THE QUEEN v JONATHON ROBERT MCDONALD [2001] NZCA 157 (17 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca73/01 CA74/01 CA81/01 CA100/01 CA131/01

THE QUEEN

V

JONATHON ROBERT MCDONALD

QUINTIN WILLIAM O'BRIEN

PETER RICHARD TYSON

WAYNE TURNER

JOHN RAUHINA MOEKE

Hearing:	14 May 2001
Coram:	Blanchard J Doogue J Randerson J
Appearances:	G J King for Appellants McDonald and O'Brien B Davidson for Appellant Tyson V Nisbet for Appellant Turner R J Stevens for Appellant Moeke G J Burston with M Berridgefor Crown
Judgment:	17 May 2001

judgment of the court DELIVERED BY DOOGUE J

Introduction

[1] These are appeals against sentence by five persons who pleaded guilty to aggravated robbery and unlawfully taking a motor vehicle: Jonathon Robert McDonald, Quintin William O'Brien, Peter Richard Tyson, Wayne Turner and John Rauhina Moeke.One of the appellants, Tyson, also pleaded guilty to two offences of arson and one of theft, and he also appeals against the sentences imposed in respect of those offences.The effective sentences under appeal are: Tyson - 11 years imprisonment; Moeke - eight years imprisonment; McDonald, O'Brien and Turner - seven and a half years imprisonment.

Facts

[2] The appellants are five of six offenders who pleaded guilty and were sentenced in respect of the armed robbery of two security guards servicing an automatic teller machine in Willis Street, Wellington, on 22 December 2000 when a sum in excess of $940,000 was taken.The co-offender, Craig Anthony Ferris, was sentenced to nine and a half years imprisonment for the aggravated robbery, the unlawful taking of a motor vehicle and the two arson offences.Another person has pleaded not guilty in respect of the robbery and has yet to be tried.

[3] The crime had been planned by the appellant Tyson from about April 2000. He was a former employee of the security company and had knowledge that the particular ATM was out of the public eye.He knew the method by which it was serviced.He was aware the robbers would be able to unobtrusively waylay and rob the security guards servicing the machine.He also knew that the Friday before Christmas would mean that larger than normal sums of money would be transported to the machines.The appellant Tyson recruited the five other sentenced offenders.The appellant Moeke also had been an employee of the security company, with knowledge of how security guards operated.They both knew how guards were trained by that employer to react to attacks.

[4] There was very lengthy, detailed and careful preparation for the robbery, using the prior knowledge of Tyson and Moeke and the co-offender Ferris.Two of the three persons who were to waylay the two security guards had to wear clothing similar in appearance to that worn by the security guards and that was obtained.Balaclavas for the robbers were obtained.Four vehicles were arranged.Cellphones were supplied to all persons engaged in the robbery with numbers that had been pre-set for communication between the offenders on the day of the robbery.Timing was an important part of the plan and that also involved considerable preparation, including observation of the security van over several weeks.A disused but historic building at which the security van could be left after the robbery was located at the bottom of the Ngaio Gorge and steps taken to ensure that access to it could be achieved involving such things as the replacement of the padlock used on an access barrier.Entry to the rear of the ATM machine required the three persons who were to commit the actual robbery to abseil down a steep concrete wall from a neighbouring street. Equipment was obtained and the robbers practised abseiling techniques.The robbers also conducted preliminary tests to ensure the success of their plans on the day of the robbery.

[5] A plan to commit the robbery on 8 December 2000 did not go ahead.Nor did a plan for a final dress rehearsal of the plan proceed.However, late on the night of Thursday, 21 December 2000 the appellants Turner, Tyson and Moeke met at the home address of the appellant McDonald along with Ferris.On the morning of the robbery the appellant McDonald drove the other four men to the street from which access was to be gained to the ATM machine.The appellants Tyson, Moeke and Ferris then abseiled down the concrete wall at the rear of the ATM and scaled another wall to achieve access to the yard neighbouring the ATM. They were in possession of equipment and disguises and weapons consisting of a wooden club and a metal bar and a slug pistol.The appellant Turner collected the abseiling gear and returned to the car driven by McDonald.McDonald and Turner then drove to Petone, where two vehicles had been previously positioned, and drove both those vehicles back into Wellington in accordance with the plans for the robbery.

[6] The vehicle occupied by the two security guards, one male and one female, arrived at the Willis Street ATM at about 7.30 a.m.The robbers on site had been alerted by their accomplices, including O'Brien, to the movements of the van.

[7] When the two security guards unlocked two internal doors to obtain access to the yard at the rear of the ATM, they were confronted by the robbers Tyson, Moeke and Ferris.Tyson presented the slug pistol at the guards and announced the robbery.The pistol was covered with a sock so that it could not be recognised for what it was.Moeke, armed with a crow-bar, told the guards to get on the ground, while Ferris, armed with a club, put tape over the eyes and mouths of the two guards and taped their hands and feet.The two were taped together.Actual violence was used to the guards, who were manhandled.The female guard was headlocked and forced to the ground and dragged 10 metres. The male was forced to the ground and dragged for a short distance. Fortunately, apart from the trauma of the events, the guards suffered only minor injuries.The female guard noted she was handled gently.However, she had felt threatened by the tape which had affected her ability to breathe naturally.

[8] The robbers Tyson and Ferris now assumed the role of the security guards and, in possession of the van keys to the security guards' vehicle, walked out of the building and drove off.Moeke, minus his disguises and carrying the robbers' bag, walked out behind them and met up with Turner.The four men then drove by various routes away from the scene of the robbery.Tyson and Ferris drove to the disused building at the foot of the Ngaio Gorge where McDonald was awaiting them. O'Brien also had a role in respect of this part of the plan.

[9] Once the security vehicle was concealed in the disused building, Tyson and Ferris broke into the money canisters and packed money into back-packs.At the time over $940,000 was under their control.They removed their disguises. They could not fit all the money into the packs so some money was left in the van.Tyson, Ferris and McDonald then went up a track to where Turner and Moeke were waiting for them in their separate vehicles.They then dispersed.Later that day Moeke, Turner, McDonald and O'Brien all received $10,000 each for their involvement in the robbery.

[10] During the evening of the following day Tyson and Ferris were concerned that fingerprints may have been left on the interior of the security van.They returned to where the van had been concealed.They set fire to the van, which was totally destroyed along with the quantity of money that had been left in it.The fire to the van in turn resulted in the building in which the van had been concealed also being extensively damaged.The van was valued at just over $40,000 and the reinstatement valuation of the historic building was in excess of $300,000.

[11] Following the police investigation of the robbery, Tyson and his associates were spoken to by the police in early January 2001.They soon admitted their parts in the robbery and assisted the police.Tyson and an associate assisted the police with the recovery of $676,000 and some of the abseiling equipment.The total amount of money not recovered of $258,000 included the unknown amount destroyed in the fire which consumed the van.

[12] At the time of sentencing all but Turner and Tyson were effectively first offenders and all had entered very early guilty pleas.Tyson was 26, Ferris 24, Moeke 26, McDonald 29, O'Brien 23 and Turner 28.

[13] Moeke, McDonald and O'Brien were sentenced in the District Court at Wellington on 2 March 2001, with Tyson and Turner being sentenced by a different Judge a week later on 9 March 2001.Ferris was sentenced in the High Court at Christchurch on 13 March 2001.

Sentencing on 2 March 2001

[14] Understandably, the sentencing of Moeke, McDonald and O'Brien on 2 March 2001 set the pattern for the sentences imposed upon the other offenders on the later dates.The sentencing Judge noted the respective roles of the offenders that he was sentencing, the particulars of the offending generally, and the victim impact reports.

[15] The Judge referred to the particular circumstances of the individual offenders he was sentencing and noted that in each instance the offending was out of character not only in respect of the absence of previous convictions but because of the favourable references before the Court in one form or another.

[16] The Judge reviewed the submissions made on behalf of the three offenders that he was sentencing and the submissions made on behalf of the Crown.

[17] The Judge then said:

There is no question to my mind that your offending does fall within the first category of Mako [[2000] 2 NZLR 170].I have remarked that the planning was extraordinary, as were the rehearsals.There were disguises, weapons were carried, and with that at least the prospect of violence.The sum of money taken cannot have been any surprise.In fact, given that what was intended was not merely to take from the guards the money they were placing in the ATM machine, but any that was in the van, the intent must have been to obtain a sum not dissimilar to that in the Polwartcase [Police v Leslie James Polwart (CRN 9091008037, District Court, Wellington, 27 August 1999, Keane DCJ; R v Kevin Joseph Polwart, (T187/2000, High Court, Wellington, 20 October 2000, Neazor J,)], and such proved to be so.

