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Te Hau v R [2013] NZCA 431 (17 September 2013)

Last Updated: 26 September 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
14 August 2013 (further submissions received 3 September 2013)
Court:
Ellen France, Rodney Hansen and Mallon JJ
Counsel:
M J Phelps for Appellant M J Inwood for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal against sentence is allowed.
  2. The sentence of three years’ imprisonment is quashed. It is replaced with a sentence of two years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

[1] Mr Te Hau appeals against his sentence of three years’ imprisonment for an aggravated robbery on the ground that it is manifestly excessive. The District Court Judge (Judge Adeane) reached this end sentence by adopting a three year starting point, uplifting the sentence by six months to reflect Mr Te Hau’s previous convictions, and then reducing the sentence by six months for Mr Te Hau’s guilty plea.[1] The end sentence is said to be manifestly excessive because the discount for the guilty plea (14.29 per cent) is inadequate. During the appeal hearing the appropriateness of a six month uplift for Mr Te Hau’s previous offending was also raised. Further submissions were filed on this aspect.
[2] For the reasons which follow, we consider the discount for the guilty plea was at the low end of the available range, but the uplift for previous convictions was too high. As a result the end sentence was manifestly excessive. We quash the sentence of three years’ imprisonment and replace it with a sentence of two years and six months’ imprisonment.

The background

The offending

[3] The incident giving rise to the aggravated robbery charge began when the victim lost control of his vehicle and hit a fence belonging to a local marae. Some weeks later, on the morning of 30 October 2009, Mr Te Hau and his alleged cooffender, Mr Eriha, went to the victim’s home. The victim answered a knock on his door and was confronted by Mr Eriha. Mr Eriha said he wanted to speak to the victim about a debt he owed to the Mongrel Mob. They moved outside because there was a two year old child in the house, whereupon Mr Eriha punched the victim twice in the face.
[4] At this point Mr Te Hau walked around the corner of the house. Mr Eriha demanded $1,500 from the victim. The victim said that he did not have that. Mr Eriha and Mr Te Hau then went into the victim’s house. They took a laptop computer from the victim’s bedroom and the keys to his vehicle. Mr Te Hau told the victim that he had better come up with the money or he would kill him and his parents. Mr Te Hau also threatened to kill him if he called the police. Mr Te Hau and Mr Eriha left with the laptop and the vehicle.
[5] The victim of the aggravated robbery was not physically injured. He was, however, intimidated and frightened and did not want to leave the house in case the offenders beat him up again. In the end he moved out of town to “start over again”. The victim did not recover his laptop or the items in his vehicle.

Subsequent incident

[6] On 24 November 2009 there was a further incident. In this incident a demand for property was made of the victim’s father. Mr Te Hau and Mr Eriha were charged with demanding with menaces. According to the sentencing notes in respect of Mr Eriha (who later pleaded guilty to this charge), Mr Eriha and Mr Te Hau went to the father’s home demanding $1,200 because of the victim’s crash into the marae fence.[2] Either Mr Eriha or Mr Te Hau was wearing a Mongrel Mob patch. Mr Eriha threatened to assault the father’s wife.

Course of proceedings

[7] There was some delay in the laying of charges. This was because Mr Eriha absconded.
[8] Mr Te Hau was charged in respect of both incidents in June 2012. Initial disclosure was made in July 2012. Mr Te Hau was committed to the High Court in August 2012. There was then a middle band decision transferring the charges back to the District Court. The first callover in the District Court was on 12 November 2012. At this time a guilty plea was entered on the aggravated robbery charge and Mr Te Hau was discharged on the demanding with menaces charge. He was sentenced on 1 March 2013.
[9] Mr Eriha was sentenced on the demanding with menaces charge (and other matters) on 14 September 2012. He was not charged with aggravated robbery in relation to the earlier incident but we are told that it is now intended that he will be.

Mr Te Hau’s personal circumstances

[10] Mr Te Hau was 28 years old at the time of sentencing. He has a partner and a young child from that relationship, and two children from a former relationship. He has associations with the Mongrel Mob. At the time of the aggravated robbery he was prospecting for that gang. He told the pre-sentence report writer that he was cutting ties with the gang. The pre-sentence report writer received information from the police and prison staff which was said to support this.
[11] At the time of this offending Mr Te Hau’s conviction history was as follows:
[12] Subsequent to the offending at issue here but before Mr Te Hau was charged in relation to it, he further offended as follows:

District Court sentencing

[13] In sentencing Mr Te Hau the Judge set out his reasons as follows:[3]

[6] Mr Te Hau now maintains that he is distancing himself from the Mongrel Mob. Nevertheless the Probation Service present reports which could not be called favourable. There is a home detention address available, although subject to considerable reservations. But, in my view, it is not a sentence which is available to the Court for the obvious reason.

[7] A starting point for this offending, which involved entry into someone else’s property and demanding a gang debt, is three years’ imprisonment. Mr Te Hau must realise that further offending by him will be uplifted in relation to his previous history of serious criminal offending, including an earlier conviction for aggravated robbery. An uplift of six months is required. It corresponds exactly to the discount required to recognise Mr Te Hau’s early guilty plea and, in the circumstances, a sentence of three years’ imprisonment is the result.

Our assessment of the end sentence

[14] No challenge is made to the starting point adopted by the Judge. Three years’ imprisonment was an appropriate starting point given there were two offenders acting together, they entered the home of the complainant, and there was some violence, a threat to kill and gang intimidation.[4]
[15] The appeal is brought on the basis that the end sentence was manifestly excessive because insufficient credit was given for the guilty plea. Counsel for Mr Te Hau emphasises that the plea was entered early, that is at the first opportunity after committal and at a time when no trial date had been set or contemplated. The plea therefore saved costs and resources. He accepts that Mr Te Hau received the benefit of a discharge on the demanding with menaces by pleading guilty to the aggravated robbery charge (the result of discussions between counsel). He submits that the guilty plea saved the victim the stress of giving evidence in respect of a defendant associated with the Mongrel Mob and showed the victim that Mr Te Hau accepted responsibility. He submits that in these circumstances a discount of 20−25 per cent ought to have been given.
[16] The Crown submits that the discount was appropriate. In making that submission the Crown says that Mr Te Hau could have entered his guilty plea on the aggravated robbery charge at an earlier stage. It says that the Crown case was a relatively strong one. Mr Te Hau was identified by the victim from a photo montage as one of the offenders in the aggravated robbery. The car Mr Te Hau drove at the time matched the description of that driven by the offenders. Mr Te Hau also admitted to the police that he was present at the address when the robbery took place, though he denied taking an active part in that robbery. The Crown says that the benefit Mr Te Hau received in having the demanding with menaces charge dropped is also relevant in the assessment of the appropriate discount.
[17] In our view the discount applied by the Judge was at the low end of the available range for the reasons advanced by Mr Te Hau’s counsel. In offending arising in a gang context a guilty plea is significant, both because of the acceptance of responsibility and because the victim is spared the stress of a trial. The plea, while not made at the outset, was made at an early stage of the proceedings and as soon as the discussions between counsel had resolved matters.
[18] In respect of the six month uplift for previous convictions, the Crown’s submissions helpfully set out the relevant principles. The Sentencing Act 2002 requires the Judge to take into account a defendant’s previous convictions.[5] This Court has recently reaffirmed that although a prisoner is not to be punished again for past offending, nor should previous convictions be ignored “particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted”.[6] Issues of deterrence and protection of the public may bear upon the uplift that may be appropriate,[7] but the uplift must remain proportional to the starting point selected.[8] Previous convictions may also bear upon character.[9]
[19] The Crown submits that the uplift was available to the Judge, albeit at the upper end of the range. The Crown submits that the uplift was proportionate here, reflecting the need to emphasise denouncement and deterrence of Mr Te Hau’s violent offending given that he was previously unresponsive to courtimposed limitations. In making that submission the Crown refers to Mr Te Hau’s offending occurring in the period after the aggravated robbery at issue here.
[20] The subsequent offending is relevant in that it showed that Mr Te Hau had not, following this offending, changed his ways. We consider, however, that it was only the aggravated robbery in 2002 in respect of which an uplift might be considered. That offending was similar in kind and so was relevant to whether Mr Te Hau had a tendency to commit the particular offence for which he was convicted. The other offending was different and did not raise individual deterrence or protection of the public considerations to the same degree.
[21] However, in considering whether to impose any uplift because of the 2002 aggravated robbery, it is also relevant that it occurred seven years earlier and at a time when Mr Te Hau was 18 years old. The need for particular individual deterrence and protection of the community was less given that Mr Te Hau had not reoffended in this way for a reasonably significant period of time. In our view no uplift was warranted, although a small uplift would not have been outside the sentencing discretion. However, in our view an uplift of six months (16.7 per cent of the sentence) was wrong and not proportionate to the starting point of three years.
[22] In summary the discount for the guilty plea was at the lower end of the available range, but the uplift for previous convictions was outside the available range. From a starting point of three years, with no uplift for previous convictions, and a discount for the guilty plea of around 15 per cent, the end sentence in round terms would be 30 months. We consider that the end sentence of three years’ imprisonment was manifestly excessive.

Result

[23] The sentence of three years’ imprisonment is quashed. It is replaced with an end sentence of two years and six months’ imprisonment.









Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Te Hau DC Napier CRI-2012-081-143, 1 March 2013.

[2] New Zealand Police v Eriha DC Rotorua CRI-2012-081-163, 14 September 2012 at [2].

[3] R v Te Hau, above n 1.

[4] These aggravating factors would put this offending at the top of the 18 months’ to three years’ imprisonment range discussed in R v Mako [2000] 2 NZLR 170 (CA) at [59].

[5] Sentencing Act 2002, s 9(1)(j).

[6] Beckham v R [2012] NZCA 290 at [84].

[7] At [84].

[8] Hodgkinson v R [2012] NZCA 478 at [21].

[9] Beckham v R, above n 6 at [84].

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