The Queen v Epiha-Netana [2009] NZCA 583 (11 December 2009)

Court of Appeal of New Zealand

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The Queen v Epiha-Netana [2009] NZCA 583 (11 December 2009)

Last Updated: 15 December 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA390/2009

[2009] NZCA 583

THE QUEEN

v

SHADAE EPIHA-NETANA

Hearing: 23 November 2009

Court: Arnold, Potter and Heath JJ

Counsel: R Glover for Appellant
A M Powell and A C Walker for Crown

Judgment: 11 December 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Arnold J)

[1] This is an appeal against sentence. Following a jury trial before Judge Erber the appellant was convicted on one count of aggravated robbery (s 235(b) of the Crimes Act 1961). She was sentenced to a term of imprisonment of two years, six months. She appeals on the basis that there is an unjustified disparity between the sentence imposed on her and those imposed on her co-offenders and, in any event, her sentence is manifestly excessive.

Factual background

[2] On the evening of 31 August 2008 the appellant, then aged 19, and two 14 year old friends approached the victim, a young woman of 16, and her pregnant friend as they were waiting at a bus shelter. The two 14 year olds attacked the victim and brought her to the ground, with the intention of stealing her handbag and its contents. When the victim would not release her handbag, the appellant stepped in and kicked the victim about the face and head until she did release it. The three young women then ran off with the handbag.
[3] Besides losing her handbag and its contents in the attack (to a total value of around $170), the victim suffered a black eye, facial cuts and swelling and three chipped teeth, including a front tooth. Because of her fear of dentists, the victim had not had the chipped teeth repaired at the time of sentencing. The attack has had a lasting psychological effect on her, in the sense that she has had difficulty sleeping after the attack, is scared to wait at the bus shelter and is wary about being approached by strangers or going out at night, at least without the company of friends.
[4] At trial both the victim and her friend gave evidence implicating the appellant in the attack. Although she did not give evidence at trial, the appellant had made a statement to the police, in which she claimed that she was an innocent bystander to the attack carried out by her two friends. Her defence was based on that. Obviously the jury rejected her claim.

Sentencing

[5] The two 14 year old co-offenders were sentenced in the Youth Court to community work, coupled in one case with supervision on conditions.
[6] In sentencing the appellant Judge Erber referred to the guideline decision in R v Mako [2000] 2 NZLR 170 (CA). In that case the Court noted that the range of conduct that can constitute aggravated robbery is very wide. In addition to the elements of the offence, there is a wide variety of factors which may contribute to, or detract from, the seriousness of the offending. Once the features of the offending have been assessed in a particular case and a starting point identified, the court will turn to the offender’s personal circumstances to determine whether they require that the starting point be increased or decreased: at [34].
[7] In the present case, the Judge noted the following aggravating features in relation to the offending:

(a) There was a premeditated attack;

(b) By more than one offender;

(c) Involving actual physical violence by the appellant;

(d) Which was directed at the victim’s head;

The Judge selected a starting point of three years.

[8] In terms of the offender’s personal circumstances, the Judge identified both mitigating and aggravating features. In particular the Judge:

(a) Noted that the appellant had two other convictions for offences of violence, the second (involving the use of a blunt instrument) committed while she was on bail awaiting trial for the present offending.

(b) Noted the appellant’s relative youth, that she had not previously been sentenced to imprisonment and that he had received a number of references which showed that the appellant was supported by family and others, who saw her as having positive qualities. (The Judge had earlier noted that the appellant suffers from epilepsy, which according to the pre-sentence report, is well managed by medication.)

(c) Did not accept the pre-sentence report writer’s assessment that the likelihood of the appellant re-offending was low.

(d) Said that the appellant had not shown remorse and had no particular motivation to change.

[9] Assessing these factors overall, the Judge made a deduction from the starting point of six months, producing an end sentence of two years, six months imprisonment. In doing so he rejected the recommendation in the pre-sentence report that a sentence of community detention and supervision be imposed.

Basis of appeal

[10] Mr Glover, who did not appear at trial, submitted that:

(a) There is an unjustified disparity between the sentence imposed on the appellant and those imposed on her co-offenders. While parity cannot be expected between offenders dealt with in the Youth Court and those dealt with in the ordinary courts, the disparity in this case was “too great to be left unchallenged”.

(b) Taking into account the nature of the offending, the appellant’s personal circumstances and the assessment in the pre-sentence report, the sentence was manifestly excessive.

Discussion

[11] As Mr Glover noted, the Judge addressed the issue of disparity. He said at [11]:

The co-offenders were dealt with in the Youth Court where punitive sanctions are very restricted and having regard to their ages of 14 no sentence of imprisonment could have been imposed in any event. The restriction on punitive sentences in the Youth Court arises for policy reasons. The jurisdiction there is different. The criteria employed are different. Both of those young persons were sentenced to community work. One with supervision on conditions. In short there is no proper conclusion on the question of disparity. That is to say there is no conclusion which would favour you on the question of disparity because the purposes of youth justice and policy of Parliament and the Courts make disparity an everyday thing where a non youth person is involved in youthful crimes.

[12] Mr Glover submitted that the Judge had over-simplified the position. There were undoubtedly differences between the appellant and her co-offenders which justified different treatment. The real issue was whether the disparity here was too great. He relied on the decision of this Court in R v Hall [2008] NZCA 207, where the Court accepted at [16] – [17] that home detention could properly be imposed in cases of aggravated robbery. In light of factors such as the appellant’s age, her personal circumstances and her low risk of re-offending, Mr Glover submitted that a sentence of home detention should have been imposed upon the appellant, or at least a shorter term of imprisonment. Given the appellant’s youth, and what was said about her in the pre-sentence report and the references, rehabilitation was still a viable goal.
[13] Both counsel accept that the leading decision on the question of disparity is R v Lawson [1982] 2 NZLR 219 (CA). The Court noted that an appellate court will only intervene with a sentence on the ground of disparity “when the disparity is unjustifiable and gross”: at 222. The Court said at 223:

The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate ... [The test] is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think something had gone wrong with the administration of justice.

[14] We do not consider that the disparity in the present case would invoke the type of reaction referred to in Lawson. The appellant’s co-offenders were sentenced in accordance with the purposes and principles of the Children, Young Persons, and Their Families Act 1989. Reflecting the youth of those covered by that Act, those purposes and principles are quite different from the purposes and principles of the Sentencing Act 2002 to which the appellant was subject. The appellant’s age was a relevant factor under s 9 of the Sentencing Act, and the Judge made allowance for it. But the appellant’s youth was counter-balanced by other factors, in particular, the fact that the appellant had two other convictions for violent offending and that one of those offences was committed while she was on bail in relation to the present offending. Against that background, we agree with Mr Powell that an independent, reasonably minded observer aware of all the circumstances, including the different statutory regimes, would not be troubled by the difference in the sentences.
[15] Turning to the question whether the sentence was nevertheless manifestly excessive, we consider that it was not. The starting point of three years was, in our view, open to the Judge given the aggravating features of the offending (see [7] above). That is consistent with what this Court said in Mako at [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 although no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher staring point.

[16] The Judge was not obliged to accept the assessment of the pre-sentence report writer as to the likelihood of the appellant re-offending, but was entitled to form his own view. First, the appellant denied liability, and maintained that denial when being interviewed in relation to the pre-sentence report. She also maintained that stance, or at least greatly minimised her involvement, in her letter to the Judge prior to sentencing. Accordingly she did not demonstrate remorse or any significant insight into the circumstances that led to her offending. Second, having conducted the trial the Judge had the opportunity to assess the appellant’s claim in her police statement against the evidence of the victim and her friend, more accurately than we could. Third, the fact that the appellant committed a further offence involving violence while on bail in relation to the present offending indicates that the appellant has not been responsive to the criminal justice process in the past, and that points to a risk of future offending. Finally, while we accept that the appellant has support from family and others who have had contact with her, that has not been sufficient to prevent her from offending in the past.
[17] Further, account must be taken of the effect of the appellant’s actions on the victim. This was an unprovoked and gratuitous attack which had physical and psychological effects for the victim. There was no evidence that the appellant was the instigator, but the jury accepted that she had participated in the attack by kicking the victim when she was already on the ground, causing her injury. The Judge was entitled to take a stern view of a random street attack of this type.
[18] Accordingly, while we accept that a sentence of two years, six months is a significant sentence for a person who has never previously been incarcerated, we do not consider that it is manifestly excessive in the circumstances.

Decision

[19] For these reasons, we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington