Falwasser v The Queen - [2015] NZCA 502

IN THE COURT OF APPEAL OF NEW ZEALAND

CA596/2014
[2015] NZCA 502

BETWEEN	ISAAC HAYES FALWASSER Appellant
AND	THE QUEEN Respondent

CA707/2014
BETWEEN	RORY TRAVERS SMYTH Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2015
Court:	Miller, Fogarty and Mallon JJ
Counsel:	J H Wiles for Appellant Falwasser P J Kaye for Appellant Smyth P D Marshall for Respondent
Judgment:	23 October 2015 at 11.00 am

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Falwasser and Mr Smyth committed two aggravated robberies 20 days apart.[1] The first involved the Shiraz Bar on 2 October 2012. The second involved Miss Q’s Bar on 22 October 2012. They were sentenced on the latter offence first and each received a sentence of six years, two months and two weeks’ imprisonment.[2] They were subsequently sentenced on the Shiraz Bar aggravated robbery. They were each sentenced to three years and 10 months’ imprisonment cumulative on the earlier sentence.[3]
[1]Crimes Act 1961, s 235(c) (maximum penalty of 14 years’ imprisonment).
[2]R v Falwasser DC Auckland CRI-2012-004-19022, 30 January 2014. Mr Falwasser was also given a concurrent sentence on associated charges under the Arms Act 1983. Mr Smyth was also given concurrent sentences on other charges mostly unrelated to the aggravated robbery.
[3]R v Falwasser DC Auckland CRI-2013-092-6513, 19 September 2014.
They appeal the term of the cumulative sentence imposed for the Shiraz Bar aggravated robbery. The principal ground of appeal is that the Judge made an arithmetical error in calculating the cumulative sentence imposed. This was said to have led to a manifestly excessive sentence. They no longer contend that the Judge’s approach to the sentencing was wrong, accepting that the approach was dictated by the sentencing for each aggravated robbery occurring on separate days.

The offending

The aggravated robbery of the Shiraz Bar occurred after midnight on
2 October 2012. Mr Falwasser and Mr Smyth drove to the premises in a stolen car. Mr Falwasser was armed with a sawn-off shotgun. Mr Smyth had a large kitchen knife. Both wore disguises. Inside the bar were the manager and six patrons. The two offenders entered the bar brandishing their weapons. They rushed towards the manager who opened the cash register for them. They took the money that was there. While Mr Smyth monitored the bar’s patrons, Mr Falwasser accompanied the bar manager to the safe. The bar manager opened the safe and Mr Falwasser took its contents. The offenders then left with a total of approximately $41,000 in cash. This money was not recovered.
The aggravated robbery of Miss Q’s took place shortly after 1 pm on
22 October 2012. Again they arrived in a stolen car, with a third man, Mr Sylva, who remained in the car to act as the getaway driver. Mr Falwasser and Mr Smyth entered the bar brandishing a double-barrelled sawn-off shotgun. They wore masks and hooded sweatshirts. There were three men in the bar at the time:…

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 Falwasser v The Queen

Details

AGLC: Falwasser v The Queen [2015] NZCA 502
Case: [2015] NZCA 502
Decision Date: 23 October 2015

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently dismissed the appeals of Isaac Hayes Falwasser and Rory Travers Smyth, who were convicted and sentenced for two separate aggravated robberies. The appeal focused on the arithmetical error in the calculation of the cumulative sentence imposed for the Shiraz Bar aggravated robbery. The appellants argued that the error led to a manifestly excessive sentence. However, the court found that there was no arithmetical error and that the total sentence was within range.

The legal issues before the Court of Appeal were whether the Judge made an arithmetical error in calculating the cumulative sentence for the Shiraz Bar aggravated robbery and whether the total sentence imposed was manifestly excessive. The court found that the Judge did not make an arithmetical error in calculating the sentence and that the total sentence was within range.

The court acknowledged that the two appellants committed serious offending, warranting a combined starting point of up to 14 years imprisonment before any adjustment for totality. The total uplift of nine months for previous convictions was arguably light, but the guilty plea discount was not. The court also noted that the effective overall end sentence for the two aggravated robberies compared appropriately with the overall end sentence in other cases involving sentencing for two aggravated robberies.

The appeals were dismissed, and the sentences imposed by the District Court were upheld. The court found that the total sentence of 10 years was within range and did not consider the sentence to be manifestly excessive. The Court of Appeal emphasised that the focus on appeal was on whether the end sentence was manifestly excessive, and the court found that it was not.

Orders