R v Toki [2007] NZCA 335 (7 August 2007)

Last Updated: 29 December 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/06 [2007] NZCA 335

THE QUEEN

v

TAMALAGI RANGATURE MICHAEL TOKI

Hearing: 25 July 2007

Court: Chambers, Keane and MacKenzie JJ Counsel: M A Edgar for Appellant

K Raftery for the Crown

Judgment: 7 August 2007 at 4 pm

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

2. The sentence of five years’ imprisonment is quashed and a sentence of four years three months’ imprisonment is substituted.

REASONS OF THE COURT

_{(Given by MacKenzie J)}

R V TOKI CA CA448/06 7 August 2007

[1] This is an appeal against a sentence of five years’ imprisonment on one count of aggravated robbery. The notice of appeal originally filed included an appeal against conviction, but that has been abandoned.

Facts

[2] The appellant was a security guard working for a security firm delivering cash to automated teller machines in south Auckland. The co-offender, Mr Olive, was a former employee of the same firm. On 3 August 2004, the appellant and the victim were working together in the south Auckland area delivering cash. At about

5.15 a.m., they arrived at the Mangere town centre, where they were to top up an ATM with $90,000. The victim entered the building and turned the lights on and the alarm off. He returned to the vehicle and collected two cash containers. The appellant also collected two cash canisters and followed the victim into the building, a few metres behind. As the victim was walking along the corridor of the premises, the door closed and the lights were extinguished. Both the appellant and the victim had their hands tied by the co-offender, and the victim was also blindfolded. The co- offender then took the cash and left the building. The appellant and the victim freed themselves and called police. The subsequent investigation revealed that the appellant’s explanations were inconsistent with the scene examination and statements made. Further investigations disclosed a series of text messages from the appellant to the co-offender on the morning of the robbery. The co-offender was interviewed, admitted his part in the robbery and implicated the appellant. Mr Olive admitted spending about a thousand dollars of the cash stolen, but about $87,000 was recovered as a result of information received from him. Mr Olive pleaded guilty to a charge of aggravated robbery, and was sentenced on 22 October 2004. The appellant pleaded not guilty. He was convicted following his trial in the Manukau District Court on 29 June 2006.

[3] Judge Wolff sentenced the appellant on 30 June 2006, the day after the trial. He did not obtain a pre-sentence report. He did have a number of references produced by the appellant’s then counsel. In his brief sentencing remarks, he noted that Mr Olive had been sentenced to three years’ imprisonment. He did not have the benefit of the Judge’s sentencing remarks, and expressed the view that allowing for credits for a guilty plea and for assistance to the police that must have reflected a starting point in the order of six years. Judge Wolff noted that the appellant was not entitled to any of those credits but was entitled to a credit for his previous good record. He imposed a sentence of five years’ imprisonment.

Appellant’s submissions

[4] In support of the appeal, Mr Edgar submits:

(a) that the sentence is manifestly excessive

(b) that sentencing the appellant on the day following trial without the benefit of a pre-sentence report did not allow for mitigating factors that would have called for a lesser sentence

(c) that a pre-sentence report would have been able to show the following mitigating factors

(i) likely low risk of re-offending; (ii) highly motivated to rehabilitate;

(iii) remorse and acceptance of the offending;

(iv) family support and promise of positive future given young age;

and

(v) previous good character

(d) that the Judge and counsel erred in allowing the sentence to proceed the next day; and

(e) that the Judge erred in not having the sentencing notes of the co-accused and his history before him when sentencing the appellant.

Procedural issues

[5] It is regrettable that the Judge elected to proceed without a pre-sentence report. Section 26 of the Sentencing Act 2002, which deals with pre-sentence reports, is expressed in permissive terms, so that the Court has a discretion whether or not to require a report. However, the well-established practice is that an offender should not be sentenced to a term of imprisonment, except in very rare and exceptional cases, without such a report. The inherent undesirability of sentencing an offender to imprisonment without the benefit of such a report was pointed out as long ago as 1943 in In re Moulin [1943] NZPoliceLawRp 9; [1943] NZLR 325 in these terms (at 327):

The reason is simple. No matter what the prisoner’s previous criminal record may be, and no matter what the Police or Crown Prosecutor may say of the offender’s character as gleaned from the Police records, there is always the possibility of the careful inquiry which the Probation Officer is expected to make resulting in the obtaining of some information which might dispose the mind of the Court to a more lenient sentence than might have been imposed without such information. It is not right, in my opinion, that any Court should sentence a person to a long term of imprisonment – in this case twelve months' imprisonment with hard labour to be followed by twelve months' reformative detention – without having had the opportunity of considering a report from the Probation Officer.

Those comments were described by this Court in R v Bellingham (2005) 21 CRNZ

561 to be “as pertinent now as they were over 60 years ago”.

[6] Here, there were factors which made the following of that invariable practice particularly important. The appellant was aged just under 20 years at the time of the offending. He was a first offender. A pre-sentence report should have been obtained. The appellant has filed two affidavits, from himself and his mother, to the

effect that they were not aware of the procedures, and thus cannot have given an informed consent to sentencing taking place without a report.

[7] It is also regrettable that the Judge did not obtain a copy of the sentencing notes for the co-offender. As the Judge rightly recognised, the sentence imposed on the co-offender was a relevant consideration. Relativity of sentences imposed on co- offenders is important in the administration of justice. That was recognised by this Court in R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 at 223 in these terms:

... a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly.

[8] That made it important for the Judge sentencing the appellant to have a clear understanding of the basis on which Mr Olive had been sentenced. It was inappropriate to base the comparison on assumptions drawn only from the end sentence, when the validity of those assumptions could have been checked by reference to the sentencing notes.

[9] The second of those deficiencies, the sentencing notes for Mr Olive, can be and has been remedied on this appeal, as we have the benefit of those notes. The first deficiency, the lack of a pre-sentence report, cannot so easily be rectified. The ability of this Court to order a pre-sentence report is not entirely clear. That course appears to have been adopted in R v Spring CA 221/85 18 November 1985, but without discussion of the power of the Court of Appeal to order a report. Section 26(1) of the Sentencing Act 2002 provides:

If an offender who is charged with an offence punishable by imprisonment is found guilty or pleads guilty, the court may direct a probation officer to provide a report to the court under subsection (2).

“Court” is defined in s 4 of the Act to include “any court exercising jurisdiction in criminal cases”. This Court is, of course, “exercising jurisdiction in criminal cases”, so it is distinctly arguable that we could ask for a probation report under s 26(1). As

against that, we accept that s 26 is drafted on an assumption that the report will be provided prior to the actual sentencing.

[10] As it turns out, we do not need to resolve on this appeal exactly what this Court’s jurisdiction may be in this area. That is because, at the start of the hearing, we indicated to counsel a preliminary view, based on counsel’s written submissions and the material we did have, that the appeal should be allowed. We indicated a possible substitute sentence. Mr Edgar advised that he fully supported what we planned to do and said that, if we adhered to our preliminary indication, no probation report would be necessary. Although, as we shall discuss, Mr Raftery, for the Crown, attempted to persuade us not to follow our preliminary view, in the end he did not succeed in that regard.

Was the sentence manifestly excessive?

[11] The first task is to assess a starting point. That starting point needed to be fixed by reference to the aggravated robbery guideline judgment of R v Mako [2000]

2 NZLR 170, and it needed also to have regard to the starting point for the sentence imposed on Mr Olive. The Judge did not expressly adopt a starting point for the sentence which he imposed. He had regard to the sentence imposed on Mr Olive (three years’ imprisonment after a plea of guilty) and surmised that, had he not received credits for his early guilty plea and for assistance provided to the police, Mr Olive would have received a sentence in the order of six years’ imprisonment. The Judge noted that the appellant was entitled to credit for his previous good record and imposed a sentence of five years’ imprisonment. Mr Edgar in his written submissions submitted that an appropriate starting point would have been in the range of four and a half to five years. He submitted that while the offending was serious, a starting point as low as four and a half years could have been considered appropriate in that, while the amount taken was substantial, most of it was recovered; the offending occurred away from the public, with no real weapons, no violence and no real risk to any member of the public; and the detainment of the victim was very short. In response to the indication of our preliminary view, he accepted that a starting point of five years was appropriate. Counsel for the Crown submitted that

the nature of the offending, having regard to the aggravating features to which the Crown referred, namely premeditation, breach of trust, the nature of the premises, the amount taken, the threatened use of violence, and disguises, was such that a starting point of around six to seven years was appropriate.

