Teina v R [2021] NZCA 615 (19 November 2021)

Last Updated: 23 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA393/2021 [2021] NZCA 615

	BETWEEN	KAVAE TEINA Appellant
	AND	THE QUEEN Respondent

Court:	Kós P, Simon France and Katz JJ
Counsel:	D S Niven for Appellant S R Norrie for Respondent
Judgment: (On the papers)	19 November 2021 at 9 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

B The conviction appeal is not pursued and is dismissed.

100. The sentence appeal is allowed.

4. The sentence of 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, imposed on one count of aggravated robbery, is quashed.
5. A sentence of 10 years and nine months’ imprisonment, with a minimum period of imprisonment of five years and four months, is substituted.
6. The other sentences are unchanged.

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REASONS OF THE COURT

(Given by Simon France J)

• [1] Mr Teina applies for an extension of time to appeal a sentence imposed on 12 February 2021.^[1] The reason for the appeal is disparity with the sentences of co‑defendants. In the unusual circumstances that exist, the Crown agrees Mr Teina’s sentence should be reduced. The Crown not opposing, we grant the extension of time.
• [2] Mr Teina was one of a number charged with two counts of aggravated robbery, one count of conspiracy to commit aggravated robbery and two counts of unlawful use of a motor vehicle. While the co-defendants were convicted, the jury could not agree on Mr Teina’s involvement and his case proceeded to a retrial. In the interim, his co‑defendants were sentenced and appealed their convictions and sentences.
• [3] Mr Teina was convicted at his retrial and was sentenced to 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months.^[2] The sentencing Judge had regard to the starting points taken earlier by a different Judge when that Judge was sentencing the co-defendants.^[3]
• [4] The co-defendants were unsuccessful in their conviction appeals but succeeded in relation to their sentence appeals. The sentences were remitted to the High Court for resentencing.^[4] At the resentencing, lower starting points than those originally imposed were identified.^[5] This was due to a decision of this Court in Carr v R which had emphasised the significance of the presence or absence of actual violence or a gun that was loaded.^[6] This emphasis drove a reduction in the co-defendants’ starting point of one year’s imprisonment,^[7] and it is that adjustment which drives this appeal.
• [5] The Crown accepts that parity principles are engaged. There is no basis here to distinguish between co-defendants. We agree and note again that the original sentencing of Mr Teina’s co-defendants influenced the resentencing of Mr Teina.
• [6] Counsel are agreed on the impact of the adjustment to Mr Teina’s sentence. We accept the accuracy of the calculations, which need not be detailed.

Result

• [7] The application for an extension of time to appeal is granted.
• [8] The conviction appeal is not pursued and is dismissed.
• [9] The sentence appeal is allowed.
• [10] The sentence of 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, imposed on one count of aggravated robbery, is quashed.
• [11] A sentence of 10 years and nine months’ imprisonment, with a minimum period of imprisonment of five years and four months, is substituted.
• [12] All other sentences are unchanged.

Solicitors:
Crown Solicitor, Manukau for Respondent

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^[1] R v Teina [2021] NZHC 3481. An appeal against conviction is not pursued and will be dismissed.

^[2] At [30]–[31].

^[3] At [19].

^[4] Emery v R [2021] NZCA 158.

^[5] R v Williams [2021] NZHC 1849 at [12] and [17]–[18].

^[6] Carr v R [2020] NZCA 357.

^[7] R v Williams, above n 5, at [14]–[18].