Te Wake v R [2012] NZCA 228 (5 June 2012)

Last Updated: 14 June 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA634/2011 [2012] NZCA 228

BETWEEN JOHN LEIGH TE WAKE Appellant

AND THE QUEEN Respondent

Hearing: 14 May 2012

Court: Randerson, Keane and Asher JJ

Counsel: M W Ryan for Appellant K A L Bicknell for Respondent

Judgment: 5 June 2012 at 11.45 am

JUDGMENT OF THE COURT

A The time to appeal is extended.

B The appeal against sentence is allowed.

100. The sentence of six years imprisonment is quashed and a sentence of five years imprisonment is substituted. The appellant is ordered to pay reparation of $3,750.00 to the District Court in respect of a one-quarter share in the value of the motorcycle which has not been recovered.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant Mr Te Wake, along with five others, faced trial before Judge Spear and a jury in the District Court on a charge of aggravated robbery. Mr Te Wake and three others were convicted. The other two were discharged or acquitted. The appellant was subsequently sentenced to six years imprisonment.[1] Mr Te Wake appeals against sentence on three grounds:

• (a) The sentence starting point was too high.
• (b) A discount should have been given for the appellant’s remorse and personal circumstances.
• (c) The appellant is in a position to pay reparation.

[2] The appeal was filed out of time and an extension of time to appeal is sought. That application is opposed by the Crown, but it is accepted that the outcome of the application is largely dependent upon the merits of the substantive appeal.

The circumstances of the offending

[3] Mr Te Wake’s conviction arose from his part in the robbery of a motorcycle store in Kihikihi on 28 July 2009. The co-offenders who were convicted were Messrs Power, Williams and Hepi. The Judge found that Mr Power hired a trailer and brought it to his home. The next day the men assembled at Mr Power’s address. Mr Power stayed there but the others travelled in two vehicles to Kihikihi. As well as providing the trailer, Mr Power provided his vehicle to tow it. Another vehicle was provided by Mr Te Wake.
[4] The Judge found that four or five of the group went into the store including Messrs Williams and Hepi. Mr Te Wake remained outside. The Judge found that Mr Williams was the leader of the group. He demanded that the two shop assistants present hand over four valuable motorcycles with a total value of approximately $78,000. Other items of motorcycle equipment were also taken.
[5] The Judge accepted that no disguises were worn, no actual violence was used and that no weapon was produced. However, he noted that Mr Williams had threatened to shoot a barking dog and accepted the Crown’s submission that there was intimidation and an implied suggestion that Mr Williams had a firearm with him.
[6] The Judge found there were definite gang connotations surrounding the robbery. Mr Williams claimed to be a member of a gang and that the owner of the shop, Mr Richards, owed money to the gang. Other participants were members or associates of the gang.
[7] Although it is not stated explicitly in the Judge’s sentencing remarks, it is accepted for the purposes of this appeal that Mr Te Wake’s role was limited to providing the second vehicle, waiting outside the store during the course of the robbery, helping to load the motorcycles onto the trailer and then leaving the scene with the other offenders to return to Mr Power’s address.
[8] Three of the motorcycles were later recovered but the fourth, valued at $15,000, has not been recovered. The Judge noted at the time that none of the offenders was in a position to offer reparation for that loss. Victim impact statements were provided from the two shop attendants who were present at the time of the robbery and from Mr Richards who was in custody at the time but who lost the property. Each expressed continuing fears of reprisal. The owners of the shop attribute its closure to these events.

The Judge’s approach to sentencing

[9] The Judge adopted a starting point of six years imprisonment. He described the case as falling neatly into one of the categories of offending described in R v Mako.[2] This category refers to a starting point of four years for the robbery of a small retail shop under the threat of the use of a weapon but without actual violence. The starting point could be increased to five years where multiple offenders were involved or if more than a small amount of money or property was taken. In bad cases, a starting point of six years should be adopted. The Judge considered the six year starting point to be warranted in a case involving multiple offenders and the theft of valuable property in what was essentially a gang raid.
[10] The Judge was not prepared to differentiate between the roles undertaken by Messrs Williams, Hepi and Te Wake. They had all made the decision to take part in the robbery and he considered all must bear the consequences.
[11] The Judge declined to take the personal circumstances of any of the offenders into account stating:[3]

This offending is too serious, in my view, for personal circumstances to be taken into account. This, in particular, in respect of you Power, who have done so much, it would appear, to make the break and to become a law abiding member of the community – yet, you have thrown it all away. I am not prepared to reduce the sentence to recognise any personal circumstances on your part Power.

[12] From the starting point of six years imprisonment, the Judge added six months for both Mr Williams and Mr Hepi on the basis of their previous record of offending. In contrast, the Judge did not consider that Mr Te Wake’s previous record required any uplift. The Judge plainly considered that Mr Power’s lesser role in the offending required a substantial discount. The end result was that:

• (a) Mr Williams and Mr Hepi each received a sentence of six years six months imprisonment;
• (b) Mr Te Wake received a sentence of six years imprisonment; and
• (c) Mr Power received a sentence of three years imprisonment.

The starting point of six years imprisonment

[13] Mr Ryan for Mr Te Wake acknowledged the observations of this Court in R v Mako[4] that there is no justification for offenders who are assigned roles not involving the confrontation of the victims being treated as less culpable, unless the role of the co-offender was truly less than that of a full participant. However, he submitted this was a case in which Mr Te Wake’s role could properly be differentiated from those of Messrs Williams and Hepi in terms of culpability.
[14] We are not disposed to accept that submission. Mr Te Wake took an active and significant role in the overall offending. He was clearly aware of what was planned and took an active part in it by providing the truck, waiting outside while the robbery took place and then helping load the motorcycles onto the trailer. His role was more than merely incidental and he was properly regarded as being equally culpable in the joint enterprise with Messrs Williams and Hepi.
[15] Mr Ryan placed emphasis on the much lower sentence imposed on Mr Power. We accept that Mr Power appears to have received a substantial discount for reasons which are not entirely clear. The only obvious differentiating factor in his case was that he did not travel to Kihikihi with the other offenders. However, even if Mr Power’s sentence was lenient, we are not persuaded that this affords a ground to reduce an otherwise appropriate sentence for Mr Te Wake.

Discount for remorse and Mr Te Wake’s personal circumstances

[16] Mr Ryan drew our attention to letters Mr Te Wake had written to the Judge and to the victims of the offending in which he expressed remorse. Mr Ryan also submitted that Mr Te Wake handed himself into the Hamilton police for questioning about a week after the arrest of his co-offenders. It was submitted that Mr Te Wake ought to have been given some discount on that basis.
[17] We accept that Mr Te Wake did express his remorse after his convictions and that he accepted responsibility for the offending when speaking to the probation officer who prepared his pre-sentence report. However, it must be remembered that Mr Te Wake denied the offending, raising a defence of claim of right. The fact that Mr Te Wake attended voluntarily at the police station cannot be given any real weight in the face of his denial of responsibility. We are not persuaded that the Judge was required to make any allowance for Mr Te Wake’s expressions of remorse.
[18] But we consider Mr Ryan is on firmer ground in submitting that a discount should have been given to reflect Mr Te Wake’s personal circumstances. It is evident that Mr Te Wake was enrolled at the time of his sentencing as a student at the Manukau Institute of Technology undertaking a course in welding and fabrication. The probation officer contacted Mr Te Wake’s tutor who described him as a “brilliant student, dedicated, top of the class and would have passed with flying colours”. Mr Te Wake admitted to being an associate of the gang involved in the robbery but was clearly endeavouring to do something constructive with his life.
[19] It is also evident from the pre-sentence report and a number of testimonials presented to the Court that Mr Te Wake has strong family support. Unlike Messrs Williams and Hepi, he did not have any significant history of prior convictions other than a conviction dating back to an incident in 2003 for which he was convicted of assaulting a person with a blunt instrument. On that occasion, he received a sentence of 80 hours community work.
[20] The weight to be given to personal circumstances will vary from case to case. While the purposes of sentencing include matters such as accountability, denunciation and deterrence, another purpose is to assist in the offender’s rehabilitation and reintegration.[5] The Court is also required in terms of the principles of sentencing to take into account the particular circumstances of the offender including a sentence which, in whole or in part, has a rehabilitative purpose.[6]
[21] While the offending in this case was obviously serious, we do not consider the Judge was justified in putting Mr Te Wake’s personal circumstances to one side. According to the pre-sentence report, he was in a stable relationship and had a daughter aged six. He enjoyed the support of his wider family and was making a serious effort to better himself at the time of the offending. In these respects, Mr Te Wake had more favourable personal circumstances than the other offenders. Some reduction of his sentence on that account was required.

The offer of reparation

[22] It is accepted that no offer of reparation was made at the time of the hearing in the District Court and there can be no criticism of the Judge in that respect. However, since a change of counsel, Mr Te Wake’s father has advised that $3,750 can be made available to meet Mr Te Wake’s one-quarter share in the value of the motor cycle which has not been recovered. We have now been informed that this sum has been paid to the trust account of the appellant’s solicitor who has undertaken to pay it to the District Court.

Conclusion

[23] We consider that a reduction of 12 months from the starting point for Mr Te Wake’s sentence is justified by a combination of his personal circumstances and the payment of reparation. On that footing, an extension of time to appeal is granted. The sentence of six years imprisonment is quashed and a sentence of five years imprisonment is substituted. The appellant is ordered to pay reparation of $3,750.00 to the District Court in respect of a one-quarter share in the value of the motorcycle which has not been recovered. That sum is to be applied for the benefit of the owner of the motorcycle.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Te Wake DC Hamilton, CRI 2009-019-6980, 30 September 2010.
[2] R v Mako [2000] 2 NZLR 170 at [56].
[3] At [23].
[4] At [64].
[5] Sentencing Act 2002, s 7(1)(h).
[6] Sentencing Act 2002, s 8(h) and (i).