The Queen v Renata [2009] NZCA 526 (11 November 2009)

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The Queen v Renata [2009] NZCA 526 (11 November 2009)

Last Updated: 17 November 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2009

[2009] NZCA 526

THE QUEEN

v

BYRON WIREMU RENATA

Hearing: 2 November 2009

Court: William Young P, Chisholm and Priestley JJ

Counsel: J G Rowan QC for Appellant
M E Ball for Respondent

Judgment: 11 November 2009 at 10 am

JUDGMENT OF THE COURT

A Appeal against sentence allowed.

2. Sentence of nine and a half years imprisonment quashed and replaced by a sentence of eight and a half years imprisonment.

100. Minimum period of imprisonment of six years and two months quashed and replaced by a period of five years and eight months.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1] Having pleaded guilty to aggravated robbery and aggravated wounding, the appellant was sentenced by Judge Radford in the Wanganui District Court to nine and a half years imprisonment. He was also ordered to serve a minimum period of imprisonment of six years and two months, which represented two thirds of the sentence. His co-offender was sentenced to four years and nine months imprisonment, but on appeal to the High Court that sentence was reduced to three years and seven months.
[2] The appellant appeals against his sentence on the ground that it is manifestly excessive because:

(a) The starting point of 11 and a half years was too high.

(b) The discount of 17 per cent for mitigating factors was inadequate.

(c) There was an improper disparity between his sentence and the sentence of his co-offender.

It is also claimed that the minimum period of imprisonment failed to take into account mitigating factors (guilty plea and remorse) and was thereby too high.

Facts

[3] At approximately 9.10pm on 8 September 2008 the appellant, then aged 19 years, and his female co-offender, then aged 15 years, went to the home of a 67 year old man. The victim was targeted because he had assets. The appellant was armed with a machete.
[4] Before knocking at the door the offenders removed the exterior light bulb so that the victim could not switch on the outside light. After the victim opened the door in response to their knocking, the offenders rushed into the kitchen. The appellant was holding the machete above his head.
[5] Having retreated into the dining room the victim attempted to seek refuge behind the dining table. Although it was the Crown’s contention that the appellant then wounded the victim by striking him across the head with the machete, this was disputed by the appellant who maintained that the wound was caused by the appellant falling and striking his head on the table. We will return to that aspect shortly.
[6] While the victim was on the floor he was assaulted by the appellant who demanded his EFTPOS card and PIN number, which the victim refused to provide. The victim retreated into a bedroom and ultimately into the master bedroom. The appellant continued to assault the victim in both those rooms. Ultimately, fearing for his life, the victim told the appellant where his EFTPOS card could be located and also provided his PIN number.
[7] The appellant directed his co-offender to find the EFTPOS card, which she did. She also took the victim’s wallet, cheque book and approximately $1,300 in cash. Meanwhile the appellant continued to assault the victim. Once the appellant’s co-offender returned to the master bedroom both offenders left the victim’s house and later unsuccessfully endeavoured on two occasions to extract cash from the victim’s account.
[8] As a result of the attack the victim required approximately 10 stitches to a 6 cm cut on his head. He also received a 5 cm cut on his nose, as well as bruising to his face. The victim was hospitalised for several hours and was unable to return home for 10 days. He was off work for three weeks.

Disputed facts

[9] After first appearing on 16 September 2008, the appellant pleaded guilty to the two charges on 2 February 2009. He was remanded for sentence on 9 March 2009, but on that date his then counsel advised the Court that the appellant disputed the allegation that the victim had been wounded by the machete.
[10] A disputed facts hearing was scheduled for 27 April 2009 and the complainant attended Court on that day. However, when the matter was called the appellant informed Judge Radford that he had dismissed his lawyer and wanted to change his pleas.
[11] The disputed facts hearing was rescheduled for 2 June 2009, by which time the appellant was represented by Mr Rowan QC. Once again the complainant attended Court. Following discussion between Judge Radford and Mr Rowan the Judge accepted that the exact nature of the blow that had caused the injury was unclear and indicated that he was prepared to reduce the penalty by “a very modest amount, perhaps up to six months imprisonment”. The appellant then abandoned his request for a disputed facts hearing (and also his request to change his pleas).
[12] Sentencing was rescheduled for 5 June 2009.

The appellant

[13] Despite his young age the appellant has accumulated a significant list of previous convictions for dishonesty and breach of court orders, as well as a 2007 conviction for possession of an offensive weapon. He does not, however, have any previous convictions for violence.
[14] According to the probation officer the appellant has very limited insight into his offending and displayed limited remorse. A “serious risk” that the appellant would commit violent offences in the future was identified.

Sentencing in the District Court

[15] The Judge addressed the starting point for the robbery by reference to R v Mako [2000] 2 NZLR 170 (CA) and for the wounding by reference to R v Taueki [2005] NZCA 174; (2005) 21 CRNZ 769 (CA).
[16] With reference to Mako a number of aggravating factors were identified:

• (a) There was significant planning and preparation.
• (b) There were two participants.
• (c) There was “Some effort” at disguise.
• (d) The appellant was armed with a machete.
• (e) The targeting of a vulnerable 67 year old in his own home.
• (f) There was a high degree of violence.

It was the Judge’s view that those factors had a “significant effect” on the starting point.

