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KING V NEW ZEALAND POLICE HC AK CRI 2009-404-000151 [2009] NZHC 919 (3 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CRI 2009-404-000151



                                 DILLON OLIVER KING
                                      Appellant



                      
                   v



                                 NEW ZEALAND POLICE
                                      Respondent



Hearing:
       3 August 2009

Appearances: Mr Kan for appellant
             Ms Duncan for respondent

Judgment:       3 August 2009


 
                       JUDGMENT OF WINKELMANN J




M A Edgar, Barrister, Auckland
Crown Solicitor, Auckland




KING V NEW ZEALAND
POLICE HC AK CRI 2009-404-000151 3 August 2009

[1]    On 24 April 2009 Mr King was sentenced by District Court Judge Gittos to
two years six months imprisonment for one charge of aggravated robbery following
a guilty plea.      Judge Gittos remitted Mr King's
fines and declined to make a
reparation order.


Background facts


[2]    It is accepted that the offending was as described in
the summary of facts.
On 6 March 2006 Mr King and his co-offender Mr Faatasi met at Mr King's
residence at the Manukau Institute
of Technology. They had a discussion about the
fact that it was Mr Faatasi's 18th birthday the next day but that they had no money
to
celebrate his birthday. They therefore decided to commit a robbery and that the fruit
shop in Mahia Road, Manurewa would be the
target.


[3]    Mr King gave Mr Faatasi a sharp kitchen knife, with a very sharp 30 cm
blade, to use as the weapon when committing
the robbery and a Warehouse plastic
bag to collect the proceeds of the robbery. The pair then travelled together in
Mr King's car
to Manurewa. They stopped near the fruit shop in Mahia Road. After
watching the comings and goings of the people they decided that
it was too much of
a risk to rob that shop because it was too busy. They proceeded on to the second
target, which was a superette
in Wattle Downs. Mr King drove the car there and
stopped nearby.


[4]    Mr Faatasi concealed the knife on his person, and when
the opportunity
presented itself entered the shop. He threatened the operator of the superette with
the knife. The owner responded
to the robbery by lying down on the ground behind
the counter. Mr Faatasi jumped over the counter and stamped on the owner's back,
directing him to open the till and not to scream. The owner was slow in responding
so Mr Faatasi kicked him in the left arm and back.
Mr Faatasi then took the $1,500
cash from the till, and as he left the shop Mr Faatasi took with him packets of
cigarettes and tobacco
valued at $640 and the victim's cellphone. Mr Faatasi and

Mr King then drove off in Mr King's car, and began a spending spree with
the
proceeds.


[5]    Mr King appeals the sentence imposed upon him on two grounds. First, that
the Judge adopted too high a starting
point because he failed to distinguish
adequately between the criminality involved in Mr King's conduct and that of his co-
offender.
Secondly, that inadequate discount was applied in light of Mr King's full
co-operation with the police and his good character and
family circumstances.


Sentencing decision


[6]    Judge Gittos said that he was satisfied that Mr King had taken a full part in
the planning of the robbery. Mr King and Mr Faatasi took with them a knife, which
was Mr King's knife. Mr King drove the car, was
involved in keeping watch on the
first premises, and in standing to in the getaway car during the robbery to provide a
ready means
of escape from the scene.


[7]    The sentencing Judge took into account that the shopkeeper was threatened
with a knife and that
there was actual violence inflicted on the victim. He noted that
the Judge sentencing Mr Faatasi had taken a starting point of 5
years imprisonment.
In light of the role played by Mr King the Judge said that he saw no reason to draw
any distinction between him
and Mr Faatasi, because the criminality involved was
the same. On that basis he adopted a starting point of five years imprisonment. He
noted that the Judge in sentencing Mr Faatasi had
given him a discount of 40% for a
guilty plea, and whatever mitigating factors attached to him. In relation to Mr King
the Judge
identified as mitigating factors that he was assessed at being at low risk of
re-offending and had expressed remorse. The offending
was said to be out of
character and a guilty plea was entered at an early stage. In the result the Judge gave
a 50% discount on sentence
to reflect the guilty plea, frankness to police, and
positives in the pre-sentence report. On that basis he came to a final sentence
of two
years six months imprisonment.


Discussion and decision

[8]    Addressing the first ground of appeal, that the starting
point was set too high,
the Judge's reasons for concluding that there was no basis for distinguishing to any
extent between the two
offenders cannot be doubted. Although it may well be that
the idea was initially that of Mr Faatasi, Mr King entered fully into the
enterprise.
He was actively involved in the preparation and planning. Indeed, he provided the
knife which was used as the weapon.
In those circumstances the sentencing Judge
was justified in proceeding on the basis that he did. As was said in R v Mako  [2000]
2 NZLR 170 there is no justification for treating those assigned roles other than of
confronting the victims as less culpable unless they are
truly less than full
participants. In this case, Mr King was a full participant.


[9]    As to the starting point, as the Crown
emphasises, the starting point adopted
by the sentencing Judge was well within the appropriate range. The guideline
judgment for
aggravated robbery is Mako. This offending sits squarely within the
second level of offending described at paragraph [56] which states:

       A further example can be given taking another combination of features
       typical of many aggravated robberies. This envisages
a robbery of a small
       retail shop by demanding money from the till under threat of the use of a
       weapon such as a knife
after ensuring no customers are present, with or
       without assistance from a lookout or an accomplice waiting to facilitate
       getaway. The shopkeeper is confronted by one person with face covered.
       There is no actual violence. A small sum of
money is taken. The starting
       point should be around 4 years. Should the shopkeeper be confined or
       assaulted, or confronted
by multiple offenders, or if more money and other
       property is taken 5 years, and in bad cases 6 years, should be the starting
       point.

[10]   Here there was actual violence inflicted on the shopkeeper,           Mr Faatasi
stomped on and kicked the
victim. If his co-offender had used the knife there would
have been a much more serious situation for Mr King. Once he decided to
go along
with the plan to rob the shop he was in a sense along for the ride. Whatever his co-
offender chose to do in that shop he
would likely be held culpable for.


[11]   It is also the case that a significant amount of money was taken; certainly
more than
the amount one would expect to see taken from a small superette.


[12]   In light of these two circumstances the Judge was well
justified in adopting a
starting point of five years. Therefore this ground of appeal must fail.

[13]   The second ground of appeal
is that a higher reduction in sentence than 50%
was justified. Mr Kan does point out that the sentencing Judge proceeded on a
mistaken
basis. The Judge says at paragraph [9] that the fact that Mr Faatasi cut
himself on the knife and thus effectively provided a DNA
sample that led to his and
Mr King's apprehension. But, as the Crown concedes, Mr King's frank statement to
the police did play a
role in Mr Faatasi conviction. Whether or not that factual error
was significant for the Judge, the real issue for me is whether
there is any
justification in this case for giving a greater discount than 50%. As I have explained
to Mr Kan, a 50% discount in
light of mitigating factors is a very generous discount.


[14]   Mr Kan referred me to R v Hadfield CA337/06, in which case the
Court of
Appeal noted that discounts of up to 60% can be allowed for co-operation with the
police. That level of discount was allowed
in Hadfield. However, Hadfield was a
quite significantly different case to the present.       The assistance provided by
Mr Hadfield
was substantially greater than that provided by Mr King in this case. In
this case it is apparent that the Judge took into account
all mitigating factors which
were urged upon him by counsel for Mr King.            A 50% reduction was a very
generous reduction.


[15]   As I have remarked to members of Mr King's family who are present today,
there is a lot that can be said for Mr King. He
is obviously a person with promise
and I accept Mr Kan's submission that this was an out of character incident on his
part. I also
accept that Mr King is important to his family, particularly to his
immediate family. He has a young child who is not well and a
partner who is having
to bear the brunt of parenting in his absence. I have real sympathy for their situation,
but the reality is
that Mr King involved himself in what can only be described as
very serious offending, and the sentencing Judge gave him as generous discount in
light of mitigating factors as he reasonably
could.


[16]   There being no error in approach by the sentencing Judge either at the point
in sentence of fixing a starting point,
or at that point at which he took into account
mitigating factors, Mr King's appeal must fail.

[17]   The appeal is dismissed.




                                  Winkelmann J



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