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The Queen v Karaitiana [2006] NZCA 128 (15 June 2006)

Last Updated: 22 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA401/05

THE QUEEN

v

EDWARD FRANCIS KARAITIANA

Hearing: 23 May 2006

Court: O'Regan, Arnold and Ellen France JJ

Counsel: J R Rapley for Appellant
S B Edwards for Crown

Judgment: 15 June 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Arnold J)

Introduction

[1] The appellant appeals against a total effective sentence of eight years three months’ imprisonment imposed upon him in respect of a series of offences arising from an armed robbery of a pharmacy and for an earlier assault on his partner’s mother. As his appeal was filed out of time, the appellant sought leave to appeal. There was no objection from, and no prejudice to, the Crown from the late filing of the appeal. Accordingly we granted leave.

Background

[2] An associate of the appellant drove the appellant in a car with altered number plates to a pharmacy in Christchurch late one afternoon. While the associate waited outside in the car with the motor running, the appellant disguised himself by covering his head with a balaclava and a hooded sweatshirt. He then entered the pharmacy holding a large knife.
[3] Once inside the pharmacy, the appellant jumped over the counter, held the knife to the pharmacist’s stomach, and threatened her with physical violence. He also threatened other members of the pharmacy’s staff, telling them to lie face down on the floor.
[4] The appellant then demanded, and was given, a quantity of controlled drugs and money. Once he had the drugs and money, the appellant told the pharmacist to lie down with the other two staff members and fled.
[5] However, a fourth staff member had managed to escape and alert members of the public that the robbery was in progress. Seeing this, the appellant’s associate drove off leaving the appellant stranded.
[6] Realising that he was stranded, the appellant approached a parked car and ordered the occupants from it at knifepoint. Once the occupants were out, the appellant sat in the driver’s seat intending to drive off. However, he was unable to start the car and abandoned it. He then approached another vehicle and ordered its occupants out at knifepoint. Once they were out, the appellant drove off in the vehicle at high speed.
[7] Later that evening, the appellant and another associate drove the stolen vehicle to a remote riverbank and set it on fire. The vehicle was completely destroyed as a consequence, as was some of the clothing that the appellant had worn in committing the robbery.
[8] Five days prior to the robbery, the appellant had assaulted his partner’s mother. He had become involved in an argument with her and punched her in the side of her head as she was holding her young granddaughter.
[9] These events occurred while the appellant was on parole, having been released from prison about three months earlier, where he had been serving a term of imprisonment for an aggravated robbery committed in October 2003.

The sentences

[10] At an early stage the appellant entered guilty pleas to two charges of aggravated robbery, one charge of assault with intent to rob and one charge of male assaults female. Having outlined the circumstances of the offending, and the appellant’s background, the sentencing Judge, Judge Erber, acknowledged the need to impose a sentence which, in its totality, took account of all the offending. The Judge said:

[22] ...I start with the proposition that a starting point for the chemist’s shop robbery is five years. To that I add three years for the other robberies or the assault with intent to rob, and an additional two years for the other aggravating features, most importantly being the effect on the victims and that this is your fourth and fifth conviction for aggravated robbery. So a starting point of ten years’ imprisonment.
[23] I bear in mind your plea of guilty. Significant discount has to be allowed for that, and I allow that in the amount of two and a half years’ imprisonment. I sentence you on the two aggravated robberies and assault with intent to rob to imprisonment for seven years, six months.
[24] On the charge of assaulting a female you are sentenced to nine months’ imprisonment, to run concurrent with the seven and a half years.

[11] Judge Erber then imposed a minimum sentence of five years’ imprisonment under s 86 of the Sentencing Act 2002.
[12] Subsequently Judge Holderness sentenced the appellant on the charge of arson following the entry of a guilty plea. The Judge said that, standing alone, an appropriate starting point would have been two or more years but, taking account of the totality principle, an appropriate sentence would be 15 months’ imprisonment. However, the Judge took account of the fact that the appellant had been recalled to continue serving his earlier sentence and, in light of that, imposed a term of nine months’ imprisonment to be served cumulatively with the sentence imposed by Judge Erber.
[13] The effect was that the appellant was sentenced to a term of imprisonment totalling eight years three months with an effective minimum period of imprisonment of five years three months (ie the five year non-parole term imposed by Judge Erber, followed by three months of the nine month sentence imposed by Judge Holderness).

Basis for appeal

[14] The appellant appeals against the sentences on the ground that, taken together, they were manifestly excessive. Appellant’s counsel, Mr Rapley, focused on three matters:

(a) the starting points selected by Judge Erber and by Judge Holderness. In particular, Mr Rapley argued that the cumulative starting point of 11 years three months was too high and that, taking into account the arson charge, a starting point of ten years was appropriate.
(b) the aggravating features taken into account by Judge Erber; and
(c) the failure of Judge Erber to take account of the fact that the appellant had been recalled to complete an earlier sentence.

There is no appeal against Judge Erber’s fixing of a five year non-parole period.

Decision

[15] This is a case of multiple offences arising out of a sequence of events. Accordingly the focus on appeal must be on whether the sentence is within a range that properly reflects the overall criminality of the offending rather than on a minute examination of the individual elements that comprise the sentence.
[16] The starting point of five years adopted by Judge Erber in relation to the robbery of the pharmacy was, in our view, justified. In R v Mako [2000] 2 NZLR 170, this Court said:

[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a look-out or accomplice waiting to facilitate get away. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken, five years, and in bad cases six years should be the starting point.

[17] Given the premeditation involved, the appellant’s efforts to disguise himself, the alteration of the car’s number plates, the use of a knife in the robbery, the threats to the pharmacist and other employees and the theft of controlled drugs and money, a starting point of five years was justified.
[18] To that starting point, Judge Erber added three years for the two additional incidents involving an assault with intent to rob and a further aggravated robbery. Given the circumstances of those incidents, three years was, in our view, within the range available to the Judge.
[19] The Judge treated as aggravating features the appellant’s previous record of armed robberies and the impact of the offending on the victims. The appellant’s criminal history, particularly in relation to armed robbery, was a matter that the Judge was entitled to treat as an aggravating feature (Mako at [62]). The impact on the victims is a matter going to the circumstances of the offending and so should be treated as relevant to the fixing of the starting point.
[20] However, in the present case this does not affect the overall outcome. The Judge would have been entitled to fix the starting point at six years if the impact on the victims had been taken into account in that exercise. There would then have been only one aggravating feature, namely the appellant’s criminal history. That would have justified an increase of one year, giving an overall term of ten years for the robbery of the pharmacy and the two additional incidents.
[21] The Judge applied a 25% discount to reflect the appellant’s early plea of guilty. The resulting sentence of seven years six months imprisonment, assessed against the totality principle, is clearly, in our view, within the range available to the Judge.
[22] Mr Rapley complained that Judge Erber made no allowance for the fact that the appellant was recalled to complete three months of the sentence imposed on him in relation to the October 2003 aggravated robbery as a result of the current offending. Presumably the basis for this submission was that there could be a risk of "double counting" where a Judge treats the fact that an offence was committed while the offender was on parole as an aggravating feature, but does not take account of the fact that the subsequent offending has led to the recall of the offender to complete the earlier sentence.
[23] There is no such issue in the present case, however. While Judge Erber did not take account of the fact that the appellant had been recalled to complete his earlier sentence, the Judge did not treat the fact that the current offences were committed while the appellant was on parole as an aggravating feature. Indeed, the Judge did not even mention that fact. Accordingly, there is no risk of "double counting". Further, as noted at [26] below, Judge Holderness did reduce the length of sentence otherwise appropriate to reflect this factor.
[24] In relation to the sentence of nine months’ imprisonment imposed by Judge Holderness in relation to the arson charge, Mr Rapley submitted that the Judge’s choice of a 15 month starting point was too high.
[25] In sentencing the appellant, Judge Holderness noted that the burning out of the vehicle was aimed at destroying evidence that implicated the appellant in the robbery of the pharmacy. The Judge considered that a starting point of at least two years would ordinarily have been appropriate. However, the Judge reduced that figure to 15 months in recognition that the totality principle applied, given the sentence imposed by Judge Erber.
[26] The Judge then applied a discount to reflect the appellant’s plea of guilty and the fact that the appellant had been recalled to complete the sentence imposed on him following the October 2003 robbery. This produced a final term of nine months to be served cumulatively with the sentence imposed by Judge Erber.
[27] Applying the totality principle, we do not accept that the total effective sentence of eight years three months’ imprisonment is wholly out of proportion to the gravity of the overall offending committed by the appellant. The sentence is at the upper end of, but within, the available range.

Result

[28] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[2]	An associate of the appellant drove the appellant in a car with altered number plates to a pharmacy in Christchurch late one afternoon. While the associate waited outside in the car with the motor running, the appellant disguised himself by covering his head with a balaclava and a hooded sweatshirt. He then entered the pharmacy holding a large knife.
[3]	Once inside the pharmacy, the appellant jumped over the counter, held the knife to the pharmacist’s stomach, and threatened her with physical violence. He also threatened other members of the pharmacy’s staff, telling them to lie face down on the floor.
[4]	The appellant then demanded, and was given, a quantity of controlled drugs and money. Once he had the drugs and money, the appellant told the pharmacist to lie down with the other two staff members and fled.
[5]	However, a fourth staff member had managed to escape and alert members of the public that the robbery was in progress. Seeing this, the appellant’s associate drove off leaving the appellant stranded.
[6]	Realising that he was stranded, the appellant approached a parked car and ordered the occupants from it at knifepoint. Once the occupants were out, the appellant sat in the driver’s seat intending to drive off. However, he was unable to start the car and abandoned it. He then approached another vehicle and ordered its occupants out at knifepoint. Once they were out, the appellant drove off in the vehicle at high speed.
[7]	Later that evening, the appellant and another associate drove the stolen vehicle to a remote riverbank and set it on fire. The vehicle was completely destroyed as a consequence, as was some of the clothing that the appellant had worn in committing the robbery.
[8]	Five days prior to the robbery, the appellant had assaulted his partner’s mother. He had become involved in an argument with her and punched her in the side of her head as she was holding her young granddaughter.
[9]	These events occurred while the appellant was on parole, having been released from prison about three months earlier, where he had been serving a term of imprisonment for an aggravated robbery committed in October 2003.

[11]	Judge Erber then imposed a minimum sentence of five years’ imprisonment under s 86 of the Sentencing Act 2002.
[12]	Subsequently Judge Holderness sentenced the appellant on the charge of arson following the entry of a guilty plea. The Judge said that, standing alone, an appropriate starting point would have been two or more years but, taking account of the totality principle, an appropriate sentence would be 15 months’ imprisonment. However, the Judge took account of the fact that the appellant had been recalled to continue serving his earlier sentence and, in light of that, imposed a term of nine months’ imprisonment to be served cumulatively with the sentence imposed by Judge Erber.
[13]	The effect was that the appellant was sentenced to a term of imprisonment totalling eight years three months with an effective minimum period of imprisonment of five years three months (ie the five year non-parole term imposed by Judge Erber, followed by three months of the nine month sentence imposed by Judge Holderness).

[15]	This is a case of multiple offences arising out of a sequence of events. Accordingly the focus on appeal must be on whether the sentence is within a range that properly reflects the overall criminality of the offending rather than on a minute examination of the individual elements that comprise the sentence.
[16]	The starting point of five years adopted by Judge Erber in relation to the robbery of the pharmacy was, in our view, justified. In R v Mako [2000] 2 NZLR 170, this Court said:

[17]	Given the premeditation involved, the appellant’s efforts to disguise himself, the alteration of the car’s number plates, the use of a knife in the robbery, the threats to the pharmacist and other employees and the theft of controlled drugs and money, a starting point of five years was justified.
[18]	To that starting point, Judge Erber added three years for the two additional incidents involving an assault with intent to rob and a further aggravated robbery. Given the circumstances of those incidents, three years was, in our view, within the range available to the Judge.
[19]	The Judge treated as aggravating features the appellant’s previous record of armed robberies and the impact of the offending on the victims. The appellant’s criminal history, particularly in relation to armed robbery, was a matter that the Judge was entitled to treat as an aggravating feature (Mako at [62]). The impact on the victims is a matter going to the circumstances of the offending and so should be treated as relevant to the fixing of the starting point.
[20]	However, in the present case this does not affect the overall outcome. The Judge would have been entitled to fix the starting point at six years if the impact on the victims had been taken into account in that exercise. There would then have been only one aggravating feature, namely the appellant’s criminal history. That would have justified an increase of one year, giving an overall term of ten years for the robbery of the pharmacy and the two additional incidents.
[21]	The Judge applied a 25% discount to reflect the appellant’s early plea of guilty. The resulting sentence of seven years six months imprisonment, assessed against the totality principle, is clearly, in our view, within the range available to the Judge.
[22]	Mr Rapley complained that Judge Erber made no allowance for the fact that the appellant was recalled to complete three months of the sentence imposed on him in relation to the October 2003 aggravated robbery as a result of the current offending. Presumably the basis for this submission was that there could be a risk of "double counting" where a Judge treats the fact that an offence was committed while the offender was on parole as an aggravating feature, but does not take account of the fact that the subsequent offending has led to the recall of the offender to complete the earlier sentence.
[23]	There is no such issue in the present case, however. While Judge Erber did not take account of the fact that the appellant had been recalled to complete his earlier sentence, the Judge did not treat the fact that the current offences were committed while the appellant was on parole as an aggravating feature. Indeed, the Judge did not even mention that fact. Accordingly, there is no risk of "double counting". Further, as noted at [26] below, Judge Holderness did reduce the length of sentence otherwise appropriate to reflect this factor.
[24]	In relation to the sentence of nine months’ imprisonment imposed by Judge Holderness in relation to the arson charge, Mr Rapley submitted that the Judge’s choice of a 15 month starting point was too high.
[25]	In sentencing the appellant, Judge Holderness noted that the burning out of the vehicle was aimed at destroying evidence that implicated the appellant in the robbery of the pharmacy. The Judge considered that a starting point of at least two years would ordinarily have been appropriate. However, the Judge reduced that figure to 15 months in recognition that the totality principle applied, given the sentence imposed by Judge Erber.
[26]	The Judge then applied a discount to reflect the appellant’s plea of guilty and the fact that the appellant had been recalled to complete the sentence imposed on him following the October 2003 robbery. This produced a final term of nine months to be served cumulatively with the sentence imposed by Judge Erber.
[27]	Applying the totality principle, we do not accept that the total effective sentence of eight years three months’ imprisonment is wholly out of proportion to the gravity of the overall offending committed by the appellant. The sentence is at the upper end of, but within, the available range.