In Mako, a series of gradations is suggested for the purpose of a starting point for sentence after trial.They are merely, in the end, illustrative.As the case emphasises it is the combination of factors, which are unique to the case, which must, in the end, dictate what the starting point is to be.

[18] The Judge then addressed the contention that the offending was accomplished with little actual violence and noted that while that was incontestable the fact remained that when weapons were carried the intent must be that they will, if necessary, be used, so that the guards were at distinct risk and that, if something had gone wrong, the public in the neighbouring area could also have been at risk.The Judge then said:

It seems to me, therefore, that essentially there is no distinction between this case and Polwart for the purpose of a starting point.I take as a starting point the figure identified in Mako at 10 years.I do not accept the lesser starting points identified by your counsel, or for that matter the higher starting point urged by the Crown.

As to your respective roles, as I have said, it is hard to distinguish between you in terms of the planning and preparation.Each of you, I am satisfied, knew precisely what was going to happen and accepted it.So in that sense the fact that one of you carried a weapon and confronted a guard, and others of you acted as lookouts or screens, or helped at the Magazine, is incidental.There may be room for some distinction, but I do not think it a great one.To illustrate that point, it may be, Quintin O'Brien, that yours was the least part as the offence was accomplished, but you were the one who had custody of the money in the end.

[19] The Judge then addressed the individual sentencings and, taking 10 years a starting point in respect of Moeke, he reduced it by two years for the particular mitigating circumstances relating to previous good character, the early plea of guilty, and the co-operation with the police.Thus Moeke was sentenced to eight years imprisonment.The same mitigating factors applied in the cases of McDonald and O'Brien, but the sentences imposed in respect of both of them were seven and half years imprisonment, to make some allowance for their slightly lesser roles.In addition, each offender was sentenced to a concurrent term of 18 months imprisonment in respect of the unlawful taking offence.

Sentencing on 9 March 2001

[20] The sentencing Judge on 9 March 2001 had the benefit of the sentencing remarks from the week before.In general terms her sentencing remarks followed the same pattern, with emphasis on the mitigating factors relating to Tyson and Turner, including it being noted on behalf of Tyson that his planning specifically included consideration for the victims and devising a way for them to be found soon after the robbery had been completed.It was noted that, as in the case of the other offenders, there was real remorse and the same mitigating factors as for the other offenders who had been sentenced.The Judge did note, however, that Turner had a drug problem and previous convictions, including burglaries and other offences of dishonesty as well as some of violence, and a large amount of outstanding fines.

[21] The Judge independently considered the nature of the offending and reached the conclusion that it fell within the most serious category in R v Mako [2000] 2 NZLR 170.She noted the very high degree of planning, the use of inside information, the training in and use of abseiling equipment, the use of disguises, the participation of at least six people to carry out the plan, thorough advance surveillance, careful co-ordination of the movements of the offenders and the four vehicles used in the robbery, with the use of the cellphones, the carrying of the weapons and the outnumbering of the guards, and the posing of a real risk to them, with the prospect of violence, the timing of the crime and the substantial sums taken.She therefore agreed with the view that the starting point was 10 years and with the reasons given for that the week before.She had also to sentence Tyson in respect of the arson offending. She referred to relevant cases where fires had been lit to destroy fingerprints that may have been left behind and noted the identified need for a deterrent sentence in such circumstances.She also noted that parity of sentencing was important.

[22] Understandably, Turner was sentenced in the same way as McDonald and O'Brien.Tyson's role in planning the robbery was greater than that of anyone else.Rather than take a starting point above the 10 years in respect of Tyson, the Judge thought the simpler course was to give him a smaller discount than the others had received, bearing in mind his greater responsibility for what had occurred.She therefore sentenced Tyson to eight and a half years imprisonment along with the 18 months concurrent sentence of imprisonment for the taking of the security van.In respect of Tyson's involvement in the arson, she treated that as a distinct offence as it was an afterthought on the part of Ferris and Tyson and not part of the aggravated robbery as planned. She also noted it was separated in time and place and motive.She noted that that offending might have attracted a sentence in the range of three to four years imprisonment but took into account the totality of the sentence to be imposed and sentenced Tyson to 18 months imprisonment in respect of each of the arson offences cumulative on the eight and a half years sentence on the aggravated robbery.She had also to sentence Tyson in respect of an unrelated theft of $94,000 from a past employer in February 2000 and imposed a cumulative sentence of 12 months imprisonment.The total sentence imposed on Tyson was thus 11 years imprisonment.

Sentencing on 13 March 2001

[23] For the purpose of completeness, it should be noted that when Ferris came to be sentenced in the High Court at Christchurch on 13 March 2001 the sentencing Judge traversed the circumstances of the offending and of the offender.He took the view that Ferris should be likened to Moeke rather than to Tyson.However, Ferris was also guilty, along with Tyson, of the arsons. The result was that Ferris received eight years imprisonment for the aggravated robbery, with a concurrent sentence in respect of the unlawful taking, and 18 months imprisonment, cumulative, in respect of the two arson offences, a total of nine and a half years imprisonment.

Submissions for the appellants

[24] There is necessarily an overlap between the submissions on behalf of the appellants and, without any disrespect to those submissions, it is simplest to deal with all the submissions together, differentiating between the appellants where necessary.The grounds of appeal can be stated thus:

1. The starting point of 10 years imprisonment for the primary offending of the aggravated robbery and the unlawful taking of the van was manifestly excessive.

2. Inadequate credit was given for the appellants' early admissions, co-operation with the police, remorse, early guilty pleas, their previous good characters (excepting Turner and Tyson), the personal circumstances of the individual appellants, and, in the case of Tyson, the return by him of over two-thirds of the sum stolen.

3. Inadequate allowance was made for the lesser roles played in the crime by O'Brien, McDonald and Turner.

[25] However, it has to be remembered that at the end of the day the essential issue is whether any one or more of the appellants has satisfied us that the sentence imposed on a particular appellant is manifestly excessive.While that involves a consideration of the points pursued upon the appeal, it also requires the Court to stand back and look at each of the sentences under appeal in the light of the total offending by the particular appellant and the circumstances relevant to that appellant and the relationship of the sentence imposed on a particular appellant to those imposed upon the co-offenders.We now address each of the points identified above.

1.The starting point taken by the sentencing Judges of 10 years imprisonment was too high

[26] The central issue is whether this was a very serious organised, armed robbery for which, in terms of Mako, a starting point of around 10 years was appropriate.The submission for the appellants was that before the robbery fell into that category there had to be the attendant features of dangerous weapons, terrorising conduct or actual violence: Mako paragraph [28]. The appellants relied on what was said in Mako:

[54] ... The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. ...

[27] For the appellants it is said in reliance upon that passage that here the starting point should not have been more than eight years imprisonment.The points emphasised for the appellants are: there were no loaded firearms, with the only firearm present being a slug pistol; there were no knives; there was no terrorising conduct; and the actual violence was at a minimal level.In addition, it is submitted that in the circumstances of the offending the danger to the public was minimal and the consequences for the victims were minimal. In other words, while it was accepted that it was a very serious robbery, it was submitted that the aggravating circumstances of the robbery were hardly those which took it into the category of a very serious organised armed robbery.

[28] As a corollary of this central submission, it was submitted that the sentencing Judges had placed too great an emphasis on:

(i) The degree of planning and preparation, which by itself, it was submitted, reduced the risks attendant in the offending rather than increased them.

(ii) The number of participants, in that, while it was accepted for the appellants there were seven people involved in the offending, only three were present at the actual robbery, so that there was no substantial degree of intimidation of the victims: Mako para [37].

(iii) The level to which disguises were used, as they were not intended to contribute to intimidation: Mako para [38].

(iv) The nature of the weapons used, as this was not one of the more serious cases where people can be shot or stabbed, either intentionally or accidentally.

(v) The potential gain and the risk to the public.The site of the robbery was not accessible by the public.Although the site gave access to the street, at 7.30 a.m. of the morning, with any weapons in bags, when the robbers moved on to the street there was minimal to nil risk to the public.

(vi) The actual violence involved, because, as was indicated by the female guard's acknowledgement that she had been handled gently and the absence of any injuries or wounds, it was minimal.

(vii) The impact of the offending upon the victims as that was at the minimal end: Mako paragraph [46].

(viii) The very large amount of money stolen, as a large proportion was recovered and of the balance it is reasonable to infer that a substantial proportion was burned in the fire.

(ix) The sentences imposed in Polwart.That was offending where shotguns with cartridges available were used in a public place with members of the public present, and there was a very real risk of danger.

[29] For these and associated reasons it is submitted for the appellants that the maximum starting point the sentencing Judges could properly have adopted was eight years imprisonment.

Discussion

[30] We do not accept the submissions for the appellants under this head.It is clear from the remarks of the sentencing Judges under appeal that they approached the matter as they were required to do as a result of Mako and, looking at all the relevant factors, concluded that this robbery did fall within the category identified of a very serious organised armed robbery for which a starting point of 10 years imprisonment was appropriate.

[31] It is easy after the event to minimise the potential risks and consequences inherent in the armed robbery that was carried out when the robbers are fortunate enough to have things go as planned.Nevertheless this particular armed robbery had all the hallmarks of a very serious organised armed robbery.The degree of planning and pre-meditation and the number of persons involved by itself made this a very serious organised robbery, particularly when it was aimed at achieving a high return.The sum taken was the greatest yet recorded in the Wellington area, and this was a result of the careful planning of Tyson and his collaborators.

[32] The number of robbers was three, to ensure that the guards would be outnumbered.The use of disguises is necessarily intimidatory.The presence of the slug pistol, itself disguised, was for the purpose of inducing fear. The presence of the iron crowbar and the wooden club was for the same reason. The robbers may have had an expectation that the guards would not defend themselves but if something had gone wrong it is clear the weapons would have been used.Equally, if something had gone wrong and the robbers had been forced to make a get-away on to the street outside with their weapons, there was an undoubted risk of violence to the public.There were further risks to the public as a result of the robbery, in relation to the movements of the get-away vehicles.

[33] It is also easy to minimise the actual violence used.The guards were dragged to where they were bound together with tape and their eyes and mouths covered.That is a frightening form of violence.The guards would have to have been fearful of the outcome.While there may have been no permanent consequences for the guards, that is more because of the good fortune of the robbers that the guards were resilient and sensible and apparently well trained.

[34] There is a further feature of the offending which substantially aggravated it, namely the use by the offenders of the inside information of Tyson, Moeke and Ferris as to the operations of security guards based upon their own experience.There was thus, either directly or indirectly, an element of breach of trust.This was not an element considered in Mako as it does not arise in most cases, but it must be relevant to the circumstances to be taken into account in sentencing.

[35] As Mako noted in para [50]:

Deterrence is a factor in sentencing. This generally is accommodated in the sentencing levels indicated. But there may be circumstances where a particular form of offending or offending in a particular area will call for special consideration.

[36] This is an important factor in a case such as the present where seven people conspired together for the purposes of gain, in reliance upon inside information, to commit a serious armed robbery.There had been three other armed robberies of similar type within the Wellington region in the previous 18 months and, considering the appropriate starting point for the sentence to be imposed upon the offenders, the sentencing Judges were fully entitled to take this aspect of the matter into account.Those who are prepared to act as these offenders did have to know that they will be met by substantial terms of imprisonment when apprehended.

[37] While it is true that a very substantial sum of money was recovered from the proceeds of the robbery, the fact remains that $258,000 was not recovered and that it is unknown to what extent it was burned in the fire caused by Tyson and Ferris.

[38] We thus consider, viewed overall, it was open to the sentencing Judges to take 10 years as a starting point for the sentences to be imposed, even although the particular offending was not marked by serious violence or serious risk of danger, occasioned by the presence of loaded firearms in particular, or substantial harm to the victims.

[39] Such a starting point reflected the overall criminality of their venture but, as the sentencing Judge in respect of Tyson noted, the starting point for him, and the same rationale applies to Moeke, could have been higher because of their provision of the inside knowledge held by them to the other members of the group and, in the case of Tyson in particular, because of his greater involvement in the planning, with him being the key individual in the scheme. The sentencing Judges chose to reflect this aspect of the matter in the discounts given to the individuals involved rather than by an increase in the starting point in respect of Tyson and Moeke, and that was an approach available to them.

2.Inadequate credit was given for the appellants' early admissions, co-operation with the police, remorse, early guilty pleas, their previous good characters (excepting Turner and Tyson), the personal circumstances of the individual appellants, and, in the case of Tyson, the return by him of over two-thirds of the sum stolen

[40] What is said for the appellants is that, while the sentencing Judges gave some credit for the pleas of guilty and referred to the early admissions, remorse and co-operation with the police and the previous good characters of the appellants other than Turner and Tyson, the credit given was quite inadequate in the circumstances of the case.Tyson's theft offence predated the robbery and, although in one sense he was a first offender, his character was tainted by that offence.For Tyson it is also emphasised that no credit has been given to him for assisting the police recover $676,000.

[41] There is no doubt that the sentencing Judges considered all the factors urged upon us, and ultimately it is a question of whether they gave them sufficient weight, bearing in mind the need for parity in sentencing between the co-offenders which both the sentencing Judges under appeal were well aware of and emphasised.To the extent that the issues are relevant we will return to them further when discussing the appeals of the individual appellants.

3.Inadequate allowance was made for the lesser roles played in the crime by O'Brien, McDonald and Turner

[42] The submission for this group of appellants is that the six months additional discount that they received in respect of their sentences, as opposed to Moeke and Tyson, inadequately differentiated between them and the principal offenders.It was stressed on their behalf that their roles were minor, with O'Brien's role at the minimal end, of slowing down traffic behind the security van as it approached its disposal point.However, this is an over-simplification of the roles of these three offenders, who each played their allotted role in the robbery and, in the case of O'Brien, subsequently lent himself to the proceeds of the robbery being hidden at his home for a relatively short period.It was also stressed for these three offenders, and, to a lesser extent, Moeke, that they were only receiving $10,000 from the robbery.We note the assertion, but their share of the ultimate benefits is speculative.

Decisions

[43] With this background we turn to the individual appeals.

Tyson

[44] On any assessment, and notwithstanding the recovery through Tyson of a substantial part of the proceeds of the robbery, Tyson had to accept that his overall offending would result in his receiving the highest sentence of any of the group of offenders.He was the brains behind the scheme, he contributed the most by way of inside information, he was one of the principal robbers and likely to be the principal beneficiary of the robbery.In addition, he had to be sentenced for the very serious arsons directed at the destruction of forensic evidence and a serious previous theft from a past employer.When the totality of his offending is viewed in this way, then, notwithstanding the substantial mitigating features emphasised on his behalf in respect of early admissions, remorse and pleas of guilty, and assistance in recovery of a substantial part of the proceeds of the crime, it is impossible to say that a sentence of 11 years imprisonment was manifestly excessive.It does not matter in the end result how Tyson's sentencing was approached.It was inevitable that the sentence to be imposed had to be of that order.The sentencing Judge chose to reach the sentence imposed by one route.Another Judge might have taken another route.Given, however, the seriousness of the three distinct criminal events for which Tyson had to be sentenced, no lesser penalty could have been imposed.It adequately reflects not only his total criminality but the mitigating circumstances relating to him.

[45] Tyson's appeal is dismissed.

Moeke

[46] Moeke's sentence of eight years imprisonment reflected that he, like Tyson, had provided inside information and assistance to the robbers as a whole, and that he, like Tyson, was one of the principal offenders.The only issue in his case was whether he was given sufficient credit for his very early pleas of guilty, his co-operation with the police, his remorse and his previous good character.Another Judge might have given more than the 20% reduction that the sentencing Judge gave.However, it has to be borne in mind that the Judge would have been entitled to take a slightly higher starting point for Moeke because of his provision of inside information.While therefore, as we say, it would have been possible for another Judge to have reached a slightly different result, there is no basis for this Court interfering with the sentence under appeal.Judging it against the lead sentence in respect of Tyson and the starting point for the offending which we have upheld, it cannot be said to be manifestly excessive.

[47] Moeke's appeal is dismissed.

McDonald, O'Brien and Turner

[48] These three appellants each received seven and a half years imprisonment. Each of them made very early admissions of guilt, co-operated with the police and expressed remorse.McDonald at least is of previous good character. O'Brien's claim in that respect is more questionable, although he certainly has no previous criminal conviction.Turner's previous offending was of no direct relevance to his role in the present offending.Looked at overall in the context of the aggravating circumstances applying in respect of the offending of Tyson and Moeke which do not apply to these three appellants, and to their substantially lesser roles in the venture as a whole, we are not satisfied that the six months differential between Moeke and them adequately reflects the true difference in their positions.

[49] We therefore allow the appeals of these three appellants and quash the sentences imposed upon them of seven and a half years imprisonment in respect of the aggravated robbery, substituting in each case a sentence of six and a half years imprisonment.Their sentences in respect of the unlawful taking of the motor vehicle will remain undisturbed.

Solicitors

Greig Davidson Gallagher & Co, Wellington, for Appellant Tyson

Val Nisbet, Wellington, for Appellant Turner

Fanselows, Wellington, for Appellant Moeke

Crown Solicitor, Wellington, for the Crown