THE QUEEN v DAVIS TEKII [2000] NZCA 337 (20 November 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 368/00

THE QUEEN

V

DAVIS TEKII

Hearing:	20 November 2000
Coram:	Richardson P Robertson J Goddard J
Appearances:	C J A McNeely for Appellant K Raftery for Crown
Judgment:	20 November 2000

judgment of the court delivered by RICHARDSON P

[1] The appellant, Davis Tekii, pleaded guilty to a charge of aggravated robbery and was sentenced in the High Court on 8 September 2000 to two years and three months imprisonment.He appeals his sentence on the primary grounds that the sentence is manifestly excessive, and that the sentencing Judge failed to have regard to the rehabilitative aspects of sentencing.An additional point is raised in respect of the time spent by the appellant in the custody of the Child Welfare authorities.

[2] The appellant was sentenced at the same time as four of his co-offenders. The five offenders were aged between 14 and 16 years at the time of the offending.The Youth Court declined jurisdiction in respect of the five because of the seriousness of the offending.Two other co-offenders were dealt with in the Youth Court.

[3] The aggravated robbery was planned in advance.On 14 March 2000 the appellant and his co-offenders decided to lure a victim to an address in Otara by ordering some Kentucky Fried Chicken food for delivery to that address. Their intention was to take any money in possession of the person delivering the food as well as the food itself.They chose an address at which no one was home and ordered food to that address.The food arrived in a car driven by the male complainant who was accompanied by his wife and two young daughters.The male complainant got out of the car and placed the food order on the car bonnet.One of the offenders approached the complainant and distracted him by talking about payment for the food.At this time the complainant was struck on the back and left side of his head with a piece of wood wielded by one of the male offenders, and another offender joined in the attack.Despite his injuries, the complainant was able to run across the road to the Otara Town Centre to call for help.The male complainant's wife moved over to the driver's seat with the intention of driving away but was pulled from the car by her hair, thrown to the ground, and kicked and punched about the head and upper body.The children were removed from the car which was then driven off by some of the offenders.The car was later burnt.

[4] The male complainant sustained injuries to his head which required stitches.He suffered pain for some time and had difficulty sleeping.His ear, which was injured in the attack, later developed an infection requiring him to take two weeks off work.He has suffered sleep loss and anxiety since the attack.His wife suffered bruises, a swollen eye and temporary loss of consciousness after being hit on the head.She had difficulty sleeping and had to take a week off work without pay.She lost her car which was not insured.She suffers from ongoing fear and confirms that her children have also suffered.They lost earnings totalling some $1,800 and their car which was uninsured and valued at $1,500 and suffered other financial losses totalling over $600.

[5] In appealing against the sentence, counsel for the appellant refers to the young age of the appellant, his guilty plea, the fact that this was a first time offence, his genuine remorse and indications of his ability to make positive changes.It is submitted that the Judge did not sufficiently differentiate between the appellant and his co-offenders.All those sentenced at the same time as the appellant were given the same sentence of two years and three months imprisonment.Counsel notes, however, that one co-offender was a year older than the appellant, another faced the additional charge of setting fire to the victim's car, and another had been involved in a subsequent aggravated robbery.It is further submitted that insufficient deduction was made to reflect the extreme youth of the appellant at the time of the offending, his guilty plea, remorse and rehabilitation considerations. Finally, counsel suggests that, should the Court determine that a sentence of two years or less ought to be substituted, then the sentence should be suspended or, if that is rejected, that a direction should be given that the appellant be considered for home detention.

[6] In sentencing, the Judge took some time to discuss the difficulties of dealing with young offenders who, because of the serious nature of their offending, require the imposition of a custodial sentence and cannot properly be dealt with by the Youth Court.Acknowledging the lack of facilities for youth offenders in this country, the Judge recommended to the Prison Authorities that the appellant and his co-offenders should be kept apart from adult prisoners and assisted in continuing to participate in rehabilitative programmes to the fullest extent possible.The Judge stated that he regarded it as of the utmost importance that the offenders be given the maximum facilities for rehabilitation.While accepting that all the offenders have good prospects for rehabilitation, the Judge noted that this was a serious offence involving a substantial degree of violence and planning.His Honour referred to the guidelines set out in the decision of this Court in R v Mako [2000] 2 NZLR 170 in relation to sentencing for aggravated robbery. The present case, involving the robbery of a fast-food delivery person, was treated as similar to taxi driver robberies.A starting point of four and a half years was taken, with deductions for the guilty pleas and the young age of the offenders.The Judge also stated that he was treating the accused all as first time offenders.

[7] It cannot be said that the sentencing Judge failed to have adequate regard to the ages of the offenders and the rehabilitative aspects of sentencing.In imposing a custodial sentence, the Judge weighed up the youth and prospects for rehabilitation of the offenders with the seriousness of the offending and the impact on its victims.The Judge gave a substantial reduction in sentence to reflect the youth of the appellant, the interests of rehabilitation and the guilty plea.From a starting point of four and a half years, the sentence was reduced by twenty-seven months.The Judge treated the offenders as deserving of equal sentences.Although Stevie Tekii had been involved in subsequent aggravated robbery, this was offset by her extremely young age.The robbery was planned by all of the offenders each of whom participated in different ways.

[8] Ms McNeely, counsel for the appellant, accepted, rightly in our view, the starting point of 4½ years imprisonment.She submitted that the Judge erred in not reducing it to 2 years or less to reflect the mitigating factors.However, and having regard to the considerations we have already indicated, we are satisfied that the reduction by one half to 2 years 3 months was an ample allowance in all the circumstances for those special features relative to the youth and rehabilitation of this young offender and that all were deserving of equal sentences.

[9] An additional point has been raised in respect of the time spent by the appellant in the custody of the Child Welfare authorities.In relation to the appellant and two others, the Judge stated:

[Y]ou three have been in custody for varying periods since you were first arrested.Because you have been in the custody of the Child Welfare Authorities the Prison Authorities are unable to take that period of time into account in relation to your term.In normal circumstances the period of custody prior to sentencing is taken into account and should be in this case. I, therefore, direct that the terms of imprisonment that I have imposed on you three will be reduced by the length of time that each of you has spent in custody prior to this sentencing.

[10] The sentencing Judge clearly had in mind the difficulty that, because a social welfare residence under the Children, Young Persons and Their Families Act 1989 is not a penal institution for the purposes of s81 of the Criminal Justice Act 1985, the time spent on custodial remand cannot be deducted administratively under the section from the sentence imposed by the court.In such a case, as this court held in R v Afu (CA360/96, judgment 23 October 1996) and R v Hopkins (CA35/99, judgment 12 May 1999), the appropriate course is to take the time spent on remand in such a residence into account when deciding the appropriate sentence.The sentence which the Judge intended to impose on the appellant to reflect that special factor should be taken to be two years and three months imprisonment minus the period of time spent by the appellant in social welfare custody prior to sentencing.

[11] Counsel for the appellant has advised the Court that Mr Tekii spent 161 days in social welfare custody prior to sentencing.A reduction of this amount would decrease the sentence from two years and three months, to a period of one year, 9 months and 23 days.

[12] In the event that the Court finds the appropriate sentence to be one of imprisonment for two years or less, counsel has asked that the sentence be suspended or, if not, that the appellant be granted leave to apply for home detention.

[13] The short answer to that submission is that, although the effect of taking into consideration the period of time spent in welfare custody was to reduce the sentence to a period of less than two years, the actual term of imprisonment considered appropriate for this offending by this offender was 2 years and 3 months.An adult offender sentenced to that term whose period in remand custody is taken into account automatically under s81 would not qualify for consideration for a suspended sentence or home detention. In the circumstances the appellant cannot reasonably be regarded as meeting the threshold requirement for consideration for a suspended sentence or for home detention.

[14] Accordingly, the appeal against sentence is dismissed subject to this qualification.The sentence as imposed by the sentencing Judge must be understood to be a period of one year, 9 months and 23 days and if technically necessary the sentence imposed by the trial Judge is amended accordingly.We also note that similar adjustments will need to be recorded in respect of the time spent in welfare custody by the co-offenders Stevie Kathleen Tekii (158 days) and Ricky Ngatai (158 days).

Solicitors

Wallace & Co, Papatoetoe, for appellant

Crown Solicitor, Auckland.