THE QUEEN v RIHI TAIMANU [2003] NZCA 16 (20 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA377/02

THE QUEEN

V

RIHI TAIMANU

Hearing:

18 February 2003

Coram:

Elias CJ

Panckhurst J

Paterson J

Appearances:

M A Kennedy for the Appellant

T A Simmonds for the Crown

Judgment:

20 February 2003

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

[1]	Ms Taimanu pleaded guilty to one charge of robbery.She was sentenced to two years nine months imprisonment and ordered to pay reparation of $55.00.She has appealed against the sentence on the grounds that it is manifestly excessive.

Background facts

[2]	Ms Taimanu was in a hotel when the victim won $150 from a gaming machine.This was observed by Ms Taimanu who decided to rob him of his money.She followed him into the men’s toilets, waited until he was emerging from the cubicle he had gone into, grabbed him and thrust his head against the wall.She then took his wallet from his trouser pocket and ran away.She was caught before she left the premises.
[3]	The victim was a 74 year old man who suffers from disability in the form of problems with one of his hips.Because of this disability, he was not in a position to thwart the attack which has decreased his confidence in public places.His clothes were damaged and the reparation order was in respect of this damage and the cost of medical treatment.
[4]	The victim’s physical injuries were not serious.He was taken to an accident and medical clinic and treated for a large scratch to his neck.

The sentencing

[5]	The sentencing Judge noted that Ms Taimanu had not been in trouble for robbery before but had an extensive criminal history.He accepted that this had been fuelled by problems with alcohol and drugs.The Judge was not prepared to ignore what he perceived to be someone with a substance abuse problem inevitably moving up the scale of serious offending.
[6]	The Judge commented on the physical and mental harm suffered by the victim.He noted the plea of guilty and signs that, in obtaining employment, Ms Taimanu had substantially improved on her former lifestyle.He agreed it was inappropriate to deal with Ms Taimanu on the basis that she was in all but name, an aggravated robber.The Judge adopted a starting point of three years nine months and after a credit of one year for Ms Taimanu’s guilty plea and the progress she had made, imposed a sentence of two years nine months imprisonment.
[7]	The Judge did not comment on the pre sentence report from the probation officer.That report noted the offence was an isolated incident and resulted from an unpremeditated drug driven impulse on the part of the offender, which is unlikely to occur again.Ms Taimanu had consistently expressed her desire to apologise to the victim and had shown genuine remorse for her behaviour.She was also prepared to make reparation for the amount sought.In the circumstances, the probation officer considered that a community based sanction would be an appropriate penalty and that, combined with reparation, the punitive element of community work would effectively meet sentence requirements.The Judge did not comment on this recommendation.

Submissions

[8]	Ms Kennedy, for Ms Taimanu, accepted that the offence involved violence and the victim was particularly vulnerable because of his age and arthritic hip.She submitted the mitigating factors were the guilty plea and the remorse shown by the appellant as evidenced by the pre sentence report.Ms Kennedy noted that Ms Taimanu was “wasted on speed” at the time, but accepted this was not a mitigating factor.
[9]	In support of the submission that the starting point was excessive, Ms Kennedy submitted that the robbery was at the lower end of the scale and that the violence inflicted was not particularly severe.There was no serious premeditation in terms of planning and organisation, and no weapons or other persons were involved.The amount of property taken was not substantial.This was not, in counsel’s submission, a case which fell into the “most” or “near to the most” serious of robbery cases.Based on comparative sentencing cases, and the principles in R v Mako [2000] 2 NZLR 170, it was submitted that the starting point was excessive.
[10]	For the Crown, Mr Simmonds submitted that the sentence was not excessive and, like Ms Kennedy, referred to various comparable cases including Mako.

Decision

[11]	We are of the view that a sentence of two years nine months was excessive in the circumstances of this case.While Ms Taimanu does have a criminal history, this was her first offence which involved violence.She has only once before been imprisoned and then for a term of two months for driving while disqualified and a breath alcohol offence.
[12]	Without in any way diminishing the effect on the victim, this offence was not the most serious of its type.It was not an aggravated robbery and the classifications in Mako do not apply, albeit that by analogy they are of assistance.The probation officer had formed the view that the offence was unlikely to occur again and Ms Taimanu had consistently expressed her desire to apologise, and had shown genuine remorse for her behaviour.She has been given credit for this remorse in the reduction given from the starting point.However, in our view, applying the principles of s 8(g) of the Sentencing Act 2002, the sentence was not the least restrictive outcome that is appropriate in the circumstances.
[13]	We are of the opinion that an appropriate sentence is one of one year nine months imprisonment.This can be constructed from a starting point of two years nine months and deducting the allowance given by the sentencing judge, of one year for mitigating factors.
[14]	The sentence of two years nine months is therefore quashed and replaced by a sentence of one year nine months imprisonment.The order for reparation remains.
[15]	In accordance with s 93(2) of the Sentencing Act 2002 the standard conditions described in s 14(1) of the Parole Act 2002 are imposed.
[16]	In light of the term of imprisonment already served, a grant of leave to apply for home detention would serve no useful purpose.We need not further consider that issue.

Solicitors

M A Kennedy, Auckland

The Crown Solicitor, Auckland