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Tereora v R [2015] NZCA 120 (22 April 2015)

Last Updated: 5 May 2015

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
11 March 2015
Court:
Stevens, Asher and Williams JJ
Counsel:
R M Mansfield for Appellant H W Ebersohn for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal against sentence is allowed.
  2. The sentence imposed in the High Court is quashed and a sentence of eight years and eight months’ imprisonment is substituted.
  1. The minimum period of imprisonment imposed in the High Court is quashed and a minimum period of three years and six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

[1] The appellant, Mr Tereora, pleaded guilty to one charge each of aggravated robbery, assault with a weapon and attempting to use a firearm against a constable in the course of his duty. He entered those pleas on 11 February 2014, the day after his trial on those charges was to commence.
[2] The appellant was sentenced by Venning J on 14 April 2014 to a total of eight years and ten months’ imprisonment.[1] That total comprises the following distinct cumulative sentences:
[3] Venning J also imposed a five year minimum period of imprisonment (MPI).[2]
[4] The appellant now appeals against the sentence and the MPI.

The facts

Aggravated robbery

[5] On the evening of 3 June 2012, the appellant and two unknown accomplices, all dressed in balaclavas and fingerless gloves, smashed the window of the complainant’s Papatoetoe home. During the attack the complainant, a 51 year old male, arrived home and noticed a car in his driveway. Once he parked his car, he was grabbed by a man and dragged inside to the lounge where his hands were tied behind his back and he was forced to lie face down on the floor.
[6] One of the men, either the appellant or one of his associates, threatened the complainant. Those threats included a reference to a firearm. The assailants demanded to know “where is the money and the gold?” The complainant lay face down while his house was searched. The assailants took the complainant’s wallet, car keys, cigarettes and cell phone before they left the house. The complainant was left with his hands tied.

Assault with a weapon

[7] On the morning of 8 June 2012 the appellant arrived by car at a second complainant’s address with a male accomplice. The complainant, who had some six years earlier sold a laptop to the appellant, was at home with her 14-year-old daughter.
[8] The appellant told the complainant’s daughter to get into the car with his associate. The complainant refused to let this happen, and walked back into her house with her daughter. The appellant followed the complainant, drew a pistol and pointed it at her. The complainant screamed at the appellant to get out of her house. The appellant backed away, but maintained his aim at the complainant with the pistol. He then ran to the car his associate was driving and drove away.

Attempting to use a firearm against a constable

[9] Around midday on 14 June 2012, the appellant was the passenger in a car being driven by a female associate. The car was stopped in a routine police check point on Te Irirangi Drive in Otara. The appellant was asked several times by officers to show his hands and exit the car. Instead he pushed the driver out of the car and attempted to drive away. The police entered the vehicle and in the ensuing struggle, the appellant reached for a pistol he had in an inside pocket of his jacket. As he did so, he threatened the officers with the words “you’re going to get it, you’re going to get it cunt”.
[10] The police were able to remove the appellant from the vehicle and place him into custody. The officer conducting the post-arrest search of the appellant felt a solid object in the appellant’s jacket. The officer asked the appellant what the object was, and the appellant began to struggle again. He kicked off the back of the patrol car during this second struggle. The pistol fell from his jacket onto the ground and was seized by the police.

The Judge’s reasoning

[11] Applying R v Mako, the Judge took a starting point of six and a half years’ imprisonment for the aggravated robbery count.[3] He then adopted cumulative starting points of 15 months for assault with a weapon and 21 months for attempting to use a firearm against a constable. This lead to an overall starting point of nine and a half years’ imprisonment.[4]
[12] From this the Judge deducted six months on a totality basis,[5] but uplifted the resulting nine year sentence by eight months for previous similar violent offending.[6] And from that he deducted 10 per cent for the late guilty plea.[7]
[13] This left, by the Judge’s calculation, a final effective term of imprisonment of eight years, ten months,[8] although, crucially in terms of the subsequent MPI calculation, made up of three separate sentences as indicated above.[9] Finally, a MPI of five years was imposed.

Submissions

[14] The appellant advanced three grounds in his appeal:
[15] In reply, the Crown argued that on the question of totality, each of the individual sentences was well within range. In particular:
[16] Thus the Crown submitted, when one steps back to assess the overall criminality, the sentence was entirely proportionate. Each offence was serious in its own right and separately could have justified much higher individual sentences than those imposed. The final sentence could not therefore be said to be contrary to the totality principle.
[17] On the question of the MPI, the Crown accepted that the Judge must have imposed it over the cumulative total. Thus, the MPI actually imposed was well in excess of the statutory cap of two-thirds of the final qualifying sentence.[10]
[18] The Crown accepted that the Judge was in error in adopting this course. The Crown submitted however that the Judge was nonetheless entitled in principle to impose a MPI albeit a reduced one in relation to the lead sentence.

Totality

[19] Section 85 of the Sentencing Act relevantly provides:
  1. Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

...

[20] The appellant argued that the final sentence of eight years and ten months’ was wholly out of proportion to the gravity of the offending and therefore contravened s 85(2). Taken as a whole, this offending was, counsel submitted:
[21] Counsel submitted that a sentence of eight years and ten months for offending of this gravity effectively deprived the appellant of hope and any prospect of rehabilitation.
[22] We do not agree with the appellant’s characterisation of the offending.

Aggravated robbery

[23] The lead offending – aggravated robbery – generally fitted the oft-quoted description of such offending contained in the tariff decision of this Court in R v Mako:[11]

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.

[24] We appreciate that increased maximum penalties for home invasion were repealed by the Sentencing Act. However, the terms of s 9(1)(b) of that Act make it clear that home invasion is now to be treated as an aggravating factor.[12]

[25] Recent decisions of this Court all confirm the principle expressed in Mako that home invasion may warrant an uplift, by employing an orthodox approach of comparison to similar cases.[13]
[26] This offending initially started off as a routine burglary. But the appellant and his associates were prepared for confrontation if necessary. They wore disguises to avoid identification. And when the occupier returned to the property, no attempt was made to escape. On the contrary, the appellant and his unnamed co-offenders addressed this new element with summary brutality, dragging the occupant from his car (inflicting bruising), threatening him with a weapon (albeit one that may not have existed), and finally binding him and requiring him to lie face down on the lounge floor in fear for his life.
[27] What began as a burglary quickly escalated into an aggravated robbery in a manner for which the appellant and his co-offenders were well-prepared when entering the premises.
[28] That said, Mako cautions sentencing courts about the need for flexibility in selecting an appropriate starting point in order to properly and proportionately address particular features, whether alone or in combination, of the relevant offending.[14] In this case, weapons are talked about by the assailants at the address but not produced. We can infer that the offenders were not in fact armed but tried to give the impression they were. Further, although this became in substance a home invasion, it did start out as a routine burglary, albeit with the offenders aware of, and prepared for, the risk of detection and confrontation.
[29] These features would have reduced the starting point from a much higher level within the Mako guideline. But it cannot be said that they meant the starting point that the Judge settled upon was too high. On the contrary, we consider it was at the very bottom end of the available range.
[30] Mr Ebersohn submitted the lowest home invasion starting point that he could find was that of the current appeal at six and a half years. Even in a home invasion akin to intimidatory debt collection involving threats and a single punch to the head, Chisholm J on appeal accepted that a 10 year starting point was too high but one between seven and eight years was justifiable.[15] In Wairea v R, a home invasion robbery in which the appellant presented a BB gun produced a starting point of eight years. This Court accepted that that was too high but was “more than offset” by the sentencing court’s lenient approach to cumulative collateral offending.[16]
[31] We have found one appellate decision in which a starting point of six years was upheld for an armed home invasion. But that offending involved a single perpetrator who was known to the occupier, no items were taken and the weapon involved was a knife.[17]
[32] In this case, while there was probably no weapon available to the assailants, aggravating features included:
[33] We conclude overall that a starting point of six and a half years’ imprisonment was well within the available range.

Assault with a weapon

[34] The 15 month cumulative sentence for assault with a weapon was also well within range. We agree with Mr Ebersohn that the particularly aggravating feature of this offending was that the weapon was a pistol. This confrontation (it seems over whether the second complainant’s 14-year-old daughter should leave with the appellant and an unknown associate) could easily have escalated and gone horribly wrong.

Attempted use of a firearm against a police officer

[35] The attempted use of a firearm against a police officer is particularly serious and troubling. According to the summary of facts, which the appellant accepted, he tried to reach for the pistol inside his jacket while at the same time verbally threatening the officer. It was only the fact that the police were able to overpower the appellant that the incident did not escalate into a much worse and more dangerous situation.
[36] By the terms of s 198A of the Crimes Act 1961, the maximum penalty for the completed offence of using a firearm against an officer is 14 years and, by the terms of s 311(1), the maximum penalty for the attempt is half that, at seven years. These maxima are significant because, as this Court indicated in R v Taylor, the legislative intention is twofold: that offenders using firearms against law enforcement officers should be dealt with severely and that deterrence is a major consideration in offending.[18]
[37] The decision of this Court in R v Harris dealt with somewhat similar facts to those arising in the present appeal.[19] In that case, during a struggle to apprehend Mr Harris, he drew out a pistol not unlike that carried by the appellant in this case. But before he could present or fire it, police officers at the scene dislodged it from his grip. The pistol was loaded and there was no safety catch. A starting point of four years’ imprisonment on the charge of attempting to use a firearm was upheld as being “lenient towards the appellant”.[20]
[38] In the current appellant’s case, he attempted to reach for his weapon but did not get hold of it. These facts are less grave than those of Harris, but that is reflected in the much lower starting point of 21 months’ imprisonment adopted by Venning J.
[39] The starting point for each offence was thus not disproportionate to the offending.

Totality reduction

[40] The Judge then, as we have said, reduced the overall starting point by six months before uplifting for previous offending. While this was a modest reduction, it must be seen in light of the equally modest starting points the Judge adopted. He would have been operating within discretion to have started much higher in each of the three offences.
[41] In our view, subject to the slight correction to which we now turn, the final sentence cannot be faulted in this case.

Correction

[42] The Judge appears to have slightly miscalculated the end sentence. The total starting point for all offending was 114 months less six months for totality to bring the total to 108 months. An uplift for previous offending then took the total to 116 months. The 10 per cent discount on 116 months for guilty plea was 12 months – 11.6 months rounded up to the nearest month. This left a total final sentence of 104 months or eight years eight months.
[43] The appellant is entitled to the benefit of this correction. The appeal against final sentence is allowed, the sentence of eight years and ten months is quashed and a final sentence of eight years and eight months’ imprisonment is substituted.

Minimum period of imprisonment

[44] As indicated, the Judge imposed a MPI of five years’ imprisonment. It is common ground that this was impermissible. Section 86 of the Sentencing Act relevantly provides:
  1. Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

...

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a) two-thirds of the full term of the sentence; or

(b) 10 years.

[45] The only one of the three cumulative sentences greater than two years as required by subs (1) was the lead sentence for aggravated robbery. The effect of subs (4) was that the maximum available MPI was two-thirds of six years and four months, being four years and two months. The actual MPI of five years represented about 55 per cent of the final eight year and 10 month sentence. If that were applied proportionately to the lead sentence, 55 per cent of six years and four months is three years and six months’ imprisonment.

Submissions

[46] The appellant argued that the lead offending in this case was not a particularly serious example such that the ordinary parole eligibility rules may be seen as insufficient in terms of the considerations in s 86(2). The appellant pointed to the factors already mentioned – the lack of serious violence, the talk rather than presence of a firearm, and the minor nature and value of the property stolen. In addition, it was submitted that the appellant had real insight into his offending and demonstrated a need to turn his life around. Finally, while the appellant had a lengthy history of offending, it was submitted that his past offending was not particularly serious and rarely violent.
[47] The Crown pointed out that defence counsel had accepted the imposition of a MPI at sentencing and that this was justified, particularly given the additional offending for which the appellant was sentenced. The Crown submitted that although few home invasion cases result in the imposition of a MPI, home invasion is itself such an aggravating feature that MPIs should be imposed in such cases as a matter of course.
[48] The Crown submitted therefore that in home invasion cases, it will always be within the Judge’s discretion to impose a MPI.

Analysis

[49] The leading decision on the principles applicable to the imposition of MPIs is that of a full bench of this Court in R v Brown.[21] There the Court held that:[22]

... the power to impose a minimum sentence for a serious offender must be intended for cases of such seriousness that the Court considers that, even if there is no danger to the community, release after one-third of the sentence has been served would represent insufficient denunciation, punishment and deterrence in all the circumstances. ...

[50] And further:

[32] It must be a matter for judicial judgment whether the “sufficiently serious” threshold is crossed. Generally this will involve identifying aspects that set the particular offending apart. Any attempt to list possible features that might qualify would unduly fetter the sentencing discretion. The Judge must review the circumstances as a whole and apply the statutory test. The central consideration must be culpability which necessarily is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims, and serious actual or intended consequences. This last factor may be important in cases involving major drug dealing. We do not consider the overall assessment need be constrained by the particular charge brought in respect of the conduct concerned; for example, in cases of serious violence against the person the assessment of culpability should be in relation to the conduct of that kind and not limited only to conduct giving rise to charges for precisely the same offence.

[33] The section is likely to have application more in cases of serious offending. They attract longer prison terms with the consequent wider gap between the appropriate nominal sentence, and one-third in each case. It requires the Court to determine both the maximum and minimum sentences to be served with the result that subject to any concern about the safety of the community, the sentence which will actually be served is fixed within the range between them.

[51] In this case, the offending is not at the most serious end of the scale of aggravated robbery when viewed against the most serious such cases, which usually involve significant violence and injury. Although we accept of course that home invasion is always an aggravating feature in robbery cases, we do not accept that a Judge will be entitled to impose a MPI every time the facts disclose a home invasion. That would draw within the purview of s 86 a large number of cases and we are not satisfied this was necessarily Parliament’s intention in enacting the section. Rather as this Court said in Brown, careful attention is to be paid to the particular mix of features present in the instant case.
[52] That said, we are satisfied that this was a case in which it was within the Judge’s discretion to impose a MPI. That is not because of the standout features of the index offending – we are not of the view that there was unusual callousness, extreme violence, vulnerable or multiple victims, or serious actual or intended consequences for example. We consider that the cumulative effect of the three offences is what sets this case apart. We are satisfied that it is consistent with the terms of s 86 for our analysis to extend beyond the particular circumstances of the index offending. In particular, we note that subs (2)(b), (c) and (d) are not necessarily focused only on the index offending. Rather, they entitle the sentencing court to denounce, deter and protect in the context of the whole offending narrative. In this case the use of a firearm against a woman in the presence of her teenage daughter and the later attempt to do so against a police officer, are particularly aggravating elements that must colour our assessment of the index offending. They set the offending apart as in particular need of denunciation and deterrence, and the offender as one from whom the community needs extra protection.
[53] We consider that it is proper to adopt and apply, proportionately, the MPI originally imposed by the Judge on the overall sentence, to that relating to the lead offending. The MPI of five years’ imprisonment is quashed and a new MPI of 55 per cent of the final sentence in respect of the aggravated robbery count is substituted, namely, three years and six months’ imprisonment.

Result

[54] The appeal against sentence is allowed.
[55] The sentence imposed in the High Court is quashed and a sentence of eight years and eight months’ imprisonment is substituted.
[56] The minimum period of imprisonment imposed in the High Court is quashed and a minimum period of three years and six months’ imprisonment is substituted.





Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Tereora [2014] NZHC 772 at [25].

[2] At [26].

[3] R v Tereora, above n 1, at [19], citing R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA).

[4] R v Tereora, above n 1, at [20].

[5] At [21].

[6] At [22].

[7] At [24].

[8] In fact it was common ground that this calculation was incorrect – the final term should have been two months less at eight years, eight months’ imprisonment, as discussed below at [43].

[9] Above at [2].

[10] Sentencing Act 2002, s 86(4). See below at [45].

[11] R v Mako above n 3, at [58].

[12] The provision provides:

9 Aggravating and mitigating factors

(1) In sentencing ... an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

...

(b) that the offence involved unlawful entry into, or unlawful presence in, a dwelling place.

(...)

[13] Tiori v R [2011] NZCA 355 at [15]–[16]; R v Royal [2009] NZCA 65 at [10]; R v Fenton [2008] NZCA 379 at [12].

[14] R v Mako, above n 3, at [60].

[15] Wakefield v Police HC Christchurch CRI-2008-409-169, 18 December 2008 at [9]–[10].

[16] Wairea v R [2012] NZCA 423 at [12].

[17] R v Edwards CA 67/00, 18 April 2000 at [17]–[18].

[18] R v Taylor CA407/88, 9 May 1989 at 6.

[19] R v Harris [2008] NZCA 214.

[20] At [11].

[21] R v Brown [2002] NZCA 243; [2002] 3 NZLR 670 (CA).

[22] At [23].

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