THE QUEEN v FLOYD SAO [1999] NZCA 109 (15 July 1999)

IN THE HIGH COURT OF NEW ZEALAND

CA129/99

THE QUEEN

V

FLOYD SAO

Hearing:	30 June 1999
Coram:	Keith J Tipping J Gallen J
Appearances:	N J Sainsbury for the Appellant J C Pike for the Crown
Judgment:	15 July 1999

judgment of the court DELIVERED BY KEITH J

[1] The appellant pleaded guilty to a charge of aggravated robbery in breach of s235(1)(c) of the Crimes Act 1961.He was sentenced to three years imprisonment.He appeals against that sentence.Because he pleaded guilty under s153A of the Summary Proceedings Act 1957 before the taking of depositions, his right of appeal is to the High Court and not to the Court of Appeal;District Courts Act 1947 s28H.Since the appeal was listed for hearing in the Court of Appeal, we have, for convenience, sat as a full High Court.

[2] The appellant had been drinking with two friends and decided to go for a drive in a car jointly owned by the three of them.In the course of the journey the appellant decided to go to a Four Square Shop to buy cigarettes. He had no money.He stopped the car outside the dairy, took a kitchen knife with a six inch serrated blade from the glove box and put it in his track suit pocket.At his instructions, one of his friends got into the driver's seat.

[3] He went into the shop and saw that it was attended by one person.He took the items he had selected to her at the counter and as she was adding the amount owing suddenly reached across the counter and seized her either by the throat or by the collar.He pulled her towards him and produced the knife and held it to her face.Either he commanded her to "give me some money" or she asked whether he wanted some.She screamed and he ran out of the shop and made his escape in the car waiting outside.The shopkeeper's husband pursued the appellant out of the shop and noted the car's registration number.The Police were called and pursued the car.During the chase the appellant discarded the knife and changed his blue singlet for a white shirt.

[4] When the police stopped the car the appellant made a full acknowledgement of what had happened and his part in it.Both then and since he has expressed his regrets for his involvement

[5] The appellant is now 23.He has no previous convictions.He has no dependants.He has had some casual employment as a labourer.He told the probation officer that he had been drinking too much alcohol on the night of the offending.The offence was committed on the spur of the moment.He accepted that he had taken a more active role.He said he was keeping some bad company.

[6] The sentencing Judge, after setting out the facts, recorded that the robbery must have been extremely frightening, particularly for the shop keeper. Although she and her husband, who had pursued the appellant and took the number of the car, had come to terms with the experience, the extreme fright that they suffered had to be taken into account.

[7] The Judge noted that appellant's counsel sought a suspended sentence.The Court was however obliged to apply tariffs which have been established, referring to R v Moananui [1983] NZCA 66; [1983] NZLR 537.This aggravated robbery of dairy proprietors fell in the second category in that case, that is between two and seven years.

[8] The Judge was not impressed with the contentions about bad company - that was the offender's choice - or lack of premeditation:

You knew you had no money;you knew that you had the knife in the glove box of the car.It was you who chose to take the knife from the glove box and secrete it in your pants before getting out of the car.You must have given some thought to the matter before you took that step.

The offender had also sorted out the escape route.

[9] To suspend the sentence would, said the Judge, do violence to the tariff for this class of offending.Suspension was available only if the offending was moderately serious, there was a real chance of reform and the need to deter others was not paramount.That last factor was of extreme importance.

[10] The appropriate sentencing level before the aggravating and mitigating factors were considered was five years imprisonment.The maximum credit that could be given for the appellant being a first offender, his genuine remorse and his early plea of guilty was two years.The sentence imposed was accordingly three years imprisonment.

[11] Mr Sainsbury for the appellant argued that the sentence was not an appropriate one within the scope of the tariff.He stressed that the appellant was insistent on pleading guilty as early as possible, without challenging the statement of facts and without making contact with his family. On the statement of facts Mr Sainsbury referred to some differences arising from the shopkeeper's evidence given at depositions on a related charge.Those differences are indicated in the alternatives relating to the appellant taking her throat or collar and to who it was who mentioned money set out in para [3] above.We do not see them as making any difference to the dangerous and threatening character of the offence.There is for instance no dispute about the appellant's use of the knife.

[12] Mr Sainsbury responsibly accepted that he had difficulty in advancing an argument for the suspension of the sentence.Given the appellant's good character on the one side and the need to deter such serious offending on the other, the question, he said, was what was the minimum appropriate sentence; see s7(2) of the Criminal Justice Act 1985.(The Probation Officer had, surprisingly to us, recommended a suspended term of imprisonment.)

[13] Counsel submitted that the planning or premeditation involved was less than in some cases, that the use of a knife rather than a firearm lessened the seriousness and that the Judge's reference to the situation being extremely volatile was not accurate.There was however an element of planning, as the Judge indicated.This was not a spur of the moment offence.In the circumstances of this case we see no distinction between a knife and a firearm. Mr Sainsbury said that Crown counsel had referred to "extreme volatility" in relation to the possible involvement in the robbery of the appellant's two colleagues and that there was no evidential base for that.But on its face the reference appears to relate simply and accurately to the situation inside the shop.

[14] Mr Sainsbury also questioned the reference at the end of the sentencing remarks to "aggravating and mitigating factors", given that the Judge after that mentioned only mitigating factors, when reducing the sentence from five years to three (para [10] above).Reading the remarks as a whole, however, we consider that the Judge had already taken the aggravating factors into account in fixing the five year figure within the two to seven year range.He then mentioned the mitigating factors and made the two year reduction.

[15] As we have indicated, we can find no real fault in the reasoning of the sentencing Judge.The sentence imposed is an entirely appropriate one for such a serious offence even when the mitigating factors are taken into account.

[16] Accordingly the appeal is dismissed.

Solicitors

Crown Law Office, Wellington