Opetaia v R [2013] NZCA 434 (19 September 2013)

Last Updated: 26 September 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 672/2012 CA507/2013 [2013] NZCA 434
BETWEEN	AMY JAYNE OPETAIA Appellant
AND	THE QUEEN Respondent

Hearing:	9 September 2013
Court:	Wild, Cooper and Lang JJ
Counsel:	R A A Weir and H J Carson for Appellant M J Inwood for Respondent
Judgment:	19 September 2013 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time within which to appeal against the sentences imposed by Courtney J is dismissed.
2. The application for an extension of time within which to appeal against the sentences imposed by Judge Blackie is granted.

100. The appeal against the sentences imposed by Judge Blackie is allowed. The sentences are quashed, and cumulative sentences of three years imprisonment are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Introduction

[1] Ms Opetaia pleaded guilty in the High Court to a wide array of charges including aggravated robbery, burglary and theft. On 2 November 2010, Courtney J sentenced her to nine years imprisonment on those charges.^[1] This comprised two cumulative sentences of four and five years imprisonment respectively. Courtney J also ordered Ms Opetaia to serve a minimum term of three years three months imprisonment in respect of the latter sentence.
[2] Ms Opetaia was subsequently found guilty by a District Court jury on two further charges of aggravated robbery and a charge of assault with intent to rob. On 3 April 2012, Judge Blackie sentenced her to an effective term of six years imprisonment on those charges.^[2] He directed that Ms Opetaia was to serve that sentence cumulatively on the existing sentence of nine years imprisonment she was already serving. As a result, Ms Opetaia is now required to serve a notional single sentence of 15 years imprisonment.
[3] Ms Opetaia applies for an extension of time within which to appeal against the sentences imposed by both Courtney J and Judge Blackie. She seeks to argue that the end sentence she received is manifestly excessive.
[4] The Crown opposes an extension being granted. It points out that the appeal in respect of the sentences imposed by Courtney J would be 19 months out of time, and that in respect of the sentences imposed by Judge Blackie would be five months out of time.

The offending for which Ms Opetaia was sentenced by Courtney J

[5] Courtney J sentenced Ms Opetaia to four years imprisonment in respect of a charge of aggravated robbery that was laid as a result of an incident that occurred in the early hours of 24 October 2009. The cumulative sentence of five years imprisonment related to ten further offences that Ms Opetaia committed in February 2010.

24 October 2009: Aggravated robbery

[6] At about 4.30 am on 24 October 2009, Ms Opetaia and an unknown male associate went to a residential address in central Auckland. Ms Opetaia waited outside the address whilst her associate entered the address through a sliding door. The male associate, who was holding a screwdriver, then woke the three occupants of the address. He forced them into the lounge of the address, where he made them sit on a sofa.
[7] The male associate demanded money from the occupants, and then proceeded to take their property. He placed this in a bag belonging to one of the victims. At this point Ms Opetaia entered the apartment through the sliding door. She spoke briefly with her associate, and then went into the victims’ bedrooms where she collected items of value. Meanwhile, the male associate collected the victims’ laptops and filled a clothes basket with shoes belonging to the victims. When Ms Opetaia returned to the lounge, she told the victims not to call the police or she would kill them. She also punched one of the victims in the face.
[8] Ms Opetaia and her male associate then left the apartment through the sliding door. Ms Opetaia carried two backpacks containing property taken from the apartment, and her associate carried a backpack and basket containing further items. The stolen items included three laptop computers and two external hard drives, four mobile phones, two digital cameras, a quantity of cash, a watch, a pair of sunglasses and miscellaneous items of clothing, shoes and bags.

1 February 2010: Burglary

[9] Between 9 pm on 1 February and 12.30 am on 2 February, Ms Opetaia entered the home occupied by her first cousin. She then took a number of items from her cousin’s bedroom whilst her cousin was asleep in the room. These included keys to a Nissan Pulsar motor vehicle that was parked outside the address.

1 February 2010: Unlawfully taking a motor vehicle

[10] Ms Opetaia used the keys to steal the Nissan Pulsar motor vehicle. Ms Opetaia and her associate, Mr Stephens, then used this vehicle to commit a large number of offences over the next two days. The police recovered the vehicle after it was the subject of a pursuit through city streets on 3 February 2010. The police found Ms Opetaia and Mr Stephens in the vicinity of the vehicle after it was ultimately stopped.

2 February 2010: Theft/shoplifting

[11] At 7.45 am on 2 February 2010, the proprietor of a clothing alteration shop was working at the rear of the shop. He heard a loud bang, and immediately ran to the front of his shop. He saw Mr Stephens running out of the shop to the Nissan Pulsar motor vehicle. Ms Opetaia was behind the wheel of the vehicle. The victim then discovered that his mobile phone, laptop and petty cash tin had been stolen.

3 February 2010: Theft

[12] The following day, at around 3.30 pm, Ms Opetaia drove the Nissan Pulsar motor vehicle up to a person who was walking towards a suburban train station. Ms Opetaia then asked this person for directions to a particular street. Mr Stephens was running alongside and in the same direction as the car. While the victim was distracted by her conversation with Ms Opetaia, Mr Stephens grabbed her handbag. He then ran off, and was picked up a short time later by Ms Opetaia.

3 February 2010: Burglary

[13] In the early evening of 3 February 2010, Ms Opetaia and Mr Stephens went to a residential property in Mt Roskill. The property was occupied by two persons, one of whom was known to Ms Opetaia. Neither of the occupants was home when Ms Opetaia and Mr Stephens gained entry to the property by smashing a window. Ms Opetaia and Mr Stephens then ransacked the property, and stole several items from it.

3 February 2010: Aggravated robbery (x2)

[14] As Ms Opetaia and Mr Stephens were leaving the Mt Roskill property, they met a male and female who had come to view the property as prospective tenants. Mr Stephens talked to these persons, and initially offered to sell them a laptop computer and drugs. Mr Stephens then took out a hammer, and brandished it at the victims. He and Ms Opetaia then relieved the male victim of his wallet, and the female victim of her engagement and wedding rings.

3 February 2010: Kidnapping and aggravated robbery

[15] At about 7.45 pm the same evening, Mr Stephens confronted a person who was entering a flat in central Auckland. Mr Stephens produced a hammer, and demanded that the victim hand over his wallet. The victim had no money in his wallet, so Mr Stephens and Ms Opetaia took him to an ATM machine in the Nissan Pulsar motor vehicle. They made the victim crouch in the footwell of the vehicle so that he could not escape. The victim then withdrew the sum of $80 in cash from the ATM machine, and handed it over to Mr Stephens. While Mr Stephens and the victim were at the machine, Ms Opetaia rummaged through the victim’s bag and removed his cell phone.

3 February 2010: Possession of needles/syringe for drugs

[16] At approximately 9.25 pm the same evening, police officers in a police patrol vehicle saw Mr Stephens and Ms Opetaia in the Nissan Pulsar motor vehicle. The Nissan Pulsar sped away, and a short pursuit ensued before they abandoned the vehicle. Ms Opetaia was located and arrested at an address a short distance away. Mr Stephens was also arrested a short time later. When the police searched Ms Opetaia, she was found to be in possession of drug-related paraphernalia.

The structure of the sentence imposed by Courtney J

[17] Courtney J adopted a starting point of five years imprisonment in relation to the October 2009 offending. She increased that by one year to reflect Ms Opetaia’s prior convictions. She then applied a one-third discount for the guilty plea, thereby producing an end sentence of four years’ imprisonment.
[18] In relation to the February 2010 offending, Courtney J took the aggravated robbery charge relating to the victim who had been kidnapped and driven to withdraw money from the ATM machine as the lead charge. She adopted a starting point of six years imprisonment to reflect that offending. She then applied an uplift of two years to reflect the balance of the offending. The Judge gave Ms Opetaia a discount of one-third for her early guilty pleas. Finally she gave a slight reduction of three months to reflect Ms Opetaia’s relative youth. This resulted in an end sentence of five years imprisonment, with the minimum term referred to above at [1]. The Judge directed that this sentence was to be served cumulatively on the sentence imposed in respect of the October 2009 offending, but concurrently with the sentences she imposed in respect of the balance of the February 2010 charges.

The offending for which Ms Opetaia was sentenced by Judge Blackie

[19] Ms Opetaia committed this offending in two separate incidents.

28 March 2009: Aggravated robbery and assault with intent to rob

[20] On the evening of 28 March 2009, one of the victims of this offending received a text message from a woman he had met six months earlier. The text message invited him to meet that woman at a suburban motor lodge. The victim picked up a friend, and the two men then drove to the motor lodge. When they entered the motel unit, they were greeted by three females, one of whom was Ms Opetaia.
[21] After the victims had been inside the room for a couple of hours, Ms Opetaia sent a text message to an associate. A short time later, two men entered the unit. One of the men was carrying a knife. The men then demanded money from the two victims. One of the victims handed over his wallet, but was then kicked in the head and knocked unconscious. The other victim escaped by jumping through a glass window, but not before he had been engaged in a struggle with one of Ms Opetaia’s associates and been relieved of the keys to his motor vehicle. The attackers also stole a cellphone from one of the victims.
[22] The victim who had jumped through the window received cuts to his forehead and right leg, both of which required stitches. The other victim was concussed but otherwise uninjured.

8 September 2009: Aggravated robbery

[23] In June or July 2009, the victim of this offending exchanged cellphone numbers with Ms Opetaia after meeting her in a bar. On the evening of 8 September 2009, Ms Opetaia sent the victim a text message asking if he could give her a ride into the central city area from an address in Manurewa. The victim then went to the Manurewa address and picked her up.
[24] Whilst they were travelling into the city, Ms Opetaia received a text message. She then told the victim she needed to return to the address from which he had picked her up. The victim took her back to that address, and Ms Opetaia got out of the vehicle. As she did so, a male entered the vehicle through the same door. He held a knife in one hand, and proceeded to punch the victim several times in the head and upper body. As the attack continued, a second male opened the driver’s door and punched the victim several times in the head. The attacker carrying the knife then took the victim’s wallet and cell phone. The victim received minor cuts to his forehead and the palm of his left hand.

The structure of the sentence imposed by Judge Blackie

[25] The Judge selected a starting point of six years imprisonment as reflecting Ms Opetaia’s culpability on both aggravated robbery charges. He did not apply an uplift to reflect Ms Opetaia’s previous convictions, but he also felt unable to reduce the sentence to reflect mitigating factors personal to Ms Opetaia. This left him with the end sentence of six years imprisonment.
[26] The Judge then directed Ms Opetaia to serve this sentence cumulatively on the sentences imposed by Courtney J, but concurrently with a sentence of three years imprisonment that he imposed on the charge of assault with intent to rob. He declined to impose a minimum term of imprisonment.
[27] The net result, therefore, is that Ms Opetaia is currently serving a notional single term of 15 years imprisonment, and she is subject to a minimum term of six years six months imprisonment. This comprises the minimum term of three years three months imposed by Courtney J in respect of the February 2010 offending, together with the statutory minimum terms she will be required to serve in respect of the remaining sentences. ^[3]

The issue on appeal

[28] Whenever cumulative sentences of imprisonment are imposed, the court must ensure that the end result is not wholly out of proportion to the overall gravity of the offending.^[4] This is usually referred to as the totality principle. Both Courtney J and Judge Blackie were required to have regard to this principle before they imposed cumulative sentences upon Ms Opetaia.
[29] Counsel for Ms Opetaia accepts that an end sentence of greater than that imposed by Courtney J was required to reflect the gravity of Ms Opetaia’s overall offending. In addition, Ms Opetaia has failed to provide any explanation for the very lengthy delay in filing her application for an extension of time within which to appeal against the sentences imposed by Courtney J. The Crown also points to society’s interest in the finality of litigation.^[5]
[30] These factors persuade us that we should not permit the sentences imposed by Courtney J to be challenged at this very late stage. Instead, we propose to examine the sole issue that lies at the heart of Ms Opetaia’s argument within the context of the proposed appeal against the sentence imposed by Judge Blackie. That appeal has not been the subject of delay to nearly the same extent as the appeal against the sentences imposed by Courtney J. It is therefore appropriate that an extension of time be granted in respect of that appeal.
[31] Ms Opetaia’s counsel does not argue with the starting point that Judge Blackie selected in relation to the offending for which he sentenced Ms Opetaia. He contends, however, that the cumulative sentence that the Judge imposed led to an end sentence that was wholly out of proportion to the gravity of Ms Opetaia’s overall offending.
[32] Judge Blackie did not consider this issue. Having concluded that the culpability of Ms Opetaia’s offending justified a starting point of six years imprisonment, the Judge went on to consider whether that sentence should be reduced to reflect mitigating factors personal to Ms Opetaia. Once he concluded that it should not, the Judge immediately imposed the cumulative end sentence of six years imprisonment. He did not stand back and consider whether an effective end sentence of 15 years imprisonment was proportionate or disproportionate to the gravity of Ms Opetaia’s overall offending. That step was necessary given that the Judge was imposing sentences that were to be cumulative on those already imposed by Courtney J. It is therefore necessary for us to consider this issue afresh.

Was an effective end sentence of 15 years imprisonment disproportionate to the gravity of Ms Opetaia’s overall offending?

[33] One method of determining this issue is to consider what the appropriate end sentence would have been if either Courtney J or Judge Blackie had been required to sentence Ms Opetaia on all charges at the same time. The approach taken by Courtney J suggests that she viewed Ms Opetaia’s offending as being more serious as it escalated with the passage of time. This is evident from the fact that she imposed the minimum term of imprisonment in respect of the sentence imposed on the February 2010 charges to reflect her “grave concern” at the escalation of Ms Opetaia’s offending between October 2009 and February 2010.^[6]
[34] The offending that led to the sentences imposed by Judge Blackie pre-dated all of the offending for which Courtney J sentenced Ms Opetaia to nine years imprisonment. We consider that, had Ms Opetaia been sentenced on all charges by either Judge, it is highly unlikely that an end sentence of 15 years imprisonment would have been imposed. Although the overall offending was undoubtedly serious, it did not warrant an end sentence of that length. Rather, we consider it justified an effective end sentence of no more than 12 years imprisonment.
[35] That is particularly the case given the fact that Ms Opetaia was just 20 years of age when she was sentenced by Courtney J. She had committed the offending for which she was sentenced by Judge Blackie when she was 18 and 19 years of age. Although she was no stranger to the criminal justice system even at that time, we consider that an effective end sentence of 15 years was too severe having regard to her age and overall culpability.

Result

[36] The application for an extension of time for appealing against the sentences imposed by Courtney J is dismissed. The application for an extension of time within which to appeal against the sentences imposed by Judge Blackie is granted. The appeal against the sentences imposed by Judge Blackie is allowed. Those sentences are quashed, and cumulative sentences of three years imprisonment are imposed in their place.

Solicitors:
Public Defence Service, Hamilton for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Stephens HC Auckland CRI-2010-004-1971, 2 November 2010.

^[2] R v Opetaia DC Manukau CRI-2010-092-7688, 3 April 2012.

^[3] Section 84(4) of the Parole Act 2002 provides that the non-parole period of a long term notional single sentence is the total obtained by adding together all the non-parole periods of every sentence that makes up the notional single sentence. Section 84(1) of that Act provides that, where the court does not impose a minimum term of imprisonment, the non-parole period of a long term determinate sentence shall be one-third of the length of the sentence. Ms Opetaia will therefore be subject to non-parole periods comprising one-third of the sentence imposed by Courtney J in respect of the October 2009 offending, and one-third of the sentence imposed by Judge Blackie. Our arithmetic is the minimum period of imprisonment of 3 years 3 months + 1 year 3 months (rounded down from .333 months) + 2 years.

^[4] Sentencing Act 2002, s 85(2).

^[5] R v Knight [1998] 1 NZLR 583 (CA) at 587–589; R v Lee [2006] 3 NZLR 42 (CA) at 70–73.

^[6] R v Stephens, above n 1, at [24].