The Queen v Wharepapa [2009] NZCA 544 (18 November 2009)

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The Queen v Wharepapa [2009] NZCA 544 (18 November 2009)

Last Updated: 24 November 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA441/2009

[2009] NZCA 544

THE QUEEN

v

KINGI HONE WHAREPAPA

Hearing: 5 November 2009

Court: William Young P, Chisholm and Priestley JJ

Counsel: S J Gill for Appellant
T Epati for Crown

Judgment: 18 November 2009 at 3.30 pm

JUDGMENT OF THE COURT

A An extension of time for appealing is granted.

B Appeal dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1] After pleading guilty to one count of aggravated robbery and two counts of breaching release conditions, the appellant was sentenced to a total of six years and three months imprisonment by Judge Garland in the District Court at Palmerston North. He appeals against that sentence.
[2] Initially three grounds of appeal were advanced:

(a) The starting point was too high.

(b) An uplift to reflect aggravating features personal to the appellant was excessive.

(c) The discount for mitigating features was inadequate.

At the hearing of the appeal the first ground of appeal was abandoned.

[3] Although the appeal is out of time, no opposition to an extension of time was advanced by the Crown. The time for appealing is extended accordingly.

Facts

[4] At about 11pm on 4 August 2008 the appellant, aged 21 years, went with one of his co-offenders, Cedric Tanoa, aged 15 years, to a flat occupied by the victims. When the door was opened by the first victim the appellant demanded to speak to the second victim about a drug debt. Then both offenders pushed past the first victim and went to the bedroom of the second victim.
[5] In the bedroom the offenders confronted the second victim and demanded money from him. Mr Tanoa turned over the victim’s bed and went through his drawers, demanding money and drugs. The appellant threatened to shoot the victim’s kneecaps if he did not give them money and he told the victim that he was in the Nomads gang. Then the appellant took the victim’s wallet and demanded the PIN number for his Eftpos card, which was supplied.
[6] The first victim then offered to obtain money from an ATM machine and the appellant went with that victim to an ATM machine where $100 was withdrawn and handed to the appellant. While they were walking back to the flat the appellant talked about doing this job to get his Nomad’s patch.
[7] In the meantime Mr Tanoa had obtained a large knife from the kitchen in the flat and held it at the second victim’s throat, telling him that this is how he is going to get his patch and not to “fuck with the Nomads”. Later he held the knife at the throat of a third occupant. At one point two other co-offenders who had been waiting in the street below came into the flat and began searching the bedrooms, drawers and cupboards in the flat, before leaving again with a CD player, a cellphone and a beanie.
[8] After returning to the flat with the first victim, the appellant took the knife off Mr Tanoa. He also told Mr Tanoa to return the CD player. However, before leaving the flat the appellant told the victims that if they called the police the offenders would return with guns and “sort them out”.
[9] At the time of the robbery the appellant was subject to conditions that had been imposed when he was released from prison on 14 May 2008. Those conditions were due to expire on 5 October 2009. The appellant had previously breached the conditions, within a month of his release, by failing to report to his supervising probation officer and failing to attend an alcohol and drug counselling appointment.

The appellant

[10] The appellant is a patched member of the Nomads group. His previous record includes several convictions for burglary as well as convictions for other forms of dishonesty. He also has a previous conviction for breach of community work. Although he has a conviction for fighting in a public place, there are no other convictions for violence.
[11] It is apparent from the probation officer’s report that the appellant has alcohol and drug problems. The probation officer reported that the appellant’s explanation for breaching the release conditions was that following release he returned to his gang lifestyle and began abusing alcohol and drugs. According to the probation officer the appellant displayed minimal victim empathy and there is a medium risk he will re-offend.

Sentencing in the District Court

[12] Not surprisingly Judge Garland adopted the aggravated robbery count as the lead offence. He noted that the offending involved “some” planning and preparation, there were two offenders, residential premises had been invaded at night, the robbery was clearly motivated by the appellant’s gang involvement, and there had been a substantial impact on the victims. Personal aggravating features noted by the Judge were his previous convictions and the fact that he was subject to release conditions.
[13] On the mitigating side the Judge took into account that the appellant was not present when the knife was used (and did not have any knowledge of it) and that although substantial violence was threatened, little was employed. The Judge also took into account that the appellant had had to deal with “some pretty sad family circumstances” (the suicide of his father and brother) and that he had pleaded guilty.
[14] Having referred to R v Mako [2000] 2 NZLR 170 (CA), the Judge commented that with this type of offending, which involved forced entry into a private dwelling at night, a starting point of up to 10 years could be considered. After balancing the fact that the appellant had taken the knife off his co-offender against the underlying gang involvement, Judge Garland concluded that a starting point of seven years was appropriate. Nine months was then added for aggravating factors personal to the appellant (previous convictions and offending while subject to release conditions). Nineteen months (slightly more than 20 per cent) was then deducted for mitigating factors, resulting in a final sentence of six years and two months for the aggravated robbery.
[15] Finally, the Judge imposed sentences of one month on each of the two charges for breach of release conditions. These one month sentences were concurrent between each other, but cumulative on the aggravated robbery sentence.

This appeal

[16] Mr Gill contended that the uplift of nine months for personal aggravating features was excessive and offended the totality principle. He claimed the uplift for previous convictions justified no more than an additional two to three months and that any addition for offending while subject to release conditions should have been no more than one month. He also claimed that the Judge had double counted by using both an uplift and a cumulative sentence to reflect the fact that the appellant had been subject to release conditions and had breached those conditions.
[17] Counsel also contended that the appellant was entitled to a full credit of one third credit for his “early” plea of guilty. He also argued that there should have been a further discount for the “pretty sad family circumstances” the Judge said he had taken into account.

Discussion

[18] It is not surprising that the appellant’s challenge to the Judge’s starting point was abandoned. As this Court observed in 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 seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

Clearly the Judge’s starting point of seven years was well within range. Indeed, given the gang dimension a higher starting point could have been justified.

[19] We also accept that the Judge’s uplift of nine months to reflect the appellant’s previous record and the fact that he was subject to release conditions was within the available range. Despite his age the appellant has accumulated a significant record of previous offending, with the most recent offending having attracted sentences of imprisonment. Arguably the fact that the appellant committed the robbery shortly after he was released from prison and while he was subject to release conditions is an even more serious aggravating feature. It reflects a negative and arrogant attitude towards authority.
[20] There is no merit in the suggestion that the Judge’s approach involved double counting. We agree with Ms Epati that the failure to report and failure to attend counselling involved offending that was different from, and unrelated to, the aggravated robbery. A cumulative penalty to reflect that unrelated offending was in accordance with s 84 of the Sentencing Act 2002.
[21] Finally, we reject the contention that there was insufficient allowance for mitigating factors. The appellant did not enter his guilty pleas until the first day of depositions which was around six months after his first appearance. No earlier indication of the pleas had been given and the police had arranged for several prosecution witnesses to attend Court. In terms of R v Hessell [2009] NZCA 450 the timing of this guilty plea justified a discount of 20 per cent or perhaps a little more.
[22] Even allowing for the “sad family circumstances”, the discount of 20.46 per cent allowed by the Judge was adequate. When the Judge said that he would take those circumstances into account, he obviously had in mind compassionate considerations, there being no suggestion that the deaths of his father and brother had any direct bearing on the offending. In fact, however, the appellant had absconded when he was granted bail to attend his brother’s funeral. At best the appellant’s family circumstances could only attract an extremely modest discount.
[23] Viewed in the round the overall sentence of six years and three months was not manifestly excessive. The appeal cannot succeed.

Outcome

[24] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington