Martin v R [2016] NZCA 213 (19 May 2016)

Last Updated: 25 May 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA732/2014 [2016] NZCA 213
BETWEEN	BOWEN CONRAD MARTIN Appellant
AND	THE QUEEN Respondent
CA43/2015
BETWEEN	TRENT WELLINGTON Appellant
AND	THE QUEEN Respondent
CA137/2015
BETWEEN	TOKA INAMATA Appellant
AND	THE QUEEN Respondent

Court:	Randerson, Asher and Clifford JJ
Counsel:	M M Mason for Appellant Martin I A Jayanandan for Appellant Wellington P K Hamlin for Appellant Inamata M D Downs for Respondent
Judgment: (On the papers)	19 May 2016 at 2:30 pm

JUDGMENT OF THE COURT
(SENTENCE APPEALS)

1. The appellant Mr Inamata is granted an extension of time to appeal against sentence.
2. The appeals against sentence are all dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] These sentence appeals arise from an armed robbery of the Whitehouse Tavern in Papakura on 25 May 2013 involving six offenders. In previous judgments we have dismissed appeals against conviction by all three appellants.^[1]
[2] It remains to deal with their sentence appeals. Counsel have agreed these should be dealt with on the papers. The sentence appeal by the appellant Mr Inamata is out of time but we grant him an extension of time to appeal.

Background facts

[3] We have set out the facts relating to this offending in previous judgments and it is unnecessary to repeat them in detail. What follows is a brief summary of the essential facts. The robbery was planned on the evening it occurred. Three members of the six in the group stole two motor vehicles which were used to travel to the tavern. The group were armed with a range of weapons including a loaded sawn-off shotgun. They were disguised with masks, balaclavas and other items of clothing. Plastic cable ties were taken to restrain any people who might be found at the tavern.
[4] After waiting for the tavern to clear, the offenders burst inside, brandishing weapons. Three staff members were still present as were a small number of customers. A staff member managed to flee and call the police. Customers were ordered onto the floor and restrained with the cable ties. A staff member was unable to unlock the safe in the premises and was punched, kicked and his life threatened. Ultimately, his injuries required hospitalisation. Another staff member was threatened with a shotgun and money was taken from cash registers. A police chase ensued and four of the offenders were apprehended in circumstances described in our previous judgments. A fifth was later located and arrested while a sixth has never been charged.

The sentences imposed

[5] Two of the offenders, Mr Tuku-Inamata and a man we will describe as XX, pleaded guilty and were sentenced by Ellis J on one charge of aggravated robbery.^[2] Ellis J adopted a starting point of eight years in each case.
[6] The other three appellants, Mr Martin, Mr Wellington and Mr Inamata, pleaded not guilty. The trial proceeded before Wylie J and a jury. Mr Inamata absconded prior to the trial but it continued nevertheless. All three appellants were convicted after trial. All were found guilty of aggravated robbery, five charges of kidnapping, two of threatening to kill and two of car conversion. In addition, Mr Wellington and Mr Inamata were found guilty of one charge of aggravated injury. Mr Inamata was also found guilty of one charge of unlawful possession of explosives (ammunition for the shotgun).
[7] Wylie J sentenced Mr Wellington and Mr Martin on 27 November 2014.^[3] The Judge adopted a starting point of seven and a half years in Mr Martin’s case and deducted three months because he had been on restrictive bail conditions. The end sentence was seven years and three months imprisonment. The Judge took a starting point of eight and a half years for Mr Wellington and deducted 21 months for his youth and the fact that he had been on restrictive bail conditions. The end sentence was six years and nine months imprisonment.
[8] Mr Inamata was the last to be sentenced.^[4] The Judge considered a higher starting point was required because he accepted Mr Inamata was the leader of the enterprise and because he was facing an additional charge of unlawful possession of explosives. The Judge adopted a starting point of nine years imprisonment. The Judge did not consider there were any personal aggravating or mitigating factors. The final sentence was therefore nine years imprisonment.

The grounds of appeal

[9] Mr Martin and Mr Inamata challenge the starting points adopted by the Judge. It was submitted for Mr Martin that a lower starting point should have been imposed given he was not convicted of the violent offending. In addition, counsel for Mr Martin submitted that a greater discount should have been given for his youth. In Mr Wellington’s case, the sole ground is that there should have been a greater discount for the time spent on restrictive bail.

Starting point

[10] We are satisfied the starting points adopted by the Judge were all within range in terms of this Court’s tariff judgment in R v Mako.^[5] Wylie J correctly identified the aggravating features as the degree of premeditation and planning; the number of offenders; the use of disguises and weapons; the number of victims; the use of violence and the serious harm to the victims.
[11] We would add that the starting point adopted by Ellis J when sentencing Mr Tuku-Inamata and XX could be regarded as being at the lower end of the range given the violence and threats associated with the offending. This had a flow-on effect in establishing the starting point for the appellants.
[12] In addition, the Judge carefully differentiated between the culpability of each of the three appellants taking into account the starting points adopted by Ellis J in respect of the two offenders previously sentenced by her. The starting point of seven and a half years for Mr Martin reflected the fact that he was not convicted of the aggravated injury or firearms charges. The slightly higher starting point of eight and a half years for Mr Wellington was appropriate since, unlike the offenders sentenced by Ellis J, he was also convicted of aggravated injury. The higher starting point of nine years for Mr Inamata reflected the Judge’s view that he was the ringleader. It was open for the Judge to reach that conclusion on the basis of the evidence XX gave at trial that the participants met at Mr Inamata’s address to discuss and prepare for the robbery; Mr Inamata provided the shotgun; he directed three of the group to steal the getaway cars; and he gave instructions as to how the robbery was to be carried out.

Discounts

[13] The Judge said Mr Martin was almost 22 years old at the time of the offending. He considered Mr Martin’s age placed him at the upper range where a youth discount would normally be available. He accepted a youth discount could be available for a young person where there was a realistic prospect of rehabilitation or where the offender had been exposed unduly to the criminal community whilst in prison. However, in Mr Martin’s case, the Judge considered his record of offending made that factor less persuasive and Mr Martin had continued to deny the offending. In those circumstances he was not prepared to allow a discount for youth.
[14] A discount of this nature is very much in the discretion of the sentencing judge. We are not persuaded it is appropriate to interfere with the Judge’s conclusion on this point. The Judge noted there had been some bail breaches but allowed a three month discount to recognise the restrictive bail conditions experienced by Mr Martin. Again, this is a discretionary matter in which we are not disposed to interfere.
[15] As Wylie J noted, Mr Wellington was 17 years old at the time of the offending. He referred to the judgment of this Court in Churchward v R, in which factors relevant to the sentencing of young offenders were discussed.^[6] The Judge accepted these applied in Mr Wellington’s case and also accepted Mr Wellington had expressed a wish to rehabilitate himself. Taking into account those factors and the restrictive bail conditions imposed on Mr Wellington while awaiting trial, the Judge allowed a total discount for those factors of 21 months. This represented a discount of approximately 20 per cent from the starting point of eight and a half years imprisonment. We are satisfied the discount was well within range.

Result

[16] The sentences imposed on all three appellants were appropriate. All three appeals against sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Martin v R [2015] NZCA 606 and Inamata v R [2016] NZCA 115.

^[2] R v Tuku-Inamata [2014] NZHC 2654 and R v N [2014] NZHC 2236.

^[3] R v Wellington [2014] NZHC 2993.

^[4] R v Inamata [2015] NZHC 284.

^[5] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [54].

^[6] Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[87].