THE QUEEN v SAMUEL TUUMATAVAI [2001] NZCA 381 (5 December 2001)

IN THE court of appeal of new zealand

ca 333/01

THE QUEEN

V

SAMUEL TUUMATAVAI

Hearing:	5 December 2001
Coram:	McGrath J Doogue J Gendall J
Appearances:	N Levy for appellant F E Guy for the Crown
Judgment:	5 December 2001

judgment of the court DELIVERED BY DOOGUE J

[1] This is an appeal against a sentence of five years' imprisonment imposed upon the appellant in the District Court after a jury found him guilty of aggravated robbery.

[2] The appeal is brought solely upon the basis that if the appellant had been correctly advised he would have pleaded guilty at an early stage and received a lesser sentence.However, the question for this Court must ultimately be whether the sentence imposed upon the appellant was manifestly excessive.

[3] The appellant was one of four men involved in an armed robbery of a take-away shop just after midnight when the shop was being closed.The sentencing Judge, who was the trial Judge, found the robbery was premeditated. One of the four robbers had a sawn-off shotgun.The appellant had a knife. There was a third man with him.There was a get-away car and a driver.The appellant was wearing a balaclava.The gunman, supported by the third robber, took the female proprietor's bag containing the day's takings from her.The appellant, who used his knife as a threatening weapon, prevented the male proprietor from going to her help.

[4] No issue is taken with the approach of the sentencing Judge to the sentence imposed.She took five years as a starting point for the sentencing of the three robbers who were found guilty by the jury.She referred to the relevant aspects of the decision of this Court in R v Mako [2000] 2 NZLR 170. She properly classified the case as one where there was a robbery of a small retail shop with the use of weapons and the assistance of a get-away driver by persons whose faces were covered.Although only a relatively small sum of money was taken and there was no actual violence, there was a real risk of injury.There was a need for deterrence given the frequency of such offending. The impact on the particular victims was significant.They were so affected by the robbery that they sold the business at a loss, as they were not prepared to run the risk of another robbery.

[5] The sentencing Judge noted that the 23 year old appellant had 14 convictions in Australia for serious offending and had been sentenced to imprisonment for six years for the most serious, of stealing with violence armed with an offensive weapon, in November 1996.The appellant had in fact been repatriated to New Zealand on 20 September 2000, less than three weeks before the present offence on 10 October 2000.The pre-sentence report took the view that the appellant's risk of re-offending was moderate given his limited insight into the factors that contributed to his offending and the assessment that he had a medium level of motivation to change.He was recognised as having problems with violence, alcohol and drug issues for which he needed assistance.The appellant expressed no remorse or contrition for what had occurred.

[6] The gunman was not before the court at the time of sentence.He had been discharged under s 347 of the Crimes Act 1961 on the morning of the trial.If the appellant had pleaded guilty prior to that time, he would have been a compellable witness against the gunman who may not then have been discharged.

[7] The other two involved in the offence were sentenced to imprisonment of four and a half years and four years respectively.

[8] The appellant accepts that duress was not a defence and that he deserved to be convicted and sentenced to imprisonment.However, his complaint is that if he had been correctly advised he would have pleaded guilty earlier and obtained a discount in respect of sentence.

[9] The appellant has made an affidavit that his barrister told him that he may have a defence of duress available to him and that it was because of that he pleaded not guilty.The appellant maintains that he was under duress and that it was only that that influenced his decision to plead not guilty.

[10] The barrister acknowledges that upon the first occasion that he spoke with the appellant the discussion touched upon the defence of duress. That was understandable as the appellant suggested in his statements to the police that he was under some form of duress.However, the barrister deposes that it became clear from his discussions with the appellant that there was no possibility of such a defence being pursued.He says he so advised the appellant on at least two and perhaps three subsequent occasions.The barrister says that he made clear that a guilty plea would attract a discount on sentence but that his instructions were that the appellant did not wish to plead guilty and did not wish to give evidence.The barrister says those instructions were confirmed prior to trial.The barrister deposes that the appellant was concerned to be seen to be remaining loyal to his co-offenders, particularly when the man they knew to be the gunman was discharged under s 347 of the Crimes Act 1961.The barrister further deposes that the appellant was concerned as to the sentence that he would face even if he pleaded guilty, having regard to his prior offending.

[11] The appellant says he was not concerned with the position of his co-accused or the discharge of the gunman.

[12] The barrister's answers to the appellant's allegations against him have support from another barrister. That barrister, who speaks Samoan, the first language of the appellant, was present during at least two of the discussions between the appellant and his barrister.The second barrister confirms the appellant's barrister's account of his advising the appellant he had no defence of duress and of the likely discount in sentence that would result if he pleaded guilty.

[13] The appellant's account is thus in direct conflict with not only his own barrister's account but also the account of an independent barrister.

[14] In those circumstances, where, on the face of it, little credence could be given to the appellant's complaint, counsel for the appellant sought an adjournment of the hearing of the appeal so that the two barristers could be cross-examined in respect of their affidavits.Counsel for the Crown sought leave to cross-examine the appellant on his affidavit should an adjournment be granted in terms of the appellant's application.

[15] The Court refused the application for an adjournment and proceeded to hear the appeal on the basis most favourable to the appellant, namely that, despite the clear conflict between his affidavit and those of the barristers, his complaint might, at the end of the day, be upheld and he might have pleaded guilty at some earlier time.

[16] Counsel for the appellant submitted that, if the appellant had been properly advised and he had pleaded guilty at the callover at which he was first arraigned, he would have received a discount towards the lower end of the range of 10% to 20%, given that his acknowledgements in his statements of his involvement in the crime made his conviction highly probable.Thus it was submitted that the ultimate sentence would have been six to 12 months less than the sentence imposed.

[17] Counsel for the Crown submitted that there was no basis for saying that the ultimate sentence would have been any less if there had been a guilty plea. Even now the appellant has expressed no remorse or contrition for what occurred.The offence was within a few weeks of the appellant returning from Australia.He admitted to being armed with a knife and being one of the two principal offenders.In such circumstances any credit for his guilty plea would have to be minimal.

[18] As already noted, the issue for us is whether the sentence imposed by the sentencing Judge was manifestly excessive.Having regard to the circumstances of the offending and of the appellant, we are not persuaded that it was.

[19] We have to say that we regard it as highly unlikely that the appellant would have pleaded guilty at an early stage as it seems clear that there was solidarity between the accused.We think it highly unlikely that the appellant would have put himself in a position of being compellable as a witness against his co-accused by pleading guilty.

[20] Regardless of whether what we have just said is correct or not, and that the appellant had pleaded guilty at an earlier time, we cannot speculate that a sentencing Judge at that time would necessarily have taken the same starting point as the trial Judge.It would have been entirely open to a sentencing Judge to have taken a starting point of up to six years' imprisonment before taking into account any plea of guilty.The plea of guilty would not have counted for much in the particular circumstances.The appellant had admitted his part in the offending to the police.He had admitted that he had a knife and was thus one of the two armed robbers.His conviction was therefore almost assured.There were the particular aggravating circumstances relating to him. He had only recently returned to New Zealand after serious offending of the same general nature in Australia.Other than the plea of guilty there were no mitigating circumstances whatever.The appellant had no remorse or contrition for his part in the offence, or its effect upon the victims.Any plea of guilty would have recognised not remorse or contrition but simply the almost inevitable conviction.Unless he had then been prepared to give evidence for the Crown, and there is no suggestion that he would, there would have been no difference in outcome in respect of subsequent events.There would still have been a trial.Any difference in the length of the trial would have been minimal.

[21] If a sentencing Judge on a plea of guilty had taken a starting point for sentence other than in respect of the plea of guilty somewhere between five and six years' imprisonment, it would not have followed that the resultant sentence would have been less than five years' imprisonment, and indeed, it may properly have been more.If a sentencing Judge on a plea of guilty had been disposed to take the five year starting point adopted by the trial Judge, it still would not have followed that the sentence imposed upon the appellant would have been considerably less than five years' imprisonment.In the particular circumstances the resultant sentence would have had to have been close to five years' imprisonment.While we concede it may have been slightly less than five years' imprisonment, it could not have been so much less that five years' imprisonment is manifestly excessive.

[22] Thus, however the matter is approached, we are not satisfied that the sentence of five years' imprisonment imposed upon the appellant was manifestly excessive.This is, of course, approaching the appeal upon the basis most favourable to the appellant, a basis denied by his own barrister and an independent barrister.

[23] The appeal is dismissed.

Solicitors

Crown Solicitors, Wellington