Koroheke v R [2012] NZCA 368 (20 August 2012)

Last Updated: 29 August 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/2012 [2012] NZCA 368

BETWEEN RICKY-LEE KOROHEKE Appellant

AND THE QUEEN Respondent

Hearing: 14 August 2012

Court: Stevens, Heath and Andrews JJ

Counsel: R D Stone for Appellant B D Tantrum for Respondent

Judgment: 20 August 2012 at 11.30 am

JUDGMENT OF THE COURT

1. An extension of time to bring the appeal is granted.
2. The appeal is allowed.

100. The sentence of six years imprisonment is quashed and a sentence of five years and eight months is imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellant, Mr Koroheke, appeals against a sentence of six years’ imprisonment imposed by Judge Rea in the District Court at Napier.[1] The appellant entered pleas of guilty to two counts of aggravated robbery, two counts of assault, one count of wilful damage, one count of unlawfully taking a motor vehicle and one count of driving with excess breath alcohol.[2] The appellant challenges his sentence on the basis that the Judge did not take account of the totality principle and that the Judge failed to adequately take into account the appellant’s youth and remorse as mitigating factors.
[2] The appeal is brought out of time. However, the Crown accepts that there is a reason for the delay and does not oppose an extension of time to bring the appeal. We grant an extension of time to appeal.

Factual background

[3] The two charges of aggravated robbery relate to events that occurred in Hastings in August 2010. The first robbery occurred on 21 August 2010, when the appellant entered a dairy armed with a metal bar. He wore a red bandana over his face and dark clothing. The appellant shouted threats at two shop assistants, causing them to flee. The appellant stole 28 packets of tobacco valued at $819.00 and approximately $300 in cash. He then left the shop and threw the metal bar away before getting into an awaiting vehicle.
[4] The second aggravated robbery occurred on 31 August 2010. The appellant went to a different dairy and sat outside on a picnic table for about 10 minutes before entering the store. He wore a black balaclava as well as dark clothing and was armed with a sawn-off shotgun. When the appellant unsuccessfully attempted to grab money from the till, he pointed the gun at three shop assistants and threatened to shoot. The appellant then entered the area adjacent to the shop where the owners lived and demanded money from them. He returned to the store and made further demands. He then left the store and entered an awaiting vehicle, having stolen 26 packets of tobacco valued at $637.12 and $520 in cash.
[5] The charges of unlawfully taking a motor vehicle and driving with excess breath alcohol relate to an event that occurred on the evening of 26 June 2010. At about 8.00 pm the appellant stole a set of car keys from a residential address in Hastings. Two hours later he returned to the address and pushed the victim’s car onto the road. He then used the keys to drive away. He was later stopped by police while he was in the car and tested positive for excess breath alcohol.
[6] The charge of wilful damage and one assault charge arose out of an incident that occurred on the evening of 11 May 2010, when the appellant became involved in an argument with another man while drinking. Despite police being present, the appellant punched the victim in the eye. The appellant was arrested and placed in a police patrol vehicle, whereupon he became so enraged that he kicked the rear passenger seat window of the vehicle with enough force to smash it.
[7] Shortly before each of the aggravated robberies had taken place, the appellant had made an appearance in the District Court in relation to the other charges. On each occasion he had been remanded on bail.

Sentencing

[8] The appellant was 18 years and 10 months old when he was sentenced in the District Court on 9 December 2010. The Judge acknowledged this, but stated:

[12] ... However, you are a well experienced street wise 18 year old. As Mr Stone has said, you have already been dealt with in the Youth Court on aggravated robbery in the past. You have quite a list of previous convictions already at the age you are.

[13] The former Chief Justice in a case called [Cooper v Police][3] some years ago said that it was a regrettable fact that a great deal of armed robberies of premises such as these were carried out by young men exactly in your age group and while youth will always have a role to play in sentencing policy in the Courts, the mere fact that you are only 18 years of age cannot be taken to substantially reduce the penalty that is otherwise appropriate to impose upon you for this kind of conduct.

[9] The Judge also acknowledged the appellant’s remorse, which was in the form of a dictated letter. But the Judge added:[4]

What I am not so clear about is whether you now realise the difficulty you are in and you feel sorry for yourself or you have real genuine concern for the people whose lives you terrorised. They will never recover from this, especially those ones that you pointed the shotgun at. Common sense would tell you that it would be a horrifying experience.

[10] The Judge treated the second of the aggravated robberies involving the sawn-off shotgun as the lead offence. Based on the judgment of this Court in R v Mako,[5] he considered a starting point of five and a half years’ imprisonment to be appropriate. He then added an uplift of three years to reflect the first aggravated robbery and “the other factors”.[6] Due to the concerns he had articulated earlier,[7] the Judge expressly did not take youth into account as a mitigating factor.[8]
[11] The Judge did not impose a minimum period of imprisonment.[9] This issue does not require further consideration. No minimum period of imprisonment was sought by the Crown and the possibility of imposition was not raised with defence counsel on that issue. The Judge purported to give “full credit” for the guilty pleas by allowing a discount of one third.[10] But instead of reducing the sentence to five years and eight months’ imprisonment (the correct reduction), he imposed a final sentence of six years’ imprisonment.

Discussion

The starting point

[12] Our analysis begins with an assessment of the starting point chosen by the Judge for the lead offence. Both counsel accepted that five years and six months’ imprisonment was within range given the circumstances involved in the second aggravated robbery. We agree. That offending had a number of aggravating features including the robbery of a retail shop where members of the public could be expected to be present and targeting sums of money in the till.[11] Moreover, the appellant was armed with, and threatened to shoot the three shop assistants using, a sawn-off shotgun. He was wearing dark clothing and a black balaclava by way of disguise. As well as targeting the dairy, the appellant (perhaps unwittingly) entered a living area adjacent to the shop and demanded money from the owners. Thus the attack had an element of home invasion about it. We consider that a starting point higher than five years and six months’ imprisonment would have been open to the Judge.

The uplift

[13] Turning next to the uplift of three years for the second aggravated robbery “and the other factors” we interpret the latter reference to be to the other charges on which the appellant was to be sentenced at the time. This is apparent from what the Judge had said earlier.[12] Mr Stone for the appellant accepted that, focussing on the first aggravated robbery charge, a sentence of up to four years would have been appropriate. We see that as a minimum, if the sentence were to be imposed on that charge on a stand alone basis. The first aggravated robbery offending was itself serious. A number of aggravating features were present including the fact that the appellant armed himself with a metal bar, wore dark clothing and a red bandanna over his face and targeted retail premises where money was held in the till. Accordingly a stand alone sentence for that offending of five years and six months could have been imposed.
[14] Viewing the two aggravated robbery charges and all of the other offending together, in our view a total starting point of eight and a half to nine and a half years’ imprisonment is amply warranted. Accordingly, we are satisfied that the Judge was well within range when he settled upon a combined starting point of eight years and six months’ imprisonment.
[15] When the Judge came to consider aggravating factors he could have taken into account the fact that the two aggravated robbery charges were committed whilst on bail from the other offending. This would have warranted a modest uplift. The Judge could also have taken into account the proved Youth Court notation involving an earlier aggravated robbery, which the Judge knew about from counsel and from the pre-sentence report.[13] The Judge imposed no uplift for either of these factors.

Personal mitigating factors - youth

[16] We turn now to the question of personal mitigating factors. The first concerns the youth of the appellant. As already noted, the appellant’s youth was well known to the Judge, was considered by him and rejected. We are satisfied that such rejection was appropriate. As was made clear by this Court in R v Mako, youth and the prospects of rehabilitation may be mitigating factors warranting a reduction in sentence.[14] But it may be that offenders have accumulated a record while still in their teens so that they cannot expect leniency in sentencing for serious aggravated robbery offences. The Judge correctly drew attention to the fact that a high proportion of aggravated robberies in this country are committed by teenagers.[15]
[17] A similar approach has been taken previously by this Court so that where the offending is serious, the scope to take account of youth may be greatly circumscribed.[16] For completeness we note that this Court has held that the previous behavioural history of an offender, while in the Youth Court, can have some relevance in determining what is an appropriate level of sentence when the offender appears in a Court of criminal record.[17] Hence the Youth Court history may need to be set off against what would otherwise have been the normal discount available to an offender on account of his youth.
[18] Finally we record that the Judge’s refusal to make any specific allowance for the youth of the appellant was balanced by the fact that there had been no uplift imposed for the fact that the offending in each case occurred whilst on bail and for the previous notation of aggravated robbery.

Guilty pleas / remorse

[19] The second personal mitigating factor concerns the discount for the guilty pleas and/or remorse. While the Judge intended to give full credit of one third for the early guilty pleas, arithmetically the actual credit given was 29 per cent.[18]
[20] The appellant entered guilty pleas to the two aggravated robbery charges on 5 October 2010. This was before judgment was given by the Supreme Court in Hessell v R.[19] Accordingly the law as set out by this Court in Hessell v R[20] applied. Thus a discount of one third for the guilty pleas would have included both an allowance for the guilty pleas and recognition of any remorse shown by the appellant. The question then arises as to whether there was any basis upon which an allowance for exceptional remorse of over one third should have been made. We are satisfied that there is no basis whatsoever here for any such further allowance.
[21] It remains to consider whether, in view of the fact that the full discount of one third was not applied, whether the appeal should be allowed. Had an allowance of one third been applied then a discount of 34 months would have followed. In fact a discount of 30 months was allowed. We consider that such an arithmetical error should be corrected in order to give effect to the intentions of the sentencing Judge.

Result

[22] The appeal is allowed. The sentence imposed of six years’ imprisonment is quashed. In its place we impose a sentence of five years and eight months.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Koroheke DC Napier CRI-2010-020-1925, 9 December 2010.

[2] The aggravated robbery charges were laid indictably; the remaining charges were all summary charges. There was a discussion before us as to whether there were in fact two separate charges of assault or only one. No summary of facts was available for the second charge, said to have occurred on the same day. As nothing turns on the point, for the purposes of the appeal we proceed on the basis that there was only one assault charge.
[3] Cooper v Police HC Hamilton AP106/98, 20 November 1998 at 7.

[4] At [14].

[5] R v Mako [2000] 2 NZLR 170 (CA).

[6] At [17].

[7] At [12] and [13], quoted at [8] above.

[8] At [17].

[9] At [21].
[10] At [18].
[11] Features of this type are identified as aggravating in R v Mako at [54]–[56].
[12] R v Koroheke, above n 1, at [15].

[13] There was some discussion in argument as to whether the appellant’s correct criminal and traffic history was before the sentencing Judge. It is possible that the Judge when referring to the nature of the appellant’s criminal record may have been referring to the record of another person. However the correct record was placed before us and we note that the Judge did not impose any uplift for previous offending when dealing with aggravating factors pertaining to the offending. As a result there was no prejudice to the appellant.
[14] At [65].

[15] As discussed by the Full Court of the High Court in Cooper v Police, above n 3.

[16] See R v Rapira [2003] 3 NZLR 794 (CA) at [122] and Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [84].
[17] Geros v R [2011] NZCA 122 at [16]–[17].
[18] R v Koroheke, above n 1, at [18].
[19] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[20] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.