[17] Turning to Taueki Judge Radford noted a number of relevant features: extreme violence; premeditation; serious injury; use of weapons; attacking the head; multiple attackers; vulnerability of the victim; and home invasion. He decided that the offending fell within band 3 (nine to 14 years) but that it was not appropriate to go to the top of that band because the injuries “may not be the worst of their kind”.
[18] Having taken a notional starting point of 12 years imprisonment, the Judge expressed the following view about the use of the machete:

[24] ... there is some dispute in your mind about the blow to the head with the face of the machete. Even if you had succeeded in your argument that you did not hit the victim with the sharp edge of the machete but only with the blunt edge, or the back of the head, that factor would have had a minimal effect on the sentence because I do not see it makes much difference how you hit him on the head. With the best will in the world I can’t see much more than six months being involved there ...

Thus the actual starting point adopted by the Judge was 11 and a half years.

[19] Two mitigating features were identified by the Judge: the appellant’s age and his guilty plea. With reference to the guilty plea the Judge said:

[25] ... I accept that you are entitled to credit for your plea, but you are not entitled to the same credit that you would have been entitled to had you not put the victim through the proposition of coming along to give evidence about this distressing and disgraceful episode. That was a choice you made, but you were warned that by taking that choice you were thereby impairing some of the credit you had earned.

A discount of two years (17 per cent) was allowed for the appellant’s age and guilty plea, thereby producing a final sentence of nine and a half years imprisonment.

[20] Finally, Judge Radford addressed the issue of a minimum period of imprisonment. After referring to s 86(2) of the Sentencing Act 2002 he observed:

[27] ... In my view, your behaviour, both as it has been described in the summary and adjusted as I have made mention of, and as evidenced through the Probation Service, is such that the Court would be failing in its duty if I did not take every possible step available to protect the community from you. I do not know what the future holds for you but, frankly, you are a very dangerous young man.

He considered that there should be a minimum period of two thirds of the sentence which equated with six years and two months.

Was the starting point too high?

[21] When arriving at the starting point the Judge was quite properly guided by Mako and Taueki. Not surprisingly he concluded that both the robbery and wounding involved a high degree of criminality which was aggravated by the features listed by him (see [16] and [17] above). Each count was also aggravated by the existence of the other count. Undoubtedly the Judge’s conclusion that the offending came within band 3 of Taueki was right.
[22] We also accept Ms Ball’s submission that the decision of this Court in R v Fenton [2008] NZCA 379 provides a useful comparative authority. In that case a starting point of 10 or 11 years was considered to be appropriate to reflect the seriousness of Mr Fenton’s offending. He was 19 years of age and had pleaded guilty to aggravated burglary, wounding with reckless disregard, aggravated robbery, threatening to kill and kidnapping. The offending involved an invasion of a farm cottage by a number of persons armed with a softball bat and a machete and an attack on some members of the family. Mr Fenton was not the instigator, was not personally armed, and did not directly use violence against any member of the family.
[23] Given the seriousness of this vicious and prolonged home invasion the Judge’s starting point of 11 and a half years was clearly within the available range. This ground of appeal fails.

Was there sufficient allowance for mitigating factors?

[24] When the Judge sentenced the appellant he did not have the benefit of the judgment of this Court in R v Hessell [2009] NZCA 450 which sets guidelines for discounts arising from guilty pleas. With reference to disputed facts hearings under s 24 of the Evidence Act the Court observed:

[46] ... In general, a defendant’s insistence on a disputed facts hearing will not count against him or her for the purposes of a guilty plea discount, provided his or her stance has been reasonable.

In this case the appellant’s stance about the use of the machete was vindicated by the six month reduction adopted by the Judge. In other words, the appellant’s stance was reasonable and should not count against him.

[25] While it was unfortunate that the complainant had to attend the Court on two occasions and the appellant has to accept some responsibility for at least one of those attendances, we do not consider that the 17 per cent discount was adequate in all the circumstances. On the other hand, the guilty plea was not entered at the first reasonable opportunity described in Hessell at [15] but rather fell within the range of 20 per cent to 33 per cent referred to in [17].
[26] In all the circumstances we consider that the appropriate discount to reflect both the appellant’s guilty plea and his youth was 25 per cent. Given the starting point of 11 and a half years this produces a final sentence of eight and a half years imprisonment.

Was there an improper disparity with the sentence of the co-offender?

[27] In the District Court the starting point for the appellant’s co-offender was nine years imprisonment and she was allowed a 50 per cent discount for her age and mitigating factors. On appeal Dobson J was not persuaded that there was any error in the starting point but he considered that her assistance to the police since sentencing justified an additional 10 per cent discount. Her sentence was reduced to three years and seven months accordingly.
[28] We are satisfied that the difference of two and a half years between the starting points was justified by the comparative roles played by the two offenders. The appellant was armed with the machete and was also the primary, if not exclusive, perpetrator of the violence against the victim. And the difference between the final sentences reflects the age of the co-accused, her assistance to the police and a full discount for her guilty plea.
[29] There is no merit in this ground of appeal.

Minimum period of imprisonment

[30] Given the reduction in the sentence, the minimum period of imprisonment imposed by the Judge cannot stand. The issue is whether we should adopt the Judge’s approach of imposing a period of two thirds or whether some lesser percentage is appropriate.
[31] Obviously the Judge considered that a minimum period of imprisonment was necessary to protect the community from the offender in terms of s 86(2)(d). He described the appellant as “a very dangerous young man” and considered that he should take every possible step to protect the community from him. Given the nature of the offending and the contents of the probation officer’s report, that view was open to the Judge and we adopt it by imposing a minimum period of two thirds.

Outcome

[32] The appeal against sentence is allowed. The sentence of nine and a half years imprisonment is quashed and replaced with a sentence of eight and a half years imprisonment of which the appellant is to serve a minimum of five years and eight months.

Solicitors:
Crown Law Office, Wellington