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King v R [2019] NZCA 413 (6 September 2019)

Last Updated: 10 September 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA794/2018
[2019] NZCA 413

	BETWEEN	TERANGA TAHI KING Applicant
	AND	THE QUEEN Respondent

Hearing:	19 August 2019
Court:	Brown, Simon France and Dunningham JJ
Counsel:	M I Koya for Applicant G R Kayes and C E Best for Respondent
Judgment:	6 September 2019 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal sentence is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

[1] On 18 January 2017, the applicant was sentenced to five years and one month’s imprisonment on one charge of aggravated robbery and one charge of robbery.^[1] A minimum term of imprisonment of half the sentence was also imposed.
[2] The applicant now seeks to appeal his sentence on the grounds it was manifestly excessive, saying:

(a) the starting point of five years’ imprisonment for the lead offence was excessive in the light of the guideline decision, R v Mako;^[2]

(b) the sentencing Judge incorrectly referred to the aggravating features set out in R v Mako when dealing with the robbery charge; and

(c) the sentencing Judge did not give a sufficient discount to reflect the issue of rehabilitation.

[3] The applicant also submits that a minimum term of imprisonment is not warranted.

Leave

[4] The appeal has been filed almost two years late and consequently an extension of time to appeal is required.^[3] The applicant has filed an affidavit explaining that, upon imprisonment, he lost contact with the lawyer who acted for him at the sentencing. He says he did not know that he could appeal the sentence.
[5] When he was transferred to Paremoremo, he spoke to other inmates about his sentence. At the time he thought he was sentenced to six years and nine months or seven years and it was suggested that his sentence was “too steep”. This advice gave him the idea to appeal and he eventually filed an appeal in December 2018 claiming, erroneously, that he was sentenced to six years and nine months or seven years’ imprisonment, which was manifestly excessive.
[6] In order for us to grant an extension of time, the applicant must satisfy us that it is in the interests of justice to do so.^[4] That typically involves an enquiry both into the reasons for the delay and to the merits of the appeal. As the merits of the appeal are inextricably linked to the question of whether leave should be granted, we propose to address them first in this judgment.

Facts

[7] On 31 August 2015 the applicant and his co-offender went to Botany Junction where they planned to commit a robbery. At about 1.00 pm the applicant went into the chosen target, the ASB Bank, while his co-offender stayed in the car outside ready to drive them both away. The applicant had his face and head covered. He approached the teller and handed over a bag demanding that the teller put money in it. He then noticed there was foreign currency in the cash drawer and reached over and removed it and placed it in the bag. He made the same demand, in a forceful tone, to a second teller. Both tellers, acting out of fear, handed over approximately $3,000 in cash before the applicant left the bank.
[8] On 14 September 2015 at around 9.30 am, the applicant and his co-offender went to the Dawson Road shopping centre in Flat Bush. The two had agreed to rob the Post Shop and both were disguised by wearing dark clothing with hoods pulled over their heads and material covering their faces. Both of them entered the Post Shop and approached the counter. The applicant placed a blue bag on the counter without saying anything. The teller started to place coins in the bag but the applicant shouted at him to only give him “paper money”. The teller, in fear of violence if he did not comply, then pulled all the notes from the till and placed them into the bag. The applicant and his co-offender left with approximately $4,000.
[9] This was not the applicant’s first offending of this type. At 21 years of age he had amassed an offending history which included six aggravated robberies and a further Youth Court notation for aggravated robbery.
[10] He was remanded in custody in September 2015 so at the time this appeal was heard, he had served approximately three years and 11 months of his sentence.

Sentencing in the District Court

[11] Judge Wharepouri adopted the aggravated robbery of the Post Shop as the lead offence for fixing the starting point. Having regard to the guideline judgment in R v Mako, the Judge considered that the offending fell somewhere between the categories of a robbery of a small retail shop and the robbery of commercial premises.^[5] He also noted that the starting point in R v Fitikefu, which involved similar offending, attracted a starting point of five years and four months.^[6] Having regard to the aggravating factors, which included an element of premeditation, two offenders, the use of clothing to conceal their identities and threatened, although not actual, violence, along with the amount taken and the psychological harm suffered by his victims, he set a starting point of five years.^[7]
[12] He then uplifted the starting point by 12 months to reflect the second charge of robbery of the ASB Bank.^[8] He uplifted the sentence by a further six months because it was carried out when the applicant was subject to release conditions.^[9] Another six months was added to reflect the applicant’s relevant previous convictions, resulting in a sentence of seven years’ imprisonment before any discounts were applied.
[13] The Judge identified the chief mitigating circumstance as being the applicant’s guilty pleas, although noting that they only came about after “protracted discussions” with the Crown about other charges the applicant faced which resulted in the Crown withdrawing some charges.^[10] That said, he observed that there was “an exceptionally strong case” against the applicant on the lead offence. He discounted the seven-year starting point by approximately 20 per cent, reducing the sentence to five years and seven months to reflect the guilty pleas. The Judge then discounted the sentence by a further six months for the applicant’s efforts to rehabilitate himself, his willingness to engage in a restorative justice process, his remorse and youth, so that the end sentence was five years and one month’s imprisonment.^[11]
[14] The Judge then considered whether to impose a minimum period of imprisonment. Given the particular circumstances of the applicant’s offending and his list of previous convictions, a finite sentence where the normal rules relating to early release applied would not, in his view, give adequate recognition to the sentencing principles and purposes of accountability, deterrence and denunciation, nor would it recognise the need to protect the community. The Judge therefore imposed a minimum period of imprisonment of half the finite sentence.^[12]

Did the Judge take too high a starting point?

[15] Mr Koya submits that the starting point was excessive in light of the guidelines in R v Mako and should have been no more than four years’ imprisonment. He notes that weapons were not used in either robbery and the passage from Mako cited by the Judge sets a starting point of six years’ imprisonment where there has been a defended trial in the robbery of commercial premises “targeting substantial sums in tills or safe by a group, with a lethal weapon, disguises and other indications of preparation”.^[13] Mr Koya argues that a number of the ingredients of this scenario are absent in the present case. There was no targeting of substantial sums of money in tills or a safe, there was no group operation, and there was no lethal weapon involved in either of the two robberies.
[16] However, we are satisfied the Judge was correct to characterise the offending as falling between the category of a robbery of a small retail shop and that of a robbery of commercial premises. This would attract a starting point of four to six years’ imprisonment.^[14] The offending involved planning, there were two offenders, there was use of clothing in order to conceal identity and there was targeting of a place where there was likely to be a substantial sum of money. As a cross-check, the Judge referred to the decision in R v Fitikefu where on appeal to this Court, the starting point of five years and four months was upheld for comparable offending.^[15]
[17] We are satisfied, therefore, that a starting point of five years’ imprisonment for the lead offence of aggravated robbery was within the range available to the sentencing Judge.

Were there errors in the uplift imposed for the charge of robbery?

[18] Mr Koya is critical of the Judge referring to the aggravating factors mentioned in R v Mako to assess the gravity of the ASB Bank robbery and submits that the uplift for the robbery ought to have been near six months.^[16]
[19] However, we accept that while the guidelines in R v Mako should not be applied strictly to cases involving robbery, they can be adapted for use in such cases “so long as arithmetical adjustments are not made mechanically to fit the differing maximum penalties”.^[17] As the Crown points out, in light of the aggravating features of the robbery, but taking into account the lower maximum penalty for robbery, a starting point of two to two and a half years’ imprisonment would have been appropriate for that offending alone. Thus, an uplift of 12 months, leading to a combined starting point of six years’ imprisonment, was not outside the available range.

Was insufficient consideration given to rehabilitation efforts?

[20] Mr Koya points out that long term imprisonment will not cure the applicant of his addiction to drugs or the urge to gamble (which were the causes of the offending), and that rehabilitation of this applicant should have received more serious consideration in sentencing. Instead, he says, the Judge simply combined the applicant’s efforts at rehabilitation with three other factors to give a six month discount in addition to the discount for the guilty plea. He submits that to reflect the importance of rehabilitation, the uplift of one year for previous convictions and for offending while on parole should have been reduced to a total of six months only.
[21] However, while the applicant undoubtedly needs rehabilitative intervention, there was no suggestion that anything short of a sentence of imprisonment could have been imposed.
[22] In terms of what discounts could be afforded for remorse and rehabilitative prospects, the Judge had advice from the pre-sentence report writer that the applicant regretted what he had done, and that he said he had written letters of remorse to the bank through his lawyer and advised his lawyer he was willing to take part in restorative justice. The applicant also wrote a letter of remorse to the Judge detailing his experiences with addiction and stating that after being in remand he was off drugs. While a greater discount for these factors could have been available, we consider the amount of the reduction was within the Judge’s sentencing discretion.
[23] Again, we cannot say that there was an error in this aspect of sentencing and that a different sentence should be imposed.^[18]

Did the Judge err in imposing a minimum period of imprisonment?

[24] Minimum periods of imprisonment can be imposed if a court is satisfied that the minimum period otherwise applicable under the Parole Act 2002 would be insufficient for any of the following purposes:^[19]

(a) holding the offender accountable;

(b) denouncing the offender’s conduct;

(c) deterring the offender or others from committing the same or a similar offence; and

(d) protecting the community from the offender.

[25] The Judge chose to impose one to meet the sentencing principles of denunciation and deterrence, and to protect the community. Again, there is nothing obviously wrong with the Judge’s decision in that regard. We consider the Judge gave appropriate weight to the particular circumstances of the offending and the applicant’s previous convictions in reaching this conclusion.^[20]

Should an extension of time be granted?

[26] As is evident from the discussion above, we consider the grounds of appeal against sentence lack merit. Furthermore, as the applicant has already served more than two-thirds of his sentence, but has not been granted parole, we cannot see what practical difference an appeal against the imposition of the MPI could make.
[27] For these reasons, we do not consider that the interests of justice require an extension of time to be granted. The application for an extension of time to appeal is declined.

Solicitors:
Crown Solicitor, Manukau for Respondent

^[1] R v King [2017] NZDC 710.

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

^[3] Criminal Procedure Act 2011, s 248.

^[4] R v Knight [1998] 1 NZLR 583 (CA) at 587.

^[5] R v King, above n 1, at [13].

^[6] R v Fitikefu HC Auckland CRI-2010-004-17106, 5 July 2011.

^[7] R v King, above n 1, at [12]–[17].

^[8] At [18].

^[9] At [20].

^[10] At [21].

^[11] At [22].