| [1] | This appeal is
against a sentence of six and a half years imprisonment imposed upon each
appellant after pleading guilty to one charge
of aggravated robbery.Each
appellant was sentenced on 19 July
2002. |
| [2] | This was a serious aggravated robbery
which involved four men entering a private home, disguised in overalls, gloves
and balaclavas.They
forcibly bound and gagged the occupants with duct tape,
covered each of them with a sheet, and pushed them into a hall cupboard.They
then removed a substantial quantity of computer and entertainment equipment from
the house. |
| [3] | The District Court Judge
included as a factor in determining the starting point for sentencing his
understanding that the principal
offender in the robbery was in possession of a
firearm.The District Court Judge adopted a starting point of nine years, based
on
the range of seven to 10 years articulated by the Court of Appeal in R v
Mako [2000] 2 NZLR 170 and reduced that to six and a half years, because of
the appellants’ early plea and the apology offered by
them. |
| [4] | The principal offender Ohlson was
sentenced some two months later by a different District Court Judge.By this
time the police had
accepted that no firearm was used in the robbery.Accordingly, the Judge adopted a starting point of eight years to reflect this
fact.Ohlson
was sentenced to seven and a half years imprisonment, reflecting
the fact that he was the principal
offender. |
| [5] | The Crown agrees with the
submission for the appellants that the appeal should be allowed to reflect a
starting point commensurate
with that adopted in the case of
Ohlson. |
| [6] | Mr Bates, for the appellant,
submits that from the starting point of eight years, there should be a deduction
of two and a half years
resulting in a sentence of five and a half years.The
Crown adopts a mathematical approach to the deduction originally imposed and
submits that the revised sentence should be five and three-quarter
years. |
| [7] | At the hearing Mr Bates acknowledged
that he could not challenge the Crown’s submission as to the appropriate
deduction to be
made. |
| [8] | We have a number of
concerns about this matter.First, the appeal was filed well out of time yet no
application has been made for an
extension of time within which to file the
appeal.Nor has any affidavit been filed explaining the reasons for
lateness. |
| [9] | The appellants were sentenced on
19 July 2002.Their co-offender Ohlson was sentenced on 13 September.Mr Bates
said that initial delays
were caused by reason of his receiving no response to
letters that he wrote to the appellants requesting instructions as to whether
they wished to appeal.It seems that in the case of one appellant his letter
was received, but not responded to.Counsel finally received
instructions in
February 2003 and there were some further delays associated with putting the
notice of appeal in the proper
form. |
| [10] | However, the notices of appeal
ultimately forwarded to the Court are dated 28 February 2003, but were not
received by the Court until
2 May 2003.Mr Bates’ rather unconvincing
explanation for this delay was pressure of
work. |
| [11] | A second matter of concern is the
seeming acceptance by the District Court Judge in the Ohlson case and indeed, by
counsel that the
absence of a firearm necessarily justified a reduction of one
year in the starting point for sentencing.Certainly the existence of
a firearm
is an aggravating factor, but as this Court emphasised in Mako, all the
circumstances of each case must be taken into consideration and it would be
wrong to identify a particular factor as justifying
a fixed addition to or
deduction from a particular starting
point. |
| [12] | Notwithstanding our concerns, we
have decided to grant leave to appeal out of time and to allow the appeal.A
major factor influencing
us in this decision is the Crown’s acceptance of
the appropriateness of a reduction.We also accept that the issue of disparity
with the co-offender Ohlson is important.We have been influenced too by the
fact that the two appellants were prepared to give evidence
at the trial of a
further co-offender who pleaded not guilty and that the decision to do so was
apparently not motivated in any way
by considerations relating to this appeal.The appellants are to be commended for their decision to
assist. |
| [13] | For all the above reasons we allow
the appeal.In place of the sentence of six and a half years imprisonment
imposed in the District
Court, we substitute a sentence of five years nine
months. |