[12] When considering the sentence imposed on Mr Olive, Judge Wolff assumed that the implicit starting point was six years. An examination of Judge McAuslan’s sentencing notes shows that this assumption was not well founded. Judge McAuslan noted the Crown submission that the starting point should be a sentence in the region of five and a half to six and a half years. Judge McAuslan then noted defence counsel’s submission in these terms:

Based on the same decision it is Mr Paul’s submission that the starting point should be in the region of 5 years for you and because of the mitigating factors that 3 years would be appropriate. Because of your extraordinary degree of co-operation with the Police, I am prepared to accept Mr Paul’s submission as appropriate for you and in respect of this matter you are convicted and sentenced to 3 years imprisonment ...

[13] From that, we consider it clear that the starting point adopted for Mr Olive was five years and not six as assumed by Judge Wolff.

[14] Mr Raftery submitted that a higher starting point for Mr Toki than for Mr Olive was justified, because Mr Toki was an employee of the security company, while Mr Olive was not. We do not consider that a higher starting point was justified on that basis. While Mr Olive was not at the time of the offending an employee, he had previously been an employee, so that his knowledge of the company’s procedures would not have been derived solely from Mr Toki. There was accordingly a breach of trust in respect of the former employment relationship. Judge McAuslan in sentencing Mr Olive described the abuse of trust as particularly serious and noted the use of knowledge derived from previous employment. Furthermore, Mr Olive was considerably older than Mr Toki. The facts do not enable any conclusion to be drawn as to whether one of the two offenders was more prominent in the instigation and planning than the other. It is clear, however, that Mr Olive’s role in the actual offending was, as Mr Edgar submitted, more active than that of the appellant.

[15] The fact which made this an aggravated robbery was the involvement of two offenders. However, from the perspective of the victim, the robbery had the appearance of being conducted by one offender. There was no grievous bodily harm inflicted, and neither offender was armed with an offensive weapon or instrument. Judge McAuslan noted that Mr Olive led the victim to believe that he had a knife, but the appearance of being armed was not an element of the indictment against Mr Toki.

[16] For these reasons this case does not fit readily within the categories of aggravated robberies discussed in Mako. The closest analogy is the example given by this Court in Mako at [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 lookout or an accomplice waiting to facilitate getaway. 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] We consider that a starting point of five years for Mr Toki was appropriate, both having regard to the nature of the offending when considered against the guidelines in Mako, and when considered against the starting point adopted for Mr Olive.

[18] From that starting point, an adjustment needs to be made to reflect personal mitigating factors. The relevant factors are the appellant’s age (just under 20 years old at the time of the offending) and his lack of previous convictions. Mr Edgar submitted that the real issue for this appeal is that there were mitigating factors which should have resulted in the starting point being reduced, but were not taken into account by the Judge. He submitted that the factors set out at para [4](c) above, together with the appellant’s age, should have led to a lower end sentence. Counsel for the Crown submitted that the lack of previous convictions was the sole mitigating factor that demanded a reduction in the starting point. He submitted that the Judge was not bound to view the other factors relied on as requiring a reduction. He

submitted that the conduct of the defence at trial suggests neither remorse nor acceptance of criminal conduct.

[19] In our view, a reduction is required to reflect the mitigating personal circumstances, most importantly the previous good record. Also, a generous view of the risk of re-offending, motivation to rehabilitate, remorse and acceptance of the offending is appropriate, to ensure that the appellant is not disadvantaged by the lack of assessment of those factors which a pre-sentence report would have enabled. We consider that an allowance of nine months from the starting point is appropriate to reflect those personal mitigating factors. That leaves a final sentence of four years and three months.

[20] For these reasons, we consider that the sentence of five years was manifestly excessive, and must be adjusted accordingly.

Result

[21] The result is that the appeal against sentence is allowed. The sentence of five years’ imprisonment is quashed and a sentence of four years and three months is substituted.

Solicitors:

Crown Law Office, Wellington