Elia v The Queen

[2010] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND

CA277/2010
[2010] NZCA 382

BETWEENJOSEPH CHRISTOPHER ELIA

Appellant

ANDTHE QUEEN

Respondent

Hearing:5 August 2010

Court:Ellen France, Gendall and Courtney JJ

Counsel:G W Wells for Appellant

M F Laracy and P D Marshall for Respondent

Judgment:18 August 2010 at 3 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]        The appellant pleaded guilty to a number of charges, the most serious of which were two counts of aggravated robbery.  He was sentenced on 9 April 2010 by Judge Blackie to a term of seven and a half years imprisonment.[1]

[1]      R v Elia DC Manukau CRI-2009-092-9869, 9 April 2010.

[2]        He appeals against sentence on the basis it is manifestly excessive.  He argues, first, that the starting point adopted was too high especially compared with that of his co-offenders and, secondly, that the discount for his guilty plea was insufficient.

Background

[3]        The charges of aggravated robbery relate to two separate incidents.  The first of these took place on the morning of 25 May 2009.  The appellant and Adrian Pani broke into the victim’s house in Howick.  Mr Pani was carrying a baseball bat.  Mr Pani attacked the victim with the bat hitting him repeatedly.  The victim tried to shield his head with his arms leading to a severely bruised elbow.

[4]        The victim was then taken to his car.  The appellant got into the driver’s seat and they took the victim to a nearby shopping centre.  Mr Pani still held the baseball bat.  The two men forced the victim to withdraw all of his money from his bank accounts, a total of $150.  They then took him home.

[5]        The second incident took place a few days later on 6 June 2009.  This time the appellant was accompanied by Sigmund Croft.  The two men had arranged to meet in a carpark with a man who was selling his car on the website “TradeMe”.  After inspecting the car, Mr Croft got into the driver’s seat and the appellant into the passenger seat.  In an effort to stop his car being stolen, the victim got into the back seat.

[6]        Mr Croft drove off at speed and on the wrong side of the road.  The appellant, on seeing the victim, tried to punch him but was stopped from doing so by his seat belt.  At some stage, Mr Croft stopped the car.  He and the appellant removed the victim.

[7]        As the two men drove off, the victim jumped on to the rear of the car and clung to the spoiler.  Mr Croft continued driving, swerving, braking and weaving, at speeds over 100 kilometres per hour unsuccessfully trying to dislodge the victim.

[8]        Again, Mr Croft stopped the car.  The two men got out and attacked the victim.  The appellant punched him at least once.  Leaving the victim dazed and bruised on the footpath, the two men drove off.  The victim needed hospital treatment for concussion, bruising to his ear, and cuts and abrasions.

[9]        At his eighth appearance and soon after committal, the appellant pleaded guilty to both aggravated robberies.  Charges of injuring with intent to cause grievous bodily harm and kidnapping in relation to the first incident were withdrawn.  Instead, the appellant pleaded guilty to a count of assault with a weapon (the baseball bat).

[10]       It was plain that the appellant disputed various details about each aggravated robbery.  He was remanded in custody for sentencing.  There was to be a disputed facts hearing with respect to the aggravated robbery charges.

[11]       Ultimately, there was no disputed facts hearing.  The first victim could not be found and the second had returned overseas.  By consent, the Judge had the first victim’s evidential statement.

The sentencing remarks

[12]       We come back later to consider some of the factual material relied on.  At this stage we need to note, first, that Judge Blackie sentenced both the appellant and Mr Pani.  Mr Croft was sentenced some months earlier by Judge Andrée Wiltens.[2]

[2]      R v Croft DC Manukau CRI-2009-092-9874, 9 October 2009.

[13]       Secondly, we need to set out the structure of the sentences.  In terms of the appellant, Judge Blackie took the first aggravated robbery as the lead charge.  He said that one of the two charges would “justify a sentence somewhat over seven years but perhaps a little less than 10”.[3]  Because there were two charges, the Judge said a 10-year starting point was appropriate.  The 10-year point was also seen as reflecting the totality of the charges faced by the appellant which included a burglary and lesser summary offences such as unlawful taking and breaches of bail, as well as the appellant’s previous history.

[3] At [23].

[14]       A discount of 25 per cent was given for the guilty pleas.  No further discount was given for the appellant’s age (18 years).

[15]       In terms of Mr Pani, a starting point of seven years was adopted to reflect the fact there was one charge and that Mr Pani had brandished the bat.  That sentence was discounted by 25 per cent leading to an effective sentence of five years and three months imprisonment.

[16]       Mr Croft turned 18 on the day of his sentencing, Judge Andrée Wiltens took as the starting point on the aggravated robbery charge a term of four and a half years imprisonment.  That figure was uplifted to reflect the totality of Mr Croft’s offending (including dangerous driving and various summary charges) to six years imprisonment.  A discount for youth and guilty pleas resulted in a term of four years imprisonment.

Was the starting point too high?

[17]       Mr Wells on behalf of the appellant identifies two principal matters which he says have led to a manifestly excessive starting point, particularly in comparison with the sentences of the co-offenders.

[18]       First, Mr Wells says that the sentencing judge treated as aggravating factors matters which were disputed.  Because it was not possible to hold a disputed facts hearing, any differences should be resolved in the appellant’s favour.  Secondly, and this submission draws on the first, Mr Wells says the Judge treated the appellant as equally culpable as his co-offenders although, in each case, their culpability was greater.  We deal with the appellant’s criticisms in turn.   

[19]       As to the disputed facts, Mr Wells emphasises the following in relation to the first incident:

(a)The appellant said he did not know Mr Pani was going to use the bat other than as a threat;

(b)The appellant said he was not present in the room when Mr Pani hit the victim and nor was he shouting “Where’s the money” or words to that effect;

(c)The appellant said he did not drag the victim from his house or manhandle him into the car; and

(d)The appellant said he was not armed with a knife when in the car.

[20]       In relation to the second incident the appellant disputed:

(a)Delivering a barrage of punches to the victim once aware he was in the car;

(b)Repeatedly punching and kicking the victim when he was pulled from the vehicle;

(c)Being a party to dangerous driving; and

(d)Punching and kicking the victim until he fell to the ground after the car was stopped for the second time.

[21]       We consider that it is clear from the sentencing remarks that the Judge has not treated as aggravating factors those matters disputed by the appellant.  Two passages from the sentencing notes illustrate the point.

[22]       The first passage follows a description of the events in which the Judge records that it was alleged that the appellant shouted “Where’s the money”?  Judge Blackie then said:

[9]         You say that you were not involved in any striking of the victim while he was in bed, you were not involved in dragging him down the stairs or manhandling in the back seat of his car.

But, the Judge continued,[4] the appellant was the person who got into the driver’s seat and drove the car to the ATM where the victim was persuaded to part with his money.

[4] At [9].

[23]       The second passage relates to the second incident.  Judge Blackie said:

[13]       But it did not end there because the victim was not prepared to let his car go as easily as you might think.  He hung onto the spoiler on the back of the car and was dragged along behind as the car driven by Mr Croft again took off, trying to throw him off the back.  When this did not succeed the car was stopped, he was assaulted until he got off the car and it is alleged that you took part in that assault.  He was punched and kicked – again these facts are somewhat disputed by you, you do not dispute that you were involved in the taking of the car, you simply say through your counsel that you were not involved in quite the same degree of violence as the Court might otherwise be given to believe.

[14]       But, nevertheless, you were involved in the deliberate taking of this vehicle and because the owner, quite rightfully one might think, as an ordinary member of the public, decided he was going to resist that – to overcome his resistance violence was used first by using the car itself to try and throw him out and throw him off and secondly when that did not succeed physical violence against him.

[24]       In any event, in terms of the first incident, there is force in the further points made by Ms Laracy on behalf of the Crown.  First, despite the appellant’s denial of knowledge of Mr Pani’s intentions and of being present during the assault with the baseball bat, he pleaded guilty to being a party to that assault.  He either abetted that assault or knew the assault was a probable consequence of the enterprise.

[25]       Secondly, as the Judge observed, the appellant was a party to the events which resulted in the victim unwillingly going with the two men to the ATM regardless of exactly what role he played in that.

[26]       Thirdly, the Judge appears to have proceeded on the basis Mr Pani had the knife whereas the appellant told the probation officer he had the knife although he says it was on the floor of the car.  This was an approach favourable to the appellant.

[27]       As to the second incident, it is relevant that the appellant conceded he had kicked the victim in the body when the victim was on the ground on the first occasion.  He also accepted he punched the victim on the second occasion although he denied doing this repeatedly.

[28]       As to the alleged disparity with the co-offenders, the appellant’s argument is really that the other two were the ringleaders but he has not been treated as any less culpable.  That argument may have some bearing on the seven year starting point which was the same as that for Mr Pani.  However, on our earlier analysis, treating the culpability of the appellant as significantly different from that of Mr Pani in this respect would be artificial.  Further, the seven year starting point was within the available range and cannot ultimately be said to be disproportionate to the appellant’s culpability.[5]  Totality principles warranted the uplift then adopted.  Mr Croft’s offending was different again.  Although serious, it did not involve entry into a home and the driving aspect appeared to be a spur of the moment reaction to the victim’s presence.  The difference in the offending explains the differences between the starting points for these two offenders.

Discount for the guilty plea

[5]R v Mako [2000] 2 NZLR 170 (CA) at [58]. The Judge has referred to entry into a home at night but that error is not critical, see: R v Fenton [2008] NZCA 379 at [13].

[29]       The appellant was sentenced after this Court’s decision in R v Hessell[6] and Hessell was applied in terms of setting the discount for the guilty plea.  Mr Wells submits that the application of Hessell was unfair because the delays in pleading guilty arose through counsel’s attempts to negotiate a resolution of the matter, most of which took place prior to the delivery of Hessell.  The effect of Hessell is that such negotiations do not justify treating a later point in time as the first reasonable opportunity.  Mr Wells says this has led to an insufficient discount.

[6]      R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 (CA).

[30]       However, even on the pre-Hessell analysis, the discount given here for the guilty pleas post-committal was well within the available range.[7]  We see no basis for interfering with Judge Blackie’s approach.

Disposition

[7]      See R v Fonotia [2007] 3 NZLR 338 (CA) at [50]–[51] and R v Walker [2009] NZCA 56 at [19].

[31]       For these reasons, the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent