THE QUEEN v JOHN PAUL PEHI [1999] NZCA 58 (28 April 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 82/99

THE QUEEN

V

JOHN PAUL PEHI

Hearing:	28 April 1999 (at Auckland)
Coram:	Eichelbaum CJ Gault J Robertson J
Appearances:	M B Beech and J A Coulter for Pehi
	S P France for Crown
Judgment:	28 April 1999

judgment of the court delivered by ROBERTSON J

[1]This appellant and Lenny Ututaonga appeal against sentences imposed upon them at the District Court at Rotorua on 12 November 1998, each having pleaded guilty to a charge of aggravated robbery.

[2]In respect of the appellant Ututaonga this Bench has been constituted as a full Bench of the High Court.He was sentenced to less than 5 years imprisonment following a pre-committal plea of guilty.Accordingly in terms of the provisions of s 28(H)(2)(b) of the District Courts Act 1947 his appeal must be to the High Court not the Court of Appeal.

[3]We deal with the matter together as these men were charged together, sentenced together (albeit after different processes) and the issues raised are intertwined with each other.

[4]The appeals relate to the appropriate level of sentencing in respect of young adults charged with the aggravated robbery of small businesses.There is no argument that the matter falls within the second category in R v Moananui [1983] 3 NZLR 537.The Judge concluded that the appropriate starting point in each case was 8 years.In respect of Mr Pehi the Court concluded that a sentence of 6 years should be imposed.This had concurrent with it a suspended sentence which was activated.

[5]Mr Ututaonga's involvement which was determined to be less serious meant he was sentenced to 4½ years imprisonment.

[6]The appellants were involved with two others in the aggravated robbery of a grocery store.The initial planner was Mr Pehi.He obtained a firearm and then contacted Mr Ututaonga.The four of them drove past the store twice "casing it out".The two appellants left the vehicle and went to the store.Both were carrying balaclavas.Mr Pehi with the knowledge of Mr Ututaonga was carrying a firearm although he asserts that he did not anticipate that it would be used as it subsequently was. Mr Pehi ran to the back of the store and concealed himself beside a tall fridge near the entrance to the store room.He waited for the shop owners to come into the shop area and as they did so he punched the male shopkeeper in the face and pistol whipped him with the air pistol causing him to fall to the ground.The blow was sufficient to cause the barrel to break off the pistol. The female shop owner came to her husband's assistance.She was carrying a cooking pot.Mr Pehi knocked it back at her causing the pot to hit her in the face.During this Mr Ututaonga had come into the shop and when it was apparent that the storekeepers were under the control of Mr Pehi he opened the cash register at the front of the shop and took a quantity of coins and notes.The summary alleged the sum was approximately $1000 although there was a dispute as to whether the sum was more like $250.Not a great deal turns on that variance.

[7]The appellants left the shop and made good their get-a-way in the vehicle which had been previously parked next to a public reserve and where the two accomplices were waiting.As they left the scene Mr Pehi discarded the air pistol out the window of the vehicle.The group purchased alcohol and food which they consumed during the night.When Mr Pehi was located and spoken to the next day having first denied involvement, he later admitted his part but refused to name co-offenders.He is 19 and has previously appeared with a substantial list.

[8]Mr Ututaonga was not located until a little later.He made no explanation to the Police at the time.He is now 20 and he too has previously appeared although his list is less serious.

[9]A number of matters were traversed in the written submissions and at the hearing, but upon focus and analysis there are really only three substantial issues.

[10]The first is the fact that the learned District Court Judge prior to sentencing indicated that he wished to have assistance from a senior police officer with regard to statistical material about the prevalence of aggravated robberies in the districts within the Midland Police region.

[11]Detective Sergeant Colin Matthews, a senior Police Officer, gave evidence and was cross-examined.Regrettably there is no record of that evidence. There is available to us a copy of a facsimile addressed to the Crown Solicitor at Rotorua which sets out some base material.The impact of it is lessened when we do not have a proper transcript of the evidence which apparently happened because of an administrative oversight.Two facts however emerge from the material presented by the Police Officer and which it appears were not shaken in cross-examination.The first was that within the five districts in respect of which recording is available within the Midland Police region, the incidence of aggravated robbery per head of population is higher in Rotorua City than in any other district within that region.

[12]Evidence was also given about increases in offending.This evidence was given on the very day on which a full Bench of the High Court in Hamilton was hearing R v Cooper & Ors (AP106/98, 116/98, 121/98, 12 November 1998).That decision which deals with factors which need to be taken into account in providing information of this type had not been delivered at the time.

[13]It may be that in light of the directions and observations in Cooper the material in this case lacked some refinement and sophistication which would have been helpful.However we are not persuaded that the material which was provided impacted in any improper way upon the Judge's task.

