TE AO v R [2023] NZCA 327

TE AO v R [2023] NZCA 327 [27 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA35/2023[2023] NZCA 327BETWEEN MAHUTA TE AOAppellantAND THE KINGRespondentCA42/2023BETWEEN DESMOND PARATAAppellantAND THE KINGRespondentHearing: 13 June 2023Court: Wylie, Thomas and Brewer JJCounsel: A J D Bamford for Appellant in CA35/2023E J Riddell for Appellant in CA42/2023J M Webber for RespondentJudgment: 27 July 2023 at 10 amJUDGMENT OF THE COURTA Mr Te Ao's appeal against sentence is dismissed.B Mr Parata's appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Te Ao and Mr Parata each pleaded guilty to two charges of aggravatedrobbery.1 On 16 December 2022, McQueen J sentenced Mr Te Ao to two years andfour months' imprisonment and Mr Parata to two years and two months'imprisonment.2 They now appeal their sentences. They contend they are manifestlyexcessive.[2] A first appeal court must allow an appeal against sentence if it is satisfied thatthere is an error in the sentence and a different sentence should be imposed.3 Amanifestly excessive sentence is an error which will result in the appeal court imposinga different sentence.Background[3] Mr Te Ao and Mr Parata were sentenced with a third offender, Mr Thompson.We reproduce McQueen J's summary of their offending:[4] All three of you were known to the flatmates of the victim. On anearlier visit to one of those flatmates at the property, about a month before theoffending, Mr Thompson and Mr Te Ao, you acted to intimidate the victim atthe property. By coincidence, the police attended the property to speak withthe victim's flatmate. However, Mr Te Ao, you believed the victim had calledthe police on you.[5] On 25 July 2020, Mr Te Ao and Mr Parata, you went to the flat withthe purpose of visiting another of the victim's flatmates known to you. Yousat in the lounge with the victim, and both smoked some methamphetaminewith his flatmate. During this time, Mr Te Ao, you became agitated. Youstarted to insult and berate the victim, particularly for "calling the police" onyou during your last visit. You told the victim he now owed you $100 ascompensation. During this time, Mr Parata, you took out a black BB gun(being an imitation firearm) from an inside jacket pocket and gestured towardsthe victim in a shooting motion, saying "pow pow". Mr Te Ao, you continuedto threaten the victim that he would be shot or you would cut his throat if hewent to the police again. You said you would take his cellphone as collateral,1 Crimes Act 1961, s 235(b) — maximum penalty 14 years' imprisonment.2 R v Parata [2022] NZHC 3503.3 Criminal Procedure Act 2011, s 250.returning it only once the $100 was paid. The victim believed he would beseriously harmed or killed if he did not comply, and he did so.[6] The second aggravated robbery occurred four days later on 29 July2020 and involved all three of you. You entered the victim's flat in theafternoon, and his bedroom, where he was sleeping. You asked the victim ifhe had your money. He said he only had $40 in his account. You instructedhim to come with you in your vehicle to an ATM to withdraw the money. Thevictim, fearing for his safety, complied. He got into the car with you all.Mr Thompson, you were driving, despite being disqualified. Once at theATM, the victim removed the money from the ATM and gave it to Mr Te Ao.You then drove him back to his flat.The sentencing[4] Justice McQueen applied the guideline judgment of this Court, R v Mako.4 TheJudge considered the second incident to be the more serious and adopted a startingpoint of three years and six months' imprisonment, which she increased by one yearto account for the first incident.5 The overall starting point for both appellants was,therefore, four years and six months' imprisonment.[5] The Judge then adjusted the starting point for each appellant having regard totheir individual circumstances:6(a) Mr Te Ao:(i) an uplift of two months' imprisonment because he was on bailat the time of the offending;(ii) a 15 per cent (eight month) discount for youth;(iii) a 20 per cent (11 month) discount for his personalcircumstances;(iv) a 15 per cent (eight month) discount for the pleas of guilty; and(v) a reduction of one month for time spent on bail.4 R v Mako [2000] 2 NZLR 170 (CA).5 R v Parata, above n 2, at [18].6 At [23]–[50].This resulted in the end sentence of two years and four months' imprisonment.(b) Mr Parata:(i) an uplift of three months' imprisonment because of previousconvictions;(ii) a 10 per cent (five months) discount for youth;(iii) a 25 per cent (14 months) discount for personal circumstances;(iv) a 15 per cent (eight months) discount for the pleas of guilty; and(v) a reduction of four months for time spent on EM bail.This resulted in the end sentence of two years and two months' imprisonment.The appealsMr Te Ao[6] Mr Te Ao submits that his sentence is manifestly excessive because theone month reduction for the time he spent on bail was insufficient to compensate himfor the restrictions he was under. He submits that he should have been given a creditof at least five months.[7] Mr Te Ao was 18 years old at the time of the offending. He spent around12 months on bail subject to a 24-hour curfew. Subsequently, the curfew was reducedto 7 pm to 7 am daily. He was not compliant with his bail thereafter.[8] Mr Bamford, for Mr Te Ao, recognises that because Mr Te Ao was not onelectronically monitored (EM) bail he does not have a statutory right for his period onbail to be taken into account on sentencing.7 However, as this Court said in7 Section 9(2)(h) of the Sentencing Act 2002 provides that on sentencing the court must take intoaccount as a mitigating factor to the extent applicable that the offender spent time on bail with anEM condition. Section 9(3A) prescribes factors the court must consider.Kreegher v R,8 discounts may be given for time spent on bail simpliciter. Mr Bamfordpoints out that in Kreegher the Court held a six month discount was appropriate wherethe defendant had spent three years subject to a 7 pm to 7 am curfew without breach.[9] Mr Bamford submits there is little practical difference between EM bail andbail simpliciter with a 24-hour curfew from the perspective of the defendant. Indeed,the latter is arguably more restrictive given the random bail checks carried out by thepolice.[10] Mr Te Ao's failure to comply with his bail once his curfew was reduced shouldnot be held against him, Mr Bamford submits. Mr Te Ao's bail address had changedto his parents' address which was not as supportive an address as his previous ones.Mr Parata[11] Mr Parata submits that his sentence is manifestly excessive because thefour months reduction for time he spent on EM bail was insufficient to compensatehim for the restrictions he was under. He submits he should have been given a creditof at least 50 per cent of the almost 13 months he spent on EM bail; say, six-and-a-half months.[12] Ms Riddell, for Mr Parata, accepts that he was not confined to the EM bailaddress on a 24-hour basis. McQueen J put it this way:[35] You spent 13 months on EM bail. During that time, you were largelycompliant (with one uncertified breach for your battery of your tracker goingflat). You were permitted absences for work, exercise, a work function and aholiday over the Christmas period. In the circumstances, I consider a fourmonth reduction from the time spent on EM bail (30 per cent of the time spent)is appropriate in the circumstances.[13] Ms Riddell submits the Judge should have been more generous. Mr Parata wasadmitted to EM bail on 27 August 2020. Thereafter:(a) He was permitted to vote on 17 October 2020 in the General Election.8 Kreegher v R [2021] NZCA 22 at [49].(b) From 4 November 2020 he was permitted to go to the gym on Mondaysand Thursdays between 5:30 pm and 7 pm. As from 1 December 2020he also had an exemption to go to the Nayland Pool on Saturdaysbetween 12 pm and 3 pm if he was accompanied by his partner or amember of her whānau.(c) He was permitted to go camping at Pelorus Bridge with his partner'swhānau at the end of 2020 between 29 December 2020 and 3 January2021. He complied with all conditions asked of him on that trip.(d) In late January 2021, he had an exemption allowing him to go toNayland Pool on Fridays between 12 pm and 3 pm was added. Again,he had to be accompanied by his partner or a member of her whānau.(e) He was allowed to go clothes shopping for 2.5 hours on 7 March 2021.(f) On 13 May 2021 his exercise absences were changed to remove theswimming absences given it was Winter. He was then permitted to goto the gym for 1.5 hours each Monday, Wednesday, Thursday andSunday.(g) Mr Parata gained work at Talley's Motueka for the Tuna season inFebruary 2021.9(h) He was permitted to attend one work function (under the supervision ofhis manager) at Talley's for the end of season celebration on 22 May2021 between 4 pm and 9 pm. His employment at Talley's ended inaround June 2021.(i) He was allowed to go clothes shopping on 19 June 2021 for 2 hours.9 He had a condition allowing him to work with the approval of the EM bail team, so counsel wasnot directly involved with varying bail to enable him to work — this date is approximate based onwhat he and his partner can recall.(j) He obtained work at Asphalt & General in around early August 2021.This involved attending different work sites, mostly local.[14] Mr Parata's EM bail ended on 20 September 2021 because his trial wasdelayed due to COVID-19 related issues.[15] Ms Riddell submits that although Mr Parata was allowed to work for about halfthe time he spent on EM bail, this should not be held against him. It is to his creditthat he continued to comply with the terms of his bail, even when absent from the bailaddress.Discussion[16] Both appeals miss the point of an appeal against sentence. It is the end sentencewhich must be shown to be manifestly excessive. It is the end sentence which will bethe Court's focus. Where one component of a sentence is criticised, the Court'sinquiry, if the criticism is found justified, will be whether the end sentence isnevertheless within the range available to the sentencing Judge.10[17] We use the term "range" advisedly. Determining a sentence is not amathematical exercise. It is a judicial evaluation. Different judges could quiteproperly weigh factors relevant to a sentence differently.[18] A sentence might lie in a range from lenient to stern and be unimpeachable.[19] For a sentence to be manifestly excessive it must be beyond the upper end ofthe range available to the sentencing Judge. In other words, it will be significantlymore severe than it ought to have been having regard to the seriousness of the offenceand the culpability of the defendant.[20] In this case, McQueen J adopted an overall starting point of four years andsix months' imprisonment for both of the aggravated robberies. We accept that was10 Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [39], citing Green v Police [2014]NZHC 444 at [21].within range. But we accept also the Crown's submission that it could have beenhigher.[21] The 29 July 2020 offending involved intrusion into the victim's bedroom whenhe was sleeping. He was then coerced to go with the appellants, to withdraw moneyfrom an ATM and hand it over.[22] In R v Mako, this Court considered that a street robbery where offenders actingtogether enforced a demand for money, although there was no actual violence,warranted a starting point between 18 months and three years.11 But, the Court alsoconsidered entry to a private house to be a significant aggravating feature.12 Here,where there was entry to the victim's bedroom where he was sleeping, and the coercedtravel and withdrawal of money, a starting point of four years would be within range.[23] Similarly, the robbery of 25 July 2020, involving the presentation of animitation firearm (which the victim believed to be real) coupled with threats to shootthe victim and to cut his throat, would have justified a starting point of three years ona standalone basis. The Judge's decision to uplift the starting point of three years andsix months for the 29 July 2020 offending by 12 months to account for totality waswithin range, but could have been more.[24] On our assessment, it was open to the Judge to adopt a total starting point ofaround five years' imprisonment.[25] We turn now to the adjustments to the starting point for each appellant.Mr Te Ao[26] Mr Te Ao committed the offences while he was on bail for another offence.The uplift of two months (3.7 per cent) was modest. Another Judge might haveallocated more.11 R v Mako, above n 4, at [59].12 At [58].[27] We consider the 15 per cent discount for youth and the 20 per cent discount forpersonal circumstances to be within range and it is not necessary for us to commenton them.[28] Mr Te Ao received a 15 per cent discount for his pleas of guilty. This wasgenerous. Mr Te Ao was charged on 31 July 2020 and pleaded guilty a week beforehis trial, on 5 October 2022. This was the result of negotiations between the Crownand Mr Te Ao's counsel.