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The Queen v Moke [2007] NZCA 110 (30 March 2007)

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The Queen v Moke [2007] NZCA 110 (30 March 2007)

Last Updated: 20 April 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA388/06
[2007] NZCA 110

THE QUEEN

v

ARATEMA MOKE

Hearing: 27 March 2007

Court: Chambers, Chisholm and Gendall JJ

Counsel: P H H Tomlinson for Appellant
K B F Hastie for Crown

Judgment: 30 March 2007 at 2 pm

JUDGMENT OF THE COURT

A An extension of time for filing the appeal is granted.
B The appeal is allowed and the concurrent sentences of nine years imprisonment imposed in the District Court on the six charges of aggravated robbery are quashed.
C For the aggravated robbery of the Kelburn Four Square the appellant is sentenced to eight years imprisonment.
D On the remaining five charges the appellant is sentenced to concurrent sentences of three and a half years imprisonment which are also concurrent with the sentence imposed under C above.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1] Having pleaded guilty to six counts of aggravated robbery the appellant, who was aged 17 years at the time of the offending, was sentenced by Judge Treston in the District Court at Auckland to concurrent sentences of nine years imprisonment on each charge. He appeals against those sentences on the grounds that they were manifestly excessive because insufficient credit was given for his guilty pleas and age.
[2] The appeal was filed a few days late. The Crown does not oppose the time for appealing being extended and leave is granted accordingly.

Background

[3] Along with two others the appellant was involved in a spree of offending throughout the North Island over a period of approximately 11 days during April and May 2006.
[4] The first robbery of a South Auckland service station took place at approximately midnight on 28 April 2006. The appellant and his male co-offender entered the service station while their female companion waited in a car. The appellant was armed with an aluminium baseball bat and his co-offender with a cut down semi-automatic rifle. Both were disguised. After threatening a security guard and another employee the appellant and his co-offender removed the till, stole cigarettes, and were driven away by their female companion.
[5] This pattern was repeated on a further four occasions when service stations in Tauranga, Papamoa, Rotorua and Palmerston North were robbed. On each occasion the robbery took place at night, the appellant was armed with a baseball bat, his co-offender with a cut down semi-automatic rifle and both were disguised. At one service station the offenders bound an attendant’s arms and legs. On two occasions the offenders removed the surveillance tape.
[6] The final robbery on 8 May 2006 also followed a similar pattern, including the binding of an attendant’s arms and legs and the removal of a surveillance tape. On this occasion, however, the appellant also threatened to kill the children of a service station attendant if she did not do as she was told and he later struck another employee on the head with the baseball bat. The employee required hospital treatment.
[7] In total cigarettes and cash valued at more than $18,000 were stolen. Some of the cash and cigarettes have been recovered.
[8] Within a day of the last robbery the appellant and his co-offenders were arrested. The appellant was fully co-operative with the police, made full admissions, and pleaded guilty at an early stage.
[9] As already mentioned, at the time of the offending the appellant was 17 years of age. His upbringing was difficult and he was expelled from a number of schools on account of drug abuse. He has three convictions in the adult Court, but none for offending of this nature or for violence. Although the appellant accepted full responsibility for his offending, the probation officer considered that he showed lack of remorse for his victims and that there was a high risk of re-offending. He was described by the probation officer as "a very experienced yet impressionable man for someone of his age".

District Court sentencing

[10] Judge Treston identified a number of aggravating features: actual and threatened violence; use of a weapon; harm caused to the victims; vulnerability of the victims; premeditation; common modus operandi over a short period; use of disguises; and previous convictions. The Judge regarded the last aggravated robbery as particularly serious because the appellant had threatened to kill one of the victim’s children and had hit another victim over the head with the baseball bat.
[11] Two mitigating features were accepted by the Judge: the appellant’s plea of guilty and his age. However, with reference to the second factor the Judge noted comments of this Court in R v Mako [2000] 2 NZLR 170 at [65] and [66] and observed that in the appellant’s case there did not appear to be any real prospects of rehabilitation and that there was a likelihood that he would re-offend.
[12] In the Judge’s view deterrence and protection of the community were required. He said that while he was mindful of the appellant’s age and the fact that he had pleaded guilty at an early stage, this was very serious offending over a short period which contained many aspects that were regarded as serious in R v Mako, including the degree of planning, number of participants, use of disguises, premeditation, intimidation and the use of weapons.
[13] A starting point of 11 years imprisonment for each aggravated robbery was adopted. After taking into account aggravating and mitigating factors the Judge arrived at a sentence of nine years imprisonment on each charge.
[14] It should be added that the appellant’s co-offender, Alexander Coe, was sentenced to a total of 12 years imprisonment on nine charges of aggravated burglary and one charge of kidnapping. Pleas of guilty had been entered to all those charges. Mr Coe is six years older than the appellant and has a lengthy list of previous convictions including convictions for violence. The sentencing Judge fixed a starting point of 14 years imprisonment and arrived at a final sentence of 12 years imprisonment with a minimum non parole period of seven years imprisonment.
[15] We understand that the third person allegedly involved in the offending has not yet stood trial.

This appeal

[16] Mr Tomlinson did not take issue with the starting point of 11 years. He claimed, however, that the discount of 18% for mitigating factors was grossly inadequate. He noted that the guilty pleas could not have been entered at an earlier stage and thereby justified the maximum discount. He also argued that the appellant’s youth was an important factor, especially in the context of this case where there was a suggestion that the appellant may have been susceptible to the influence of others. To the extent that the Judge might have added something for the appellant’s previous convictions, Mr Tomlinson submitted that the Judge had over-emphasised that aspect. According to Mr Tomlinson a sentence of no more than seven years imprisonment should have been imposed.
[17] For the Crown Ms Hastie emphasised that in this case the targeted premises were service stations and shops, multiple offenders were involved, disguises were worn, some victims were restrained, and one victim was assaulted. She submitted that the youth of the appellant was not a factor that had to outweigh all other factors. To the contrary it had to be balanced against the gravity of the offending and the appellant’s limited prospects of rehabilitation. Ms Hastie also noted the reluctance of this Court to interfere with the sentencing Judge’s discretion by laying down a precise guide as to the discount that should be allowed for a guilty plea. In her submission the sentence of nine years imprisonment was realistic and was not manifestly excessive.

Discussion

[18] Like counsel, we consider that the Judge’s starting point of 11 years imprisonment was appropriate in all the circumstances. Thus the issue is whether the discount allowed for the appellant’s guilty pleas and his youth was adequate. In assessing that issue we adopt the approach that the appellant’s previous convictions could not have justified anything much in the way of a lift above the starting point. In other words, we proceed on the basis that the actual discount allowed for mitigating factors was in the vicinity of 18%.
[19] Even allowing for the discretion vested in the sentencing Judge we have no doubt that the discount for mitigating factors was inadequate in this case. The Judge accepted that the appellant had pleaded guilty at an early stage and we cannot see any reason why the appellant should be denied a substantial allowance for that factor. We also consider that the appellant was entitled to a further discount on account of his youth.
[20] We do not accept that the appellant falls within the category of young offenders referred to at [65] in R v Mako who the Court of Appeal considered could not expect leniency because they had "accumulated considerable lists of convictions whilst still in their teens". Apart from being few in number, the appellant’s previous convictions are of little relevance in the present context. We also consider that the Judge has given insufficient weight to the fact that the appellant’s offending was in the company of a considerably older co-offender and that the probation officer considered that the appellant was an impressionable young man.

Conclusion

[21] Having weighed all factors we have arrived at the conclusion that the sentence imposed in the District Court was manifestly excessive. The appeal is allowed and the sentences imposed in that Court are quashed accordingly. For the purpose of imposing substitute sentences we adopt the aggravated robbery of the Kelburn Four Square as the lead offence because it involved all the features of the earlier offending plus a threat to kill the children of one of the employees and actual violence against another employee.
[22] For the aggravated robbery of the Kelburn Four Square charge we impose a sentence of eight years imprisonment. The appellant is sentenced to three and a half years imprisonment on the other aggravated robberies with those sentences being concurrent with each other and with the sentence imposed on the lead offence.

Solicitors:
Crown Law Office, Wellington

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[3]	Along with two others the appellant was involved in a spree of offending throughout the North Island over a period of approximately 11 days during April and May 2006.
[4]	The first robbery of a South Auckland service station took place at approximately midnight on 28 April 2006. The appellant and his male co-offender entered the service station while their female companion waited in a car. The appellant was armed with an aluminium baseball bat and his co-offender with a cut down semi-automatic rifle. Both were disguised. After threatening a security guard and another employee the appellant and his co-offender removed the till, stole cigarettes, and were driven away by their female companion.
[5]	This pattern was repeated on a further four occasions when service stations in Tauranga, Papamoa, Rotorua and Palmerston North were robbed. On each occasion the robbery took place at night, the appellant was armed with a baseball bat, his co-offender with a cut down semi-automatic rifle and both were disguised. At one service station the offenders bound an attendant’s arms and legs. On two occasions the offenders removed the surveillance tape.
[6]	The final robbery on 8 May 2006 also followed a similar pattern, including the binding of an attendant’s arms and legs and the removal of a surveillance tape. On this occasion, however, the appellant also threatened to kill the children of a service station attendant if she did not do as she was told and he later struck another employee on the head with the baseball bat. The employee required hospital treatment.
[7]	In total cigarettes and cash valued at more than $18,000 were stolen. Some of the cash and cigarettes have been recovered.
[8]	Within a day of the last robbery the appellant and his co-offenders were arrested. The appellant was fully co-operative with the police, made full admissions, and pleaded guilty at an early stage.
[9]	As already mentioned, at the time of the offending the appellant was 17 years of age. His upbringing was difficult and he was expelled from a number of schools on account of drug abuse. He has three convictions in the adult Court, but none for offending of this nature or for violence. Although the appellant accepted full responsibility for his offending, the probation officer considered that he showed lack of remorse for his victims and that there was a high risk of re-offending. He was described by the probation officer as "a very experienced yet impressionable man for someone of his age".

[10]	Judge Treston identified a number of aggravating features: actual and threatened violence; use of a weapon; harm caused to the victims; vulnerability of the victims; premeditation; common modus operandi over a short period; use of disguises; and previous convictions. The Judge regarded the last aggravated robbery as particularly serious because the appellant had threatened to kill one of the victim’s children and had hit another victim over the head with the baseball bat.
[11]	Two mitigating features were accepted by the Judge: the appellant’s plea of guilty and his age. However, with reference to the second factor the Judge noted comments of this Court in R v Mako [2000] 2 NZLR 170 at [65] and [66] and observed that in the appellant’s case there did not appear to be any real prospects of rehabilitation and that there was a likelihood that he would re-offend.
[12]	In the Judge’s view deterrence and protection of the community were required. He said that while he was mindful of the appellant’s age and the fact that he had pleaded guilty at an early stage, this was very serious offending over a short period which contained many aspects that were regarded as serious in R v Mako, including the degree of planning, number of participants, use of disguises, premeditation, intimidation and the use of weapons.
[13]	A starting point of 11 years imprisonment for each aggravated robbery was adopted. After taking into account aggravating and mitigating factors the Judge arrived at a sentence of nine years imprisonment on each charge.
[14]	It should be added that the appellant’s co-offender, Alexander Coe, was sentenced to a total of 12 years imprisonment on nine charges of aggravated burglary and one charge of kidnapping. Pleas of guilty had been entered to all those charges. Mr Coe is six years older than the appellant and has a lengthy list of previous convictions including convictions for violence. The sentencing Judge fixed a starting point of 14 years imprisonment and arrived at a final sentence of 12 years imprisonment with a minimum non parole period of seven years imprisonment.
[15]	We understand that the third person allegedly involved in the offending has not yet stood trial.

[18]	Like counsel, we consider that the Judge’s starting point of 11 years imprisonment was appropriate in all the circumstances. Thus the issue is whether the discount allowed for the appellant’s guilty pleas and his youth was adequate. In assessing that issue we adopt the approach that the appellant’s previous convictions could not have justified anything much in the way of a lift above the starting point. In other words, we proceed on the basis that the actual discount allowed for mitigating factors was in the vicinity of 18%.
[19]	Even allowing for the discretion vested in the sentencing Judge we have no doubt that the discount for mitigating factors was inadequate in this case. The Judge accepted that the appellant had pleaded guilty at an early stage and we cannot see any reason why the appellant should be denied a substantial allowance for that factor. We also consider that the appellant was entitled to a further discount on account of his youth.
[20]	We do not accept that the appellant falls within the category of young offenders referred to at [65] in R v Mako who the Court of Appeal considered could not expect leniency because they had "accumulated considerable lists of convictions whilst still in their teens". Apart from being few in number, the appellant’s previous convictions are of little relevance in the present context. We also consider that the Judge has given insufficient weight to the fact that the appellant’s offending was in the company of a considerably older co-offender and that the probation officer considered that the appellant was an impressionable young man.