Kiwara v R [2012] NZCA 468 (12 October 2012)

Last Updated: 17 October 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA802/2011 [2012] NZCA 468

BETWEEN THOMAS KIWARA Appellant

AND THE QUEEN Respondent

Hearing: 9 October 2012

Court: Stevens, Chisholm and Venning JJ

Counsel: M W Ryan for Appellant D J Boldt for Respondent

Judgment: 12 October 2012 at 12.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] The appellant pleaded guilty to one count of aggravated robbery. On 23 September 2011 Judge Johns in the District Court at Manukau sentenced him to six years’ imprisonment.[1]
[2] The appellant now appeals against the sentence on the following grounds. He argues it was manifestly excessive because:

• (a) of his “significantly reduced culpability” (as compared to his co-offenders); and
• (b) he did not receive any credit for his guilty plea.

Background facts

[3] The summary of facts records that, on 3 May 2010, two males with disguised faces entered a BNZ bank at Flat Bush, Manukau. One of them carried a screwdriver. The first robber leapt up onto the counter, and climbed the security screen to the area where the tellers were working. The second robber stood at the counter observing what was going on. The first robber gathered cash in excess of $10,000 cash from the teller drawers. He then climbed up onto the counter, back over the security screen and leapt onto the floor. In that process, some of the cash was dropped. The robbers then picked up the cash and ran from the premises. They left the screwdriver behind.
[4] A witness observed the two robbers climb into a Honda motor car. The Honda had been stolen the previous day. The driver of the car was a third male, identified as the appellant. A short time later the appellant and the other two robbers were observed getting out of the stolen Honda and into a Nissan Skyline, registered number UM7024. The Skyline had been left at the Dawson Road shopping mall approximately one kilometre from the scene of the BNZ bank robbery.
[5] The police were called. Subsequent inquiries with the registered owner of the Skyline revealed that at the time, two of the owner’s cousins, Bobby Joe Kara and Kiki Kara, had the Skyline. Further inquiries led to the missing Skyline being located at Bobby Joe Kara’s home.
[6] When spoken to the following day the appellant denied any involvement in the robbery claiming he had been at his sister’s house all day fixing her car. However, the appellant’s sister confirmed that he was not at her house at all during that day.
[7] Further police inquiries revealed that, on the evening of the robbery, the appellant had disclosed to another person that he was the driver, that Bobby Joe and Kiki Kara had committed the robbery and that Kiki Kara had dropped his screwdriver. The appellant also said that once they divided the cash they each had about $3,700.
[8] The appellant also disclosed his involvement in the robbery during the course of a telephone conversation with a serving prisoner on 4 May 2010. The call was recorded.

Procedural history

[9] The appellant, together with Bobby Joe and Kiki Kara, was charged with the aggravated robbery. The Karas pleaded guilty at an early stage.
[10] The appellant went to trial on 19 September 2011 on charges of unlawfully getting into a motor vehicle and aggravated robbery. On the first day of the trial two key witnesses, a Mr Piripi Te Haara and Ms Sandra Kiwara failed to appear. Police inquiries led to two statements being taken from a Karinia Kara and Robert Kopara. They said the appellant and his partner had paid Mr Te Haara and Ms Kiwara to stay away from trial. The trial was aborted and the appellant remanded in custody. He and his partner were then charged with attempting to pervert the course of justice.
[11] Subsequently, and without reference to his trial counsel, Ms West, the appellant entered negotiations with the police. An agreement was reached pursuant to which the police agreed to withdraw the charges of attempting to pervert the course of justice against the appellant and his partner and also agreed not to offer evidence on the count of unlawfully getting into a motor vehicle. In return the appellant agreed to pleaded guilty to the charge of aggravated robbery. On 22 September 2011 the appellant was arraigned and pleaded guilty to one count of aggravated robbery. He signed each page of the summary of facts.

The sentencing decision

[12] After referring to the facts Judge Johns noted that the appellant’s two co-offenders had pleaded guilty at an early stage. The Judge had taken a starting point of six years’ imprisonment for their offending. Judge Johns considered six years was also an appropriate starting point for sentencing the appellant, taking account of the provisions of the Sentencing Act 2002 and the relevant case law. While the appellant had a number of previous convictions the Judge did not apply any uplift for them. Judge Johns noted that Ms West had accepted that, because the guilty plea had come so late, there could be no discount or reduction for it. The Judge sentenced the appellant to six years’ imprisonment. In addition she remitted his outstanding fines.

The changed basis for the appeal

[13] Initially the appellant sought to raise issues as to Ms West’s representation of him in the District Court. He swore an affidavit to support his appeal. In it he sought to minimise his involvement in the robbery. He said that his co-accused, who were his cousins, had arranged for him to meet them with his sister’s car at the Dawson Road shopping centre. He said that he was not aware the co-accused intended to rob the bank and was not present during the robbery. On his affidavit evidence he would not have been guilty of the offence he pleaded to.
[14] Ms West also swore an affidavit. Ms West says that the appellant said nothing about disputing the summary of facts until after sentencing. She was never instructed to dispute the summary. Until he agreed to plead guilty and signed the summary of facts, the appellant had denied any involvement at all.
[15] At the outset of the hearing Mr Ryan confirmed that the appellant no longer sought to pursue any submission relating to Ms West’s representation of him in the District Court. That was a realistic concession. We accept Ms West’s evidence. The appellant’s evidence is inconsistent with the sequence of events leading to his guilty plea. It is also quite contrary to his acknowledgement of the summary of facts by signing each page of the summary. Significantly it is also inconsistent with the record of the appellant’s telephone conversation with the prisoner on the day after the robbery. During the course of that conversation he effectively admitted his involvement:

We all hot. ...

Fuck we got followed. ...

On the legity ...

We fucken out of the hottie into the legity...followed...

Decision

[16] Mr Ryan accepted that, having regard to R v Mako,[2] the starting point of six years was within range for an aggravated robbery with these features. He was left to submit that the appellant, as the driver of the getaway cars, had played a lesser role than his co-accused. However, on the summary of facts the appellant accepted, no issue can be taken with the starting point of six years for his involvement. As this Court held in R v Royal:[3]

... as a general principle ... the criminal responsibility of those who drive a getaway vehicle is not less than that of their companions who actually enter premises and commit a robbery there.

[17] In R v Mako this Court had said:

[64] As this Court made clear in Smart there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.

[18] While there is no suggestion the appellant was the ringleader, the appellant played a significant role in this aggravated robbery. His equal role and involvement was given practical recognition by his co-offenders. He received one-third of the proceeds of the robbery.
[19] Mr Ryan then submitted that the Judge should have allowed a discount for the guilty plea, referring to [45] of Hessell v R.[4] He suggested that by pleading guilty the appellant had saved the State the cost of a second trial.
[20] We are satisfied the Judge was right to conclude the appellant was not entitled to any credit for his guilty plea in this case. As the Supreme Court noted in Hessell, the credit allowed for a guilty plea:[5]

... must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

And later:[6]

... After a trial has commenced some real justification should be required before any allowance is made but there are from time to time instances where an allowance is justified.

[21] In the present case the guilty plea was entered after the appellant’s trial had commenced and then been aborted because of the appellant’s actions. If the appellant had pleaded guilty on the first day of that trial there is no apparent justification for him to have received any reduction. There can be no principled reason to suggest he should have a reduction because he pleaded guilty before a second trial was held, when that second trial was only necessary because he had caused the first one to be aborted.
[22] It is also relevant that the Crown case against the appellant was a strong one. The appellant was observed driving both cars and had effectively admitted his involvement in the robbery in the recorded telephone conversation with another prisoner.

Result

[23] The appeal against sentence is without merit. It is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Kiwara DC Manukau CRI-2010-092-12801, 23 September 2011.
[2] R v Mako [2000] 2 NZLR 170 (CA).
[3] R v Royal [2009] NZCA 65 at [20].
[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[5] At [74].
[6] At [76].