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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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URL: http://www.nzlii.org/nz/cases/NZHC/2009/919.html