Papa v R [2014] NZHC 2832 (14 November 2014)

Last Updated: 2 December 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-34 [2014] NZHC 2832

BETWEEN	MIHARO JASON PAPA Appellant
AND	THE QUEEN respondent

Hearing:	12 November 2014
Counsel:	EJ Forster for appellant M Mitchell for respondent
Judgment:	14 November 2014

_{JUDGMENT OF FAIRE J}

Solicitors: Crown Solicitor’s Office, Napier

_{To: EJ Forster, Hastings}

Papa v R [2014] NZHC 2832 [14 November 2014]

Table of Contents

_{Introduction ............................................................................................................[1]}

Background ............................................................................................................[3] District Court decision ...........................................................................................[4] Appeal against sentence .........................................................................................[6]

Submissions................................................................................................................

Appellant’s submissions [10]

Respondent’s submissions [13]

Discussion ............................................................................................................[16] Uplift for previous offending [21] Remorse [26]

Result....................................................................................................................[28]

Introduction

[1] On 8 August 2014, Mr Papa was sentenced to four years and three months’

imprisonment on one count of aggravated robbery. [2] He now appeals against that sentence.

Background

[3] On 4 January 2014, Mr Papa went into a shop, wearing a bandana to conceal his face. Mr Papa brandished a screwdriver and yelled at the shop attendant to get on the ground. He pushed her to the floor. He opened the till and removed $1,220 in cash. He had placed the screwdriver on the counter. The shop attendant was able to reach up and grab it and throw it into the back of the store. Mr Papa took

600 packets of synthetic cannabis, valued at $12,000, from behind the counter. He ran from the store and got into his friend’s waiting vehicle. The vehicle was abandoned a short distance away. Mr Papa and his associate then got into another vehicle and drove off. Mr Papa was later spoken to by the police. At first he said he

knew nothing about the robbery. Subsequently, he pleaded guilty to a charge of aggravated robbery. The shop attendant was not injured but was badly shaken.

District Court decision

[4] In sentencing the appellant Judge Rea recited the facts of the offending and then referred to the Court of Appeal decision R v Mako.¹ He adopted a starting point of five years’ imprisonment. This was because Mr Papa had taken over $13,000 worth of property and had knocked the shop attendant around. Judge Rea then imposed an eight month uplift for Mr Papa’s previous convictions. Mr Papa was given a 25 per cent guilty plea discount. That bought the sentence to four years and

three months’ imprisonment. Judge Rea referred to Mr Papa’s expression of remorse. He took that into account by not imposing a minimum period of imprisonment.

[5] Mr Papa appeals that sentence on the ground that the sentence is manifestly excessive. He submits that an uplift for previous convictions was not justified. He also questions that there was no discount given for remorse.

Appeal against sentence

[6] Section 250 of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[7] In any other case, the Court must dismiss the appeal.²

[8] Section 250 confirms the approach taken by the courts under the former

_{Summary Proceedings Act 1957.}³ _{This approach was set out in R v Shipton:}⁴

¹ _{R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).}

² _{Criminal Procedure Act 2011, s 250(3).}

³ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].}

⁴ R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[9] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. This is encapsulated in the following comment from the Court of Appeal:⁵

[20] As this Court has said many times, an appeal against a sentence as being manifestly excessive must focus on the end point sentence the Judge reaches, not the methodology adopted. It is only where the end point sentence can be said to be manifestly excessive that the appeal will succeed.

Submissions

Appellant’s submissions

[10] Mr Forster, on behalf of Mr Papa, submitted that no issue was taken with the starting point. That ground of appeal was therefore abandoned and the appeal focused on the uplift for previous convictions and approach to remorse.

[11] Mr Forster submitted that taking remorse into account by not imposing a minimum period of imprisonment was an error of approach. Applying Hessell v R, where remorse is shown, sentencing credit should be given for that separately from any credit given for a guilty plea.⁶ Any discount for remorse is a separate enquiry from imposition of a minimum period of imprisonment.

[12] Mr Forster also submitted that the eight month uplift was not justified because Mr Papa’s other convictions were not similar to the present offending, and were remote in time from the present offending. He submitted the effect of the uplift

_{was to punish Mr Papa twice.}

⁵ _{Lavea v R [2014] NZCA 192.}

⁶ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

Respondent’s submissions

[13] Ms Mitchell submitted that the appeal should be dismissed.

[14] She submitted that the Judge was entitled to find that the appellant’s expression of remorse did not warrant a separate discount. The appellant did receive recognition for remorse in the final sentence imposed as the Judge considered it obviated the need for a minimum period of imprisonment. That approach has been confirmed as appropriate by the Court of Appeal decisions of O’Connor v R and Fleming v R.⁷

[15] Ms Mitchell also submitted that the uplift for previous convictions was justified. Mr Papa has 81 previous convictions imposed against him as an adult and

11 in the Youth Court. The Judge acknowledged that Mr Papa’s previous convictions for aggravated robbery were remote, but stated that “the real difficulty you face is that you have multiple offences of all sorts year after year, right through to the present time.” Ms Mitchell submitted that the number, nature and persistence of Mr Papa’s previous convictions were indicative of his character and culpability, demonstrating a general contempt for the law and contempt for property rights. The eight month uplift was a proportionate and appropriate recognition of these factors.

Discussion

[16] The tariff case for sentencing for aggravated robbery is the Court of Appeal’s

decision in R v Mako.⁸ The Court noted that:⁹

The range of conduct that can constitute aggravated robbery is very wide. In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, that will contribute to or detract from the seriousness of the conduct and the criminality involved. It is the particular combination of these variable features which requires assessment for sentencing in each case...

Bearing in mind that the sentencing discretion extends across the range from non-custodial sentences to the maximum of imprisonment for 14 years ... the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of

⁷ _{O’Connor v R [2014] NZCA 328; Fleming v R [2011] NZCA 646.}

⁸ _{R v Mako above, n 1.}

⁹ At [32] - [33].

judgment calling for the careful exercise of the sentencing discretion. Features of the offending requiring assessment cannot be exhaustively listed. But some of those generally to be taken into account can be mentioned, if only to emphasise their variability.

[17] The Court identified the following factors as important in the assessment:

(a) The degree of planning and premeditation including as an example, the use of disguises, concealment and prepared means of flight;¹⁰

(b) The number of participants and their deployment (though this may also go to premeditation);¹¹

(c) The types of weapons, their number and the way in which they are used;¹²

(d) The target premises or persons, and the closely linked question of potential gain or reward;¹³

(e) The presence of, and potential for harm to large numbers of people or members of the public at large;¹⁴

(f) The use of actual force or violence and the seriousness of its consequences;¹⁵

(g) The value of the property taken and not recovered;¹⁶

(h) The impact on victims;¹⁷ and

_{(i) That the offending was carried out as part of the activities of an}

¹⁰ _{At [36] & [38].}

¹¹ _{At [37].}

¹² _{At [39].}

¹³ _{At [40].}

¹⁴ _{At [42].}

¹⁵ _{At [43].}

¹⁶ At [44].

organised criminal group.¹⁸

[18] The Court suggested an appropriate starting point for different aggravated robbery scenarios.¹⁹ The following is relevant in this case:²⁰

...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.

_{(emphasis added).}

[19] The aggravating features of this offending were:

(a) The degree of planning and preparation involved: the offenders stole a getaway car, and prepared disguises.

(b) The number of participants and their deployment: there were two offenders, Mr Papa and his associate who acted as getaway driver.

(c) Use of disguises.

(d) Number and type of weapons and how they were brandished: Mr Papa brandished a screwdriver as a weapon.

(e) Targeted premises: Mr Papa targeted a shop selling synthetic cannabis.

[20] No issue can be taken with the starting point of five years, as counsel for

_{Mr Papa has acknowledged.}

¹⁸ _{At [49].}

¹⁹ At [54] – [60].

Uplift for previous offending

[21] The uplift imposed for previous convictions amounted to an uplift of approximately 13 per cent. Mr Papa has 81 previous convictions committed as an adult.

[22] Previous convictions are an aggravating factor to be taken into account when sentencing.²¹ A judge should not increase a sentence that would otherwise be imposed merely because of the offender’s previous convictions. The reason is that “would result in the prisoner being ... sentenced again for an offence which he has already expiated.”²²

[23] Previous convictions are relevant because an offender’s character is relevant to the question of the nature and gravity of the offending²³ and because if they indicate a predilection to commit a particular type of offence then it is the duty of the court to protect the public by lengthening the period of imprisonment accordingly.²⁴

When a sentence is increased in order to take account of the need to protect the public, a “reasonable relationship between the sentence imposed and the penalty justified by the nature and gravity of the current offending” must be maintained.²⁵

Previous convictions may also suggest the need for an uplift to vindicate the principle of deterrence.²⁶

[24] In Tiplady-Koroheke v R, the Court of Appeal said:²⁷

[23] This Court in Beckham v R said:²⁸

The rationale for uplifting a prisoner's sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced

²¹ _{Sentencing Act 2002, s 9(1)(j).}

²² _{R v Casey [1931] NZLR 594 at 597.}

²³ _{Ibid; R v Power [1973] 2 NZLR 617 (CA) at 618.}

²⁴ _{R v Casey, above n 22; R v Ward [1976] 1 NZLR 588 (CA) at 591.}

²⁵ Bruce Robertson (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at

_{SA9.15(1)(c).}

²⁶ _{At SA9.15(1)(b).}

²⁷ _{Tiplady-Koroheke v R [2012] NZCA 477.}

²⁸ Beckham v R [2012] NZCA 290.

again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character.

[24] We would add that it is also important that there be some proportionality between the starting sentence and any uplift. Here, the proposed uplift of six months' imprisonment on a start sentence of two years is a 25 per cent increase in the start sentence. We consider there was justification for an uplift for the past offending in

2006. In a period of six years, the appellant has now committed two serious groups of assaults. Public protection justifies an uplift.

However, we consider an uplift of no more than three months' imprisonment for his previous convictions is appropriate.

(emphasis added).

[25] The uplift was justified in this case. It was proportionate to the starting point taken. I disagree with Mr Forster’s submission that the convictions are dissimilar to the present offending. Mr Papa has a number of convictions for property related offending. Mr Papa’s most recent conviction was for receiving property. In 2012, he received two convictions for burglary, occurring in 2011. He also received a conviction for shoplifting in 2010. In 2006, he was also convicted of burglary. In

2005, he was convicted of receiving property. In 2003 and 2004, he was convicted of theft. His other convictions involved breaches of court conditions, assaults, possessing offensive weapons, and driving related offences. While some of these convictions are indeed remote in time as Mr Forster submits, Mr Papa’s offending has not abated despite several sentences of imprisonment. It is also concerning that he has a number of convictions for possession of weapons, an element reflected in the present offending.

Remorse

[26] Remorse, when present, is a mitigating factor that the court must take into account when sentencing an offender.²⁹ It is considered separately from a guilty plea

_{discount pursuant to Hessell v R.}³⁰

²⁹ _{Sentencing Act 2002, s 9(2)(f).}

³⁰ Hessell v R, above n 6.

[27] The Judge did not impose a separate remorse discount. Instead he used the factor of remorse to justify not imposing a minimum period of imprisonment. This approach was open to him. It cannot be said that he did not take remorse into account. In Huata v R, the Court of Appeal took no issue with Collins J taking into account the appellants’ youth by declining to impose a minimum period of

imprisonment.³¹

Result

[28] The end sentence is not manifestly excessive.

_{[29] The appeal is dismissed.}

_{JA Faire J}

³¹ Huata v R [2013] NZCA 470 at [37].