THE QUEEN v REX TE MEIHANA MANEY [1999] NZCA 316 (16 December 1999)

IN THE court of appeal of new zealand

ca342/99

THE QUEEN

V

REX TE MEIHANA MANEY

Hearing:	13 December 1999
Coram:	Gault J Keith J Blanchard J
Appearances:	L M Bidois for Appellant M J Thomas for Crown
Judgment:	16 December 1999

judgment of the court delivered by blanchard j

[1] The appellant was found guilty in the District Court at Rotorua of conspiracy to commit robbery and not guilty on an alternative charge of conspiracy to commit aggravated burglary.A charge of attempted aggravated robbery was earlier dismissed by the Judge.The appellant also pleaded guilty to an unrelated charge of unlawful possession of explosives and unlawful possession of a pistol.He was sentenced to four years imprisonment on the conspiracy charge and 12 months imprisonment on the other two charges, to be served concurrently.The conspiracy sentence is cumulative on a sentence of three years imprisonment for cultivation of cannabis imposed earlier this year. The appellant appeals only against the sentence imposed for conspiracy to commit robbery.

The facts

[2] As a result of receiving information from a paid informant, the police became aware of a robbery being planned to take place at a rural property at Reporoa.The Armed Offenders Squad was called out and the appellant and two co-offenders, all members of the Mongrel Mob, were apprehended at the target address before they were able to effect a break in.The police recovered a sawn-off shotgun, a metal bar and material capable of being used to restrain the occupants of the house.One of the co-offenders was the informant, and the charges initially laid against him were later withdrawn.The appellant, a man of 38, has an extensive criminal record, although he has had only one conviction for violent offending since 1985.

Decision of the sentencing Judge

[3] The Judge acknowledged the difficulties of sentencing in conspiracy cases. An unusual feature of this case was that the police were well aware of the whole plan, and the likelihood of harm to innocent victims or members of the public was significantly reduced.However, if it had not been for the unexpected arrival home of the male home-owner, the matter might well have gone further.Although no ammunition was found, the Judge acknowledged that this was of limited relevance as a victim presented with a weapon would be unable to tell whether it was loaded or not.He noted that an iron bar was also found.

[4] The Judge observed that conspiracy is recognised as carrying less culpability than actual commission, but said that if the offence had gone to completion, it had the potential to be an aggravated robbery "in the upper range" of R v Moananui [1983] NZLR 537.Aggravating features included the fact that the offenders were prepared to resort to violence or threats of violence, had weapons, were acting at night and had disguised themselves. There was a need for deterrence, both generally and specifically.There were little in the way of mitigating factors.

[5] The Judge considered that the sentencing range was "towards the upper end of the scale for conspiracy".The maximum sentence was seven years.Four years imprisonment was appropriate for both the appellant and his co-offender. The Judge then considered the result of imposing a four year sentence on top of the existing three year sentence, bearing in mind an agreement that the sentences for the charges of possession of a pistol and possession of explosives were to be served concurrently with the conspiracy charge.He found that there was a risk of creating an unwarranted disparity between the two men, having already found that the culpability of the appellant and his co-offender could not be differentiated.The Judge considered that the appropriate sentence for both men was four years imprisonment, which, in the case of the appellant, was to be cumulative on the sentence of three years imprisonment.

Submissions for the appellant

[6] Mr Bidois submitted that a cumulative sentence of four years imprisonment was manifestly excessive.It was emphasised that the charge itself related to robbery simpliciter, not aggravated robbery.The verdict may have reflected a view that the weapons could not directly be linked to the offenders.No home invasion had actually occurred.Although a sentence of four years imprisonment might have been justified if the appellant had entered the house and obtained property by use of force or violence (robbery), the culpability was less when that had not occurred and a sentence of two to three years imprisonment was appropriate.It was accepted, however, that there were significant aggravating factors and few mitigating features and that a firm sentence was required.

[7] Counsel also accepted that a cumulative sentence was proper, but submitted that the Judge failed to properly apply the totality principle.The earlier sentence of three years imprisonment was for a charge of cultivation of cannabis.The combined offending did not justify a total sentence of seven years.It was also submitted that the Judge erred in considering that any appropriate adjustment for the appellant would create a disparity with the sentence imposed on his co-offender.The totality principle, it was said, required the sentencing Judge to reduce an otherwise appropriate sentence to reflect the overall criminality.In doing so it may be necessary to adjust terms of imprisonment between co-offenders, but this did not necessarily lead to a disparate sentence.There was an appearance that the appellant had been sentenced on a wrong principle and otherwise would have received a lesser sentence.

Submissions for the Crown

[8] Miss Thomas submitted that there were aggravating features additional to those identified by the Judge.Although the charge of attempted robbery had been dismissed, the offending had clearly gone beyond the mere formation of an agreement to commit an offence.Steps had been taken to carry out the plan. The appellant had driven a significant distance to the target address; each participant had the cellular phone number of the driver; and there were weapons and material for tying up the intended victim.The planned offending would have involved a home invasion of a family in a rural community, approximately 30 minutes by car from the nearest police station, the use of a firearm, and restraint of any occupant.

[9] If the appellant had committed the intended offence it would have been aggravated robbery or aggravated burglary.On current authority, it was said, a sentence of four years imprisonment would then have been manifestly inadequate (R v Lilley and Wehi (CA 310/93; 19 October 1993)).Counsel submitted that in the circumstances of this case a sentence of four years imprisonment was still within the Judge's sentencing discretion.The cannabis and robbery offences were unrelated and comprised different types of criminality.The cultivation charge concerned a long-running commercial cannabis operation and the conspiracy conviction a one-off plan to commit a violent crime.It was submitted that the overall cumulative sentence fairly reflected the totality of offending.

Decision

[10] We agree with Miss Thomas that there are really two issues:

[a] Was the four year sentence for conspiracy to commit robbery in itself excessive?; and

[b] Did the aggregate of the sentences properly reflect the totality of the offending?

[11] We think that both these questions are to be answered in the affirmative. First of all, an agreement to commit an invasion of a rural home, armed with weapons and material useful for restraining the occupants, taken to the point where the conspirators had arrived outside the home and the next step would have been gaining entry, is as close as it is possible to come to actual commission of a very serious robbery.There is no reason to believe that the appellant and his co-accused would have desisted from their plan if they had not been stopped by the Armed Offenders Squad.The penalty ought therefore to be very close to that which would have been imposed for the robbery if it had been allowed to take place.A four year sentence for this kind of offending where no credit is available for a guilty plea, there are no mitigating circumstances and the offender has a long criminal record cannot be regarded as manifestly excessive.

[12] It should also not escape notice that the Judge was not sentencing for the conspiracy charge alone.There were also the unrelated matters of possession of explosives and a pistol which in themselves involved two relatively serious offences.There had, it appears, been an agreement to which the Judge referred, that a concurrent sentence would be imposed for these other offences. But it would have been quite inappropriate for the Crown to make, and for the Court to bless, an arrangement for the imposition of a sentence containing effectively no element of penalty for the possession offences.The conspiracy sentence therefore had to be imposed as the lead sentence and fixed at a level which properly reflected all of the offending including the possession charges. On this basis, also, the four years cannot be seen as excessive and, indeed, it may have been lenient.

[13] The second issue is whether, the four years being appropriate, its imposition cumulatively upon the three years for cultivation of cannabis resulted in a total sentence which was overly severe.Again, we do not think so.If the one Judge had sentenced for both the cultivation and the other offending we think a seven year term would have properly reflected the totality.The Crown has furnished us a copy of the sentencing notes relating to the cannabis cultivation and they reveal that it was a sizeable operation with hundreds of plants.The value for one season was, or was expected to be, about $130,000.There could be no quarrel with the three year sentence.Our assessment of the other offending has already been recorded.Mr Bidois has realistically accepted that a cumulative sentence was appropriate because of the lack of any connection between the two sets of offending.In our view the effective overall term of seven years was not excessive.

[14] We should not leave this matter without referring to something in the sentencing notes which appears to be an error of principle and which has attracted the attention of the appellant and may have led him to think that he would otherwise have received a lesser sentence.That is the Judge's reference to a problem of disparity between the appellant and his co-offender if both of them did not receive the same sentence regardless of the fact that Mr Maney's sentence was to be imposed cumulatively, whereas that was not the case in respect of the co-offender, Mr Pakoti.It is not the position that where one offender is being sentence for more offences than another, there will necessarily be a disparity, challengable upon appeal, if they do not receive the same sentence for co-offending of the same seriousness.That can be demonstrated by taking the hypothetical case where one offender has to be sentenced for a very serious offence for which he will receive a long term of imprisonment and at the same time he and a co-offender are both sentenced for another matter.In such circumstances the co-offender should receive the appropriate sentence for that other matter but the comparable sentence imposed for the offender who has also committed the very serious offence may well have to be reduced substantially when the sentencer comes to look at the effective overall term of imprisonment and considers the totality principle.Whether in other circumstances such a reduction is or is not necessary will depend upon the application of the principle to those particular circumstances.

[15] In the present case we are satisfied that if the Judge had approached the matter in this way and had not been diverted by a concern about parity, he would have reached the conclusion that no downwards adjustment of Mr Maney's four year sentence was required in order to arrive at a total sentence which properly reflected the totality of the offending.As we have said, we are satisfied that an overall sentence of seven years was not excessive.

[16] The appeal is therefore dismissed.

Solicitors

Crown Law Office, Wellington