The Queen v Anderson [2008] NZCA 220 (9 July 2008)

Last Updated: 21 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/2008

[2008] NZCA 220

THE QUEEN

v

TAONUI TE WHEROWHERO ANDERSON

Hearing: 24 June 2008

Court: William Young P, Gendall and Ronald Young JJ

Counsel: Appellant in Person
M E Ball for Crown

Judgment: 9 July 2008 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentence of three years imprisonment is quashed and two years imprisonment is imposed cumulative on the sentence of four years imprisonment for burglary.
   

REASONS

(Given by Ronald Young J)

[1] Mr Anderson pleaded guilty on 18 January 2008 to the aggravated robbery of the Te Rapa TAB on 22 February 2007. He was then a serving prisoner having been sentenced to four years imprisonment in June 2007 for seven burglaries and other property offences.
[2] In this appeal the appellant says the sentence of three years imprisonment for the aggravated robbery, cumulative on the four years imprisonment for the property offending, was manifestly excessive.
[3] We take the summary of facts with regard to the aggravated robbery charge from the sentencing Judge’s remarks. Judge Walker said:

[2] The facts are that on the evening of 22 February last year you robbed the TAB at Te Rapa. You ran in, disguised with a bandanna, sunglasses and a hat, and armed with a pipe wrench. There was one elderly cashier working there and one customer. You demanded money. You jumped the counter, emptied the cash draw into a bag, took some more cash from a cupboard, and fled in a getaway car. The courageous cashier rang the police while you were taking the money. $4,560.00 was taken. The victim was 67 years of age. She feels vulnerable to further robbery and it has knocked her confidence. She could have been your grandmother.

[4] And he said:

[8] The purposes of sentencing today are to protect the public, to denounce your conduct, to hold you accountable. This was a planned robbery in the sense that you were disguised. You were armed, and it is of concern that you knew to look in the cupboard for the extra money. That may or may not have been just chance. You had a getaway car waiting. It was a vulnerable victim and, as I have said, an elderly cashier on her own. $4,500.00 was taken. This is a robbery which falls somewhere between robberies of a retail shop or diary and commercial premises.

[5] The Judge took five years imprisonment as the starting point. We agree with the Judge that the facts of this case justify the starting point of five years: R v Mako [2000] 2 NZLR 170 (CA).
[6] The Judge then said:

[9] ...You are entitled to credit for the plea of guilty. It was late, it was after depositions and three and a half months after committal for trial but you have saved this vulnerable and elderly complainant from having to come along to Court and give evidence about this event and relive it. That would serve to reduce the sentence to one of four years’ imprisonment. What I then need to consider is that the sentence imposed on this offence must be on top of the sentence which was imposed on you for the burglaries. I need to stand back and look at what would be an appropriate sentence overall. It serves to reduce the sentence from what it would otherwise be if it was a standalone matter and all I was dealing with was this aggravated robbery. It serves to reduce the sentence on the aggravated robbery to one of three years cumulative on your existing term.

[7] Mr Anderson can have no complaint about the allowance given for his guilty plea. He pleaded guilty seven months after he was charged and several months after the depositions hearing. The 20 per cent discount given was well within the Judge’s discretion.
[8] To consider Mr Anderson’s complaint that his total sentence of seven years imprisonment was manifestly excessive, it is necessary to consider the offending for which he received four years imprisonment. Mr Anderson pleaded guilty to, and was sentenced for, seven charges of burglary, two charges of unlawfully converting a motor vehicle and one charge of theft. The burglaries were the most serious offending involving both commercial premises and houses, with property valued at over $10,000 taken. As the Judge who sentenced the appellant on the burglary charges remarked, (DC HAM CRI-2007-019-1843 [1], [12], [16]) the appellant at sentencing had 12 previous convictions for burglary, two for aggravated robbery and 17 for theft. He had spent most of the previous 10 years in prison.
[9] The Judge took a starting point of five years imprisonment for the appellant’s offending and his past record. He deducted one year for the appellant’s guilty plea made after depositions but before trial. He then sentenced the appellant to four years imprisonment on the burglary charges and concurrent sentences of 12 months imprisonment each for the unlawful taking of motor vehicles and one month for the theft charge.
[10] The sentencing for these property offences occurred on the same day that the appellant was charged with aggravated robbery. Some of the burglaries were committed on the same day as the aggravated robbery. The appellant was not charged with the aggravated robbery immediately because the police did not consider that they had sufficient evidence to do so. Further evidence later came to hand and the appellant was then charged.
[11] As the Judge recognised, the appropriate approach to this sentencing was to assume all matters were being dealt with together on the same day. While the offending overall was very serious, a final sentence of seven years imprisonment, given the appellant had pleaded guilty to all of the offending was, we consider, beyond the range properly available to the Judge. We are therefore satisfied the total sentence of seven years imprisonment was manifestly excessive.
[12] We consider a total sentence of six years imprisonment reflects both the overall criminality of the aggravated robbery and burglary offending and the appellant’s guilty pleas. We therefore quash the sentence of three years imprisonment with respect to the aggravated robbery charge and reduce it to one of two years imprisonment cumulative on the sentence of four years imprisonment with regard to the property offending.

Solicitors:
Crown Law Office, Wellington