset, it should be noted that the methodology employed by the Judgeto reach the end sentence followed the approach set out in Moses v R.10 The Judgereduced the starting point of six years' imprisonment by 15 per cent for personalmitigating factors before increasing that by four months for personal aggravatingfactors. That is the correct approach.Youth[26] Counsel acknowledged that the appellant is at the upper end of the age rangefor a youth discount. However, counsel argued that a youth discount was appropriatein this case because the offending had "many of the hallmarks of youth" — includinga lack of self-control, an inability to consider alternative courses of action to providefor his family, risky behaviour, brazen daytime offending and a vulnerability to peerpressure.[27] The aggravated robbery does not, however, show a lack of self-control. TheJudge described it as "quite calculated and highly premeditated". The CCTV footageshows that it was "very swift and well organised".[28] There is also no evidence that the proceeds of the aggravated robbery wereintended to be used for Mr Uruamo's family. Although the appellant said that he andhis partner (with whom he has five daughters) were experiencing relationshipdifficulties centred around his inability to provide for the family, he recalled usinglarge quantities of methamphetamine most days. The PAC report writer identified thefactors contributing to the offending as the presence of criminal associates andconnection with gang culture, a propensity for violence, the problematic use ofmethamphetamine and alcohol, relationship difficulties, an unhelpful lifestyle,8 Maihi v R [2013] NZCA 69 at [21]; and Mack v R [2013] NZCA 183 at [16].9 Tutakangahau v R, above n 7, at [36].10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.attitudinal entitlement and offending supportive beliefs, and inability to manageassociated negative emotions.[29] As to the description of the aggravated robbery as risky behaviour or brazendaytime offending, the two other offenders remain unidentified because of thedisguises used. The appellant was identified from a fingerprint found in the dumpedgetaway vehicle. The offence was committed during the daytime, presumably becauseof easy access to the store, the ability to effect the robbery very quickly and the easeof the getaway, which are all indications of planning and premeditation.[30] There is also no basis for the suggestion that the appellant may have beenacting under peer pressure. The co-offenders remain unidentified. There is no basisadvanced upon which the comparative roles played by each of the offenders in theaggravated robbery can be ascertained.[31] We are of the view, however, that the youth discount should not be limited tooffending that appears "impulsive". The discount exists to recognise the relationshipbetween a young person's age and their offending. Limited neurological developmentand immaturity can be implicated in a young person's offending even when theirbehaviour does not necessarily appear impulsive.[32] However, we are not persuaded that a discrete discount for youth is warrantedin this case. The offending was particularly serious — given it involved multipleoffenders who carried weapons, and clear premeditation. Mr Uruamo also has aconcerning history of prior offending and offending while on bail or serving asentence. We are of the view that the availability of the youth discount in this casemust be tempered against these factors. Therefore, a discount for youth is notappropriate.[33] We are not persuaded that the Judge was in error not to grant a separatediscount for youth.Personal background[34] The appellant does not take issue with the 15 per cent discount granted by theJudge for the personal mitigating factors identified in the s 27 reports.Rehabilitation and remorse[35] The s 27 reports discussed the prospect of rehabilitation for the appellant. Forinstance, Mr El Amanni states:Mr Uruamo has plans and goals for living in the community again. Hisimmediate goal is to get a job and get into a routine of going to work andcoming home like he used to.He and his partner need to move out of their parent's place and get their ownhome now that they have six children. That is another goal he wants to workon, although his partner has made progress and may already have a socialhouse to go to when he gets out.Mr Uruamo's next goal is to reconnect with his culture and his familymembers. He wants to be a role model for his younger brothers, who arestarting to follow in similar footsteps to him. While in prison, he has beendoing a course called 'Dynamics of Whanaungatanga'. This is helping himlearn about his culture and his whakapapa. He wants to motivate his brothersto re-engage with their culture and learn about their whakapapa to deter themfrom ending up in prison.Mr Uruamo wants his partner to be proud of him as she has been in the past.He knows he's at his best when he's got a routine and a job to go to. Whenhe's got a job, he does not engage in criminal activity. Since he stopped usingsubstances, many former associates are no longer interested in socialising withhim. This is a positive sign because he has less negative influence fromantisocial peers to encourage him to commit crimes with them.[36] These are good aspirational goals. The appellant has also taken some positivesteps in the courses he has attended in prison, but these are early steps. They cannotbe equated with, for example, attendance at a residential drug rehabilitationprogramme for which a discount is usually granted for the prospects of rehabilitation,although we do acknowledge that the appellant has taken what steps he can while onremand in prison. In the present case, we do not see the Judge as being in error in notgranting a separate discount for the prospects of rehabilitation and remorse. The Judgerecognised the appellant's early steps in the 15 per cent discount for personalmitigating factors when she stated:[28] In the circumstances I am going to give a 15 per cent discount to takeinto account your background of deprivation and your other personal factorswhich have been outlined in the report. That also takes into account a glimmerof remorse, which I now see today.End sentence[37] Stepping back and looking at the end sentence, we are of the view that it is notmanifestly excessive, but within the range that could have been imposed. The startingpoint of five years' imprisonment cannot be criticised. However, the uplift ofone year's imprisonment for the two burglaries could have been higher. There weretwo separate burglaries, a considerable amount of property was taken, and one of theburglaries involved confrontation with a witness. Defence counsel acknowledged thatan uplift in the range of 12 to 15 months would be appropriate. In the end, the Judgeimposed the lowest uplift acknowledged by counsel as being appropriate.[38] Furthermore, the uplift for personal aggravating factors could have beenhigher. The Judge described the uplift of four months as being "relatively modest".We agree. The aggravated robbery was committed while the appellant was subject toa sentence of home detention for, among other offences, burglary, demanding withintent to steal, and using a document for pecuniary advantage. The burglaries werecommitted when the appellant was in breach of a short term of compassionate bail andsubject to an active warrant to arrest.[39] The appellant had also amassed 18 convictions in a three-year period from2015 to 2018, nine of which related to driving offences such as unlawful taking orgetting into a motor vehicle, being an unlicensed driver and failing to comply with aprohibition, failing to stop, and operating a motor vehicle recklessly. Other offencesincluded burglary, demanding with intent to steal, using a document for pecuniaryadvantage, and numerous breaches of community work.[40] In those circumstances, where the uplift for the two burglaries and for personalaggravating factors could have been higher and the case for a separate discount foryouth and rehabilitation and remorse is not the strongest, the end sentence is clearlywithin the range available to the sentencing Judge. It is not manifestly excessive.Result[41] The appeal against sentence is dismissed.Solicitors:Public Defence Service | Ratonga Wawao ā-Ture Tūmatanui, Auckland for AppellantCrown Solicitor, Auckland for Respondent