The Queen v Lakatani [2008] NZCA 507 (28 November 2008)

Court of Appeal of New Zealand

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The Queen v Lakatani [2008] NZCA 507 (28 November 2008)

Last Updated: 3 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA657/2008 [2008] NZCA 507THE QUEEN

v

NIGEL GENE JACKSON LAKATANI

Hearing: 26 November 2008

Court: Robertson, Hugh Williams and Harrison JJ

Counsel: P T R Heaslip for Appellant
S J Mount for Crown

Judgment: 28 November 2008 at 11.30am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] On 23 September 2008, Nigel Lakatani was sentenced to three years’ imprisonment after pleading guilty to a count of aggravated robbery.
[2] He appeals on the basis that the sentence was manifestly excessive and wrong in principle.

Factual background

[3] At about 8pm on a Monday evening in April 2007, the appellant and two associates had gone to replenish supplies from a liquor store near a supermarket in Mangere. It was closed but one of his associates removed a metal chair from outside the liquor store and dragged it behind him as they walked in the direction of the supermarket carpark. There was a single car there. They decided to break into it, assuming it would be unoccupied.
[4] In fact, asleep in the car was a Japanese national who was on holiday in New Zealand.
[5] The victim was woken by a tap on the window by one of Mr Lakatani’s associates who was motioning for cigarettes or money. The occupant put up his hands, gesturing that he did not understand what was occurring.
[6] One associate smashed the driver’s door window, and then the front windscreen of the car with the metal chair. He grabbed the occupant by his shirt. At about the same time another associate smashed the front passenger window with his fist.
[7] While the victim was being held, the other two (including Mr Lakatani) entered the vehicle and uplifted the victim’s personal property from inside the car.
[8] The three left and eventually divvied up what they had taken.
[9] Mr Lakatani was spoken to by the police about six weeks later. He admitted his involvement saying that he was following what the other two were doing.
[10] The two co-accused were located in early July and August respectively. They also admitted their involvement.
[11] Notwithstanding their admitted involvement, the three accused maintained their not guilty pleas through to depositions. They were committed for trial on 1 February 2008.
[12] Nothing changed at a first call-over on 24 April 2008.
[13] Subsequently they sought a sentence indication. The Crown filed written submissions in advance, contending that the appropriate starting point was between four and five years’ imprisonment.
[14] The appellant’s (then) counsel also filed written submissions in advance and submitted the starting point should be between two and a half and three years’ imprisonment.
[15] The sentence indication hearing took place on 26 June 2008. The appellant and one of his co-accused appeared, but another did not. Judge Wade indicated that a starting point would be three and a half years’ imprisonment before any adjustment for personal factors. The appellant pleaded guilty. This was 13 months after the charge was laid and four months after depositions. The sentencing date was set for 7 August 2008.
[16] On 31 July 2008, the third of the offenders appeared in Court and pleaded guilty, but on the basis of some amendments to the summary of facts. None of these matters related to the culpability of Mr Lakatani.
[17] Mr Lakatani did not appear for sentence on 7 August 2008. A warrant was issued for his arrest. The case was called again on 3 September 2008 and eventually on 4 September 2008 he was arrested and remanded in custody for sentencing on 23 September 2008.
[18] As he was required to do, Judge Wade proceeded to sentencing on the basis of his sentence indication.

Discussion

[19] The two co-accused were sentenced to three years and three months’ imprisonment. The differentiation appears to have been on the basis that Mr Lakatani was younger and had no prior convictions.
[20] A full pre-sentence assessment report in respect of Mr Lakatani recommended a sentence of community detention, community work and supervision with special conditions. With due respect to the probation officer, that was totally unrealistic.
[21] It is common ground that the proper approach is to be found in the decision of this Court in R v Mako [2000] 2 NZLR 170 (CA).
[22] Judge Wade was of the view that the matter fell within the type of robbery described in [59] of that case which says:

[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.

[23] With that in mind, the Judge said of Mr Lakatani’s case:

[12] ... The aggravating features are all too plain. They include the fact that this was not one but three attackers, that it involved the use of a weapon, namely the chair, that there was actual violence inflicted on the victim and last, but not least, the victim was a foreign tourist here in New Zealand on holiday.

[24] We have been told that in the District Court, the Crown placed reliance on [57] of Mako which says:

[57] Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.

[25] With respect to those previously involved, we see even more similarities between this case and what is described in [58] of Mako:

[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 7 years or more. ...

[26] Although a tourist asleep in his car in a supermarket carpark in the evening is unusual, the attack in this case of the man and his car was violent and gratuitous, with the metal chair being used as a weapon.
[27] There can be no question but that the starting point had to be a full time custodial sentence. The only substantive question is its appropriate length.
[28] In our judgment the starting point of three and a half years was lenient in the extreme. A starting point of up to five years would have been unlikely to be altered on appeal.
[29] Much of Mr Heaslip’s case was predicated on a comparison with the decision of this Court in R v Winikerei [2008] NZCA 407. The facts of that case are so different to those in the present case that we find it of no assistance. Winikerei did not involve actual violence, there was no useful weapon, the value of property stolen was lower, there was no associated property damage, the victim was not alone at night in a vulnerable position and there was nothing to suggest the impact on the victim was in the same league as in the present case.
[30] If the Judge considered this case to fall within [59] of Mako, there were serious aggravating factors which the he was obliged to take into account. These included the fact of there being multiple offenders, the use of a weapon, actual violence, significant property stolen, associated offending in the damage to the car, the victim’s vulnerability and the impact of the offending upon him.
[31] As was noted in Mako at [43]:

... actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably high rating in overall seriousness. The extent of any violence and its consequences will be highly relevant either in assessing the robbery offence ...

[32] Therefore the Judge’s starting point of three and a half years, by any measure, is light and unchallengeable.
[33] We are not attracted to drawing fine lines between individuals’ culpability in situations of group offending. A critical part of this sort of criminal enterprise is the fact that it involves a number of people. Although some of the more despicable parts of the activity may have been committed by others, Mr Lakatani chose to associate himself with the others and participate in what they were doing.
[34] The fact that he was 18 years of age and had no previous convictions are non-aggravating, rather than mitigating, factors in these circumstances.
[35] We do not accept that there is room for any significant discount for a plea of guilty when it comes more than 15 months after arrest. There was an open and shut case against the appellant. He had admitted his criminality to the police and the Judge found that none of the three were truly remorseful.
[36] However the sentencing exercise is approached, the effective sentence of three years’ imprisonment was clearly available to the Judge.
[37] The argument that it was wrong in principle as being in breach of ss 15A or 16 of the Sentencing Act 2002 lacks merit. Each of these men behaved in a way which necessarily led to them forfeiting the right to remain within the community. It is unrealistic to expect that in a busy sentencing list Judges will recite provisions of enactments every time they impose sentence. The question is whether it is clear proper weight has been given to all relevant issues.

Conclusion

[38] There is nothing to suggest that anything was amiss in the sentencing exercise although a very lenient sentence was imposed. It was what Mr Lakatani was told would be the case when he requested a sentencing indication. We reject the submission that he entered his guilty plea as soon as he practically could.
[39] The appellant’s admissions and the other evidence suggest he should have pleaded guilty on the basis of the agreed statement of facts within days, or at most weeks, of his arrest.
[40] The appeal is without merit and is dismissed.

Solicitors:
Crown Law Office, Wellington