Kingi v R

[2013] NZCA 393

IN THE COURT OF APPEAL OF NEW ZEALAND

CA182/2013
[2013] NZCA 393

BETWEEN	TUATA KINGI Appellant
AND	THE QUEEN Respondent

Hearing:	20 August 2013
Court:	White, Venning and Courtney JJ
Counsel:	C D Bean for Appellant M R Davie for Respondent
Judgment:	26 August 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

BThe sentence of eight years’ imprisonment is quashed and a sentence of seven years, two months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Venning J)

1. Following a jury trial in the District Court at Hamilton Tuata Jamie Kingi was convicted of one count of aggravated burglary, one count of aggravated robbery and one of possession of cannabis for sale.  Judge Tompkins sentenced him to eight years’ imprisonment.[1]  Mr Kingi appeals against the sentence.

Background

[1]R v Kingi DC Hamilton CRI-2010-019-10059, 27 February 2013.

1. At about 10.30 pm on the night of 27 November 2010 Mr Kingi and two male associates went to the complainant’s address and broke into a small room at the rear of the garage.  They believed cannabis may have been hidden there.  One of Mr Kingi’s associates then knocked on the front door and asked the complainant for her flatmate, (from whom Mr Kingi had previously purchased cannabis).  The complainant told him that the flatmate was not at home.  A short time later, Mr Kingi and his two associates returned to the address.  They again knocked on the door.  When the complainant opened it she was forced backwards into the lounge then pushed down and onto her back by two of the offenders.

2. The offenders were disguised.  One of them sat on top of her and held a knife to her throat while demanding the keys to a utility vehicle parked in the driveway.  As the vehicle belonged to her flatmate the complainant was not aware where the keys were. 

3. Mr Kingi and his two associates all took turns at straddling the complainant’s chest and threatening her with a knife.  One of Mr Kingi’s associates went into a bedroom, picked up the complainant’s 18 month old child and returned to the lounge.  While holding a knife to the baby’s throat he again demanded the keys to the vehicle.  The baby was eventually dropped onto a couch.  One of the offenders stayed in the house while the other two went outside and smashed a window of the utility.  The flatmate had a toolbox in the utility where he stored his valuables.  Mr Kingi’s associates found and stole about two ounces of cannabis with a value of around $800.  Mr Kingi and his associates also stole items belonging to the complainant and her flatmates, including three cell phones, a laptop computer, a green sweatshirt and house keys.  They then left. 

4. Two days later Mr Kingi was captured on a security camera leaving one of the cell phones on a massage chair in Centre Place, Hamilton.  A search warrant was executed at his address.  The complainant’s laptop computer and green sweatshirt were found along with clothing worn by Mr Kingi during the robbery.  The police also located a cannabis plant and several cannabis tinnies. 

The District Court sentencing

1. After referring to R v Mako,[2] Judge Tompkins took a starting point for the offending of eight years’ imprisonment.  The Judge rejected the submission for Mr Kingi that he was remorseful.  The Judge did not consider there were any other mitigating factors to be taken into account and ultimately imposed an end sentence of eight years’ imprisonment to reflect the totality of the offending.

The appellant’s case

[2]R v Mako [2000] 2 NZLR 170 (CA).

1. Mr Bean submitted the sentence was manifestly excessive because the Judge erred: 

   (a)in taking a start point of eight years when he had previously indicated that if the appellant provided certain information to the police regarding one of the other offenders a sentence of five to seven years might be appropriate (the starting point);

   (b)by failing to allow any credit for remorse or discount for youth (mitigating factors). 

2. Mr Bean submitted the sentencing exercise had miscarried and the ultimate sentence imposed of eight years’ imprisonment was manifestly excessive. 

Decision

Starting point

1. We accept that the correct approach to an allowance for co-operation with the authorities is by way of a reduction from the otherwise appropriate starting point.  The co-operation is not a factor that affects the starting point itself.  The starting point should reflect the appropriate sentence for the seriousness of the conduct and the criminality involved in the offending itself.[3]

   [3]R v Taueki [2005] 3 NZLR (CA).

2. However, we do not accept Mr Bean’s suggestion that the Judge effectively uplifted an otherwise appropriate starting point of five to seven years to eight years because of the lack of co-operation.  As the Judge noted, a start point of eight years’ imprisonment for this offending fitted within the guidance provided by this Court in R v Mako:[4]

   Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

We consider that in referring to a possible starting point of five to seven years to take account of co-operation, the Judge was referring to a net starting point, reduced from eight years, after taking account of the co-operation.  The Judge’s minute is consistent with that approach.

[4]R v Mako at [58].

1. Although the specific home invasion provisions in the Sentencing Act 2002 have been repealed, the unlawful entry into the complainant’s home was an aggravating feature of this case, which the Judge was required to take into account under s 9(1)(b) of the Act.

2. Given the above, and that the starting point was also required to reflect the totality of the three offences for which Mr Kingi was for sentence, the starting point of eight years was available to the Judge.

The mitigating factors

1. The Judge rejected the submission that a credit should be available for Mr Kingi’s remorse.  He said at [9] of his notes:

   Mr Bean put before the Court a handwritten letter of remorse and apology but, having taken this matter right through trial and in circumstances where evidence given and cross examination conducted was all aimed at Mr Kingi evading responsibility for his actions that night, any such remorse cannot be reflected in a substantive discount to the sentence.

Although the Judge rejected a substantive discount to the sentence for remorse, he did not apply any discount at all for remorse or for Mr Kingi’s youth. 

1. Mr Kingi had a positive pre-sentence report.  The probation officer recorded Mr Kingi had indicated his willingness to undertake counselling programmes to address the factors contributing to his offending and seemed to acknowledge (at least by the time of the report) his involvement and responsibility for the offending stating:  “I played my fair part”.  Further, the probation officer reported that Mr Kingi maintained he had reduced his use of alcohol and cannabis because of the trouble it had caused him and commented that he did not want it to happen again.  He indicated willingness to attend an appropriate drug and alcohol programme.  He was also willing to undertake counselling to address his issues with violence and aggression and expressed his regret for the offending.  He was prepared to apologise to the complainant who was known to him.

2. In rejecting any credit for remorse, the Judge focused on Mr Kingi’s approach to his defence and his attitude during trial.  However, he did not refer to the above factors recorded in the pre-sentence report. 

3. The factors identified in the pre-sentence report support Mr Bean’s submission that Mr Kingi was entitled to a credit for remorse.  That is particularly so when regard is had to Mr Kingi’s age at the time of the offending.  He had only just turned 18.  We note that by the time of sentencing, more than two years had passed since the offending.  The positive features noted in the pre-sentence report are consistent with an increasing maturity and improved attitude on the part of Mr Kingi, which made it more likely he was motivated to change and the remorse was genuine.  In R v Mako this Court emphasised that, in an appropriate case, youth and prospects of rehabilitation may be mitigating factors, particularly where there appears to be a genuine motivation to reform.[5]  In such a case a reduced sentence can be appropriate.

   [5]R v Mako at [65].

4. Having regard to Mr Kingi’s youth at the time of the offending and to the positive features of the pre-sentence report we are satisfied that a reduction of something in the range of 12.5 per cent or one year for youth and the expressions of remorse, which we accept is genuine, would have been appropriate. 

5. However, regard must also be had to the fact this offending occurred whilst Mr Kingi was subject to bail for other, unrelated offending.  That is an aggravating factor which would have justified a modest uplift of two months.

Result

1. The appeal against sentence is allowed.  The sentence of eight years’ imprisonment is quashed and a sentence of seven years, two months’ imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent