Apiata v The Queen - [2013] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

CA486/2012 [2013] NZCA 227

BETWEEN PATARIKA APIATA Appellant

AND

THE QUEEN Respondent

Hearing: 30 April 2013

Court:

Arnold, Heath and Keane JJ

Counsel:

W D McKean for Appellant
S B Manning for Respondent

Judgment:

12 June 2013 at 3 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

Prior to trial, the appellant, Mr Apiata, entered guilty pleas to three counts of aggravated robbery, four counts of kidnapping and one count of theft of a motor vehicle. Judge de Ridder sentenced him to nine years, six months’ imprisonment.[1] Mr Apiata now appeals against his sentence on the ground that the starting point adopted by the Judge was too high, in that it did not recognise that there was no significant violence in the offending and did not reflect the approach adopted by this Court in R v Tiori.[2]

Factual background

[1]R v Apiata DC Whangarei CRI-2012-088-877, 31 July 2012.

[2]R v Tiori [2011] NZCA 355.

The summary of facts to which Mr Apiata entered his guilty pleas records the circumstances of the three aggravated robberies as follows.

Tavern in Whangarei

On 6 October 2011 between 7.30 and 9.45 pm Mr Apiata and two accomplices stole a vehicle from outside a tavern in Whangarei. The following day, around midnight, they committed an aggravated robbery at another tavern in Whangarei to which they had driven in the stolen vehicle. Mr Apiata and his accomplices entered the tavern wearing balaclavas, gloves and black nondescript clothing and brandishing firearms and a metal pipe. They ordered the staff and patrons to lie on the ground and told them to keep their heads down. Having forced the bar manager to open the safe, they removed its contents, including some $3,000 in cash. In addition, they took personal belongings from the staff and patrons – bags, wallets, cash, cell phones and such like. They then fled. The stolen vehicle was later recovered, burnt out.

Home on the North Shore, Auckland

Around midnight on 12 October Mr Apiata and his two colleagues broke into a house on the North Shore in Auckland. The two occupants awoke to find two of the intruders standing at the foot of their bed. They were wearing dark clothing, masks and gloves and one was holding a shotgun that he was pointing at the occupants. One of the men demanded to know where the cash was. He was directed to a handbag, from which he took $190 and a cell phone. The men also took a laptop and a gold chain that one of the occupants was wearing around his neck. One of the intruders then asked the occupants where their safe and money was, saying “if you lie to me you will die”. However, a door alarm went off shortly after, so the three intruders left the address having put the occupants into a wardrobe in their bedroom.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Apiata v The Queen

Details

AGLC: Apiata v The Queen [2013] NZCA 227
Case: [2013] NZCA 227
Decision Date: 12 June 2013 at 3 pm

CaseChat Overview and Summary

Patariki Apiata was convicted of multiple counts of aggravated robbery, kidnapping, and theft of a motor vehicle. He now appeals against the sentence of nine years and six months' imprisonment imposed by Judge de Ridder, arguing that the starting point of ten years was too high, as it did not recognise the lack of significant violence in the offending and did not reflect the approach adopted by the Court of Appeal in R v Tiori. The court was required to decide whether the starting point of ten years was excessive and whether the sentence imposed was disproportionate.

The Court of Appeal considered the facts of the case and the precedent set by R v Tiori. The court noted significant differences between the present case and Tiori, including the presence of violence, the number of occupants restrained, the vulnerability of the victims, and the amount of property stolen. The Court found that Judge de Ridder was entitled to distinguish the present case from Tiori and that a starting point of ten years was appropriate. The Court of Appeal dismissed the appeal against sentence.

The final orders of the Court of Appeal were that the appeal against sentence is dismissed.

Orders