The appeal is allowed to the extent that the sentences imposed in the District Court on Counts 1, 2 and 5 of the indictment are quashed, and sentences of three months are imposed in substitution, to be served concurrently with the other sentences imposed in the District Court.
While the appellant’s conviction on Count 3 stands, in the absence of any sentence imposed in the District Court, the appellant is discharged without penalty.

The appeal is otherwise dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

[1] Walter Whatarangi Gray was tried before a jury in the Napier District Court on an indictment containing eight counts.
[2] The counts against him included robbery, aggravated robbery, assault with intent to rob whilst being armed with an offensive weapon, dishonestly using a document and causing loss by deception. He was found guilty on all eight counts. Judge Noble sentenced him to an effective term of imprisonment of nine years.
[3] Mr Gray appeals against the sentence alleging that it is plainly excessive, and out of proportion to a sentence of three and a half years imposed on a co-offender.

Background

[4] The offending took place over a period of approximately six weeks, between 24 December 2006 and 3 February 2007. It began when the appellant left a motel at which he had been staying without paying the money due for phone calls. That gave rise to a charge of causing loss by deception, laid under s 240(1)(d) of the Crimes Act 1961. Section 241(c) applied so that the maximum term of imprisonment for that offence could not have exceeded three months.
[5] On 2 January 2007, the appellant broke into a car that had been parked by a tourist at a scenic spot near Turangi and stole a wallet. The wallet and its contents were valued at less than $500 and consequently the indictment referred to theft under ss 219 and 223(d) of the Crimes Act, again with a maximum term of imprisonment not exceeding three months.
[6] Two days later, the appellant attempted to use a credit card taken from the wallet to purchase petrol in Napier. The resulting charge was that he had dishonestly and without claim of right used the credit card in breach of s 228(b) of the Crimes Act, with a maximum term of imprisonment of seven years. The Judge omitted to impose a sentence on this count.
[7] From this point the appellant’s offending escalated in seriousness. On the morning of 6 January he entered the Parkvale Dairy in Hastings with a metal bar. When the shop attendant refused to open the till, the appellant attempted to strike him. These events gave rise to a charge of assault with intent to rob whilst being armed with an offensive weapon, under s 236(1)(b) of the Crimes Act, with a maximum of seven years’ imprisonment.
[8] Half an hour later, the appellant stole tobacco from another dairy in Hastings. He was convicted at the trial of a further offence of theft under ss 219 and 223(1)(d) accordingly.
[9] Next day, 7 January, accompanied by a co-offender, the appellant entered another dairy, this time situated in Vigor Brown Street, Napier. It was about 9.00 p.m. The appellant was again armed with a steel bar. He and his co-accused demanded money. The dairy owner endeavoured to take the metal bar from him. In the struggle that ensued the proprietor was knocked to the ground and suffered minor injuries to his elbow and eye. The appellant and his co-offender left with the till tray, which contained about $500 cash. As a result of this offending, the appellant was convicted of aggravated robbery.
[10] Just over a week later, there was another aggravated robbery, this time committed at the Astrolobe Dairy in Porirua. The appellant was again accompanied by the same co-offender, as well as a third person. While the other two distracted the owner of the shop, the appellant struck him on the head from behind with a metal ratchet that he had taken into the store. The proprietor lost consciousness briefly and fell to the ground, crashing into a display shelf as he did so. The appellant and the co-offenders helped themselves to tobacco before fleeing. The shop owner suffered a swollen right ear and swelling to the back of his head which required medical attention. The victim impact statement noted that the victim suffered on-going pains in his head as a result of the attack, and that he had not been able to continue with physical work that he used to be able to do. As a result of the fear induced by the attack, he sold the business and moved out of the district.
[11] Having returned to Napier, the appellant committed another robbery. On 3 February 2007, he threatened a shop attendant at the Wycliffe Superette, with a raised fist before robbing him of tobacco, cigarette papers and filters.

The sentence

[12] In sentencing the appellant Judge Noble noted that the four most serious charges were the two of aggravated robbery, one of assault with intent to rob and one of robbery. He treated the most serious offending as being the aggravated robbery of the Astrolobe Dairy in Porirua. Next in descending order of seriousness were the aggravated robbery at the Vigor Brown Street store, the assault with intent to rob at the Parkvale Dairy and the robbery committed on 7 January. Having reviewed the facts, the District Court Judge said at [9]:

I accept the Crown’s submission, conscious of what Mr Hewat has said on your behalf today, that by reference to the leading case of Mako the starting point in relation to the first three of those four more serious offences could be between five and six, five and four years respectively.

[13] The Judge then referred to the circumstances of the co-offender. He had been 17 years of age at the time of the offending and 18 when he was sentenced. He had pleaded guilty to the two aggravated robberies and been sentenced to three and a half years’ imprisonment. Judge Harding had allowed a discount of three years by virtue of the guilty pleas and because of the offender’s age. That meant that the starting point in relation to the two aggravated robberies must have been around six and a half years’ imprisonment.
[14] Judge Noble next referred to the serious effects that the aggravated robberies had had on the victims and then, at [12], observed:

Having regard to all eight of the offences, I set the starting point, collectively, at somewhere in the region of 13 to 14 years’ imprisonment, but I have to take account and do take account of totality and set a starting point in relation to the offending of eight years’ imprisonment.

[15] He then went on to refer to “aggravating features of the offending”. First, the fact that there had been a co-accused offender on the occasion of the two aggravated robberies. Secondly, he referred to the number of victims and the effects on them. Thirdly, he referred to what he described as the “substantial collective effects of your offending on the victim”. Taking account of those aggravating features, he added another year to the starting point of eight years, to arrive at a final starting point of nine years.
[16] He considered circumstances relevant to the appellant. At the time of the offending, he was 34 years of age, and he had a record of offending stretching back for 17 years. There were 130 previous convictions before the Court, mostly for offences of dishonesty, but they included burglaries, offences involving violence and drug-related offending. The Judge referred to three relatively recent offences involving offending analogous to the present charges although not involving weapons. The Judge noted that the current offending arose very shortly after the release of the appellant from a sentence of nine months imposed in August 2007, concluding that the offending must have occurred either while the appellant was on parole or very soon after he had ceased to be on parole.
[17] There were no mitigating features. Having reviewed the rival submissions of counsel, the Judge fixed on a final sentence of nine years’ imprisonment in respect of the aggravated robbery of the Astrolobe Dairy. For the aggravated robbery on the Vigor Brown Street Dairy, he imposed a sentence of eight years, and in relation to the offending at the Parkvale Dairy he imposed a sentence of two years’ imprisonment.
[18] So far as the other offences were concerned, a sentence of 18 months’ imprisonment was imposed in respect of the robbery at the Wycliffe Superette. A sentence of 12 months’ imprisonment was imposed in respect of the theft of the wallet from the car and on the final two charges, the Judge imposed sentences of six months’ imprisonment in each case.
[19] All of the sentences were to be served concurrently. It is plain that insofar as the three last mentioned offences were concerned (the subject of counts 1, 2 and 5 in the indictment), the sentences imposed exceeded the maximum terms available. Ms Edwards, for the Crown, submitted that concurrent sentences of three months’ imprisonment should be imposed on each count and we did not understand Mr Forster to disagree.
[20] In addition, Ms Edwards pointed out that the Judge had not in fact sentenced the appellant on one of the counts in the indictment (count 3) relating to the dishonest use of the stolen credit card to obtain petrol. Given that no sentence was imposed on this matter in the District Court, we think the appropriate way of disposing of the matter on appeal is to discharge the appellant on that count. That can have no consequence for the overall outcome of the appeal.

Appellant’s submissions

[21] Mr Forster contended that the Judge had erred by failing to identify a starting point for the lead offence, namely the aggravated robbery of the Astrolobe Dairy. He submitted that he had also erred by treating as aggravating, features that were related to the offending itself, and which should have been taken into account in fixing a starting point. He contended that those factors had been double-counted in arriving at the Judge’s “collective” starting point of 13 to 14 years. He submitted that the Judge had effectively adopted a “cumulative starting point” whereas he should have imposed concurrent sentences given that the offences were of a similar kind and were a connected series of offences.
[22] Mr Forster then submitted that the effective sentence of nine years imposed was manifestly excessive in comparison with the sentences imposed in R v Mako [2000] 2 NZLR 170; in R v Stevens (CA 12/98; 23 February 1998); and R v Tryselaar [2003] NZCA 70; (2003) 20 CRNZ 57.
[23] Mr Forster also mounted an argument based on disparity with the sentence imposed on the appellant’s co-accused. He submitted that the co-accused’s guilty plea, age, comparatively low prospects of re-offending and shorter list of previous convictions (in fact he had none) would have justified a substantial disparity in sentencing, but not the entire disparity between the two sentences. The co-accused had been sentenced to a term of three and a half years’ imprisonment in respect of the Astrolobe aggravated robbery, and three years on the aggravated robbery committed on 7 January 2007. The Judge who sentenced the co-offender had adopted a starting point in respect of the more serious of the aggravated robberies (but applying the totality principle) of six and a half years. This was to be compared with the apparent nine year starting point adopted with respect to the appellant’s offending. Mr Forster argued that the disparity was too great and that a lesser sentence of imprisonment should be substituted.

