The Queen v Renata [2006] NZCA 73 (1 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/05

THE QUEEN



v



JOHNSON TURUA RENATA

Court: Glazebrook, Chambers and O'Regan JJ

Counsel: C G Tuck for Appellant
B J Horsley and E V Lamont-Messer for Crown

Judgment: 1 May 2006

(On the papers)

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]	On 16 December 2004 the appellant was convicted of a charge of aggravated burglary pursuant to the Crimes Act 1961, s 232(1) following a trial in the District Court at Rotorua. He was acquitted of a charge of injuring with intent to injure pursuant to s 189(2).
[2]	On 4 March 2005 the appellant was sentenced to a term of nine years’ imprisonment by the trial judge, Judge Weir.
[3]	The appellant appeals that sentence to this Court, submitting it is manifestly excessive owing to its disparity with the sentence received by the appellant’s co-offender, Shamus Nathan Kauhou.
[4]	This appeal against sentence has been heard on the papers under s 392B of the Crimes Act 1961. The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Facts and the appellant’s sentence

[5]	On 30 October 2003, the appellant, Mr Kauhou and two others broke into the Putaruru Hotel by smashing a window. Their intention was to steal property. All four men wore balaclavas and were armed. The men made their way to the office on the bottom floor, where the safe was located, but their attempts to gain access to the office were unsuccessful. They retreated back up the stairs.
[6]	The manager of the hotel had heard the men trying to break into the office as he lay half-asleep in his bedroom on the second floor. He left his bedroom and encountered the men at the top of the stairs. The appellant held his pistol to the manger’s neck. The appellant then asked of his associates, "Shall I shoot him now? Can I shoot him now?" The appellant’s associates asked the manager for the keys to the office area. The manager stalled. The manager was dragged into a nearby toilet and attacked. He was beaten about the face and upper body and was struck on the head with an object.
[7]	The manager has ongoing medical problems and has suffered significant emotional effects. He had to sell the hotel and relocate.
[8]	The appellant was convicted of aggravated burglary but acquitted of injuring with intent to injure. In sentencing, Judge Weir took the view that ‘there was clearly a significant amount of premeditation involved’ (at [8]). The appellant was armed, disguised, and had undertaken reconnaissance of the hotel ten days prior to the burglary (the manager positively identified the appellant on this basis).
[9]	The Judge referred to R v Mako [2000] 2 NZLR 170, a guideline judgment of this Court on sentences for aggravated robbery. In that case, Gault J said at [58]:

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[10]

In the same judgment, Gault J said disguises suggested premeditation and planning, which in turn reflected criminality (at [36], [38]).

[11]

Judge Weir considered an appropriate starting point to be eight years’ imprisonment. He arrived at this figure taking into account aggravating factors: namely, the use of a weapon, the threat of violence made by the appellant and the premeditation involved. The judge also commented that although the Putaruru Hotel was a commercial building, it contained the manager’s private residential flat. He increased the starting point by twelve months, after taking into account the appellant’s significant criminal history, to arrive at a final sentence of nine years’ imprisonment.

Mr Kauhou’s sentence

[12]	Mr Kauhou entered early guilty pleas to charges of aggravated burglary and aggravated assault arising out of the Putaruru burglary. He was sentenced to five and a half years’ imprisonment on each charge. This was reduced from a starting point of seven to eight years’ imprisonment owing to Mr Kauhou’s guilty pleas and cooperation with police.
[13]	Mr Kauhou was additionally charged with a large number of unrelated offences. The cumulative effect of the sentences given in respect of these resulted in a total sentence of eight years and nine months’ imprisonment. This was itself reduced from a total starting point of 12-14 years’ imprisonment identified by the Judge in respect of all the offending. The reason for the discount was again Mr Kauhou’s guilty pleas and co-operation.
[14]	In sentencing the appellant, Judge Weir made reference to Mr Kauhou’s sentence. The judge noted that the appellant submitted an appropriate starting point would be seven years’ imprisonment given the starting point identified by Judge Rollo when sentencing Kauhou. In response to this submission, Judge Weir said (at [11]):

[T]he sentencing Judge in [Kauhou’s] case did not have the opportunity of getting the flavour of the whole event, because of course [Kauhau] pleaded guilty prior to trial, and what he was presented with was a summary of facts which can never have the flavour of course of the full story as it is presented at trial.

Submissions in this Court

[15]	Counsel for the appellant, Mr Tuck submitted that the appellant’s sentence was manifestly excessive insofar as the starting point identified by Judge Weir was outside the acceptable range.
[16]	He pointed out that Mr Kauhou faced sentence on charges of both aggravated burglary and aggravated assault. Accordingly, he said Mr Kauhou ought to have faced a higher starting point than the appellant, who was sentenced only on a charge of aggravated burglary.
[17]	Counsel also pointed to the Sentencing Act 2002, s 8(e), which requires the court to take into account the desirability of maintaining consistency between sentences for co-offenders where the co-offenders have committed similar offences in similar circumstances.
[18]	Crown counsel submitted that Judge Weir’s adopted starting point was clearly in accordance with Mako. The Crown pointed to the same aggravating factors as identified by Judge Weir and noted that the Putaruru Hotel contained the manager’s private house. Judge Weir did allude to this factor, although not in such express terms.
[19]	Additionally, the Crown submitted there is no disparity between the sentences imposed upon the appellant and Mr Kauhou because the respective offending was not comparable given the different circumstances of each case.

Discussion

[20]	The guidance given by this Court in Mako in relation to aggravated robberies can be applied by analogy in cases of aggravated burglary: R v Watson CA224/03 24 October 2003 at [27]-[28].
[21]	The guidelines in Mako are not fixed. In Mako, this Court stated (at [60]):

The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then to select a starting point. That can be related to the examples given. They are not intended to prescribe the starting point for any case but are to inform the assessment the sentencer is required to make.

[22]	The passage from Mako quoted at [8] above covers the offending in the present case. There was forced entry to premises at night by a number of offenders seeking money. The offenders brandished weapons. Serious injury was caused. The premises contained the victim’s private flat. We are of the view that the starting point of eight years’ imprisonment was appropriate given these aggravating features. The resulting sentence of nine years was not in itself, manifestly excessive.
[23]	The only issue for us to consider, therefore, is whether there is an unacceptable disparity between the appellant’s sentence and that imposed on Mr Kauhou, such that the sentence imposed on the appellant is manifestly excessive.
[24]	In R v Lawson [1982] 2 NZLR 219, this Court considered that a marked difference in sentences imposed upon co-offenders, for which no justification can be demonstrated, can bring the administration of justice into disrepute. Speaking for this Court, McMullin J expressed the following test (at 223):

[T]he test of 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. A number of expressions have been used to capture this concept, namely "the disparity is so gross that a justifiable sense of injustice would persist", that right-thinking members of the public are likely to say "there is something wrong here" – R v Potter [1977] Crim LR 112.

[25]	Differentiation between sentences imposed upon co-offenders is often justifiable. Disparity is often warranted by aggravating or mitigating factors which are relevant only to one of many co-offenders. It is particularly explicable where one co-offender has been sentenced for additional, unrelated offending at the same time as the sentencing for the common offending. In such a case, as this Court noted in R v Williams CA257/01 6 August 2002 at [12], it is unrealistic to confine the court’s attention to the lead sentence as it is the overall appropriateness of a sentence, rather than its individual components, which needs to be examined.
[26]	In the present case, Mr Kauhou was sentenced in respect of no fewer than 102 charges. Judge Rollo identified a starting point of 12-14 years based on the totality of the offending. Given the serious nature of Mr Kauhou’s offending, such a starting point was appropriate. The judge’s overall discount for guilty pleas and cooperation with the police was consistent with accepted sentencing practice.
[27]	With respect to the manner in which Judge Rollo treated the Putaruru Hotel offending, we are not convinced there is such a disparity so as to pass the high threshold prescribed by this Court in Lawson.
[28]	Mr Kauhou was convicted of aggravated assault in addition to aggravated burglary, thus making his role in the Putaruru offending more serious than that of the appellant. However, it is pertinent that Mr Kauhou entered early guilty pleas in respect of both offences. This explains the reduced sentence of five and half years’ imprisonment in respect of the Putaruru offending. We note that this was reduced from a starting point that was not materially different from that used by Judge Weir in respect of the appellant’s offending (Judge Rollo referred to a starting point of seven-eight years for Kauhou for the Putururu offending). We do not see the fact that Mr Kauhou was convicted of aggravated assault as well as having the significance given to it by Mr Tuck.
[29]	The present case has some similarities to this Court’s decision in R v Friesan CA225/99 20 September 1999. In that case, three men robbed a dairy to obtain funds to support their drug habits. During the robbery, serious violence was inflicted upon the proprietor of the dairy and his family. All three men were convicted of aggravated robbery. One, a Mr Luke, was also convicted of injuring with intent to injure. The same starting point (seven years) was used for all three men. Friesan submitted the failure to sentence Luke more harshly created a disparity. This Court rejected that submission, saying only that Luke was fortunate that the sentencing judge imposed a concurrent sentence in respect of the additional attack rather than a cumulative one. This Court went on to say (at [19]) that although a harsher sentence for Luke would have been acceptable,

[I]t is not part of the sensible application of the test in R v Lawson [1982] 2 NZLR 219 for an appellate Court to interfere on the basis of disparity with an otherwise appropriate sentence because of a lenient approach to a co-accused in respect of an additional offence.

[30]	We respectfully agree. The starting point adopted by Judge Rollo was unexceptional. In light of the legitimate discount for an early guilty plea, resulting in the reduced sentence of five and a half years’ imprisonment for Mr Kauhou, there is no disparity between the appellant’s sentence and Mr Kauhou’s that justifies appellate interference.
[31]	We also record our agreement with the comment made by Judge Weir which we have quoted at [14] above. Judge Rollo sentenced on the basis of the summary of facts on which Mr Kauhou’s guilty plea was based. Judge Weir sentenced on the basis of the jury’s verdict and the assessment of the gravity of the offending which he was able to make having presided at the appellant’s trial.

Result

[32]	The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington