Falwasser v R [2015] NZCA 502 (23 October 2015)

Last Updated: 29 October 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA596/2014 [2015] NZCA 502
BETWEEN	ISAAC HAYES FALWASSER Appellant
AND	THE QUEEN Respondent
CA707/2014
BETWEEN	RORY TRAVERS SMYTH Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2015
Court:	Miller, Fogarty and Mallon JJ
Counsel:	J H Wiles for Appellant Falwasser P J Kaye for Appellant Smyth P D Marshall for Respondent
Judgment:	23 October 2015 at 11.00 am

JUDGMENT OF THE COURT

The appeals are dismissed.
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REASONS OF THE COURT

(Given by Mallon J)

Introduction

[1] Mr Falwasser and Mr Smyth committed two aggravated robberies 20 days apart.^[1] The first involved the Shiraz Bar on 2 October 2012. The second involved Miss Q’s Bar on 22 October 2012. They were sentenced on the latter offence first and each received a sentence of six years, two months and two weeks’ imprisonment.^[2] They were subsequently sentenced on the Shiraz Bar aggravated robbery. They were each sentenced to three years and 10 months’ imprisonment cumulative on the earlier sentence.^[3]
[2] They appeal the term of the cumulative sentence imposed for the Shiraz Bar aggravated robbery. The principal ground of appeal is that the Judge made an arithmetical error in calculating the cumulative sentence imposed. This was said to have led to a manifestly excessive sentence. They no longer contend that the Judge’s approach to the sentencing was wrong, accepting that the approach was dictated by the sentencing for each aggravated robbery occurring on separate days.

The offending

[3] The aggravated robbery of the Shiraz Bar occurred after midnight on
2 October 2012. Mr Falwasser and Mr Smyth drove to the premises in a stolen car. Mr Falwasser was armed with a sawn-off shotgun. Mr Smyth had a large kitchen knife. Both wore disguises. Inside the bar were the manager and six patrons. The two offenders entered the bar brandishing their weapons. They rushed towards the manager who opened the cash register for them. They took the money that was there. While Mr Smyth monitored the bar’s patrons, Mr Falwasser accompanied the bar manager to the safe. The bar manager opened the safe and Mr Falwasser took its contents. The offenders then left with a total of approximately $41,000 in cash. This money was not recovered.
[4] The aggravated robbery of Miss Q’s took place shortly after 1 pm on
22 October 2012. Again they arrived in a stolen car, with a third man, Mr Sylva, who remained in the car to act as the getaway driver. Mr Falwasser and Mr Smyth entered the bar brandishing a double-barrelled sawn-off shotgun. They wore masks and hooded sweatshirts. There were three men in the bar at the time: the owner, the manager and the manager’s teenage son. Mr Falwasser pointed the shotgun at the men and ordered them to the ground. He then directed the manager to open the safe from which he took $25,000. He also took $4,000 from a table in a backroom, $250 from the manager’s wallet, and $1,000 from a till, while Mr Smyth kept watch over the men. They then fled with just over $30,000 in total. The money was not recovered.

Personal circumstances

[5] Mr Falwasser was 31 and Mr Smyth was around 25 at the time of the offending. They were both high on methamphetamine at the time. Both men have a long list of previous convictions. These include convictions for a number of dishonesty offences. Neither had convictions for aggravated robbery. Both had served terms of imprisonment and both were subject to release conditions at the time of the offending.^[4]

The District Court sentencing

The Miss Q’s sentencing

[6] The two men entered guilty pleas in respect of the Miss Q’s robbery after receiving sentence indications.^[5] In Mr Falwasser’s case the sentence indication was for an end sentence of six years, two months and two weeks’ imprisonment, which Judge Ronayne derived by taking a starting point of seven years and three months’ imprisonment, an uplift of six months for previous convictions and a 20 per cent discount for the guilty plea. In Mr Smyth’s case the sentence indication was for an end sentence of six years and seven months’ imprisonment, which Judge Harvey derived by taking a starting point of seven years and six months (including as an aggravating feature that Mr Smyth was on bail at the time), with an uplift of nine months for previous convictions and a 20 per cent discount for the guilty plea.
[7] Judge Ronayne sentenced the two men together on 30 January 2014. While not disagreeing with Judge Harvey’s sentence indication, he considered that Mr Smyth should receive the same sentence as Mr Falwasser, noting that there were some positive aspects to Mr Smyth’s pre-sentence report. This meant that each received a sentence of six years, two months and two weeks’ imprisonment.

The Shiraz Bar sentencing

[8] The two men were sentenced by Judge Ronayne for the Shiraz Bar aggravated robbery on 19 September 2014. The Judge’s approach was to consider a notional sentence for the aggravated robbery, and then to adjust for totality because the sentence would be cumulative on the sentence already being served for the Miss Q’s aggravated robbery.
[9] The Judge took a starting point of six years’ imprisonment, an uplift of three months for each man for their previous convictions and offending while on release conditions, and a 20 percent discount for the guilty plea. This resulted in a notional sentence of five years which he noted could be considered lenient when compared with the sentence for the Miss Q’s aggravated robbery.
[10] He then said:^[6]

[17] In order to adjust for totality I am assisted by the approach taken in Lavea v R [2014] NZCA 192. Although a starting point adopted by the sentencing Judge was not the subject of challenge in the Court of Appeal reference was nevertheless made to a combined starting point of 10 years for two separate incidents of aggravated robbery with a sawn off shotgun of bank branches. A decision of the Court of Appeal in Koroheke v R [2012] NZCA 368 is also of assistance. There the sentencing Judge took a combined starting point of eight and a half years for two aggravated robberies of dairies one with a sawn off shotgun and the other with an iron bar. The Court of Appeal considered the starting point to have been well within range.

[18] I consider I should impose a cumulative sentence to reflect an overall result of a sentence of 10 years’ imprisonment. Thus the sentence I impose on you both is one of three years’ and 10 months cumulative on the sentence imposed [on] you on 30 January.

Our assessment of the appeal

[11] The arithmetical error that is said to have been made arises from the Judge deciding upon an overall end sentence of 10 years for the two aggravated robberies, with reference to the overall starting points taken in two other cases involving sentencing for two aggravated robberies. We do not interpret the Judge’s comments as involving any arithmetical error. In the two cases referred to the offenders were sentenced for two aggravated robberies at the same time and concurrent sentences were imposed. To make a direct comparison in the present case, the Judge would have had to notionally redo the Miss Q’s sentencing, apply an uplift for the Shiraz Bar offending, uplift the overall starting point for the personal aggravating factors (the previous convictions and offending when subject to release conditions), and then apply the guilty plea discount. That was not the Judge’s approach.
[12] Rather, the Judge noted the comparisons provided by the two cases he referred to when making the totality adjustment to reach his cumulative sentence for the Shiraz Bar aggravated robbery. The effective overall end sentence for the two aggravated robberies compares appropriately with the overall end sentence of nine years in Lavea v R, given that discrete discounts of one year for youth and one year for remorse were applied in that case.^[7] It also compares appropriately with Koroheke v R which involved less serious offending in that there was one offender and where only small amounts of cash and some tobacco were taken.^[8]
[13] As counsel accept, on appeal the focus must be on whether the end sentence is manifestly excessive. Counsel for Mr Smyth acknowledged that it could not be said that it was. Counsel for Mr Falwasser was not able to persuade us otherwise. This was serious offending warranting a combined starting point of up to 14 years imprisonment before any adjustment for totality.^[9] The total uplift of nine months for previous convictions was arguably light given that the two men were on release conditions at the time.^[10] The guilty plea discount cannot be said to be light. Overall we consider the total end sentence of 10 years was within range.

Result

[14] The appeals are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 235(c) (maximum penalty of 14 years’ imprisonment).

^[2] R v Falwasser DC Auckland CRI-2012-004-19022, 30 January 2014. Mr Falwasser was also given a concurrent sentence on associated charges under the Arms Act 1983. Mr Smyth was also given concurrent sentences on other charges mostly unrelated to the aggravated robbery.

^[3] R v Falwasser DC Auckland CRI-2013-092-6513, 19 September 2014.

^[4] Mr Falwasser was sentenced to 20 months imprisonment on 20 February 2012 and released from prison on 10 September 2012, with release conditions applying until 11 January 2014.
Mr Smyth was sentenced to 18 months imprisonment on 6 December 2011 and released from prison on 23 May 2012, with release conditions applying until 25 August 2013.

^[5] R v Smyth DC Auckland CRI-2012-004-19022, 24 June 2013; R v Falwasser DC Auckland CRI-2012-004-19022, 14 November 2013.

^[6] R v Falwasser, above n 3.

^[7] Lavea v R [2014] NZCA 192. In that case, the Judge applied a two year uplift for the offender’s previous convictions and for offending while on parole whereas in the present case the total uplift for these factors was nine months. The discount for guilty plea was also less than in the present case.

^[8] Koroheke v R [2012] NZCA 368.

^[9] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [54].

^[10] Compared with the two year uplift in Lavea v R, above n 7, where a two year uplift was given (although recognising that that a greater uplift was warranted in that case because Mr Lavea was on parole at the time for an earlier aggravated robbery).