Raroa v R [2014] NZCA 57 (10 March 2014)

Last Updated: 20 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA617/2013 [2014] NZCA 57
BETWEEN	TIEWHERI RAROA Appellant
AND	THE QUEEN Respondent

Hearing:	11 February2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	N P Chisnall for Appellant J E Mildenhall for Respondent
Judgment:	10 March 2014 at 11.00 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is allowed.

100. The sentence of three years and nine months’ imprisonment is quashed and a sentence of three years and three months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by MacKenzie J)

[1] The appellant appeals against a sentence of three years and nine months’ imprisonment imposed by Judge McGuire in the District Court at Rotorua on 14 June 2013 following pleas of guilty to one charge of aggravated robbery and one charge of assault with intent to injure.^[1] The appeal is filed out of time so an extension of time to appeal is required. Counsel for the Crown does not oppose this and an extension of time for filing is granted accordingly.
[2] The aggravated robbery occurred in the early hours of 23 September 2012 when the appellant and a co-offender approached the complainant. The Judge described the offending in these terms:^[2]

You approached the complainant. Your co-offender began questioning the complainant about the bag he was carrying and adopted an aggressive fighting stance. You were standing nearby and you showed the complainant the white handle of a knife that was hidden up your sleeve. You told the complainant to hand over his bag or you would drop him. The other accused was also asking for the bag and the complainant believed he would be stabbed if he failed to hand it over. Inside the bag was the complainant’s wallet and assorted cards and cash. Both of you left the area with the bag. He was uninjured but shaken by the event.

[3] The assault with intent to injure occurred on 27 April 2013. The victim was the appellant’s partner. There was a domestic dispute which included the appellant slapping the victim on her head. The appellant then grabbed the victim by the throat so that she was struggling for breath and then threw her to the floor. He picked her up and pushed her into the hallway, swung her around against a wall, against another wall, and then threw her to the ground. He then pushed her against a bathroom wall with such force that it made a hole in the wall. He threatened her with a pair of scissors. The victim suffered contusions on both sides of her temples, and her left shoulder. The doctor detected hand marks on her neck.
[4] The Judge took a starting point of two and a half years for the aggravated robbery. He uplifted that by six months to reflect the appellant’s personal aggravating circumstances. He took an 18 month starting point for the assault with intent to injure, again with an uplift of six months for the appellant’s previous violence convictions.^[3] He then applied a starting point of five years on a cumulative basis. He allowed a one quarter discount for the early guilty plea, leaving an end sentence of three years and nine months’ imprisonment.
[5] Counsel for the appellant submits that the Judge made two material errors that resulted in a manifestly excessive sentence:

• (a) treating the allegation that the appellant was in possession of a knife as an aggravating feature when that was disputed, which resulted in the adoption of a manifestly excessive starting point for the aggravated robbery; and
• (b) providing an excessive uplift for the appellant’s personal aggravating features by effectively double counting his violence convictions.

[6] Mr Chisnall submits that the two and a half year starting point was towards the upper end of the indicative range of 18 months to three years’ imprisonment for a street robbery identified in R v Mako.^[4] He submits that the starting point might withstand scrutiny, albeit be considered stern, if there was an evidential basis for the Judge’s conclusion that the appellant was armed with a knife. However he submits that the Judge erred by treating this as an aggravating feature when it was disputed. Counsel submits that while the dispute might have triggered a disputed facts hearing, that would have served no useful purpose as the victim’s evidence went no further than saying that he thought the appellant was armed. Counsel describes the question as being whether the victim’s impression provided a sufficient evidential foundation for treating this as an aggravating feature.
[7] Counsel for the respondent submits that the Judge was entitled to find that the appellant’s actions were deliberately intimidating and threatening and that he signalled to the victim that he had a weapon. Counsel submits the starting point was squarely within the range anticipated for such offending.
[8] As set out in the passage quoted above at [2] from the sentencing notes, the Judge described the appellant as having shown the complainant the white handle of a knife which was hidden up his sleeve. That remark was based upon the summary of facts produced at sentencing. Counsel for the appellant at sentencing (not Mr Chisnall) had said in his written submissions that the appellant took issue with the claim that he had a knife. He asserted that he did not have the knife in his possession when the robbery took place.
[9] The Judge, in describing the aggravating features of the offending which he took into account in fixing the starting point, said that the aggravating features were “that it was two on one, that you had a knife or you [led] the victim to believe you had a knife and would use it”.^[5]
[10] We consider that the undisputed part of the summary of facts was sufficient to justify that view of the facts. Counsel at sentencing did not dispute the proposition that the appellant led the victim to believe he had a knife. He indicated only that the appellant disputed possession of the knife. There was accordingly a sufficient evidential foundation for the proposition that the victim thought that the appellant was armed. The Judge could properly conclude that it must have been some action on the part of the appellant which had induced that belief in the victim.
[11] The question, therefore, is whether the starting point of two and a half years was excessive, on the factual basis that the appellant was not actually armed, but led the victim to believe that he was armed, with a knife.
[12] We consider that the starting point was within range, on that basis. Offending of this sort was described in R v Mako in these terms:^[6]

At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

[13] That describes a starting point of between 18 months and three years when there is either the presence of a knife or similar weapon or there are offenders acting together. This case fell squarely within the second of those situations. The feature which made this an aggravated robbery was the presence of two offenders. That feature of itself brought the case within the 18 month to three year range. The sentencing Judge had to place the offending within that range. His view that the appellant had led the victim to believe he had a knife, along with the conduct involved, meant that a starting point towards the top of the range was available to the Judge.
[14] The second issue is the uplift for the previous convictions. The Judge imposed a total uplift of one year, on a total starting point of four years. Mr Chisnall submits that the uplift of one year is manifestly excessive. He submits that the uplift for both the previous offending and the fact that the appellant was on bail for the aggravated robbery at the time he committed the assault, should not have exceeded six months. Counsel for the Crown submits that the total uplift was not disproportionate.
[15] The Judge described the appellant as having “quite a history”.^[7] His criminal history discloses 22 convictions in the District Court and a further 16 case disposals in the Youth Court. The most relevant of those include three charges of burglary and two of robbery in the Youth Court, and in the District Court, three of theft, one of assault with intent to rob, one of possession of an offensive weapon, and one of assault. There are other convictions for a range of matters including drug and alcohol offending and breaches of sentence.
[16] Although the Judge did not expressly refer to it, the fact that the appellant was on bail in respect of the robbery at the time he committed the assault was also relevant to the extent of the uplift, as Mr Chisnall acknowledges.
[17] The rationale for an uplift for prior criminal history was described by this Court in Beckham v R in these terms:^[8]

The rationale for uplifting a prisoner’s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character.

[18] In this case, the previous convictions to which we have referred do indicate a tendency to commit the particular type of offence at hand, and they do bear on the issue of character. As against that, the appellant is quite young, at 24 years of age (he was 23 at the time of sentencing), and much of his previous offending was as a youth. The fact that the offending has occurred when the appellant was in this developmental phase of his life requires some restraint in the level of uplift, compared to that which might be applied for a similar history for a mature adult.
[19] A further relevant factor in deciding whether the sentence is manifestly excessive is that the Judge did not expressly address the issue of totality. He fixed starting points for the two offences and applied them cumulatively without expressly referring to the need to consider the totality of the sentence imposed. While we consider that this has not led to a starting point outside the available range for the totality of the offending, we bear this point in mind in our assessment of the uplift. Taking these matters into account, we consider that an uplift of one year, or 20 per cent of the total starting point of five years, was too high to reflect the previous convictions and the offending on bail. The total uplift imposed should not have exceeded six months.
[20] The appeal against sentence is allowed. The sentence of three years and nine months’ imprisonment is quashed and a sentence of three years and three months’ imprisonment is substituted.

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

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^[1] R v Raroa DC Rotorua CRI-2012-063-4081, 14 June 2013.

^[2] At [2].

^[3] See below at [14]–[15].

^[4] R v Mako [2000] 2 NZLR 170 (CA) at [59].

^[5] R v Raroa, above n 1, at [18].

^[6] R v Mako, above n 4, at [59].

^[7] R v Raroa, above n 1, at [9].

^[8] Beckham v R [2012] NZCA 290 at [84] (footnotes omitted).