[14]The second substantial issue was the fact that the Judge having reviewed the factual circumstances reached the conclusion that a proper starting point in respect of this aggravated robbery was 8 years.The Judge had concluded that the aggravating features were substantial so that he placed the matter in the top tier of the second category in Moananui.He noted that :

... there has been an appalling increase in incidence of aggravated robbery in this community and, as Crown Counsel says, the offenders have all been young. The Court has been unsuccessful in stemming the tide of aggravated robberies in this community in the penalties that it has awarded to date.This community in these particular economic times relies much more heavily than in former times on the tourist industry.This has to be a safe community for persons to come to.The only way that I know of, by which the Courts can at least attempt to redress this in such circumstances with a spiralling crime rate, is to impose sentences that send a clear message to the community that this sort of offending will not be tolerated and that the sentences to be imposed on you will be of such length as to ensure that at least for the time you are in prison, you cannot cause misery to the victims that you have in the past.

[15]It was submitted on behalf of the appellants that the second category in Moananui indicated penalties between 2½ and 7 years.That is true but the discussion there is about net or final sentences not starting points. We reject the submission that there is such a restriction on appropriate starting points.

[16]As is inevitable in a case such as this, on both sides various individual cases have been referred to us.They are seldom helpful.It is better to concentrate on tariff cases which deal with the applicable principles which are relevant in the area.Within that category we have regard to what was said by this Court in Solicitor General v Lam (1997) 15 CRNZ 18 and the recent decision of the full Bench of the High Court in Cooper is also applicable.Lam spoke of starting points in the vicinity of 5 years for offences of this sort involving aggravated robberies of dairies and small shops.In Cooper (which did not involve actual violence, and where there was pre-planning but not of the most extensive kind, and the amounts taken were small) it was held that starting points of 6 years and 6½ years while high could not be regarded as untenable.

[17]The significant factor about the present case is that there were two incidents of gratuitous violence which is undoubtedly a serious aggravating factor.

[18]Although as the Crown acknowledges 8 years places the offending very much at the top of category two, and that the sentence was a stern one, we are satisfied that it was within limits.

[19]The third issue is the question of discount or allowance in respect of mitigating factors.It was submitted on behalf of both the appellants that a substantial discount was due because of the early plea of guilty.We accept that pleas of guilty in this case were entered at the earliest opportunity. There was an immediate intimation that there would be a plea of guilty and it in fact transpired within a period of 7 or 8 days in each case.We accept that there is contrition also.

[20]It is contended that the age of these two men should also have a substantial effect.Courts are always concerned to ensure that in respect of people who are still teenagers crushing sentences are not imposed which will leave the prisoner without any hope and have the risk that when a person emerges from prison the community will be at risk from them.Nonetheless regard must be had to the fact that a high proportion of offending of this sort is committed by people in their late teens.We are not dealing with 14 or 15 year olds but young adults.If they commit adult offences they must expect that the Courts will respond accordingly.Although age is a factor the weight we can attach to it is in the circumstances not great.

[21]In respect of the appellant Mr Pehi, there was a 12 months sentence of imprisonment which had been imposed upon him but which had been suspended. There was no basis upon which the suspended sentence should not be activated. The Judge in his assessment of matters decided that the sentence activated should be concurrent with the sentence which he imposed.We do not disagree with that approach but having regard to the totality principle it needs to be weighed as part of the overall reality in respect of the effect of the sentence on this man.It is also to be noted that Mr Pehi at the same time was sentenced in respect of a number of other offences which he had committed at or about this time.

[22]When all those circumstances are looked at we are satisfied that the overall sentence of 6 years was within range and there is no basis upon which this Court could intervene.

[23]As far as Mr Ututaonga is concerned, the Judge took the view that there should be a substantial discount because his list of previous offending was less serious, he was not the person who inflicted the actual violence and because of his genuine remorse.The sentencing Judge accepted that Mr Ututaonga did not know Mr Pehi was going to use the weapon in the way he did so he was sentenced to only 4½ years imprisonment.It appears to us that the Judge was merciful in that approach.There could be no basis upon which it could be said that sentence was manifestly excessive or wrong in principle.Although Mr Ututaonga might have commenced his participation having the role of a "lookout", when Mr Pehi became involved in inflicting the violence on each of his victims, Mr Ututaonga did not hesitate to take over the role of the actual robber jumping forward to take the cash from the till.

[24]Courts are always concerned at imposing lengthy sentences of imprisonment on young people, but there are equally issues to be weighed with regard to the position of victims and the community in general.Women and men who work in shops, dairies and service stations are constantly apprehensive that people like this might suddenly decide to target their establishment as a place for one of these serious intrusions.Many other citizens are fearful that whenever they go out about their lawful business they will encounter this type of activity.

[25]The sentences imposed here were stern but within range.The appeals are accordingly dismissed.

Solicitors

Crown Law Office, Wellington

O'Sullivan Clemens, Rotorua