Tiori v R [2011] NZCA 355 (28 July 2011)

Last Updated: 2 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA61/2011 [2011] NZCA 355

BETWEEN TYRONE TIORI Appellant

AND THE QUEEN Respondent

CA62/2011

AND BETWEEN DAMIEN MATTHEWS Appellant

AND THE QUEEN Respondent

CA63/2011

AND BETWEEN RA TANIRAU Appellant

AND THE QUEEN Respondent

Hearing: 28 June 2011

Court: Wild, Rodney Hansen and MacKenzie JJ

Counsel: A F Rickard-Simms for Appellants A M Toohey for Respondent

Judgment: 28 July 2011 at 4.15 pm

JUDGMENT OF THE COURT

A Extension of time to appeal is granted.

2. The appeals are allowed. The sentences are quashed and the following sentences substituted:

(i) For Mr Tiori, six years imprisonment

(ii) For Mr Tanirau, five years eight months imprisonment.

(iii) For Mr Matthews, five years ten months imprisonment.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1] The appellants were sentenced by Judge Harrop in the District Court at Masterton on 22 December 2010 to terms of imprisonment ranging from seven years to seven years four months following their pleas of guilty to a count of aggravated robbery on 2 September 2010. Each of them appeals against the sentence imposed on the grounds that it was manifestly excessive. Notice of appeal was not filed until 7 February 2011, a few days late, because of the holiday period. An extension of time is sought. It is not opposed, and is granted.

Facts

[2] The robbery took place at a house across the road from Mr Matthews’ house. The occupants were known to the appellants. Sometime earlier, there had been an assault on Mr Tanirau by someone associated in some way with the occupants. The three appellants (together with a fourth person who, at the time of sentencing, was facing trial), were gathered at Mr Matthews’ house one day in late August, and discussed retaliation against the occupants of the house for the assault on Mr Tanirau. A plan was hatched that Mr Tanirau would go to the house, which was known to be a tinnie house, on the pretext of purchasing cannabis, to obtain information about who was there and how access could best be obtained. He would alert the others, who would then enter to carry out the intended retaliation. There was some preparation in that Mr Tanirau purchased a second cellphone SIM card which he intended to use to conceal the sending of text messages in carrying out the plan. Weapons, including a slug gun and a hammer, were obtained.
[3] On the night of 2 September 2010, they agreed to carry out the planned invasion of the house. Mr Tanirau visited the house at about 10.30pm. He purchased a small amount of cannabis and was invited inside. The usual occupants of the house were three men and three women, with two children aged under two. On this night there were a further four adults visiting. There were three males and two females still up at the time. Mr Tanirau texted the others advising the number of occupants, the best time to enter, which door to use and the approach to that door. A time of 11.30pm was fixed for entry. At that time the other three persons, including Mr Tiori and Mr Matthews, burst into the address through the back door wearing balaclavas and brandishing weapons. The weapons included the slug gun and a hammer. They demanded that the occupants lie on the ground and demanded money and drugs. One of the occupants who started to move to comply with the demands was hit on the back of the head with the slug gun, and the barrel of the slug gun was pushed into his body and head. A wallet and some drugs were taken. The three who had entered departed, leaving Mr Tanirau who, when police arrived, acted the part of a victim. The summary of facts states that the victims believed there was also a single barrelled shotgun, which had not been located. The offenders denied this, and Mr Matthews said he was carrying a crowbar not a firearm.

The Judge’s sentencing

[4] In fixing a starting point, the Judge referred to R v Mako[1] and R v Royal.[2] He noted that there was “quite a significant degree of planning and preparation, even a degree of sophistication in connection with the use of the phone”. He noted that there were four participants in total. He referred to the brandishing of weapons, primarily by way of threat, and to the fact that the premises were a home, the invasion was at night and there were children present. He accepted that the extent of violence was limited and that property stolen, or likely to be stolen, was also very limited. He noted the significant risk of serious harm. He regarded it as aggravating that this was “a kind of vigilante action”. The Judge concluded that it was appropriate to adopt the same starting point for each offender. He fixed a starting point of ten years. He then made adjustments to the starting point to reflect the personal circumstances of each of the offenders, including allowances for some other unrelated charges which each of the appellants faced. For Mr Tiori, he added one year, then allowed a discount of 33 per cent, to leave an end sentence of seven years and four months. For Mr Tanirau he added five months then a credit of 33 per cent to give an end sentence of seven years. For Mr Matthews he added eight months and allowed a discount of 33 per cent, to yield an end sentence of seven years and one month. The Judge declined to impose a minimum period of imprisonment.

Submissions

[5] Mr Rickard-Simms submits that the sentence imposed in each case was manifestly excessive, for two reasons:

• (a) the starting point of ten years was too high; and
• (b) the discount of 33 per cent was inadequate in that:
  • (i) it made allowance only for the guilty plea, having regard to the Court of Appeal decision in R v Hessell;[3] and
  • (ii) an additional distinct discount for cooperation with the police and genuine remorse should have been allowed.

[6] As to the starting point, Mr Rickard-Simms submits that the robbery in Mako, in which an end sentence of seven years was imposed, was considerably more serious than this and involved a kidnapping and the discharging of a firearm. He submits that, while there is an element of home invasion, the risk is less than in a public place such as a TAB with gang members. He submits the appellants were not acting as a gang and while there was significant planning this was amateur and juvenile. He submits that the correct starting point should have been between eight and nine years.
[7] As to cooperation with police and remorse, counsel submits that the Judge accepted that there had been full cooperation with police and that each of the appellants had been remorseful. He submits that, because the offending occurred before the Supreme Court decision in Hessell,[4] the Judge was correct to allow a 33 per cent discount for the guilty plea. He submits however that a further credit could have been given to recognise the quite separate and distinct matter of cooperation and remorse. He submits that no mention was made by counsel at sentencing of their wish to participate in restorative justice or in any manner to make amends for the pain they had caused the victims.
[8] Mr Rickard-Simms further submits that the personal circumstances of each appellant could have justified a further ten per cent discount. He submits that the appropriate end sentence would have been around six and a half years in each case.
[9] Ms Toohey submits that the starting point of ten years was warranted having regard to the number of aggravating features. She notes that at the time of sentencing, the maximum credit for a guilty plea, in accordance with the Supreme Court decision in Hessell was 25 per cent, and that the Judge applied a 33 per cent discount on the basis that the pleas had been entered before the Supreme Court decision in Hessell and to incorporate a discount for remorse and cooperation with the police. She submits that the discount allowed was generous. As to the proposition that the appellants were prepared to attend restorative justice, counsel for the Crown submits that the discount given was generous and unlikely to have been higher even if the Judge had referred to the willingness of the appellants to attend restorative justice.

Discussion

(a) Starting point

[10] In R v Mako,[5] this Court said:

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.

[11] When Mako was decided, the amendments made by the Crimes (Home Invasion) Amendment Act 1999 were in force. That Act provided higher maximum penalties for offences involving home invasions. Those higher maximum penalties (prescribed in ss 17B and 17C of the Crimes Act) varied in length, between three and five years. The maximum penalty for aggravated robbery under s 235 of the Crimes Act 1961 was then (and is now) 14 years imprisonment. For an aggravated robbery involving a home invasion, the maximum penalty became 19 years.
[12] The higher maximum penalties were repealed by the Sentencing Act 2002. The maximum penalty for an aggravated robbery involving a home invasion reverted to 14 years. The fact that an offence was committed during a home invasion was a matter to be taken into account on sentencing under s 9(1)(b) which provides:

Aggravating and mitigating factors

(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

...

(b) that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:

[13] The extent to which entry into a dwelling house is now to be reflected in sentencing has subsequently been considered in a number of decisions in this Court. Dealing with the cases involving aggravated robbery, the first case after the Sentencing Act involving unlawful entry into a dwelling house was R v Fenton.[6] There, this Court referred to Mako, and noted counsel’s submission that, as there were now no home invasion provisions as such, there was no basis for increasing the starting point from seven to ten years. The Court said:[7]

We find this argument quite unpersuasive. Section 9(1)(b) of the Sentencing Act 2002 lists home invasion as a specific aggravating factor. There is no reason to assume, nor basis for suggesting, that the Sentencing Act (which repealed the Crimes (Home Invasion Amendment) Act 1999 that was applied in Mako) signalled a Parliamentary intention to reduce penalties for offences involving home invasion. Although the Sentencing Act does not repeat the automatic three-year uplift of the maximum penalties that was enacted in 1999, the clear intent remains that home invasion should be reflected in an increased sentence.

[14] The next case was is R v Royal.[8] This Court again referred to Mako and said:[9]

More recently, in R v Fenton [2008] NZCA 379, this Court rejected an argument that the repeal of the home invasion provisions had removed the basis for the ten year starting point in cases of home invasion.

[15] These cases demonstrate that a “home invasion” element is a seriously aggravating factor in aggravated burglary cases, justifying a significantly higher starting point than would otherwise be appropriate. The way in which that outcome is achieved is, however, different from the approach adopted in the home invasion legislation.
[16] In the light of that difference, we do not consider it appropriate to approach the question whether the starting point is appropriate by a direct application of the starting point suggested for a home invasion case in para [58] of Mako. There, this Court was expressing a view that, for an aggravated robbery of the type described, a starting point of about half the maximum penalty would be appropriate. The repeal of the home invasion legislation and the different way in which the home invasion factor is now provided for in the legislation make it difficult to adopt the usual means of applying a guideline judgment, done through a direct comparison of the present case with the types of offending described in the guideline. We consider that the appropriate course in this case is to assess the starting point by comparing the sentences in other similar cases in this Court since the home invasion provisions were repealed.
[17] In Fenton, four or five offenders drove to a farm cottage armed with a softball bat and a machete, at about 8am when the father of the family was preparing to leave for work. He tried to defend his home and family, but was initially overpowered. He managed to barricade himself in the bathroom, but the door was forced and he was struck on the head with a softball bat. The mother locked herself in the lavatory. The teenage daughter was found hiding and was bound to a bed with packing tape. The father escaped, seriously injuring himself on broken glass as he did so. He was pursued by one of the offenders, but was able to raise the alarm. The offenders had planned the raid for the purpose of obtaining cash and cannabis. Some electronic items were taken and the family’s car was used as an escape vehicle. This Court held that a starting point of ten or even 11 years was necessary to reflect the seriousness of the offending and all its circumstances.
[18] In Royal, three masked intruders entered a house in which the family members were asleep. Two intruders carried firearms and the third a sledgehammer. They claimed to be members of the Armed Offenders Squad. Family members, the youngest aged 13, were herded into a bedroom where they were bound and gagged. One offender stood guard with a shotgun, another searched the house and took about $2,000 cash and a cellphone. The third, armed with a pistol, threatened and attacked another occupant of the house, punching and kicking him and slashing him with a knife. The appellant was not one of these three intruders, but was on guard in a vehicle some distance away. He alerted the intruders by cellphone to the arrival of police, and attempted to prevent police from intervening. A starting point of 11 years was upheld on appeal, at least for the three principal offenders.
[19] In R v Renata,[10] two teenage offenders went to the home of a 67 year old man, armed with a machete. They rushed in when the occupant answered their knock at the door. The appellant hit the victim with the machete. The occupant suffered serious cuts requiring hospitalisation for several hours. The Crown said these acts were inflicted by the machete, but this was disputed and the appellant was sentenced on the basis that the cause of the victim’s injuries was unclear. The offenders forced the victim to hand over his EFTPOS card and PIN, but were unsuccessful in attempts to use the card. The sentencing Judge’s starting point of 11 and a half years (reduced from 12 years to reflect the uncertainty as to how the wounds were inflicted) was described by this Court as “clearly within the available range”.
[20] In Manuel v R,[11] three offenders broke into a farm cottage in the early hours of the morning, looking for money. All were armed with firearms. The victim and his teenage girlfriend were in bed. The victim was struck about six times with the butt of a gun, and dragged to the lounge. He was assaulted, threatened and tied, naked, to a chair. He suffered a number of injuries resulting in three months off work. This Court upheld a starting point of ten years three months.
[21] In Currie v R[12] the offender, armed with a shotgun, entered the victim’s home after being invited in by the victim. He hit the victim several times in the face with the barrel and butt of the gun, causing a swollen eye and lacerations to the chin and cheek. He also suffered a gash to the leg. The offender drove off in the victim’s car. He was convicted of rendering the victim incapable of resistance with intent to commit aggravated robbery, and the aggravated robbery of the car, plus other related charges. A starting point of eight years, uplifted by two years to reflect other charges and the offender’s criminal history, was upheld. Reference was made to Wakefield v Police,[13] where three offenders armed with a baton and knuckle dusters had entered the victim’s home, threatened and assaulted him, and had stolen property. A starting point of ten years was held too high, and a starting point of seven or eight years considered appropriate.
[22] We regard the offending in this case as less serious than that in each of the first four cases. We do not regard the factors relied upon by Mr Rickard-Simms, as summarised at [6], as significantly lessening the seriousness of the offending. However, the weapons acknowledged to be involved, a slug gun, a hammer, and a crowbar (which does not appear to have been used), are not so seriously aggravating as the firearms in Royal and Renata. There was no attempt to restrain the occupants of the house as in Fenton and Royal. The injuries involved were minimal, and not so serious as those inflicted in Manuel or Royal, or suffered indirectly as in Fenton and Renata. The starting point of ten years was less than those in Royal and Renata, and broadly comparable with those in Fenton and Manuel. When the lower starting points in the other cases to which we have referred are taken into account, we come to the conclusion that the starting point was too high. A starting point of eight years would have been appropriate.

(b) Discount

[23] The Judge allowed a 33 per cent discount to Mr Tiori “for pleading guilty and for being fully remorseful”; to Mr Tanirau for “the guilty plea credits”; and to Mr Matthews for “your guilty plea and cooperation”. That took into account that the appellants had pleaded guilty when the Court of Appeal decision in Hessell applied. The Judge gave the full allowance for a ‘first opportunity’ guilty plea. We do not accept Mr Rickard-Simms’ submission that a further discount for cooperation and remorse should be allowed, having regard to the Supreme Court decision in Hessell. The Court of Appeal discount for a guilty plea was expressly stated to incorporate remorse. The Supreme Court, in holding that remorse may be recognised as a separate factor, also fixed a maximum discount for a guilty plea of 25 per cent. All of the other matters raised by counsel, as summarised in [7] and [8], were sufficiently recognised in the discount given. There were not, in this case, any grounds for a total discount, for a guilty plea, remorse and cooperation, exceeding the one third discount allowed.

Result

[24] The end result is that we consider that the starting point should in each case have been eight years rather than ten years, that the other uplifts should remain unchanged, and that the discount of 33 per cent should also apply. For Mr Tiori, that involves an uplift of one year to nine years, and the discount of 33 per cent is three years, to give an end sentence of six years. For Mr Tanirau, the uplift is five months, the discount is two years nine months, yielding an end sentence of five years eight months. Mr Matthews receives an uplift of eight months, and a discount of two years ten months, giving an end sentence of five years ten months.
[25] Each of the appeals is allowed, the sentences are quashed, and the sentences set out in the previous paragraph are substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Mako [2000] 2 NZLR 170 (CA).
[2] R v Royal [2009] NZCA 65.
[3] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; (2009) 24 CRNZ 612.
[4] R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
[5] At [58].
[6] R v Fenton [2008] NZCA 379.
[7] At [12].
[8] R v Royal [2009] NZCA 65.
[9] At [10].
[10] R v Renata [2009] NZCA 526.
[11] Manuel v R [2010] NZCA 285.
[12] Currie v R [2010] NZCA 449.
[13] Wakefield v Police HC Christchurch CRI-2008-409-169, 18 December 2008.