Peni v Police HC Auckland CRI 2010-404-000434 [2011] NZHC 372 (14 February 2011)

Last Updated: 15 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2010-404-000434}

TYLER JAMIE PENI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 February 2011

Appearances: S Petricevic for Crown

J Wiles for Appellant

Judgment: 14 February 2011

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Counsel: J Wiles, PO Box 941, Shortland Street, Auckland 1140

_{Solicitor: Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140}

PENI V POLICE HC AK CRI 2010-404-000434 14 February 2011

Introduction

[1] The appellant, Mr Peni, has appealed against the sentence imposed on him in the District Court at Auckland on 15 October 2010. His appeal is on the grounds that the sentencing Judge adopted an inappropriate starting point, and that the sentence imposed was manifestly excessive.

Background

[2] On 14 July 2010 the appellant entered guilty pleas to the following charges: (a) Robbery;

(b) Assault with intent to rob;

(c) Possessing liquor in a public place – in breach of a local liquor ban;

(d) Possessing a brass pipe for the purposes of an offence under the

Misuse of Drugs Act 1975; and

(e) Failing to appear in Court to answer bail.

[3] On 15 October 2010 the appellant was sentenced to imprisonment for one year on each of the charges of robbery and assault with intent to rob. He was convicted and discharged on each of the remaining three charges. Because the Judge ordered the sentences to be served concurrently, his effective sentence was one

year‟s imprisonment. The appellant was also ordered to pay reparation of $200.[1]

[4] At sentencing the lead offences were those of robbery, and assault with intent to rob. The summary of facts in respect of the robbery charge records that the victim

„B‟ was waiting at a bus stop. She had a handbag slung over her shoulder. The appellant rode by on his bicycle and as he did so he grabbed B‟s handbag causing her to be pushed to the ground. The appellant then cycled away at speed but was

_{apprehended a short time later, still in possession of the handbag.}

[5] The Judge referred to B‟s victim impact statement in which she said that she was pushed forcefully from behind, causing her to fall to the ground. Her forehead struck a stone and started bleeding. She was unconscious on the ground for a period. Her backbone and right hand were injured and she described the pain as incredible.

[6] With respect to the charge of assault with intent to rob, the summary of facts records that 1 ¾ hrs after the first offence, the victim „K‟ was walking along a street. She too had her handbag over her shoulder. The appellant rode up on his bicycle behind K and attempted to snatch her handbag. K held onto her handbag tightly while the appellant pulled at it. The handbag then started to rip causing the appellant to lose his grip on it. The appellant then cycled away.

[7] At sentencing the Judge referred to aggravating and mitigating features. The aggravating features of the appellant‟s offending were the actual use of violence, particularly towards B. The Judge described the victims as having been vulnerable, and expressed his view that the two offences were serious.[2]

[8] The Judge also referred to the appellant‟s age (19 at the time of sentencing) as a mitigating factor. The Judge recorded that counsel for the appellant (Mr Wiles) had asked that that be taken into account in sentencing. The Judge recorded Mr Wiles‟ submission that a custodial sentence would serve no purpose. The Judge concluded however, that taking the aggravating and mitigating factors into account, and considering the totality of the offending, a sentence of imprisonment was

appropriate.[3]

[9] The Judge said, with respect to the starting point:[4]

The starting point for street robberies which is what I describe these as, is a custodial sentence of between a year and a half and three years. I will give Mr Peni some credit for his age and start at the bottom end of that sentencing range of one and a half years.

[10] The Judge went on to say:[5]

Mr Wiles said that each of the offences occurred on the same day. I am prepared to accept that that is the case but uplift the sentence of one and a half years to 18 months imprisonment in respect of the second charge.

[11] It is apparent that the Judge must in fact have adopted a starting point of less than 18 months imprisonment in order to arrive at 18 months, after consideration of the totality principle.

[12] The Judge then applied a discount of six months (that is, one third) to reflect the appellant‟s “reasonably early” guilty plea, leading to a final sentence on each of the lead offences of 12 months imprisonment.[6] The Judge gave the appellant leave to apply for home detention if an address became available to him. It appears that home detention has not been sought.

Submissions

[13] On behalf of the appellant, Mr Wiles first referred to the judgment of the Court of Appeal in R v Mako.[7] That is the tariff case for sentencing for aggravated robberies. At [59] of its judgment the Court of Appeal said that the starting point for a street robbery where a knife or similar weapon is produced, or where offenders acted together by bullying or menacing conduct, should be between 18 months and three years.

[14] Mr Wiles also referred to the judgment of Chambers J in Smeed v Police,[8] in which Chambers J suggested that the max penalty for robbery should be 70% of the maximum for aggravated robbery and that that relativity should apply with regard to starting points.

[15] Mr Wiles then referred to paragraph [66] of Mako, in which the Court of

Appeal said that where the offender is a youth who is a first offender and appears

genuinely motivated to reform, then there may be benefit both to the offender and to society, if a “significantly reduced sentence” is imposed. On that basis Mr Wiles submitted that the Judge should have adopted a lower starting point. Mr Wiles submitted that the Judge failed to give sufficient consideration to, or acknowledgement of, the appellant‟s personal factors in particular, his age, his immaturity, his absence of relevant previous convictions, and the fact that he was employed and was attempting to improve himself.