[29] A Judge should be careful in determining a discount for a late plea of guiltyfollowing negotiations between the parties to ensure that a double benefit is notconferred. In Hessell v R,13 the Supreme Court said:[62] Guilty pleas are often the result of understandings reached by accusedand prosecutors on the charges faced and facts admitted. To give the samepercentage credit invariably for an early guilty plea in sentencing withoutregard to the circumstances can amount to giving a double benefit. Forexample if the Crown agrees to accept a plea to manslaughter and drops acharge of murder in relation to offending, the acceptance of the plea can be aconcession in itself. If the full credit for an early plea is then also given, thesentence may not properly reflect the offending. The only way in which themany variable circumstances of individual cases which are relevant to a guiltyplea can properly be identified is by requiring their evaluation by thesentencing judge, and allowing that judge scope in light of the conclusion heor she reaches to give the most appropriate recognition of the guilty plea infixing the sentence.[30] In this case there was no early acceptance by Mr Te Ao that he took part in twoaggravated robberies. The deal struck with the Crown benefited Mr Te Ao principallyby removing a charge of kidnapping laid in respect of the 29 July 2020 robbery.Having regard to all the circumstances, as the Supreme Court requires, another Judgemight have, properly, given a discount of 10 per cent or less.[31] Which brings us to the discount which is the sole ground of appeal: theone month reduction for Mr Te Ao's 12 months on bail.[32] The Judge does not explain why she allowed a one month discount. It mightbe that the Judge had the overall sentence in mind. In our view, another Judge might13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.properly have allowed Mr Te Ao a greater discount, perhaps even in the three monthsto five months range.[33] However, even if an increased discount was, on a full analysis, required, itcould not make Mr Te Ao's end sentence manifestly excessive. On our analysis, anend sentence of around two years and eight months' imprisonment would have beenwithin the range available to the Judge. A reduction of even five months for the timespent on restrictive bail conditions would still have the Judge's sentence within range.[34] Accordingly, Mr Te Ao's appeal cannot succeed.Mr Parata[35] Mr Parata's starting point was increased by three months (5.5 per cent) becauseof his criminal record. He had (relevantly) convictions for burglary and violence, themost recent of the latter occurring on 16 March 2020. He was sentenced to one years'supervision and fined $300 for this offending on 17 July 2020, just eight days beforethe first of the aggravated robberies. In our view, the uplift was within the rangeavailable to the Judge and it is not necessary for us to comment further.[36] The discounts of 10 per cent for youth and 25 per cent for personalcircumstances were also within the range available to the Judge and further commentis unnecessary.[37] As with Mr Te Ao, we consider the 15 per cent discount for pleas of guilty tobe generous. Mr Parata was charged on 31 July 2020 and pleaded guilty a week beforehis trial, on 5 October 2022, as a result of negotiations with the Crown.[38] As with Mr Te Ao, the charges of aggravated robbery had always been present.Mr Parata gained some benefit from the negotiations but the core allegationsremained. Another Judge might have, properly, given a discount of 10 per cent or less.[39] As to the time spent on EM bail, s 9(3A) of the Sentencing Act 2002 requiresa sentencing Judge to consider the duration of the EM bail, its relative restrictiveness— particularly the frequency and duration of authorised absences, and the offender'scompliance. The Judge did that and allowed 31 per cent of the time Mr Parata spenton EM bail by way of reduction of sentence. That is within the range of allowancecommonly given and, when the absences set out at [12] are considered, entirelyreasonable.[40] Mr Parata's sentence could have been higher. The discount he received for thetime he spent on EM bail was appropriate.Decision[41] Mr Te Ao's appeal against sentence is dismissed.[42] Mr Parata's appeal against sentence is dismissed.Solicitors:Crown Solicitor, Nelson for Respondent