R v SIUAKI LISIATE [2003] NZCA 280 (4 December 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/03

THE QUEEN

v

SIUAKI LISIATE

Hearing: 1 December 2003

Coram: Tipping J

Panckhurst J

Salmon J

Appearances: R A A Weir for Appellant

J C Pike for Crown

Judgment: 4 December 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] Siuaki Lisiate was found guilty by a jury in the District Court at Manukau on four counts of aggravated robbery.He was sentenced to ten years imprisonment with a minimum non-parole period of two-thirds of that sentence.He appeals against conviction and sentence.

Background

[2] The Crown alleged that the appellant was involved in a series of five aggravated robberies in South Auckland between 11 August and 7 September 2001.Each had certain common features.The target in four of the robberies was a service station, and in the other robbery a dairy.In four cases a lone offender entered the premises with his face disguised and armed with a machete or pistol.He demanded cash, cigarettes, and prepay phone cards.On the other occasion two offenders entered the premises but the robbery was carried out in broadly the same way.The appellant was convicted on four of the five counts, namely counts 1, 2, 4 and 5.In each instance he had been jointly charged with the one other identified person named below.

[3] The first count related to the aggravated robbery of a service station in Otara on 12 August 2001.The appellant was alleged to have entered the premises armed with a pistol, pointed it at the attendant and demanded money.The attendant placed the cash drawer on the counter.The appellant took $300, and then fled to the southern motorway where the co-offender, Soifua Taala, was waiting with a getaway car.Mr Taala admitted his involvement in the robbery and pleaded guilty prior to trial.

[4] The second count related to the robbery of a service station in East Tamaki on 25 August 2001.Again, it was alleged that the appellant entered the premises in disguise and armed with a machete, and that he then demanded money and goods to the value of $1400.An associate, Anau Tarai, who was driving the car, was charged with and pleaded guilty to this aggravated robbery.

[5] The third count concerned the robbery of the Handy Store Dairy on 26 August 2001.The Crown’s case was that the appellant robbed the dairy with a machete, but he was acquitted on this count at trial.

[6] Count four covered the robbery of a service station in Pakuranga on 29 August 2001.The Crown claimed that the appellant and a co-offender, Molimau Simi, undertook the robbery in disguise, with the appellant armed with a machete.The offenders took approximately $900 in cash and cigarettes.Mr Simi was charged, admitted his involvement with the appellant in the robbery and ultimately pleaded guilty to that aggravated robbery.

[7] The fifth count related to the robbery of a service station in Papatoetoe on 6 September 2001.The appellant was disguised and armed with a pistol.He took $800 in cash and packets of cigarettes.He fled in a car driven by Benjamin Cook and was then picked up by a second car.Mr Cook was charged, admitted his involvement and entered a guilty plea prior to trial.

[8] The trial commenced on 29 October 2002.Three of the co-accused gave evidence for the Crown.Mr Taala gave evidence that he had pleaded guilty to the aggravated robbery on 12 August 2001, that he was the actual gunman and he had acted alone.However, it became apparent that when Mr Taala was first interviewed by the police about his involvement in the robbery, he had told the police that he was the driver of the vehicle and that the appellant had entered the store alone.Mr Taala had in fact been sentenced on this basis.Mr Simi gave evidence that he had pleaded guilty to the aggravated robbery on 29 August 2001 on the basis that he and the appellant (who was armed with a machete) had both entered the service station and taken money and cigarettes.The Crown also called Mr Cook who stated that he was the driver of the getaway car used to rob the service station on 6 September 2001 and he had pleaded guilty to this aggravated robbery.Mr Cook gave evidence that the appellant had entered and robbed the store.The defence called Mr Tarai who said that he was the driver of the car involved in the robbery of the service station on 25 August but that the appellant was not involved in any way.However, in Mr Tarai’s earlier police statement, he had said that he had been driving the car, the appellant and another were present and that the appellant carried out the robbery.

[9] The Crown relied heavily on the evidence of the other participants.The appellant argued that he was not involved in the robberies at all and that the others were lying when they said, either in Court or in their police statements, that the appellant played a major part in the robberies.

Sentencing

[10] The appellant was sentenced for the aggravated robberies on 20 November 2002.The Judge noted that on an individual charge basis, the starting point would be between 4 and 6 years imprisonment, but given the totality of the offending in this case, he considered that a total sentence of between 10 and 12 years imprisonment was appropriate.This was necessary to hold the appellant accountable both to the victims and the community at large, who suffered from robberies of this nature and scale.The appellant’s conduct had to be denounced and he himself had to be deterred from similar offending, of which this was a serious kind.

