R v Masina CA222/03 [2003] NZCA 384 (8 October 2003)

Last Updated: 11 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA222/03

THE QUEEN

v

TUPE TACO MASINA

Coram: McGrath J
Anderson J Glazebrook J

Counsel: P J Kaye for Appellant J L Moreland for Crown

Judgment (On the papers): 8 October 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] Mr Masina was convicted after a jury trial in the High Court at Wellington of two counts of aggravated robbery and one count of injuring with intent to injure. He was sentenced to six years imprisonment. He appeals against that sentence on the basis that it is manifestly excessive when compared with the sentences imposed on his co-offenders.

[2] The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules

R V TUPE TACO MASINA CA CA222/03 [8 October 2003]

2001 have been considered by members of the Court who have conferred and agreed upon this judgment.

Facts

[3] On 6 April 2002 Mr Masina and two co-offenders robbed an Auckland dairy. The three men entered the dairy with clothing wrapped around their faces as a disguise. Mr Masina punched the dairy proprietor and the men took $5847 worth of cigarettes, tobacco and phone cards and $975 in cash.

[4] On 17 April 2002 Mr Masina and the same co-offenders carried out another robbery at a foodmarket in Titahi Bay, Wellington, taking goods valued at $761.81. One of the co-offenders stayed in the car while Mr Masina and the other co-offender, who was armed with a knife, entered the shop. Mr Masina ordered the proprietor to lie down on the ground and the two men proceeded to load tobacco into their bags. During the course of the robbery the proprietor escaped and ran down the road but was pursued by the man carrying the knife and knocked to the ground. Mr Masina came out of the shop at this point and kicked the foodmarket proprietor as he lay on the ground. Mr Masina then returned to the shop and took some bottles of wine before leaving.

The sentence

[5] The sentencing Judge considered that, looked at individually, each offence would warrant a sentence in the five to six year range, as this Court stated in R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, 183 to be the appropriate starting point for this type of offending. The Judge considered, however, that as this case involved multiple offences the overall sentence must reflect the totality of the offending.

[6] The Judge considered, therefore, that a starting point in the range of seven to eight years was appropriate, given the degree of preparation and planning, as evidenced by the use of some disguise, that there were multiple offenders, the use of a getaway car on one occasion and the selection of premises. In addition both robberies contained an element of violence, particularly by Mr Masina, which was
relevant in assessing the overall seriousness of his offending. The impact on the victims and the substantial amount of money and goods that were stolen were also taken into account, as was the need for consistency with the sentences of the two co- offenders. The Judge noted that a starting point of eleven years had been adopted in respect of the two co-offenders.

[7] Mitigating factors for the Judge were that Mr Masina acted under the influence of his co-offenders, his youth and status as a first offender and his real prospects for rehabilitation. Taking those factors into account he concluded that a sentence of six years was appropriate. In his view, such a result was broadly consistent with sentences for similar offending and would give Mr Masina a sentence comparable to that of one of the co-offenders who, while charged with two additional counts of aggravated burglary and with a prior criminal record, received significant credit for his early guilty plea and his lesser role in the offending. While the Judge considered that a sentence of six years imprisonment might be seen as low, in his view it was sufficient to meet the sentencing purposes of denunciation, deterrence and public safety while assisting Mr Masina’s prospects of rehabilitation and reflecting the desirability of achieving parity between co-offenders.

Appellant’s submissions

[8] In support of his submission that there is unjustifiable disparity between the sentences imposed on Mr Masina and his co-offenders, Mr Kaye, for Mr Masina, pointed to the fact that both co-offenders were implicated in a number of other aggravated robberies with the result that the amount of property taken and degree of violence were greater. One co-offender faced additional charges and had what was described as an appalling list of previous convictions, while the other also had previous convictions, including convictions for violent offending. In Mr Kaye’s view the eleven year starting point adopted by the District Court Judge who sentenced the co-offenders was far too high but he noted that she reduced the sentences by three years and five years respectively. In Mr Kaye’s submission, Mr Masina was entitled to a similar discount which would take his sentence to between four and five years imprisonment.

Crown submissions

[9] Ms Moreland, for the Crown, submitted that the sentencing Judge’s adoption of a lower starting point than that applied to the co-offenders was appropriate to differentiate between the offenders’ criminality.

[10] Ms Moreland further submitted that because the co-offenders pleaded guilty at an early opportunity and it was accepted that one of the co-offenders played a lesser role in the offending than the other co-offender and Mr Masina, there was clear justification for allowing them a greater reduction in their sentences. She also pointed out that, unlike Mr Masina, the co-offenders did not appear for sentencing in relation to injuring charges.

[11] In Ms Moreland’s submission the sentence imposed was within the available range and was arrived at in accordance with the Judge’s perception of the relative seriousness of the offending and with express consideration of parity issues.

Discussion

[12] The first point is that the Judge’s adoption of a seven to eight year starting point was within his discretion. He was entitled to increase, by two years, the five to six year starting point indicated by this Court in R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, in order to reflect the totality of the offending. He also, at this stage, considered the need for consistency with the sentences of Mr Masina’s co-offenders, noting that, in their case, the District Court Judge had adopted an 11 year starting point. There was therefore a marked difference in starting points between Mr Masina and his co- offenders but to Mr Masina’s advantage. Some differential was justified as the two co-offenders were implicated in further aggravated burglaries and had previous convictions. We observe here that neither co-offender was, however, being sentenced in relation to an injuring charge as Mr Masina was.

[13] Secondly we consider that the discount given to Mr Masina was also within the Judge’s discretion. The Judge reduced Mr Masina’s eight year starting point by two years to take into account the mitigating factors of the case: the influence of the
co-offenders on Mr Masina, his youth, lack of previous offending and prospects for rehabilitation. At this point the Judge again considered parity between Mr Masina and his co-offenders. He said that a six year sentence would give Mr Masina a sentence comparable to the co-offender who, while charged with two additional counts of aggravated burglary, and with, as the Judge put it, “a more egregious criminal record”, had received significant credit for an early guilty plea and a lesser role in the offending. We consider, as the Crown submitted, that the discount was, if anything, generous to Mr Masina.

[14] Lastly we do not accept that Mr Masina was entitled to a discount equal to that afforded to his co-offenders. It is clear that the two offenders’ early guilty pleas were a significant factor in their case as was the lesser role played by one of the co- offenders. Neither of these factors could apply in Mr Masina’s case. It is clear also that the Judge considered the involvement and circumstances of Mr Masina relative to his co-offenders. As this Court said in R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219, 223:

But the test for intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice.

[15] The present case falls far short of that threshold. The appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington