FALAKOA v R [2004] NZCA 236 (22 September 2004)

Court of Appeal of New Zealand

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FALAKOA v R [2004] NZCA 236 (22 September 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/04

THE QUEEN



v



DONNY FALAKOA

Hearing: 21 September 2004

Coram: Anderson P
Baragwanath J
Randerson J

Appearances: S Tait for Appellant
B M Stanaway for Crown

Judgment: 22 September 2004

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]	Mr Falakoa was charged with two aggravated robberies, one on 2 November 2002 and the other on 11 November 2002, nine days later. He pleaded guilty to the first along with a related charge of possession of an offensive weapon and was sentenced by Judge McAuslan to four years imprisonment on 13 September 2003.
[2]	He pleaded not guilty to the second aggravated robbery but on 17 March 2004 was found guilty by a jury. On 22 April 2004 he was sentenced to a seven year term of imprisonment cumulative upon the earlier sentence of four years imprisonment.
[3]	Mr Tait submits that the imposition of cumulative sentences has resulted in a sentence that is manifestly excessive. The Crown agrees with that submission as do we. The remaining issue is what sentence should now be imposed.
[4]	The appellant is 22 years of age. As a young person he had committed yet another aggravated robbery on 21 January 1997 for which, in combination with lesser offending, he was sentenced on 19 August 1997 to an order to perform 106 hours of community work. He was later sentenced to imprisonment for dangerous driving causing injury and driving with excess blood alcohol, again for possession of a knife in a public place, and again for reckless driving and driving whilst disqualified and for car conversion.
[5]	The offending on Saturday 2 November 2002 began about 2 pm in an Otara takeaway bar where the appellant approached a customer, said "Are you trying to act staunch?" and without provocation elbowed him in the jaw. He pulled from his pocket a screwdriver with a shaft of some 24 cms which he thrust towards the complainant several times in an attempt to stab him. The complainant fled. Forty minutes later the appellant entered a neighbouring laundrette. He asked to use the toilet and was shown to the rear of the premises. As he returned from the toilet two associates of the appellant were standing outside the laundrette. The appellant pulled the screwdriver out of his pocket and swung it at a 14 year old attendant and said to him "Give me money." He assaulted the attendant, stabbing him with the screwdriver in his stomach and temple causing a large graze to the stomach and a small cut to the temple. He continued to ask for money while assaulting the attendant. One of the appellant’s associates came into the shop and produced a knife. The attendant’s 51 year old mother came to his aid, handing him a small pipe so he could defend himself. The appellant took the pipe and assaulted the attendant with it. The appellant pushed the attendant to the rear of the laundrette while an associate searched the safe. The attendant’s mother activated the alarm and the appellant and his associate ran from the laundrette.
[6]	On 11 November 2002 a female Armourguard contractor and her husband arrived at Hunters Plaza to uplift cash from the K-Mart department store to transport it to a bank. Cash and cheques were placed in a plastic case known as a "defender box" which contained a remote controlled electronic shock device. As she was approaching her van a male placed a pistol against her ear and said "Give me the money." She complied and he ran off. She activated the remote control but it did not function. He got into the rear of a waiting vehicle which had been stolen four days before. The driver of the stolen car was identified as one Terei. The third man has not been identified. The appellant’s fingerprints and palm prints were found on the bags in which the money had been placed before it was put into the defender case. The evidence at trial did not establish precisely what role the appellant played but his conviction as a party in the aggravated robbery was not challenged on appeal.
[7]	Some $38,000 was taken in the robbery, none of it recovered, and the appellant has no capacity to make reparation.
[8]	A pre-sentence report prepared in respect of the offending on 2 November 2002 recorded that the appellant was then 21, the eldest of six children of Cook Islands/Maori descent. He was brought up in the Otara area. When he was 12 his parents and siblings went to Australia leaving him in the care of "aunties" who are said to have beaten him. Anger over a feeling of abandonment was recorded by the Department of Corrections. At 14 he ran away from home, living on the streets and coming to the notice of the Youth Court. He became affiliated with a gang. From his early teens he used alcohol and cannabis excessively and "P".
[9]	An updated report prepared for the sentencing on 22 April 2004 recorded the appellant’s agreement with the police summary of facts but denial that he was one of the participants in the aggravated robbery.
[10]	The probation officer recorded a pattern of offending that had continued unabated from the age of 14. The officer commented that while the denial of the offence indicated a low motivation to change, his forthrightness about drug use and other matters in his life was to his credit.
[11]	The Sentencing Act 2002 contains a recent restatement of the principles to be employed by sentencing courts where an offender is being sentenced for two or more offences.

84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider--
(a) the time at which they occurred; or
(b) the overall nature of the offending; or

(c) any other relationship between the offences that the court considers relevant.

85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,--

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.

[12]	In considering the purposes and principles of sentencing stated in ss 7 and 8 of the Act the Court is required to balance the public needs for firm sentencing, which include denouncing the conduct, protecting the community from the offender, deterring him and others from such offending and holding him accountable for the harm he has done, against the interests of rehabilitation and maintaining consistency in sentencing patterns. The total sentence in this case must reflect adequately both sets of offending and the appellant’s history.
[13]	The presence of the pistol and the circumstance of robbery of Armourguard personnel brings the second episode close to the eight year starting point imposed in R v Mako [2000] 2 NZLR 170, 183 para 54. There are no mitigating circumstances. Mr Falakoa’s third aggravated robbery on 11 November required of the sentencer careful consideration of the second, nine days before, and of his past record, including the first which had been dealt with in the Youth Court.
[14]	But the cumulative effect of the District Court’s sentence of 11 years is excessive when set against the distinctly more serious cases of R v Delegat CA327/02, 24 February 2003 (four aggravated robberies of taverns and bars in a three week period with a plea of guilty); R v Stevens CA12/98, 23 February 1998 (four aggravated robberies with use of weapons, three offences whilst on bail, guilty plea, term of 12 years imprisonment).
[15]	The essential question is what total sentence would have been appropriate had the sentencings been performed together. If an excessive term would result from cumulative sentencing it may be necessary to exceed the Mako guidelines in relation to a single episode to do justice to the totality of the offending: see Delegat paras 19-20.
[16]	Mr Falakoa is a young man. Important as are the interests pointing towards a firm sentence, it is in the public interest as well as his that he should not be exposed to a sentence that would crush the prospect of rehabilitation on his release. Much of the burden of his youth has not been of his making; it is important that he have the opportunity for hope in the future.
[17]	The Crown submitted that we should adopt as starting and finishing point a period of nine years for the second episode which, taking into account the circumstances of the first, would reach a just result if ordered to run concurrently with the prior four year term. We agree that such a result, which would in effect add five years for the latest episode, would strike a proper balance
[18]	But a Court is prohibited by s 76 of the Parole Act 2002 from ordering that a sentence commence at a time earlier than the date on which it is passed. The point is discussed in Hall’s Sentencing

SA83.5(b) Concurrent

The fact that a Court is not able to order that a sentence commence at a time earlier than the date on which it is passed may lead a Court into error when imposing a sentence of imprisonment concurrent with a sentence or sentences currently being served. The concurrent sentence does not run from the time of the commencement of the sentence with which it has been ordered to be served concurrently. Thus the critical factor to be considered by the Court is the time still to be served by the offender under the original sentence.
To do otherwise may lead the Court into error, as was the case in R v McGlone (CA 28/88, 1 September 1988, McMullin, Casey and Bisson JJ) [1984-1988] BCLD 1857. The Judge imposed a sentence of three years’ imprisonment which was ordered to be served concurrently with a sentence of two years’ imprisonment (eight months of which had been served), the Judge stating that the effective sentence would be less than a year. The "arithmetical error" was remedied by the Court of Appeal by quashing the sentence and imposing a cumulative period of one year’s imprisonment.
Confusion as to the commencement date of a concurrent sentence of three years’ imprisonment led to the substitution of a cumulative term in R v Love (CA 353/02, 26 November 2002, Glazebrook, Baragwanath and Randerson JJ). L had appeared for sentence on a charge of arson relating to a building the burglary of which he had been sentenced to two years’ imprisonment. The sentencer had said of the sentence "it is concurrent, so it starts at the same time as the sentence of two years imposed last year". The warrant of commitment stated the commencement date to be the day of sentence. Pursuant to a referral back by the Department of Corrections under s 74 of the Criminal Justice Act 1985 the sentencer indicated the warrant was correct. The Court of Appeal observed that the sentence imposed was that which was imposed in open Court by the Judge and to give effect to the Judge’s intention that three years be served, the concurrent sentence of three years was quashed and a cumulative term of one year substituted.

[19]	It follows that the course proposed by the Crown is not open to us. Instead we order that the appeal is allowed and the cumulative sentence of seven years is replaced by one of five years cumulative upon the four years sentence imposed on 13 September 2003.

Solicitors:
Crown Law Office, Wellington