[11] The Judge took into account as aggravating factors the number of offences, the planning involved, the recruitment of others to assist in the crimes, the use of disguises and different weapons and the nature of the premises that were robbed.Also, the appellant had a lengthy list of previous convictions (commencing when he was aged 15 years) including convictions for robbery and aggravated assault.Finally, the crimes were committed while the appellant was on parole and he had an evident ability to pressurise others.As for mitigating factors, the Judge considered that there were few.The only one of possible relevance was the appellant’s youth (he was aged 21), but this was counterbalanced by the fact that he had been involved in criminal activities since he was 15.The Judge adopted a starting point of ten years and imposed this term in respect of each offence.The minimum non-parole period was set at two-thirds of the sentence in order to satisfy the requirements of deterrence, punishment and denunciation.

Amended notice of appeal

[12] As a preliminary point, we note that the appellant seeks leave to amend his original notice of appeal which was prepared without legal assistance.He wishes to withdraw the ground advanced (that the verdicts were not supported by the evidence), and advance his appeal on the basis of inadequate directions by the trial Judge regarding parties and joint charges.We allowed the amendment, given that the appellant was not legally advised at the time of preparing his notice of appeal.

Appellant’s submissions

[13] On behalf of the appellant Mr Weir submitted that the trial Judge misdirected the jury in relation to the law regarding parties, specifically where two people are jointly charged with one offence.He contended that this had resulted in a substantial miscarriage of justice.The misdirection was said to be in the nature of an omission, in that the Judge failed to refer to the law of parties so far as it related to the charges against the appellant.The jury therefore had no legal framework within which to consider the evidence relating to the charges.There was only one oblique reference to parties at paragraph [18] of the Judge’s summing up:

There are two people involved in carrying out the robbery.They may play different parts, one may drive the get-away car, the other may be the person who actually goes into the premises and tries to steal the property.The Crown has got to satisfy you that they were both knowingly, actively involved in some way.

[14] This comment was made in the context of explaining how a robbery may become an aggravated robbery.The Judge explained that in this case it was the Crown contention that the robbery was aggravated because of the involvement of two or more people in the offending, and by the use of an offensive weapon.The appellant submits that this direction, which was not made in the context of a parties direction, did not adequately inform the jury how to assess the charges against the appellant.

[15] In this case there was a considerable amount of evidence and varied explanations as to who was involved in the robberies and in what way.Mr Weir contended that the Judge should have directed the jury that where two people are jointly charged for one offence, there must be an acquittal if, while the jury are sure that an offence has been committed, they cannot be sure who in fact committed the offence.He submitted that the jury could well have concluded that the aggravated robberies had occurred but have been unsure who was involved.In these circumstances, the appellant ought to have been acquitted.The lack of a direction to the suggested effect meant that a miscarriage of justice had occurred.

[16] Turning to the sentence appeal, Mr Weir submitted that the ten year sentence was manifestly excessive in itself, and even more so when combined with the two-thirds minimum term of imprisonment.Mr Weir argued that the Judge failed to take into account the important mitigating factor of the appellant’s youth.This should have been considered despite the appellant’s list of previous convictions.

[17] Further, Mr Weir contended that the Judge placed too much weight on factors relating to the community and the need to punish the appellant, at the expense of considering the other purposes of sentencing as set out in the Sentencing Act 2002, and in particular s7(h) which is concerned with rehabilitation and reintegration of offenders into the community.Also, the appellant submits that although this offending was serious, it was not at the upper end of the scale: there were no physical injuries and the violence was limited to threats.

[18] In light of these points, Mr Weir suggested that a starting point of eight years was appropriate with a two year reduction on account of the appellant’s youth.A sentence of six years, although a significant reduction from ten years, was said to be in line with R v Tukuafu [2003] 1 NZLR 659, where sentences of imprisonment ranging from nine months, suspended, to 13½ years, were imposed.

Discussion

Conviction Appeal

[19] We did not find it necessary to call on Mr Pike to address us orally.Nor do we find it necessary to refer discretely to the written submissions made by the Crown.Much of what follows reflects the Crown’s submissions.We do not accept that the Judge erred in the way Mr Weir suggested by failing to direct on parties.In each of the counts upon which he was convicted, the appellant was charged as a principal; albeit jointly with another person.When that other person pleaded guilty the appellant became the sole subject of the count.The Crown’s stance throughout was that he was a principal offender.It was quite unnecessary in these circumstances for the Judge to complicate the jury’s task by reference to parties.

[20] Such a direction was all the more unnecessary in the light of what the essential issue at the trial was.The appellant’s defence was that he had not been involved in the robberies at all.The sole issue for the jury was therefore whether the Crown had proved beyond reasonable doubt that he was involved as alleged.The following passage in the summing-up accurately captured this reality:

[21] They have got to prove every element and they have got to prove it beyond a reasonable doubt.In this particular case, as has been signalled by Mr Hogan, they have got to prove that it was Mr Lisiate, the accused, who was involved on each occasion, and they have got to prove that beyond a reasonable doubt as well.

[22] So what you have got to do when you are having a look at the elements, and as I say they have been helpfully summarised for you by the Crown in the booklet that you have got, what you have got to do is go through each one and ask yourselves has the Crown proven this beyond a reasonable doubt.Am I sure there was a theft.Am I sure it was accompanied by violence or threats of violence, behaviour, cohesive behaviour, look at it in context.Am I sure there were two or more persons involved, and am I sure that the offender at the time was armed with an offensive weapon and am I sure that it was the accused.That is the process, step by step, element by element that you have got to go through.So that deals with aggravated robbery and there are five counts of aggravated robbery.I’ll come back to that shortly.

These directions were appropriately tailored to the case and more than sufficient to bring home to the jury the issue which they had to resolve.

[21] During the course of argument some attention was given to the fact that counts 1 and 2 were drawn differently in relation to the aspect of aggravation from the way counts 4 and 5 were expressed.In counts 1 and 2 the circumstance of aggravation alleged was that the appellant was armed, in count 1 with a pistol and in count 2 with a large knife or machete.In counts 4 and 5 the circumstance of aggravation was two-fold.The element of two persons being together was said to be a circumstance of aggravation as well as the circumstance that the appellant was armed.This might have caused difficulties in other circumstances, but the second half of paragraph [22] from the summing-up set out above, made it perfectly clear to the jury that to convict the appellant they had to be sure first that the offender was armed and second that the accused was the offender.This was, in the context of the present case, a clear and sufficient direction and left no room for any possibility that the appellant may have been convicted in relation to counts 4 and 5 solely on the “together” dimension, a conclusion which might have been problematic.

Sentence appeal

[22] There are two aspects to the sentence appeal; the length of the head sentence and the length of the minimum non parole period.Mr Weir challenged the overall sentence of ten years on the basis that it was manifestly excessive, primarily because it did not give enough weight to s7(h) of the Sentencing Act 2002 which says that one of the purposes for which a Court may sentence or otherwise deal with an offender is to assist in the offender’s rehabilitation and reintegration.The Judge took the view that for a single aggravated robbery of the kind in question, a sentence of five years imprisonment would have been appropriate.Bearing in mind the totality principle, he considered that ten years was appropriate for the four aggravated robberies which the appellant had committed.

[23] Mr Weir also submitted that the Judge had not given enough weight to what he described as the appellant’s youth.The appellant was 21 at the time of the offending but had a very extensive record commencing when he was aged 15.The record included two earlier robberies and an aggravated assault.Furthermore the appellant committed the first of the present series of offences within five weeks of being released on parole from the earlier aggravated assault sentence.The Judge was mindful of the need to protect the community and to hold the appellant accountable for his offending.He did refer to the appellant’s age as a matter which could possibly provide some mitigation but was of the view that this factor was balanced by the previous record.

[24] The Judge did not expressly refer to the s7(h) matters mentioned by Mr Weir, who was not counsel below.Despite that feature of the case we are not brought to the view that ten years for these four serious aggravated robberies was outside the range open to the Judge.The sentence imposed may well have been at the top end of the range but bearing in mind the gravity of the offending, the appellant’s past history, the need to protect the community, and the immediacy with which he offended after having been released on parole, we consider the Judge was justified in fixing the head sentence at ten years imprisonment.

[25] The Judge imposed a minimum non parole period of two-thirds of the head sentence, ie. six years eight months.He did so without any extended discussion of that aspect of the case.The offending was clearly such that a minimum non parole period of one-third, ie. three years four months would not have been adequate to punish, denounce and deter the offending and the offender.The essential question is whether by going to the maximum permissible period the Judge went too far.It is of some relevance in this respect that the head sentence was at the top end of the available range.It is also of relevance that although the primary focus of minimum non parole periods is punishment, denouncement and deterrence, there is still room, where appropriate, to factor in other sentencing considerations such as rehabilitation and reintegration.We consider, with respect, that to prevent the Parole Board from addressing the appellant’s case until he has served nearly seven years was to go rather further than was justified.In our judgment the appropriate period before parole can be considered in this case ought to have been fixed at five years.Whether the appellant should be paroled at that time is another matter, but to prevent consideration of his case for nearly another two years does not, in our view, accord with a properly exercised discretion.We consider the period imposed was manifestly excessive in the circumstances of this case.

Conclusions

[26] For the reasons given the appeal against the convictions is dismissed.The appeal against sentence is allowed with effect that the minimum non parole periods imposed by the Judge are quashed, and periods of five years are substituted.

Solicitors:

Crown Law Office, Wellington