R v Epiha CA 75/98 [1998] NZCA 72 (29 April 1998)

Last Updated: 31 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA 75/98

THE QUEEN

v

WILLIAM AKARANGA EPIHA

Coram: Henry J Smellie J Robertson J

Hearing: 29 April 1998 (at Auckland) Counsel: B J Foote for Appellant

A R Burns for the Crown

_{Judgment: 29 April 1998}

_{JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J}

On his 18th birthday the appellant William Akaranga Epiha, together with two others, robbed a 39 year old nursing student who was walking in Clayton Road, Rotorua, in the location of an automatic bank teller machine.

Mr Epiha and two companions who were younger than himself had been at the home of one of them, being at a loss as to what to do had decided to go for a walk and have a look around the general area. As they walked through an alleyway the other two youths each tore a batten off a fence. They proceeded with each of the others carrying these battens which were about 15” in length and about 1”x 2”.

They sat outside a Chinese takeaway bar. The other two shared a cannabis

the premises. They intended to leap over the counter, assault the shop workers and steal money out of the till.

Before putting this plan into operation the complainant happened to come by to carry out a transaction at the money machine. The three young men decided that they would assault him and steal any money he had in his possession.

As the complainant walked away from the money machine having completed his transaction, he was followed by the three men. One of the others ran in front of the complainant and one stood behind him. The complainant managed to make a get-away and evade these two by crossing the road. He was pursued by Mr Epiha who when he caught up with him, dragged him to the ground and pulled his tee shirt over his head and face. The other two arrived on the scene. There was a demand for money. One of the other men hit the complainant over the right shoulder with the fence paling he was holding and then pulled his wallet away. The three young men ran off and removed $75 in cash from the wallet before discarding it into a yard. Together they returned to Mr Epiha’s address and eventually went their separate ways. One of the men was located the next day. On 21 February Mr Epiha and the third man were also located. They all admitted the offending. Mr Epiha stated he was sorry.

The appellant was sentenced to 2 years imprisonment. The appeal is advanced on the ground that such a sentence was manifestly excessive.

Complaint is made about mis-statement of facts by the sentencing Judge including the issue of whether Mr Epiha had been smoking cannabis with his two companions while sitting outside the Chinese takeaway bar. Further, it is contended that Mr Epiha was never armed with a fence paling and that there was never any suggestion that he was. There is an objection to the fact that the Judge said that the complainant was “beaten” with the wooden palings when all that happened was that he was hit once on the right shoulder area by one of the others.

A factual summation in a sentencing note should be entirely accurate, but the errors here are more cosmetic than of substance. The reality is that an innocent man in the street was pursued and hit by total strangers who were intending to rob him of the money which they had just seen him withdraw from his bank.

Mindless attacks on innocent people in the street are too frequent. The Courts are required to reflect society’s condemnation of street violence involving gratuitous attacks on innocent members of the public. See R v Wikaira (CA 166/93, 6 July 1993); R v Cossens (CA 196/96, 9 July 1996). It cannot seriously be contended that a starting point of more than 2 years was inappropriate.

On the positive side Mr Epiha was just 18 years of age, a first offender, there were support networks available and a sympathetic pre-sentence report. He was thoroughly co-operative with the Police, immediately entered a plea of guilty and there were genuine expressions of remorse for his wrong doing.

Giving due weight to those factors we have concluded that the sentence of 2 years was longer than is necessary to achieve the appropriate sentencing imperatives having regard to an accurate summary of events and noting that the aggravation of the charge related to there being three of them together and not because they were armed. We have also had regard to the fact that the culpability of the other two offenders is as great or even greater. As they are within the youth justice system they will probably be treated with more leniency. We accordingly are of the view that a sentence of 18 months would be sufficient.

The second issue which is raised is whether the sentence should be suspended.

The matters which were advanced by Mr Foote in the Court below and again before us in support of suspension were detailed by the learned District Court Judge as being his age, the fact that he was a first offender, his claim that he was never armed whereas the others were, his assertion that he had not delivered any blows nor made any threats, was thereafter co-operative with the Police, was genuinely remorseful, the offence was out of character and there was strong parental and family support available.

The prosecution in the District Court and the Crown today has drawn attention to the prevalence of this type of mindless street thuggery and the need for a deterrent sentence.

The Judge noted the following factors :

I take particular notice of these factors. First, that the three of you had determined to carry out an aggravated robbery and had armed yourselves for that purpose. The fact that this particular victim was chosen was unfortunate for him but can only be described as a spontaneous change of target and not an

impulsive or spontaneous attack upon him. Second, there were three of you; you were armed (or some of you were) and of varying ages which I consider is particularly significant.

You were 18 years of age, Cooper was 16, and Maika was 15. So you were two to three years older than the other two. It takes little to imagine that you would not have been “following the leader” as it were. Because of your age, you would most certainly have been a person who would have been actively involved in the decision making process. I could understand a plea for a 15 year old saying that they had been led astray by an 18 year old, but I am not prepared to accept that you, an 18 year old, were led astray by a 15 or 16 year old.

There are also the injuries that are significant but, fortunately for you, they will have no long term consequence for the victim.

I take particular notice also of the fact that you are only 18 years of age, a first offender, you pleaded guilty and that you are genuinely remorseful.

I accept also that your family would dearly love to have you home with them and to work closely with you to ensure that this does not occur again. However, I have to apply the law and, as unpleasant as that can sometimes be, there is a real concern, not only in this community but in other communities around this country, that there is an increasing amount of street violence of this nature - young men, in particular, but also young women, who arm themselves and carry out street attacks, often for items of rather insignificant value; in this case only $75.00.

The Judge reached the view that these various factors did not amount to special circumstances particularly because of the need for a deterrent sentence and his assessment that the offending was too serious for him to be kept in the community. The Judge noted :

It would send entirely the wrong message out to other young people who may have similar thoughts of offending in this way.

A number of decisions have been referred to by counsel particularly of Judges sitting at first instance. They are seldom of assistance in determining the appropriate penalty in another case.

The principles enunciated in R v Petersen (1994) 2 NZLR 533 remain the law. We are not satisfied that it can be said that the Judge’s exercise of discretion not to suspend was wrong. This was serious offending of a sort about which the community is justifiably condemnatory. The public are entitled to expect the Courts to reflect that disfavour.

This man involved himself with two younger people. The three of them decided to commit one serious crime. Indicative of their attitude that they were not bound by the basic rules which apply to every member of the community, when this present victim came along and happened to provide an easier means of committing a serious offence, they proceeded to do that.

There is no basis for this Court to intervene. People who behave as outlaws forfeit the right to remain within the community.

The appeal is allowed. The sentence of 2 years is quashed and replaced with a sentence of 18 months imprisonment. No order is made for its suspension.

Solicitors:

O’Sullivan Clemens, Rotorua

Crown Solicitors, Auckland