KING v R [2019] NZCA 413

KING v R [2019] NZCA 413 [6 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA794/2018[2019] NZCA 413BETWEEN TERANGA TAHI KINGApplicantAND THE QUEENRespondentHearing: 19 August 2019Court: Brown, Simon France and Dunningham JJCounsel: M I Koya for ApplicantG R Kayes and C E Best for RespondentJudgment: 6 September 2019 at 10.30 amJUDGMENT OF THE COURTThe application for an extension of time to appeal sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] On 18 January 2017, the applicant was sentenced to five years and one month'simprisonment on one charge of aggravated robbery and one charge of robbery.1A minimum term of imprisonment of half the sentence was also imposed.[2] The applicant now seeks to appeal his sentence on the grounds it wasmanifestly excessive, saying:1 R v King [2017] NZDC 710.(a) the starting point of five years' imprisonment for the lead offence wasexcessive in the light of the guideline decision, R v Mako;2(b) the sentencing Judge incorrectly referred to the aggravating features setout in R v Mako when dealing with the robbery charge; and(c) the sentencing Judge did not give a sufficient discount to reflect theissue of rehabilitation.[3] The applicant also submits that a minimum term of imprisonment is notwarranted.Leave[4] The appeal has been filed almost two years late and consequently an extensionof time to appeal is required.3 The applicant has filed an affidavit explaining that,upon imprisonment, he lost contact with the lawyer who acted for him at thesentencing. He says he did not know that he could appeal the sentence.[5] When he was transferred to Paremoremo, he spoke to other inmates about hissentence. At the time he thought he was sentenced to six years and nine months orseven years and it was suggested that his sentence was "too steep". This advice gavehim the idea to appeal and he eventually filed an appeal in December 2018 claiming,erroneously, that he was sentenced to six years and nine months or seven years'imprisonment, which was manifestly excessive.[6] In order for us to grant an extension of time, the applicant must satisfy us thatit is in the interests of justice to do so.4 That typically involves an enquiry both intothe reasons for the delay and to the merits of the appeal. As the merits of the appealare inextricably linked to the question of whether leave should be granted, we proposeto address them first in this judgment.2 R v Mako [2000] 2 NZLR 170 (CA).3 Criminal Procedure Act 2011, s 248.4 R v Knight [1998] 1 NZLR 583 (CA) at 587.Facts[7] On 31 August 2015 the applicant and his co-offender went to Botany Junctionwhere they planned to commit a robbery. At about 1.00 pm the applicant went intothe chosen target, the ASB Bank, while his co-offender stayed in the car outside readyto drive them both away. The applicant had his face and head covered. He approachedthe teller and handed over a bag demanding that the teller put money in it. He thennoticed there was foreign currency in the cash drawer and reached over and removedit and placed it in the bag. He made the same demand, in a forceful tone, to a secondteller. Both tellers, acting out of fear, handed over approximately $3,000 in cash beforethe applicant left the bank.[8] On 14 September 2015 at around 9.30 am, the applicant and his co-offenderwent to the Dawson Road shopping centre in Flat Bush. The two had agreed to robthe Post Shop and both were disguised by wearing dark clothing with hoods pulledover their heads and material covering their faces. Both of them entered the Post Shopand approached the counter. The applicant placed a blue bag on the counter withoutsaying anything. The teller started to place coins in the bag but the applicant shoutedat him to only give him "paper money". The teller, in fear of violence if he did notcomply, then pulled all the notes from the till and placed them into the bag.The applicant and his co-offender left with approximately $4,000.[9] This was not the applicant's first offending of this type. At 21 years of age hehad amassed an offending history which included six aggravated robberies anda further Youth Court notation for aggravated robbery.[10] He was remanded in custody in September 2015 so at the time this appeal washeard, he had served approximately three years and 11 months of his sentence.Sentencing in the District Court[11] Judge Wharepouri adopted the aggravated robbery of the Post Shop as the leadoffence for fixing the starting point. Having regard to the guideline judgment inR v Mako, the Judge considered that the offending fell somewhere between thecategories of a robbery of a small retail shop and the robbery of commercial premises.5He also noted that the starting point in R v Fitikefu, which involved similar offending,attracted a starting point of five years and four months.6 Having regard to theaggravating factors, which included an element of premeditation, two offenders,the use of clothing to conceal their identities and threatened, although not actual,violence, along with the amount taken and the psychological harm suffered by hisvictims, he set a starting point of five years.7[12] He then uplifted the starting point by 12 months to reflect the second charge ofrobbery of the ASB Bank.8 He uplifted the sentence by a further six months becauseit was carried out when the applicant was subject to release conditions.9 Another sixmonths was added to reflect the applicant's relevant previous convictions, resulting ina sentence of seven years' imprisonment before any discounts were applied.[13] The Judge identified the chief mitigating circumstance as being the applicant'sguilty pleas, although noting that they only came about after "protracted discussions"with the Crown about other charges the applicant faced which resulted in the Crownwithdrawing some charges.10 That said, he observed that there was "an exceptionallystrong case" against the applicant on the lead offence. He discounted the seven-yearstarting point by approximately 20 per cent, reducing the sentence to five years andseven months to reflect the guilty pleas. The Judge then discounted the sentence bya further six months for the applicant's efforts to rehabilitate himself, his willingnessto engage in a restorative justice process, his remorse and youth, so that the endsentence was five years and one month's imprisonment.11[14] The Judge then considered whether to impose a minimum period ofimprisonment. Given the particular circumstances of the applicant's offending and hislist of previous convictions, a finite sentence where the normal rules relating to earlyrelease applied would not, in his view, give adequate recognition to the sentencing5 R v King, above n 1, at [13].6 R v Fitikefu HC Auckland CRI-2010-004-17106, 5 July 2011.7 R v King, above n 1, at [12]–[17].8 At [18].9 At [20].10 At [21].11 At [22].principles and purposes of accountability, deterrence and denunciation, nor would itrecognise the need to protect the community. The Judge therefore imposed a minimumperiod of imprisonment of half the finite sentence.12Did the Judge take too high a starting point?[15] Mr Koya submits that the starting point was excessive in light of the guidelinesin R v Mako and should have been no more than four years' imprisonment. He notesthat weapons were not used in either robbery and the passage from Mako cited by theJudge sets a starting point of six years' imprisonment where there has been a defendedtrial in the robbery of commercial premises "targeting substantial sums in tills or safeby a group, with a lethal weapon, disguises and other indications of preparation".13Mr Koya argues that a number of the ingredients of this scenario are absent in thepresent case. There was no targeting of substantial sums of money in tills or a safe,there was no group operation, and there was no lethal weapon involved in either of thetwo robberies.[16] However, we are satisfied the Judge was correct to characterise the offendingas falling between the category of a robbery of a small retail shop and that of a robberyof commercial premises. This would attract a starting point of four to six years'imprisonment.14 The offending involved planning, there were two offenders, therewas use of clothing in order to conceal identity and there was targeting of a placewhere there was likely to be a substantial sum of money. As a cross-check, the Judgereferred to the decision in R v Fitikefu where on appeal to this Court, the starting pointof five years and four months was upheld for comparable offending.15[17] We are satisfied, therefore, that a starting point of five years' imprisonment forthe lead offence of aggravated robbery was within the range available to the sentencingJudge.12 At [23].13 At [12], citing R v Mako, above n 2, at [54].14 See R v Mako, above n 2, at [54] and [56].15 Fitikefu v R [2014] NZCA 99.Were there errors in the uplift imposed for the charge of robbery?[18] Mr Koya is critical of the Judge referring to the aggravating factors mentionedin R v Mako to assess the gravity of the ASB Bank robbery and submits that the upliftfor the robbery ought to have been near six months.16[19] However, we accept that while the guidelines in R v Mako should not beapplied strictly to cases involving robbery, they can be adapted for use in such cases"so long as arithmetical adjustments are not made mechanically to fit the differingmaximum penalties".17 As the Crown points out, in light of the aggravating featuresof the robbery, but taking into account the lower maximum penalty for robbery,a starting point of two to two and a half years' imprisonment would have beenappropriate for that offending alone. Thus, an uplift of 12 months, leading toa combined starting point of six years' imprisonment, was not outside the availablerange.Was insufficient consideration given to rehabilitation efforts?[20] Mr Koya points out that long term imprisonment will not cure the applicant ofhis addiction to drugs or the urge to gamble (which were the causes of the offending),and that rehabilitation of this applicant should have received more seriousconsideration in sentencing. Instead, he says, the Judge simply combined theapplicant's efforts at rehabilitation with three other factors to give a six month discountin addition to the discount for the guilty plea. He submits that to reflect the importanceof rehabilitation, the uplift of one year for previous convictions and for offendingwhile on parole should have been reduced to a total of six months only.[21] However, while the applicant undoubtedly needs rehabilitative intervention,there was no suggestion that anything short of a sentence of imprisonment could havebeen imposed.[22] In terms of what discounts could be afforded for remorse and rehabilitativeprospects, the Judge had advice from the pre-sentence report writer that the applicant16 R v King, above n 1, at [15].17 Heteraka v R [2013] NZCA 339 at [24].regretted what he had done, and that he said he had written letters of remorse to thebank through his lawyer and advised his lawyer he was willing to take part inrestorative justice. The applicant also wrote a letter of remorse to the Judge detailinghis experiences with addiction and stating that after being in remand he was off drugs.While a greater discount for these factors could have been available, we consider theamount of the reduction was within the Judge's sentencing discretion.[23] Again, we cannot say that there was an error in this aspect of sentencing andthat a different sentence should be imposed.18Did the Judge err in imposing a minimum period of imprisonment?[24] Minimum periods of imprisonment can be imposed if a court is satisfied thatthe minimum period otherwise applicable under the Parole Act 2002 would beinsufficient for any of the following purposes:19(a) holding the offender accountable;(b) denouncing the offender's conduct;(c) deterring the offender or others from committing the same or a similaroffence; and(d) protecting the community from the offender.[25] The Judge chose to impose one to meet the sentencing principles ofdenunciation and deterrence, and to protect the community. Again, there is nothingobviously wrong with the Judge's decision in that regard. We consider the Judge gaveappropriate weight to the particular circumstances of the offending and the applicant'sprevious convictions in reaching this conclusion.2018 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].19 Sentencing Act 2002, s 86(2).20 R v King, above n 1, at [23].Should an extension of time be granted?[26] As is evident from the discussion above, we consider the grounds of appealagainst sentence lack merit. Furthermore, as the applicant has already served morethan two-thirds of his sentence, but has not been granted parole, we cannot see whatpractical difference an appeal against the imposition of the MPI could make.[27] For these reasons, we do not consider that the interests of justice require anextension of time to be granted. The application for an extension of time to appeal isdeclined.Solicitors:Crown Solicitor, Manukau for Respondent