Neketai v R [2005] NZCA 309 (8 December 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA58/05

THE QUEEN



v



WITERI AHOMIRO NEKETAI

Hearing: 30 November 2005

Court: William Young, Potter and Ellen France JJ

Counsel: M P Ward-Johnson for Appellant
A R Burns for Crown

Judgment: 8 December 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Potter J)

Introduction

[1]	Witeri Ahomiro Neketai appeals against a sentence imposed by Judge C J Harding in the District Court at Tauranga on 4 February 2005. The appellant was sentenced to four years imprisonment and ordered to pay a contribution to reparation of $5,000 at the rate of $20 per week, the first payment being required 20 days after his release from prison. Outstanding fines of $1,017.15 were remitted and included in the sentence.
[2]	The sentence was imposed after the appellant entered an early guilty plea to one charge of aggravated robbery pursuant to s 235(c) of the Crimes Act 1961.
[3]	The grounds for appeal were stated to be:

(a) The starting point of five and a half years imprisonment before allowance for guilty plea was manifestly excessive.
(This ground of appeal was abandoned).
(b) In reducing the sentence by 18 months the sentencing Judge attached insufficient weight to mitigating factors;
(c) The Judge was wrong in principle to order the appellant to make reparation of $5,000 on release.

[4]

By minute of this Court dated 23 June 2005 it was ordered that a reparation report be made available to the Court hearing the appeal and that inquiries be made of the District Court as to whether the procedure set out in s 88 of the Summary Proceedings Act 1957 was followed regarding the remission of fines, with any documents held by the District Court relating to the remission of fines to be provided to counsel.

[5]

At the hearing of the appeal we had available to us a reparation report prepared by the Department of Corrections dated 20 September 2005 and a Registrar’s report pursuant to s 88(1)(c) of the Summary Proceedings Act 1957 relating to outstanding fines totalling $1,017.15.

Factual background

[6]

The appellant worked at a bistro bar in Te Puke. During his employment at the bar, he identified weaknesses in the security system, which he set out to exploit. He obtained a shotgun, disguised himself with a bandanna and on 26 October 2004 waited after closing until the sole person in the bar had secured the premises and was cleaning up. The appellant then smashed his way in, confronted that person and demanded money. He obtained $6,102.40 in cash and fled.

[7]

When spoken to by Police the appellant acknowledged the robbery and assisted in recovering the shotgun. However, the money taken could not be recovered. The appellant explained that he had given half the money to an associate to assist him in establishing himself as a drug dealer; to the probation officer he claimed it was spent on a loan to the relative who provided him with the gun and personal expenditure on socialising and clothes.

The sentence appealed

[8]

The Judge referred to the authority of R v Mako [2000] NZCA 407; (2000) 17 CRNZ 272 and in particular the analysis of this sort of offending in [56] - [58]. He considered a starting point of six to six and a half years imprisonment to be appropriate. He noted the aggravating features which included breach of trust, premeditation, the disguise, the vulnerability of the victim, the use of a shotgun, the breaking into the premises and the theft of a reasonably substantial amount of cash. The Judge also referred to the cold, calculated nature of the offending. He noted the early guilty plea, remorse evidenced by letters of apology sent to the victims and a willingness to pay reparation.

[9]

The Judge referred to:

... all other matters before me this morning ...

in adopting a starting point before allowance for the guilty plea, of five and a half years imprisonment. He reduced the sentence by one and a half years to reflect the early guilty plea, ordered that a contribution to reparation of $5,000 be paid at the rate of $20 per week, the first payment being required 28 days after release, and remitted fines. He noted that the appellant’s whanau had indicated a willingness to make payments on his behalf towards reparation while he was incarcerated, but recorded that he could not make an order for reparation when the appellant’s financial position at the time of sentencing did not permit it.

Developments at the appeal hearing

[10]	In written submissions filed in support of the appeal Mr Ward-Johnson counsel for the appellant abandoned the first ground of appeal, namely that the starting point of five and a half years was manifestly excessive.
[11]	In fixing that starting point the sentencing Judge had taken into account:

... all other matters before me this morning ...

This was clearly a reference to the joint memorandum filed by counsel which referred to promised co-operation of the appellant with the Police on an unrelated matter. Otherwise the Judge would have taken a starting point of six to six and a half years imprisonment which he stated he considered appropriate on the basis of the analysis in R v Mako.

[12]	The information before this Court as provided by the Crown and accepted by Mr Ward-Johnson, is that the promised assistance has not been forthcoming. The officer-in-charge of the matter in respect of which the co-operation of the appellant had been promised, has advised counsel for the Crown that the appellant would not give evidence at the relevant depositions hearing when called upon to do so.
[13]	The appellant received a significant discount for co-operation with the police which, in the event, did not materialise. If the Solicitor-General had sought an increase in the sentence (either by applying for leave to appeal or explicitly invoking s 385(3) of the Crimes Act 1961) we would have been minded to increase the sentence by twelve months. In the event, Mr Burns who appeared for the Crown did not seek such an increase and, given this, we are content to leave the sentence as it is. We did, however, indicate to Mr Ward-Johnson that the appellant was at risk of having his sentence increased.
[14]	Mr Ward-Johnson acknowledged that indication and did not pursue the second ground of appeal which claimed an increased allowance for mitigating circumstances.

Reparation

[15]	The appellant indicated in the pre-sentence report that he was able and willing to pay reparation in weekly instalments of $40 and advised that his partner had already given the first payment of $40 to the manager of the bistro bar, which fact has been confirmed. The willingness to pay reparation was a matter of submission before the sentencing Judge. However, on appeal it was submitted that the reparation ordered in the sum of $5,000 was excessive both in regard to quantum and the period of time over which it would take the appellant to complete payment of the reparation, calculated to be approximately five years at $20 per week. It was submitted that no reparation should have been ordered.
[16]	The reparation report dated 20 September 2005 prepared pursuant to the order of this Court of 23 June 2005, records that the appellant is not in a position to pay anything at present but that he is prepared to pay reparation following release and mentions a rate of $40 per week. It is stated that the appellant would require money to "set up" once he had been released.
[17]	Section 12 of the Sentencing Act 2002 requires the Court, if lawfully entitled to do so, to impose a sentence of reparation unless the Court is satisfied that the sentence would result in undue hardship for the offender or the dependants of the offender or that there are any other special circumstances which would make a sentence of reparation inappropriate.
[18]	The amount and terms and conditions of a sentence of reparation will depend on the particular circumstances of the case. For example in R v Vallily CA251/04 10 November 2004 this Court on appeal ordered payment of reparation of $40,000 at the rate of $5,000 per annum to be paid by quarterly instalments of $1,250 from the first anniversary of Mr Vallily’s release from prison. Thus, unless the rate of payment could be increased above that ordered, it would take eight years to pay the reparation ordered. Nevertheless in the particular circumstances of that case, this Court considered such an order appropriate.
[19]	In this case the appellant has expressed to the probation officers who prepared both the pre-sentence report and the reparation report, his willingness to pay reparation at a rate of $40 per week. The Judge ordered reparation to be paid at the rate of $20 per week. While at the rate ordered it would take five years for the appellant to discharge the obligation for reparation, he can discharge his obligation over a shorter period by making payments at an increased rate. If payments are made on the basis he has offered, namely $40 per week, then the reparation obligation will be discharged in approximately two and a half years following his release from prison.
[20]	The appellant’s willingness to pay reparation was a factor noted by the sentencing Judge and clearly taken into account in arriving at the ultimate sentence of four years.
[21]	Given the aggravating features of the offending, the financial loss suffered by the victims of the offending, which exceeded by more than $1,000 the reparation ordered, and all the relevant circumstances, we consider the order of reparation made by the sentencing Judge was appropriate and together with the custodial sentence imposed of four years, was not an excessive sentence. We see no basis for disturbing the order of reparation made.

Remission of fines

[22]

This Court was provided with a copy of the Registrar’s report under s 88(1)(c) of the Summary Proceedings Act 1957 which requested that the outstanding fines of the appellant be dealt with in any sentence imposed for this offending, while also seeking an order for reparation arising from the charges for which the appellant was to be sentenced. As the appropriate procedure in s 88 for the remission of fines had been followed, counsel for the Crown advised the Court that the Crown did not seek to disturb the order for remission of fines made by the sentencing Judge. We consider that concession to be appropriate.

Result

[23]	The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington