THE QUEEN v JAMES MITCHELL HEPI [1999] NZCA 187 (20 September 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca220/99 CA308/99

THE QUEEN

V

JAMES MITCHELL HEPI

JOHN MCKINNON DONNELLY

Hearing:	20 September 1999
Coram:	Keith J Blanchard J Robertson J
Appearances:	R G Glover for both Appellants
	S P France for the Crown
Judgment:	20 September 1999

judgment of the court DELIVERED BY KEITH J

[1] The two appellants and one co-offender, a Mr Lewis, pleaded guilty to a charge of attempted aggravated robbery. Mr Hepi also pleaded guilty to a distinct charge of receiving and Mr Donnelly to various other charges, all but one of them arising from offences committed as preparatory steps to the planned robbery. Mr Lewis and Mr Donnelly appeared for sentence together and Mr Hepi was sentenced at a later date.

[2] All three offenders were sentenced to six years imprisonment on the charge of attempted aggravated robbery, the maximum sentence for which is seven years, Crimes Act 1961 ss235 and 311.Mr Lewis appealed against that sentence and in a judgment delivered on 25 March this year this Court reduced the sentence to five years: R v Lewis, CA402/98. The two appellants now seek a similar reduction in their sentences.They filed their appeals late;the Crown does not oppose the granting of leave to appeal which is granted.Mr Hepi also originally appealed against conviction.He has however not supported that appeal which is dismissed.

[3] Mr Hepi also appeals against the cumulative sentence of one year imprisonment imposed on him for receiving. Mr Donnelly does not seek review of the cumulative sentence of one year imprisonment which he received for burglary and three charges of unlawful taking (the preparatory offences) and the concurrent sentence of one years imprisonment imposed on him for escaping from a penal institution.

[4] The charge of attempted aggravated robbery arose out of events at a Christchurch shopping mall. The three offenders planned to rob security guards when they were refilling an automatic teller machine at the mall. Two of the men had been observed by police officers during the preceding days in the vicinity of the mall, apparently paying particular attention to the layout of the mall, including the position of the ATM, and to the movements of the guards.

[5] At about 8am on a Friday morning the three offenders drove in a stolen van to the grounds of a church at least 500 metres from the mall. All three were wearing overalls, hats and gloves. The two appellants each had a loaded shotgun, with further ammunition in their pockets, while their co-offender had an imitation pistol. The police intervened while the offenders were still in the van in the church grounds, before they were able to put their plan into effect.

[6] Mr Hepi's conviction on the charge of receiving arose out of unrelated events. A stolen Mitsubishi Evolution Five sports car, worth $70,000.00, was found in a lock-up rented out to him.Mr Hepi admitted knowing that the car was stolen and that he intended to take it up to Auckland, where he had already arranged a buyer.

[7] As indicated, the appellants base their appeal on the reduction in sentence received by their co-offender, Mr Lewis.There were two factors which led the Court in March to accept that a reduction from six to five years imprisonment was appropriate.The first was that the sentencing Judge's starting point of the maximum seven years was too high.This offence was not within the worst category of this type of case and there was a relative lack of proximity to the completion of the substantive offence.The second factor was that a more significant discount should have been given for the early guilty plea.A deduction of one year was insufficient, given the emphasis which this Court, like others, places on the importance of encouraging proper pleas of guilty at the earliest possible stage.Taking those factors into account, the Court concluded that the appropriate sentence was five years imprisonment.The Court endorsed the sentencing Judge's conclusion that the offence was serious and required a deterrent sentence, to reflect the community concern about the need to protect innocent members of the public from such potentially dangerous offending.

[8] The Court in March, like the two sentencing Judges, found no basis to distinguish between the three offenders as regards this charge.Nor do we. All three men have serious criminal records.All of them knew that the planned offence involved the potential use of loaded firearms and the use of further ammunition which was in their possession.There is no factual foundation to support the suggestion that any of them had, at the time that they were apprehended, changed their minds about committing the offence.The three offenders should receive identical sentences on this charge.

[9] Counsel were agreed that the one year reduction in sentence received by Mr Lewis should also apply to the appellants.We also agree.The reasons which led the Court to reduce the sentence imposed on Mr Lewis apply equally to the two appellants, one of whom was sentenced together with Mr Lewis and the other by another Judge at a later date, that Judge being aware of the earlier sentences and adopting similar reasoning to the earlier Judge.

[10] Accordingly the appeals against the sentences for attempted aggravated robbery succeed, the six year sentences being replaced by five year sentences.

[11] Mr Glover advanced two grounds in support of the argument that Mr Hepi's sentence for receiving should have been concurrent or that it should have been shorter than one year.The first was that the sentencing Judge "stigmatised" Mr Hepi with the theft of the car in question.It is true that she did at one point say he had stolen the car, but the sentencing plainly proceeds on the basis that he had received it and that he had been convicted of that offence.The sentence, we consider, was an appropriate one given Mr Hepi's intention in relation to the car, its value and his serious record of offences of dishonesty.The offence stands apart from the attempted aggravated robbery and accordingly it was appropriate for the second sentence to be cumulative on the first.

[12] The second ground was that Mr Hepi's cumulative sentence on the receiving charge is out of proportion to Mr Donnelly's cumulative sentence of the same duration imposed for burglary and three charges of unlawful taking of a motor vehicle.(The further charge of escaping attracted a concurrent sentence.)We agree with Mr France, for the Crown, that any alleged disparity exists only because the totality principle has worked favourably for Mr Donnelly.Any reduction in the justified one year sentence would properly be seen as tinkering.This aspect of the appeal fails.

[13] The appeals are allowed.For each appellant, the sentence of six years for attempted aggravated robbery is quashed and a sentence of five years imprisonment is substituted for it. Mr Hepi's sentence of one year for receiving remains;it is to be served ahead of the five year sentence.

Solicitors:

Glover Sewell for the Appellants

Crown Law for the Respondents