Crown submissions

[24] Ms Edwards, for the Crown, submitted that the effective sentence imposed was not excessive, and had been in accordance with what was said by this Court in R v Mako. Having elected to impose concurrent sentences, the Judge correctly applied s 85(4) of the Sentencing Act 2002 in imposing a sentence appropriate for the totality of the offending on the most serious offence, namely the aggravated robbery of the Astrolobe Dairy. Although the Judge had arrived at an appropriate starting point and then referred to aggravating circumstances of the offending, and it might have been more conventional to reverse that approach, this had not resulted in any error in the overall outcome. There was ample justification for a nine year starting point.
[25] Insofar as the appellant’s disparity argument was concerned, Ms Edwards submitted that there was also clear justification for the different sentences imposed on the appellant and the co-accused having regard to both differing degrees of culpability, and divergent personal circumstances.

Discussion

[26] The Judge’s approach involved acceptance of the Crown’s submission that the starting point for the aggravated robbery of the Astrolobe Dairy was five to six years. He considered that the other two most serious offences would justify starting points of five and four years respectively. Looking at all of the offending he said at [12] that a collective starting point of somewhere in the region of 13 to 14 years’ imprisonment would be justified but, taking into account the totality approach, reduced this to eight. It was at that point that for aggravating features he added a further year, to arrive at nine. In approaching the matter in that way the Judge perhaps took an unusual course. A more common approach would have been to take the Astrolobe burglary as the lead offence, and fix a starting point which properly took into account its aggravating aspects. Given concurrent sentences were to be imposed there would then need to be an increment to ensure that the sentence imposed for the lead offence reflected the totality of the offending. However, what matters is the effective sentence that was imposed, not the process followed to reach it.
[27] Mr Forster conceded that viewed on its own, the aggravated robbery of the Astrolobe Dairy would have justified a starting point for sentencing purposes of six years. He did so having regard to what was said by this Court in R v 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.

[28] Once a starting point of six years is accepted in respect of the aggravated burglary of the Astrolobe dairy, the question then becomes whether a further three years is justifiable to reflect the other offending, and, we would add, the personal circumstances relevant to the appellant himself, having regard to his substantial history of previous convictions. Although the Judge referred to the latter, he did not additionally load the sentence at all to reflect that history.
[29] We are in no doubt that the totality of the offending here justified an uplift of two and a half years from a notional starting point of six years for the aggravated burglary of the Astrolobe Dairy. The robbery of the Vigor Brown Street Dairy was also aggravated. On that occasion the appellant had again been accompanied by the co-offender. He had been armed with a metal bar and he had attempted to use it, but the proprietor was injured in the struggle which ensued when he tried to take it from the appellant. An uplift of three years could have been justified to take account of that offending on its own. When combined with the other offending, as well as the appellant’s history of previous offending, there is no room for any suggestion that the effective sentence of nine years’ imprisonment was excessive.
[30] There is nothing in the appellant’s argument based on disparity of treatment with the co-offender. He was a youth of 17 years, half the appellant’s age. Although he participated, with the accused, in the most serious of the offences, it was the appellant who was armed and who used the weapon. He had no previous convictions. There is no basis for a disparity argument.

Result

[31] The appeal must be allowed in respect of those parts of the sentence which involve the imposition of terms of imprisonment in excess of the maximum terms permitted. In each case, the sentences imposed are quashed, and sentences of three months are imposed in substitution, to be served concurrently with the sentences imposed on the other charges.
[32] On Count 3, without affecting the conviction that was entered as a result of the jury’s guilty verdict, Mr Gray is discharged without penalty.
[33] The appeal is otherwise dismissed.

Solicitors:
Crown Law Office, Wellington

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