Inamata v R

[2017] NZCA 556

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/2017
[2017] NZCA 556

BETWEEN	WALLY INAMATA Appellant
AND	THE QUEEN Respondent

Hearing:	9 November 2017
Court:	Harrison, Courtney and Toogood JJ
Counsel:	B L Sellars for Appellant A J Ewing for Respondent
Judgment:	4 December 2017 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

Introduction

1. Wally Inamata appeals against a sentence of six years’ imprisonment imposed in the District Court at North Shore following his conviction after a jury trial on one charge of aggravated robbery.[1]  The sole issue is whether Judge Down was justified in ordering under s 86(1) of the Sentencing Act 2002 that Mr Inamata should serve a minimum period of three years’ imprisonment.

Facts

[1]R v Inamata [2017] NZDC 880.

1. The facts may be stated briefly.  In November 2012, just before 11.00 am, Mr Inamata and two other men walked into a jeweller’s shop on Broadway in Newmarket, Auckland, wearing hooded jackets with their faces covered with scarves.  A fourth man waited outside the store as a lookout.  Mr Inamata shoved an employee aside and then smashed a cabinet with one of the two hammers the group had with them.  They stole watches and items of jewellery valued at over $980,000 within 30 seconds of entering the store and made a quick getaway in a stolen car which was abandoned some kilometres away.  Mr Inamata and his female partner had planned the robbery over several days.  They kept the stolen property but paid the other offenders for their assistance.  The police recovered only two of the stolen watches and no other property. 

District Court

1. In her written submissions and at the hearing, Ms Ewing properly conceded on behalf of the Crown that the Judge had erred in not forewarning counsel that he intended to impose a minimum period of imprisonment (MPI).[2]  Mr Inamata’s counsel was unfairly deprived of an opportunity to argue that the finite sentence imposed by the Judge was sufficient by itself to meet all relevant sentencing purposes.  In those circumstances, we consider the imposition of an MPI afresh in the light of the submissions made to this Court.[3]

Decision

[2]R v Boyd CA89/03, 24 June 2003 at [16]; R v Grant [2009] NZCA 266 at [18]; and Byford v R [2011] NZCA 116 at [25].

[3]Fleming v R [2011] NZCA 646 at [16]–[17]; and R v Grant [2009] NZCA 266 at [19].

1. The Sentencing Act provides as follows:

   86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

   …

   (2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

   (a)holding the offender accountable for the harm done to the victim and the community by the offending;

   (b)        denouncing the conduct in which the offender was involved;

   (c)deterring the offender or other persons from committing the same or a similar offence;

   (d)        protecting the community from the offender.

   …

2. Under s 84(1) of the Parole Act 2002, the minimum period which Mr Inamata would be required to serve is one third of his end sentence of six years’ imprisonment; that is, two years’ imprisonment. 

3. The Crown did not seek the imposition of an MPI at the time of the District Court sentencing.  Ms Ewing submitted nevertheless that eligibility for parole after serving only two years’ imprisonment would be insufficient, given the facts of the case and Mr Inamata’s criminal history, to deter him from future offending or provide adequate protection for the community.[4]  In fact, Ms Ewing submitted that given Mr Inamata’s lengthy history of armed robberies and subsequent offending while on bail, and on one occasion during a period of escape from prison, an MPI of 50 per cent was the minimum available and that an MPI of two thirds, or four years, could be justified.[5] 

   [4]Sentencing Act 2002, ss 86(2)(c) and (d).

   [5]A minimum period of imprisonment must not exceed the lesser of two thirds of the full term of the sentence or 10 years: Sentencing Act, s 86(4).

4. Ms Sellars properly accepted that this was a highly professional robbery.  Although no lethal weapons such as knives or guns were used by the robbers, and no member of the public was harmed, the offenders were carrying hammers — potential for serious harm existed if a member of the shop staff or a customer had attempted to intervene.  The female manager of the jeweller’s shop described the cost of the new security measures introduced as a result of the robbery, including a controlled entry to the store through the services of a concierge.  She described the incident as extremely traumatising at the time.

5. We have considered Ms Sellars’ submissions that the aggravating features of the offending were sufficiently recognised by the starting point of five‑and‑a‑half years’ imprisonment and that Mr Inamata’s prior offending history was taken into account by an uplift of six months’ imprisonment, bringing the end sentence to six years’ imprisonment.  We do not accept, however, that the decision of this Court cited by Ms Sellars — Kingi v R — is authority for the proposition that it is impermissible for a court considering the imposition of a minimum term under s 86 to take into account factors already considered in setting a starting point or adding a sentence uplift.[6]  If that were so, there could hardly ever be a case in which a minimum term would be imposed.  

   [6]In particular Ms Sellars referred us to Kingi v R [2010] NZCA 159 at [27]–[28].

6. The question to be considered under s 86(2) is not whether the factors referred to in that section have been recognised in the imposition of the finite sentence, but whether the minimum period provided for under the Parole Act is insufficient to meet the specified sentencing purposes of accountability, denunciation, deterrence and community protection.

7. Consideration of Mr Inamata’s offending history both here in New Zealand and in Australia is instructive, and it does not assist him.  Mr Inamata’s history in Australia includes convictions in December 1994 for armed robbery — two instances of what in New Zealand would qualify as aggravated robbery — and one charge of demanding money with menaces, for which he received a total of six years’ imprisonment.  In 1999 he received a further sentence of just under four years’ imprisonment for what would also be considered aggravated robbery in this country.  He escaped during that sentence and committed another robbery.  The serious offending for which he was convicted in 2002 followed that.  He was sentenced to eight years and six months’ imprisonment for committing robbery while armed with a dangerous weapon and was subsequently returned to New Zealand when his Australian resident visa was cancelled upon his release from prison.

8. The probation officer’s assessment of Mr Inamata as presenting a medium to high risk of reoffending was based on his New Zealand offending only.  It includes numerous appearances in the Youth Court for dishonesty offences and the imposition of 18 months’ imprisonment for receiving stolen property in 2014.  The Australian criminal history makes it clear, however, that Mr Inamata presents a high risk of reoffending in a serious manner.  It is indicative of that risk that the Newmarket robbery was committed only a year after Mr Inamata completed his sentence in Australia and returned to New Zealand.

9. The end sentence imposed in the District Court was available to the sentencing Judge, but arguably at the lower end of the range.  This was highly professional offending for commercial benefit: nearly $1 million worth of valuable property was stolen and only a small amount recovered.  Given Mr Inamata’s appalling history of armed robbery, a total end sentence of greater than six years might have been justified.

10. Moreover, we are wholly satisfied that a minimum period of imprisonment of at least three years was necessary to recognise the need for additional deterrence and, more significantly, the protection of the community from an offender who has demonstrated an inability to learn from his past experiences.  He remains a high risk to public safety.

Result

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Auckland for Respondent