Kee v R
[2011] NZCA 229
•26 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA55/2011 [2011] NZCA 229 |
| BETWEEN ANITALEA CHAN KEE |
| AND THE QUEEN |
| Hearing: 24 May 2011 |
| Court: Randerson, Gendall and Allan JJ |
| Counsel: J C Down and L Hughes for Appellant |
| Judgment: 26 May 2011 at 4.30 p.m. |
JUDGMENT OF THE COURT
A The time to appeal is extended.
B The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant was involved with five others in the aggravated robbery of the Riverton Liquor Store in South Auckland on 7 June 2008. In the course of the robbery one of the owners of the store, Mr Navtej Singh, was shot and later died. It is not in dispute that the appellant was responsible for shooting Mr Singh. The appellant was found guilty of murder after trial by Lang J and a jury. He had earlier pleaded guilty to the aggravated robbery of the liquor store and to another charge of aggravated robbery of premises described as a tinnie house just a few days before.
On 7 May 2010, Lang J sentenced the appellant to a term of life imprisonment with a minimum period of imprisonment (MPI) of 17 years. Concurrent sentences of ten years imprisonment were imposed on each of the two charges of aggravated robbery. [1]
[1] R v Kee HC Auckland CRI-2008-092-8864, 7 May 2010.
The appellant now appeals against his sentence on the ground that it was manifestly excessive. It is common ground that s 104(1)(d) of the Sentencing Act 2002 was engaged in that the murder of Mr Singh was committed in the course of another serious offence, namely aggravated robbery. However, Mr Down on behalf of the appellant submitted that, in all the circumstances, an MPI of 17 years was manifestly unjust and that a lower MPI should have been imposed.
Background facts
The Judge found that the appellant and others had been socialising on the evening in question at a house in Manurewa. There was widespread and large-scale consumption of alcohol by all involved. When the supply of alcohol ran out, the appellant was the instigator of a plan to steal more alcohol. The appellant had a firearm which he showed to others present and he took a practice shot at a can at the rear of the house.
The Judge found that the appellant had loaded the firearm. A plan to rob the Riverton Liquor Store was discussed in some detail before the appellant and the others left the house. All had agreed to become part of a plan to rob the Riverton Liquor Store and to use a firearm in doing so. While the appellant knew the firearm was loaded, the Judge accepted that the jury’s verdicts demonstrated that the others may not have been aware of that.
The robbery was carried out by the appellant and two others (Jason Naseri and Myron Felise). The other three men assisted in various ways but did not enter the store. All men disguised themselves with hoodies and other items. Immediately after the appellant entered the store, he pointed the gun at Mr Navtej Singh and his friend Mr Gurwinder Singh who was a part-owner of the store. The Judge found that both the victims were behind the counter and that neither took any step or evasive measure which could have been interpreted as resisting the approach made to them by the appellant. The other two men who entered the store shortly after the appellant had done so began removing boxes of liquor and taking them out of the store.
During this time, the appellant was brandishing the rifle and pointing it at each one of the shopkeepers in turn. The Judge then went on to state:
[27] I am satisfied that the shopkeepers essentially told you that you could take what you want. For some inexplicable reason, Mr Chan Kee, at a time when the other two men were out of the shop, you elected to pull the trigger of that firearm and thereby mortally wound Mr Singh. As I have said, there was no reason for that. The video records that he was making efforts to remove the till at the time that you shot him. It may be that you became frustrated with the time that he was taking to do that. It may be that you panicked to some extent with your other two associates out of the room, but the video gives absolutely no clue as to why you elected to pull the trigger at that time.
[28] I do not know, either, whether, as I have said, the theft of the money was something that was ever in contemplation of those who went there. I suspect, Mr Chan Kee, that the final decision to take the money was yours and yours alone, and that you made that decision once the robbery was in progress. But at the end of the day that decision is what has led to you facing the conviction of murder.
Mr Navtej Singh was shot in the abdomen and later died. At the time the fatal shot was fired, the other two men directly involved in the robbery were outside but heard the shot and came back in. Notwithstanding the shooting, one of these men helped himself to more alcohol while the other assisted by removing the gun and taking it out of the premises. No attempt was made to assist the victim and all those involved escaped in the motor vehicles in which they had arrived. They took with them not only the alcohol which had been stolen but also the till from which they divided up the cash. They then returned to the house where the party was taking place and proceeded to drink the stolen alcohol.
The Judge identified the following aggravating features in relation to the murder and the armed robbery. These were:
Those involved had embarked on a plan using a firearm.
There was a degree of premeditation. While the Judge agreed that it was a fairly loosely planned enterprise, the consumption of alcohol gave rise to the real risk of serious injury.
Actual violence was involved resulting in the victim’s death.
There were multiple offenders.
There was the theft of approximately $4,000 in cash along with the alcohol and other items.
The serious effect on the victims and their families including in particular Mr Navtej Singh’s widow and three young children.
The Judge’s approach to sentencing
The Judge referred to the prevalence of the armed robbery of small businesses in South Auckland. Deterrence (both personal to the offenders and to others) and denunciation had to be important factors in the sentencing of the appellant and the others involved.
Addressing s 104 of the Sentencing Act, the Judge noted that there was no dispute that s 104(1)(d) was in play. He also agreed with a submission made by the Crown that there were aspects of callousness involved in terms of s 104(1)(e) but doubted whether, on their own, those aspects would have been sufficient to attract the 17 years MPI. He noted that the jury had rejected the appellant’s defence at trial that the pulling of the trigger was a reflexive or instinctive reaction in the heat of the moment during the robbery. On the other hand, the Judge was not satisfied beyond reasonable doubt that the appellant had intended to kill Mr Navtej Singh. The Judge treated the killing as having occurred recklessly under s 167(b) of the Crimes Act 1961 or as having occurred through the appellant intending to cause grievous bodily harm in the course of committing the robbery in terms of s 168 of the Crimes Act.
The Judge then noted that the Court was obliged to impose an MPI of at least 17 years unless it would be manifestly unjust to do so. Having regard to the type of offending and with the identified aggravating factors, the Judge was satisfied the offending fell squarely within the type of case that Parliament intended s 104 to cover. He did not consider that any of the personal circumstances relating to the appellant came “anywhere near” to showing manifest injustice. This included the support which the appellant had from family and friends as demonstrated by many favourable testimonials produced to the Court. The Judge also took into account the aggravated robbery in which the appellant had been involved just a few days before the robbery of the liquor store which also involved the use of a weapon, and a previous notation for reasonably serious violence in the Youth Court in 2003. The prior offending demonstrated to the Judge that there was a pattern of behaviour by the appellant involving the use of weapons to obtain property which overrode any positive aspects of his character.
In the circumstances the Judge was “drawn inevitably” to the conclusion that he had no option but to impose a 17 year MPI and he was satisfied that there were no circumstances which would justify an MPI below the statutory minimum.
The grounds for appeal
Mr Down presented careful submissions in support of the appeal. His principal point was that the Judge had failed to follow the two-step process identified by this Court in R v Williams.[2] It was submitted that the Judge proceeded simply on the basis that the 17 year MPI was the appropriate starting point without considering, as a first step, whether the degree of culpability might have justified a lower sentence. Having adopted the 17 year MPI without further inquiry, the Judge then went straight to the second stage of deciding whether there were any circumstances which would make it manifestly unjust to impose the 17 year minimum.
[2] R v Williams [2005] 2 NZLR 506.
Mr Down submitted there were a number of circumstances supporting the proposition that the level of culpability of the offending was not such as to justify the 17 year MPI: this was a loosely planned robbery that went wrong; there was no additional violence beyond the single shot that was fired; the absence of any intention to kill; and the sentences of six years imprisonment imposed on Jason Naseri and Myron Felise. These two men had pleaded guilty to the aggravated robbery of the liquor store but were acquitted of murder.
Mr Down also referred us to the decision of Priestley J in R v Williams[3] in which the Judge imposed an MPI of 14 years notwithstanding that a killing in the course of a robbery had occurred, thereby triggering s 104(1)(d) of the Sentencing Act. It would not be appropriate for us to give any weight to this decision since the decision has been appealed by the Solicitor-General on the ground of manifest inadequacy. The appeal has been heard and the Court’s decision reserved.
Discussion
[3] R v Williams HC Auckland CRI-2008-092-3286, 13 May 2010.
This Court noted in R v Williams[4] that the relative culpability of the s 104 factors vary greatly, both inherently and in any particular case. The mere presence of one of the factors under s 104 does not automatically give rise to a 17 year MPI in every case. A two-stage approach was suggested:
[52] An alternative way of proceeding, which often will be more straightforward, would be for the sentencing Court in s 104 cases to approach the justified minimum period of imprisonment in two steps. First, the Court would consider the degree of culpability of the instant case in relation to that involved in the standard range of murders – that is, apply the Howse approach. In the course of doing so, the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, any other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy underlying s 104, which requires Courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.
[53] The sentencing Judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case, including those of the offender. As with cases determined solely under s 103, over time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.
[54] Where the first step indicates that the appropriate minimum period of imprisonment is 17 years or more, the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years’ imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. The Court may not, however, approach sentencing in s 104 cases on the basis that the 17-year minimum can be reduced whenever the Court considers that is appropriate. There is no warrant to interpret the provision merely as a guide to judicial discretion. The question of whether the outcome of the assessment would make a 17-year minimum term manifestly unjust must also be approached in a principled way.
[4] R v Williams [2005] 2 NZLR 506 at [51].
It is important to note, as Mr Down accepted, that at the first stage, regard must be had to the statutory policy of s 104 that the presence of one or more s 104 factors will generally establish that the murder is sufficiently serious to justify an MPI of at least 17 years. It is only if the first step indicates that the appropriate MPI may be less than the 17 year minimum that the Court need consider the second step. If the first step indicates that the appropriate MPI is 17 years or more, the minimum term imposed must reflect that assessment.
This Court went on to state in Williams on the issue of manifest injustice:
[67] We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
We have no doubt that the Judge was entirely correct to determine in the circumstances of this case that a 17 year MPI was justified. Parliament plainly intended, as a matter of statutory policy, that a murder committed in the course of another serious offence such as robbery would ordinarily justify an MPI of at least 17 years unless it would be manifestly unjust to impose such a term. Here, there were no circumstances which would have justified a lower MPI than the statutory minimum.
Section 104(1)(d) does not differentiate between the various grounds upon which murder might be established. It applies equally to all of the possible grounds under ss 167 and 168 of the Crimes Act. It is no answer, therefore, to submit that the killing was reckless rather than intentional or that only grievous bodily harm was intended and that the offending only amounted to murder because it was committed in the course of other serious offence. The whole point of s 104(1)(d) is to trigger the 17 year minimum where a murder is committed in the course of a serious offence.
Nor is it any answer to say that there are other murders which might involve a higher degree of culpability such as where there is a high degree of brutality, cruelty or callousness. It is the degree of culpability in the instant case that matters. This case involved a deliberate plan instigated by the appellant to rob a liquor store while armed with a loaded weapon. Fuelled by alcohol, he ran a high risk of killing someone. Not content with merely taking alcohol from the store (which would have been serious enough in the circumstances), the appellant decided to steal money as well. In the course of doing so, he threatened both the storekeepers with his loaded weapon and then, for some inexplicable reason, shot Navtej Singh despite the absence of any resistance or provocation on his part or on the part of Gurwinder Singh.
The Judge was right to acknowledge the prevalence of offending of this type, the potentially lethal combination of alcohol and firearms and the terror which was undoubtedly felt by the innocent shopkeepers involved in this case. And, of course, substantial weight must be given to the understandable devastation felt by Navtej Singh’s widow, his children, by Mr Gurwinder Singh and other members of their families. Deterrence and denunciation were rightly regarded by the Judge as necessarily dominating the sentencing process in these circumstances.
Mr Down did not submit that there were any mitigating circumstances relating to the appellant personally which might have reduced the culpability of the offending or which may have justified a finding that an MPI of 17 years would have been manifestly unjust. He was right not to do so given the appellant’s pattern of serious violent offending involving the use of weapons. The appellant was one month short of his 21st birthday at the time of the offending. While youth may properly be taken into account as a mitigating factor in this context, we are not persuaded that it is a material factor in the present case.
The sentences imposed on Jason Naseri and Myron Felise were for aggravated robbery alone since they were acquitted of involvement in the murder. Those sentences have no bearing on the appellant’s sentence.
We conclude that there was nothing in this case which could have rendered an MPI of 17 years manifestly unjust.
As the Judge observed, this is a tragic case for all involved. Not only has there been the loss of the life of an innocent person but the appellant’s actions have had consequences which will undoubtedly affect him and his family for the whole of his life.
Result
The appeal was filed some nine months out of time and the Crown opposed the grant of an extension of time to appeal. Given the seriousness of the matters at issue, we grant an extension of time to appeal but, for the reasons given, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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