[16] On behalf of the Crown Ms Petricevic submitted that the starting point adopted by the Judge was appropriate. She submitted that adjusting the Mako guideline, the lowest starting point for robbery would be 12 months imprisonment. She then referred to the aggravating factors present which took the appellant‟s offending above that level. These were the fact that the robbery and the assault with intent to rob were both carried out on the same day; that they were discrete attacks on different victims; that they were premeditated; actual violence had been used; the victims were vulnerable – one of whom (aged 53) had sustained injury to her head as a direct result of the appellant‟s actions; both attacks had involved the appellant cycling up to a female victim to grab their handbag; and that both victims have expressed ongoing fear and anxiety in their victim impact statements. Ms Petricevic submitted that the starting point arrived at for the totality of the appellant‟s offending was well within the range available to the Judge.

[17] With respect to mitigating factors, Ms Petricevic submitted that the one-third discount was appropriate to reflect the appellant‟s guilty pleas. She submitted that the Judge may have intended to incorporate an allowance for the appellant‟s age in setting the starting point, but acknowledged that the Judge‟s intent may not have translated into the final sentence.

Approach on appeal

[18] The appellant has a right of appeal against sentence pursuant to s 115 of the Summary Proceedings Act 1957. Pursuant to s 119 the appeal is to be by way of re- hearing.

[19] With respect to a sentence appeal, the Court may allow the appeal if the sentence was clearly excessive, inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or the offender‟s character or personal history were not before the sentencing Court. The crucial point in an appeal against sentence is whether the High Court should intervene on the grounds that the sentence was clearly excessive or inadequate, or inappropriate. If the sentence was within the range that can be justified by accepted sentencing principles, the High Court should not normally intervene.

Discussion

[20] As noted earlier, in the light of the fact that the Judge stated that he was applying an uplift to reach an adjusted starting point of 18 months imprisonment to reflect the totality of the appellant‟s offending, it is apparent that the starting point adopted for each of the two individual lead offences must have been lower than that. On the basis of Mako, adjusted for the offence of robbery rather than aggravated robbery, a starting point of 12 months imprisonment was appropriate before considering aggravating factors and before taking personal factors into account.

[21] Ms Petricevic referred to the judgment of Woodhouse J in Stewart v Police.[9]

In that case a District Court Judge had adopted a starting point of two years nine months imprisonment, for a robbery where the offender had, as in the present case, grabbed a handbag carried by the victim. The offender was accompanied by another person and that person struck and punched the victim‟s companion. On appeal, Woodhouse J held that the starting point, which the District Court Judge had adopted by reference to Mako, should have been adjusted down to two years.

[22] As Woodhouse J said in Stewart at [20], caution must be exercised when considering an uplift for violence in relation to a robbery. This is because the definition of robbery involves violence. Under s 234(1) of the Crimes Act 1961:

Robbery is theft accompanied by violence or threats of violence to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen.

[23] In the present case, some uplift to the starting point on the robbery charge was justified by reason of the victim‟s age and vulnerability, in that she was 53 and standing at a bus stop with her handbag on her shoulder, and by reason of the actual injuries she suffered. Then, an uplift was clearly necessary to reflect the offence of assault with intent to rob, and the remaining three charges. Taking all of those matters into account, I am satisfied that an uplift to an adjusted starting point of 18 months imprisonment was not outside the range available to the sentencing Judge

[24] The appellant‟s personal circumstances should properly have been considered, after factors relating to the offending had been taken into account, and before any discount for a guilty plea. I have concluded that a reduction of three months would have been appropriate, which would have taken the adjusted starting point to 15 months imprisonment. A discount of one-third (five months) for the appellant‟s guilty plea, would then have taken the end sentence to ten months imprisonment, rather than the 12 months imposed in the District Court.

[25] Was the sentence of 12 months imprisonment clearly excessive or inappropriate? I am satisfied that imprisonment was an appropriate sentence. The appellant‟s age cannot be seen as being so young as to justify, by itself, a non- custodial sentence. Against his age and other positive factors must be balanced the fact that the appellant committed the two lead offences on the same day, with the second being less than two hours after the first. Notwithstanding that they are close together, they are clearly two distinct offences.

[26] In some cases a difference of two months would be seen as indicating that the sentence under appeal was within range. That would be so where the original sentence was considerably higher. In the present case however, I have concluded that it is appropriate that the sentence be reduced by two months.

Result

[27] The sentence of 12 months imprisonment is quashed, and the sentence of ten months imposed in its place.

Andrews J

---

[1] New Zealand Police v Peni DC Auckland CRI-2010-004-008187, 15 October 2010.

[2] At [11].
[3] At [13].
[4] At [13].

[5] At [14].

[6] At [15].

[7] R v Mako [2000] 2 NZLR 170 (CA).
[8] Smeed v Police HC Whangarei AP 50/00, 24 October 2000

[9] Stewart v Police HC Auckland CRI-2008-404-284, 13 November 2008.