[1] Mr Walker entered a guilty plea on the morning of trial to one count of aggravated robbery and one count of unlawful detention (kidnapping). On 26 March 2010, he was sentenced to nine years imprisonment, with a minimum period of imprisonment of six years.
[2] Mr Walker seeks to appeal against his sentence out of time, on the basis that it is manifestly excessive because the Judge failed to give a 20 per cent discount for his guilty plea, did not give credit for his remorse and gave too much weight to the “home invasion” aspect of the offending.
[3] The appeal in this case was filed some 33 days out of time. The explanation for the delay was that Mr Walker unsuccessfully sought to instruct new counsel during this time period. The Crown does not oppose the granting of an extension of time, given the circumstances. An extension of time to appeal is therefore granted.

Background

[4] At approximately 2am on 16 January 2009, Mr Walker and three others caught a taxi. During the taxi trip, Mr Walker advised his associates that they were going to an address to “do over” a person who lived there.
[5] The group of four arrived at the address of the 61 year old victim and Mr Walker and his male associate knocked on the back door of the victim’s house. When the victim opened the door, Mr Walker and his associate forced their way inside the house and began to demand money from the victim. The two other female associates remained outside the property.
[6] Both Mr Walker and his associate were wearing scarves that covered their faces.
[7] Mr Walker and his associate forced the victim into the lounge of the house and continued to demand money. They told the two female associates, who were standing outside the back door of the house, to search the victim’s car for his wallet, which they did.
[8] It was subsequently discovered that the victim’s wallet was on the dining room table. The victim retrieved $70 from it and handed it over. Mr Walker and his associate then forced the victim into his vehicle. They made him drive to an ATM machine and withdraw $800, which was taken by Mr Walker and his associate.
[9] The victim then drove back to his address. He was taken into the lounge by Mr Walker and his associate and his hands and feet were tied using computer cables. The victim was then threatened, told not to call the police and the telephone wires in the kitchen were cut.
[10] Mr Walker and his associates then drove off in the victim’s vehicle. The vehicle was located the next day, but all of the victim’s tools that were in it were missing and have not been recovered. The tools were valued at approximately $6000.
[11] The offending had a profound impact on the victim, who took his own life three weeks later. During those three weeks, he was unable to live in his house, could not drive his vehicle and burnt a pile of his clothing that he thought the offenders had touched.
[12] The suicide of the victim, in turn, had a profound effect on his family and friends. As a result, there were several victim impact statements before the Court at the time of sentencing that expressed the belief of the victim’s family and friends that he took his life as a result of the offending. The victim impact statements also refer to the effect the victim’s suicide had on his family and friends.
[13] Mr Walker was aged 34 at the time of the offending and had, subject to release conditions, been out of prison for one month prior to the offending. He has a lengthy criminal history, including 19 previous convictions for dishonesty offences, 13 of which are for burglary. Mr Walker also has convictions for violent offending, including male assaults female and wounding with intent to cause grievous bodily harm. In addition, he has previously been dealt with in the Youth Court for robbery (by assault) and four burglaries.
[14] The pre-sentence report recorded that Mr Walker was cooperative, but showed little remorse. He is assessed as being at a high risk of re-offending.

Mr Walker’s submissions

[15] Mr Walker complains that the discount for a guilty plea was two and a half months short of the 20 per cent agreed with the Crown before he entered his guilty plea. The guilty plea was entered after an unsuccessful application by Mr Walker to have the evidence of the victim excluded, which was heard on the morning of the trial.
[16] It is further submitted that the Judge failed to take into account the remorse felt by Mr Walker for the death of the victim (as against for the offending itself). Mr Walker also submits in his written submissions that three years was added for the home invasion aspect and this was too high (although this ground was not pursued in oral submissions).

Our assessment

[17] In R v Mako this Court stated:[1]

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 legislation to around ten years.

[18] The Crown submits (and we accept) that the circumstances of this offending place it at the upper end of seriousness and that many of the aggravating factors referred to in Mako are present including: a degree of planning and preparation; the fact there were four people involved, two of whom entered the address; the fact disguises were used; the forced entry into a private dwelling; the vulnerability of the 61 year old victim living alone and targeted in the early hours of the morning; the use of violence, which included tying the victim up; the use of threats and intimidation; the fact cash and a vehicle were stolen; and the abduction and detention of the victim as reflected in the additional kidnapping charge.
[19] In the circumstances, the starting point of ten years imprisonment was clearly available to the sentencing Judge. From the starting point the Judge added an uplift of one year because of Mr Walker’s poor criminal history. It was clearly open to the Judge to do so.
[20] As to the discount for the guilty plea, in the context of a sentence of this magnitude, the two and a half months by which it fell short of 20 per cent is minimal. In any event, Mr Walker received a very generous discount for what was a very late guilty plea.
[21] Finally, even accepting Mr Walker is remorseful that the victim took his life, it is difficult to see how this reduces his culpability, given his apparent lack of remorse over the offending itself (as noted both by the Judge and the pre-sentence report writer). The Judge does not seem to have treated the victim’s suicide as an aggravating feature affecting the length of the sentence, although acknowledging in his sentencing remarks the suicide and its effect on the victim’s family. This is an added reason for giving no further discount.
[22] Overall, the sentence was well within the range available to the Judge and indeed can be seen as lenient.

Result

[23] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Mako [2000] 2 NZLR 170 (CA) at [58].

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