Enoka v The Queen
[2012] NZCA 157
•20 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA712/2011 [2012] NZCA 157 |
| BETWEEN ALBERT ENOKA |
| AND THE QUEEN |
| Hearing: 22 March 2012 |
| Court: Wild, Chisholm and MacKenzie JJ |
| Counsel: C J Tennet for Appellant |
| Judgment: 20 April 2012 at 11 am |
JUDGMENT OF THE COURT
A An extension of time for bringing this appeal is granted.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
On the second day of his trial in the District Court at Christchurch on a charge of aggravated robbery the appellant pleaded guilty. He was sentenced by Judge Radford to three years’ imprisonment.[1] At the same time he was sentenced to an additional 18 months imprisonment for a burglary that had been committed shortly before the aggravated robbery. He had pleaded guilty to the burglary on his fourth appearance.
[1] R v Enoka DC Christchurch CRI-2009-009-8974, 10 November 2010.
The appellant now appeals against the total sentence of four and a half years’ imprisonment on the grounds that it is manifestly excessive. His appeal is 10 months out of time. Given that the delay has been explained and the Crown has taken a neutral stance we are prepared to extend the time for bringing this appeal.
The offending
Burglary
On 31 May 2009 the appellant broke into a Christchurch residence. After searching the entire house he stole a substantial amount of property including a laptop computer, a camera, jewellery and food. The total value of the stolen property, which has not been recovered, was $6,763. The camera contained photographs that had not been saved elsewhere. At the time of the offending the appellant was on bail.
Aggravated robbery
At approximately 7.45 pm on 6 June 2009 the appellant was in a Christchurch suburban shopping area with a 16 year old male associate. As they walked past a bar the appellant recognised the victim who was inside the bar playing the poker machines. After a short conversation with the victim the appellant asked the victim if he would drop the appellant and his co-offender off at a stated address.
During the journey the appellant and his co-offender told the victim to pull over to the side of the road, following which they started punching him in the head. After the victim managed to get out of the car both the appellant and his co-offender kicked and punched the victim until he fell to the ground. Following that the appellant’s co-offender stomped on the victim’s head and the appellant reached into the victim’s pocket and removed his wallet which contained $200 in cash.
The appellant and his co-offender ran off when they were disturbed by members of the public. In the meantime they had stolen four DVDs from the victim’s vehicle. As a result of the attack the victim suffered bruising to his head and a boot impression on his face.
The appellant was on bail at the time of the offending. By the time he pleaded guilty at the trial the victim had completed his evidence-in-chief and was under cross-examination.
The appellant
Although he was only 26 years of age when sentenced, the appellant had already accumulated a formidable list of previous convictions, including convictions for burglary and aggravated robbery. His conviction for aggravated robbery was entered in 2002 and the same year he was convicted of common assault. In 2003 he was convicted of burglary, followed in 2004 with convictions for causing bodily injury, behaving in a threatening manner, common assault, and male assaults female. A further spate of offending occurred in 2008 when he was convicted of assault with intent to injure, resisting police, and assaulting the police. The following year he was convicted of resisting the police. He also has other convictions for dishonesty and breaches of court orders.
According to the probation officer the appellant did not see a need for “interventions” to address his use of violence or alcohol, and he had a mixed record of compliance with community based sentences. Although the probation officer assessed the appellant’s motivation to change as moderate, he rated the risk of re-offending as high. Imprisonment was recommended.
Sentencing in the District Court
Starting with the aggravated burglary, the Judge listed the following aggravating features: first, although the appellant did not personally stomp on the victim’s head, he was instrumental in that occurring; secondly, the appellant administered blows to the victim; thirdly, it was a pre-meditated offence, and fourthly, it occurred over “some time”.[2] Having recorded that he had been minded to adopt a starting point for the aggravated robbery of three and a half years, the Judge adopted a starting point of three years.
[2] At [13].
Then the Judge turned to the burglary, noting that it was “a very bad one”[3] and that the victims had suffered significantly at the appellant’s hands. He added a further 18 months to the starting point for the burglary.
[3] At [14].
An uplift of eight months was applied to reflect the appellant’s previous convictions. Although that uplift took the total sentence before allowing for mitigating factors to 62 months’ imprisonment, the Judge “rounded down” that figure by two months to five years’ imprisonment. He then allowed a 10 per cent discount for the late guilty pleas which produced a total sentence of four and a half years’ imprisonment.
This appeal
For the appellant Mr Tennet examined each phase of the sentencing process. He submitted that the starting point of three years for the aggravated robbery was “possibly manifestly excessive on its own”. He took issue with the addition of 18 months’ imprisonment for the burglary and submitted that if that offending had been dealt with on its own it could not have attracted more than three to six months’ imprisonment. The uplift of eight months for previous convictions was also challenged.
A further ground of appeal alleging that the Judge should have given credit for the time that the appellant was on electronic bail was abandoned. There had been serious breaches of bail, including absconding for over four months.
In response Mr Marshall submitted that the three year starting point for the aggravated robbery was well within the available range and, given the physical violence, a starting point in excess of that level would have been justified. He also submitted that an additional 18 months for the burglary was within range, as was the uplift of eight months for the appellant’s criminal record which involved 60 convictions over 10 years (including 12 dishonesty offences, 10 violent offences, and 24 breaches of court orders). Moreover, the offending had occurred while the appellant was on bail.
Decision
We are satisfied that the starting point of three years for the aggravated robbery was conservative and that the three and a half years mooted by the Judge would have been within range. This was serious offending involving both a breach of trust and violence, as well as multiple offenders.
In R v Mako this Court noted that street robbery by demanding that a victim hand over money where offenders are acting together might justify a starting point of between 18 months and three years, even though no actual violence occurs, and that acts of physical violence might require a higher starting point.[4] A starting point of three and a half years for an aggravated robbery involving violence by multiple offenders was described in R v Lakatani as “light and unchallengeable”.[5] And in Sika v R this Court observed that a starting point of three and a half years or more was open for a person who inflicted actual violence during the course of a robbery.[6]
[4] R v Mako [2000] 2 NZLR 170 (CA) at [59].
[5] R v Lakatani [2008] NZCA 507 at [32].
[6] Sika v R [2011] NZCA 376 at [30].
Now we turn to the additional 18 months for the burglary. Again we consider that this was within the range available to the Judge. It involved the burglary of a dwelling with the loss of items (including irreplaceable photographs) of significant value to the complainants. In R v Povey, a starting point of two years imprisonment for the burglary of a dwelling (albeit with some aggravating features that were not present here) was considered to be “fully justified”[7] and in R v Stevens a starting point of 18 months for the burglary of commercial premises was considered to be within range.[8]
[7] R v Povey [2009] NZCA 362 at [16].
[8] R v Stevens [2009] NZCA 190 at [14].
The uplift of eight months for the appellant’s previous criminal record was unimpeachable. As Mr Marshall observed, it is an appalling record involving no less than 60 convictions over 10 years, many of which are serious. To make matters worse the appellant has previous convictions for both aggravated robbery and burglary and both of the present offences were committed while he was on bail.
Apart from the lenient starting point for the aggravated robbery, the appellant had the benefit of a two months “rounding down” from 62 months’ imprisonment to 60 months. Moreover, the overall 10 per cent discount for both guilty pleas (at fourth appearance on the burglary and during trial on the aggravated robbery) was appropriate, perhaps generous.
For those reasons we have not been persuaded that there was any error in the Judge’s approach to sentencing. Nor did the total sentence of four and a half years’ imprisonment offend the totality principle.
Result
Leave to appeal out of time is granted, but the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
4
0