Eketone-Mahara v R [2011] NZCA 71 (16 March 2011)

Last Updated: 24 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA376/2010 [2011] NZCA 71

BETWEEN NATHAN EKETONE-MAHARA Appellant

AND THE QUEEN Respondent

Hearing: 22 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: M H McIvor for Appellant J M Jelas for Respondent

Judgment: 16 March 2011 at 4 pm

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence imposed on Mr Eketone-Mahara in the District Court is quashed. Mr Eketone-Mahara is sentenced to a term of imprisonment of three years, six months for the aggravated robbery. Concurrent sentences are imposed for the other offences as follows: for the kidnapping, two years, six months imprisonment, for the threatening to kill one years imprisonment, for the assault with intent to injure, one years imprisonment, and for the burglary, six months imprisonment.

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REASONS OF THE COURT

(Given by Winkelmann J)

Introduction

[1] The appellant, Mr Nathan Eketone-Mahara, was one of a group of four men who, in September 2009, committed an aggravated robbery, and was jointly charged with that offending. At the first call of the proceeding after arraignment he pleaded guilty to one count each of aggravated robbery, kidnapping, threatening to kill, assault with intent to injure and burglary.
[2] In sentencing Mr Eketone-Mahara, the sentencing Judge, Judge Connell, used the same starting point as he utilised in respect of another offender Mr Paekau who, it is common ground, was the lead offender, and the most culpable of the four men. Another co-offender, Mr Clarke, was sentenced later in the day. When sentencing Mr Clarke, the Judge adopted a lower starting point than that adopted for the appellant. He also allowed a far greater reduction in sentence for Mr Clarke on account of mitigating factors.
[3] Mr Eketone-Mahara now appeals on the grounds that there was a gross and unjustified disparity between the sentence imposed upon him, and that imposed upon Mr Clarke.

Factual background

Circumstances of the offending

[4] The co-offender Mr Paekau contacted the victim on the pretext that he wanted to buy his Mercedes car. It was agreed that the victim would bring the car to Huntly on the evening of Friday 25 September 2009 to be inspected and purchased by Mr Paekau, and that then Mr Paekau would drive the victim back to his home in Auckland. In reality, Mr Paekau’s plan was to kidnap the victim and take his car. To carry out his plan he recruited the three co-accused, Mr Clarke, Mr Rawiri and Mr Eketone-Mahara. Mr Clarke was 20 at the time of the offending, and Mr Eketone-Mahara 18. On the afternoon of the planned meeting the four travelled together to the Huntly area in their own car. Mr Paekau had possession of a pistol, Mr Clarke a knife and Mr Rawiri and Mr Eketone-Mahara were both armed with baseball bats and a knife.
[5] Mr Paekau and Mr Clarke met the victim at a takeaway restaurant in Huntly. It was then agreed that the three men, Mr Paekau, Mr Clarke and the victim, would take the car for a test drive. Unbeknown to the victim, Mr Eketone-Mahara and Mr Rawiri followed in their car. In the Mercedes, the victim was driving with Mr Clarke seated behind him. When the men reached the outskirts of town the victim pulled the car over to allow Mr Paekau to use a public toilet. There was a pre-arranged code spoken by Mr Paekau before he left the car to signal to Mr Clarke that he should physically restrain the victim. Mr Clarke pulled a knife, reached around the driver’s seat and placed the blade of the knife against the victim’s throat. The victim tried to protect his throat with his hands. Mr Paekau then ran back to the car and tried to open the door which had been inadvertently locked. As Mr Clarke reached over to unlock the driver’s door, he cut the victim’s finger.
[6] Acting on Mr Paekau’s instructions Mr Clarke dragged the victim to the back seat and continued to hold the knife to his throat. Mr Paekau got into the driver’s seat and turned the car south with Mr Eketone-Mahara and Mr Rawiri again following behind. During the initial trip following the kidnapping, Mr Clarke continued to threaten to harm the victim with his knife, whilst Mr Paekau demanded money from him.
[7] The two groups drove to a secluded lay-by near a local mountain. Mr Paekau and the victim got out of the car whilst Mr Rawiri and Mr Eketone-Mahara, holding baseball bats and a knife, searched the Mercedes and removed property including a laptop computer, a digital camera and a black leather bag. Mr Clarke then ordered the victim to remove his watch and rings, one of which was valued at $7,000.
[8] All four offenders then took the victim in their own car, returning to Huntly. As they travelled they all made threats to the victim that they were going to kill the victim. To add menace to their threats, they also told the victim that they were part of the Mob. During this trip Mr Eketone-Mahara repeatedly punched and hit the victim with the butt of his knife, put his thumb in the victim’s right eye pushing it right in, threatening that he would rip his eye out. The victim’s eye was injured.
[9] Eventually the victim told the men where his Eftpos card was and they returned to his car to retrieve it. He was then taken to an ATM machine in Huntly and told to get out as much cash as he could. Following several attempts to withdraw cash he managing to withdraw $200 only. The men became angry so the victim falsely told them that he had much more money in a shoe box at home. He was threatened with the pistol and told that he had better not be lying.
[10] The offenders then travelled to Auckland with the victim. The victim directed the men to what appeared to him to be an empty house, telling the offenders that the house was his. Mr Clarke gained entry though an open downstairs window and was told to open the door. Once the door was opened the house alarm was activated. The victim told Mr Paekau and Mr Clarke that he would go and turn the alarm off, at which point he managed to escape to a nearby property where he phoned the police. Mr Eketone-Mahara did not enter the house but remained with Mr Rawiri in the car.
[11] Mr Eketone-Mahara and Mr Clarke both admitted the offending when they were spoken to by the police. Mr Clarke later returned the ring he had taken from the victim.

The sentence

[12] Mr Paekau and Mr Eketone-Mahara were sentenced together. The Judge recorded the Crown’s submission that Mr Paekau was the principal offender, because he had been responsible for the planning of the exercise and had directed the violence. The Crown submitted that the appropriate starting point for him was seven years imprisonment in relation to the aggravated robbery with an uplift of two years to take into account the kidnapping, threat to kill, assault with intent to injure and the burglary. The Judge noted that the Crown sought a lower starting point for Mr Eketone-Mahara.
[13] The Judge adopted a starting point of seven years imprisonment for Mr Paekau with an uplift of only one year to reflect the other offending. He reduced the sentence by one year, ten months on account of Mr Paekau’s guilty plea, to arrive at a final sentence of six years two months. He imposed concurrent sentences for the other offences.
[14] When he came to sentence Mr Eketone-Mahara, the Judge said that the sentence should be assessed in the same way as it was for Mr Paekau. Although Mr Eketone-Mahara’s role was different to that of Mr Paekau, he had involved himself in the offending as part of the group and therefore it did not matter what each individual did. He adopted a seven year starting point with an uplift of one year for the aggravated robbery to reflect the other offences. The Judge then reduced the sentence by two years on account of the guilty plea and a further one year to take into account Mr Mahara’s youth at the time of the offending. He therefore imposed a final sentence of five years imprisonment on the aggravated robbery, with concurrent sentences for the other offending.
[15] For reasons which are not before us the Judge sentenced the co-offender Mr Clarke later in the day. He noted Mr Clarke’s youth and the fact he had little by way of previous convictions. He described Mr Clarke as having been ordered around by Mr Paekau, the principal offender. He referred to reports from a probation officer and from a psychologist, and on the basis of those reports described Mr Clarke as a vulnerable person, subject to peer pressure and in need of assertiveness training. However he emphasised that Mr Clarke should still have said no to the offending.
[16] He adopted the starting point proposed by the Crown of six years for the aggravated robbery, adding a further year to reflect the other offending. He then reduced the sentence by two and a half years for a very early guilty plea, and a further year on account of Mr Clarke’s youth and lack of previous convictions. Finally, he reduced the sentence a further year on account of Mr Clarke’s lack of judgment because of his immaturity as reflected in the psychologist’s report. This produced a final sentence of three and a half years imprisonment in respect of the aggravated robbery with concurrent sentences in respect of the other offences.

Grounds of appeal

[17] It is argued for Mr Eketone-Mahara that there was no basis to distinguish him from Mr Clarke when setting a starting point and that the Judge erred in utilising the same starting point for Mr Eketone-Mahara as he used for the more culpable, Mr Paekau. The unjustified disparity in the sentence was then exacerbated by the application of an inconsistent approach to the credit to be given for mitigating factors. The end result was that there was disparity between the sentences imposed on Mr Clarke and Mr Eketone-Mahara which was unjustifiable and gross.
[18] The Crown acknowledges that Mr Eketone-Mahara’s role in the offending was comparable to that of Mr Clarke’s. It says, however, that the Judge may have selected a different starting point on the basis that Mr Clarke was essentially duped into the offending and was therefore less culpable than Mr Eketone-Mahara. This analysis, it is said, is supported by the emphasis the Judge gives to Mr Clarke’s reported naivety and vulnerability. The Crown therefore argues that both the disparity in starting points and the discount for mitigating features can be justified on the basis of pre-sentence reports together with a greater discount for an earlier guilty plea.

Discussion

[19] For a court to interfere with a sentence on appeal on the grounds of disparity between co-offenders, the disparity must appear “unjustifiable” or “gross”.[1] In R v Lawson this Court said:[2]

[D]ifferences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute ... But the test is objective, not subjective. It 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 that something had gone wrong with the administration of justice.

[20] We accept that there was no basis for adopting different starting points for the two offenders Messrs Eketone-Mahara and Clarke. The Judge erred in utilising the same starting point for Mr Eketone-Mahara as he utilised for Mr Paekau when Mr Paekau was more culpable than Mr Eketone-Mahara because Mr Paekau was clearly the ringleader, the instigator and organiser of the offending. This much was common ground between counsel for the Crown and Mr Eketone-Mahara at sentence. The appropriate starting point was the starting point used for Mr Clarke.
[21] The Crown argued that the Judge may have seen Mr Eketone-Mahara more culpable than Mr Clarke, because Mr Clarke was pressured into the offending. But Mr Eketone-Mahara also recounted that he was, as a vulnerable naïve person, pressured into the offending. If anything, Mr Eketone-Mahara’s involvement in the offending was less culpable than Mr Clarke’s – Mr Clarke was the person who initiated the kidnapping, utilising a knife to seize control of the car from the victim and then to control the victim. He stole property from the victim. He was also involved in the entry into the house whereas Mr Eketone-Mahara remained in the car.
[22] As to matters by way of mitigation, Mr Eketone-Mahara was given a credit of 25 per cent for his guilty plea, and Mr Clarke 33 per cent. This differential is justifiable since Mr Clarke’s plea was entered at the first available opportunity whereas Mr Eketone-Mahara’s was not. But when the Judge came to consider other mitigating factors, an unjustifiable difference of approach between the two offenders is apparent. Mr Eketone-Mahara, who was 18 at the time of the offending, received a one year reduction in sentence on account of his youth. Mr Clarke, who was 20 at the time of his offending, was given a one year discount for his youth and lack of previous convictions and then a further one year discount to make allowance for his lack of judgment because of his immaturity.
[23] It has to be observed that it was Mr Eketone-Mahara who was the younger of the two offenders at the time of the offending. The psychologist’s report in relation to Mr Clarke describes a troubled young man in the sense that he uses alcohol and cannabis, and is easily led. However, that of course could be the description of many young offenders. In relation to Mr Eketone-Mahara, the pre-sentence report writer observes that he too is highly influenced by his peers. There is also little to distinguish Mr Clarke from Mr Eketone-Mahara in terms of their records. Mr Eketone-Mahara has a conviction for driving without a licence, whereas Mr Clarke has a conviction for breaching the local government liquor ban.
[24] The sentencing Judge did have available to him a lot of material tendered on behalf of Mr Clarke including references from various schools that he had attended and a letter of apology from Mr Clarke. There was less such material for Mr Eketone-Mahara. However, Mr Eketone-Mahara has now tendered a letter from his previous high school, which we received without objection from the Crown. The principal of that high school speaks highly of Mr Eketone-Mahara as a “wonderful young man” and observes that he has suffered, as was observed in relation to Mr Clarke, from a lack of direction.
[25] The end result of the application of a different starting point and different approach to mitigating factors was that Mr Eketone-Mahara had a final sentence of imprisonment of five years imprisonment imposed upon him whereas Mr Clarke had a final sentence of three and a half years. We are satisfied that that disparity is unjustified and gross, and that instead the same sentence should be imposed upon Mr Eketone-Mahara as was imposed upon Mr Clarke. Even though Mr Clarke pleaded guilty at an earlier stage, we consider this approach appropriate given Mr Eketone-Mahara’s far greater youth at the time of the offending which justified a greater reduction on account of youth for him rather than for Mr Clarke.
[26] The sentence imposed on Mr Eketone-Mahara in the District Court is quashed. Mr Eketone-Mahara is sentenced to a term of imprisonment three years, six months for the aggravated robbery. Concurrent sentences are imposed for the other offences as follows: for the kidnapping, two years, six months imprisonment, for the threatening to kill one years imprisonment, for the assault with intent to injure, one years imprisonment, and for the burglary, six months imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Rameka [1973] 2 NZLR 592 (CA) at 594.
[2] R v Lawson [1982] 2 NZLR 219 (CA) at 223.