Mata v R
[2012] NZCA 593
•17 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA782/2011 [2012] NZCA 593 |
| BETWEEN OIRERUA MATA |
| AND THE QUEEN |
| CA813/2011 |
| AND BETWEEN LIONEL MANAAKI TE KANAWA |
| AND THE QUEEN |
| CA812/2011 |
| AND BETWEEN ALEC WINTERSTEIN |
| AND THE QUEEN |
| Hearing: 20 November 2012 |
| Court: Wild, Chisholm and Courtney JJ |
| Counsel: W N Dollimore for Appellant Mata |
| Judgment: 17 December 2012 at 11.00 am |
JUDGMENT OF THE COURT
The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Alec Winterstein, Oirerua Mata, Lionel Te Kanawa and Sionatane Lea’aumanu were party to the unlawful taking of two motor vehicles and subsequent aggravated robbery of Armourguard officers at the ANZ Bank in Huntly on 3 November 2009. All four men participated in the robbery, which was timed to coincide with two Armourguard officers replacing ATM cash canisters inside the bank. The vehicles, which were used as getaway cars, had been taken in the week leading up to the robbery, one by Mr Lea’aumanu, the other by Mr Lea’aumanu and Mr Winterstein together.
While Mr Lea’aumanu waited in one of the stolen vehicles, Mr Winterstein, Mr Te Kanawa and Mr Mata went into the bank. Their faces and heads were covered. One of them pointed a firearm at an Armourguard officer. They took cash canisters containing $20,190 and drove away at high speed. Shortly afterwards they swapped cars to avoid detection and discarded the clothing worn during the robbery. One drove a vehicle owned by Mr Winterstein’s sister. The remaining three used the other stolen vehicle. After a short time the stolen car was abandoned and all four continued on in the legitimate vehicle. The Police sighted them within 13 minutes of the robbery. They were followed to Spring Hill prison and apprehended in the carpark. By that time they no longer had the cash and firearm. Neither has been recovered.
Mr Lea’aumanu pleaded guilty before trial and was sentenced by Judge Marshall to five years and 11 months’ imprisonment.[1] The other three, who are the appellants in this case, were convicted following a jury trial at the District Court in Hamilton before Judge Burnett. After a disputed facts hearing, Mr Winterstein was sentenced to eight years’ imprisonment and Mr Te Kanawa and Mr Mata each sentenced to eight and a half years’ imprisonment.[2] Minimum periods of imprisonment of 50 per cent were imposed on each appellant. In addition, each was disqualified from driving for three years and ordered to pay $5,000 reparation on his release.
[1] R v Lea’aumanu DC Hamilton CRI-2009-092-20934, 14 February 2011.
[2] R v Winterstein DC Hamilton CRI-2009-092-20934, 28 October 2011 [sentencing decision].
Mr Winterstein,[3] Mr Te Kanawa and Mr Mata appeal their sentences[4] on the ground that they are manifestly excessive because:
(a)the starting points adopted were too high in comparison with the starting point taken for Mr Lea’aumanu;
(b)there was no or insufficient evidential basis on which to uplift for gang-related offending;
(c)the minimum period of imprisonment imposed on Mr Winterstein was unjustified (Mr Mata and Mr Te Kanawa did not appeal this aspect of their sentences);
(d)an uplift should not have been imposed for Mr Winterstein’s Youth Court notations;
(e)the orders for reparation were made without consideration of the appellants’ ability to pay; and
(f)the orders for disqualification were imposed for the maximum permissible period (only Mr Mata and Mr Te Kanawa raised this ground).
The starting point and the uplift for gang-related offending
[3]Mr Winterstein initially appealed only his conviction. He abandoned this appeal before the hearing but sought and was granted leave to appeal his sentence.
[4]There is no appeal against the concurrent sentences of imprisonment imposed on the unlawful taking charges.
In respect of all appellants, the Judge took an initial starting point of six and a half years and uplifted it by 12 months to reflect her conclusion that the offending was gang-related. Because these aspects are closely intertwined, we deal with the first two grounds of appeal together.
The first issue is whether the initial starting point should have been six years, being the starting point that Judge Marshall took in sentencing Mr Lea’aumanu. He did so on the basis that the offending was of the type described at paragraph [54] of R v Mako,[5] being the robbery of commercial premises where members of the public can be expected to be present. However, the Judge did not apply any uplift; following a disputed facts hearing he found that Mr Lea’aumanu had “loose associations” with the Killer Beez, but was not a member of any gang.[6]
[5] R v Mako [2000] 2 NZLR 170 (CA).
[6] At [16].
Judge Burnett took a similar approach in characterising the offending and was conscious of the need for parity among the co-offenders. She noted the guidelines set out in R v Mako and identified the following as relevant features of the offending: the number of participants; the fact that a firearm was involved (even though the Crown could not prove that it was loaded); the level of pre-planning, the nature of the target premises (particularly the vulnerability of security officers undertaking necessary visits to the bank); the likelihood of members of the public being present; the group threat of violence and intimidation; the amount of money stolen; the associated offending of theft of motor vehicles; the impact on the victims; and, relevantly for this appeal, that the offending was gang-related.
The Judge was also clearly influenced in her selection of a starting point by seeing and hearing the evidence at trial:
[24] As to today’s sentencing exercise I observe that with matters fully evidenced at trial the level of seriousness and culpability, including the conversion of the two motor vehicles as preliminaries to the robbery, would require a starting point of between seven to seven and a half years. If necessary I give some recognition to parity and take a starting point of six and a half years and give an uplift in recognition of this being gang-related offending which I set at 12 months. That takes it to seven and a half years.
Mr Tomlinson, for Mr Winterstein, submitted that there was insufficient difference between Mr Winterstein’s involvement in the offending and that of Mr Lea’aumanu to justify Judge Burnett taking a higher starting point than that taken for Mr Lea’aumanu. Although he accepted that, had Mr Lea’aumanu not been involved, Judge Burnett could have taken a slightly higher starting point, he argued that the requirement for parity meant that the appropriate starting point was the same as that taken for Mr Lea’aumanu.
Disparity between the sentences of co-offenders does not, in itself, justify a reduction on a sentence appeal. Rather, the question is whether a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.”[7] In recent years, the Court has reiterated that disparity between co-offenders will not necessarily result in the reduction of a sentence for that reason only and that “no greater adjustment is appropriate than is necessary to protect the integrity of the criminal justice system.”[8]
[7] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
[8] Mau’u v R [2011] NZCA 385 at [28].
As all counsel acknowledged, the offending (excluding the gang-related aspect) could well have attracted a starting point of six-and-a-half years. Indeed, Judge Marshall’s remarks on sentencing Mr Lea’aumanu suggest that he, too, considered that the starting point could easily have been higher.[9] In these circumstances, with an initial starting point well within the appropriate range and just six months higher than that taken for a co-offender who had been treated leniently, there is no justification for interfering with the sentence on the basis of too high a starting point.
[9]At [17] Judge Marshall said “You are perhaps fortunate that I do not consider the starting point to be a bit higher given the number of aggravating features that are present”.
We turn, then, to the uplift of 12 months imposed to reflect the Judge’s finding[10] following a disputed facts hearing that the offending was gang-related and not merely independent offending by gang associates. There was no dispute that gang involvement in offending is a significantly aggravating factor; it is identified as such by s 9(1)(hb) of the Sentencing Act 2002 and specifically noted by this Court in Mako:[11]
Gangs or any other groups within the community who are responsible for major organised crime must expect their members representing them in criminal conduct to have the connection recognised as increasing the seriousness of the offending.
[10] R v Winterstein CRI-2009-092-20934, 28 October 2011 [disputed facts judgment].
[11] At [49].
The possibility of the offending being gang-related was live in the disputed facts hearing held in relation to Mr Lea’aumanu. But, as we have noted, the Judge concluded that Mr Lea’aumanu had only “loose associations” with the Killer Beez and sentenced on the basis that Mr Lea’aumanu’s offending was unconnected with those associations. In comparison Judge Burnett found that the appellants were Associates of the Killer Beez and that the offending was gang-related.
Counsel for the appellants argued that there was virtually no difference in the evidence before Judge Marshall and Judge Burnett at the respective disputed facts hearings and, therefore, no justification for the differing conclusions. It is, however, evident that the Police put rather more effort into establishing a connection between the offending and the Killer Beez gang by the time the appellants came to be sentenced than they had in relation to Mr Lea’aumanu’s sentencing eight months previously.
There was evidence from Detective Sunkel at both disputed facts hearings establishing the appellants’ association with other Killer Beez associates and signs and greetings used by the Killer Beez. Before Judge Burnett, however, there was additional evidence from Detective Sergeant Gollan, including information obtained from the Police National Intelligence Application computer system about offending carried out by and with other Killer Beez associates. Further, Mr Winterstein himself gave evidence and acknowledged that his brother, a known Killer Beez associate, had been involved in an aggravated robbery in 2006 which bore similarities to the present offending (robbery of security guards leaving an ASB Bank with one of the offenders presenting a pistol and making away with the cash).
In considering the involvement of the gang, the Judge was also strongly influenced by the high level of planning, organisation and resources that would have been required to commit the robbery. She considered that the offending displayed a “rehearsed methodology” involving the identifying and targeting of security guards at the precise moment that the cash was delivered, the targeting of a bank well outside the offenders’ own locality, obtaining a firearm, using stolen cars for the initial getaway and a legitimate vehicle to mask the offending and disposal of the cash and firearms within minutes of the robbery, so effectively that they have never been located.[12] All of these features were, the Judge concluded, beyond the scope of each individual involved and beyond the scope of the four simply acting together.[13]
[12] Disputed facts judgment at [21].
[13] At [22].
Mr Tomlinson submitted that this type of robbery, targeting a security van, using stolen cars and switching cars to avoid detection was common in Auckland. He argued that, not only were the features of the robbery not a signature method of the Killer Beez, but there was simply insufficient evidence to conclude that the offending was done as part of the gang’s activities rather than the activities of four men who happened to have gang associations.
This kind of robbery may, regrettably, be common in Auckland. But that does not make it any less likely to have been undertaken as part of a gang’s activities. Further, this robbery did not happen in Auckland; it was committed in Huntly by men who had travelled there for that purpose. We agree with the Judge that the level of preparation and resources needed to commit this robbery, particularly disposing of the firearm and cash within only minutes of the robbery and outside their own area of residence, would have been beyond the scope of these four young men acting alone. The level of planning and resources needed point very strongly to the involvement of more experienced associates. When other Killer Beez associates had, only a few years before, committed a very similar offence it is too great a coincidence to think that the gang had not instigated or assisted with these offences.
We consider that the Judge was entirely justified in reaching the conclusion she did. Given the seriousness of the offending we also consider that the uplift of 12 months imposed to reflect the gang’s involvement was unobjectionable.
Uplift for Mr Winterstein’s previous offending
Mr Winterstein was aged 20 at the time of sentencing in October 2011. He has previous convictions in the District Court but, more seriously, a number of notations in the Youth Court including for assault and aggravated robbery. Mr Tomlinson submitted that, although the Youth Court offending precluded any credit being given for Mr Winterstein’s age, it should not have resulted in an uplift being imposed. He relied on this Court’s statement in Kohere v Police:[14]
It is the case that matters dealt with in the Youth Court do not constitute convictions for offences and to that extent the Youth Court is not a criminal Court of record, but this is not to say that matters which are dealt with in the Youth Court must be totally ignored by the District Court. Proceedings in the Youth Court and the steps taken to assist young people form part of the behavioural history of a person who stands to be sentenced in the District Court or the High Court. Whilst such behavioural history does not amount to prior convictions it must be the case that such history can have some relevance in determining what is an appropriate sentence for the person appearing in the Court of criminal record. Thus I am unable to accept the submission on behalf of counsel for the appellant that the learned District Court Judge was in error in having regard to the behavioural history of the appellant as indicated by proceedings in the Youth Court, which proceedings were formally admitted before the learned District Court Judge.
[14] Kohere v Police (1994) 11 CRNZ 442 (HC) at 444.
We do not consider that Kohere precludes an uplift for offending admitted in the Youth Court. Given that the earlier offending is of a serious nature, we do not see any error on the part of the sentencing Judge in taking it into account by way of an uplift.
Minimum period of imprisonment imposed on Mr Winterstein
The Judge imposed minimum non-parole periods of 50 per cent on each of the appellants, as permitted by s 86 of the Sentencing Act if the Court is satisfied that a period longer than that applicable under the Parole Act 2002[15] is required to hold the offender accountable, to denounce the offending, deter the offender or others and to protect the community.
[15] Section 84(1).
Only Mr Winterstein appealed this aspect of his sentence. Mr Tomlinson submitted that the imposition of the minimum term was not justified in his case. Acknowledging that it was a well planned and serious offence that involved a firearm, he also characterised it as a “one off” offence (i.e. not a series of offences) without actual violence in which no one was physically harmed. Moreover, this sentence of imprisonment was Mr Winterstein’s first term of imprisonment and he was aged only 19 years at the time of the offence.
The Judge did not separately record her reasons for imposing the MPI. However, it is evident from her discussion regarding the offence that she considered this to be very serious gang-related offending that called for a level of denunciation and deterrence requiring an MPI. We agree.
Reparation
The Judge made an order of $5,000 reparation in respect of each appellant on the conditions that:[16]
Repayment is suspended during the term of imprisonment and if a repayment programme is to be part of parole or release conditions all well and good. If not you are to report to the nearest District Court within four weeks of release for assessment of a repayment programme including any assessment of any extended period in which to pay.
[16] Sentencing decision at [26]
Counsel for the appellants acknowledged that the Judge was entitled to make a reparation order.[17] There were, however, various objections raised to the order being made in this case.
[17] Sentencing Act 2002, s 32(1)(a).
Mr Mansfield, for Mr Te Kanawa, submitted that the Judge should have considered the effect on Mr Te Kanawa as required by s 12(1). Similarly, Mr Tomlinson submitted that there should have been an inquiry as to the likelihood of reparation being payable, given that Mr Winterstein was unemployed and that there was no basis on which to think he had access to funds to pay the reparation. Mr Dollimore, for Mr Mata, submitted that the Judge should specifically have considered ss 35(1) and 36(1) which specifically address the position of an offender with insufficient means to pay the total amount of the loss.
Although the appellants all asserted that they had insufficient means to meet the reparation orders, they did not address the point that over $20,000 in cash had been stolen and none had been recovered. There was evidence at the trial about a text sent by Mr Mata to his partner, which said “If you see Aloc [presumably Alec Winterstein] today or tomorrow, ask him I said have you got my money and if so give it all to you. If I don’t get out, spend it babe”. That text was sent from the police car shortly after Mr Mata had been arrested.
The irresistible inference is that each appellant received some of the stolen cash. There should, therefore, be no objection to having to disgorge the proceeds of the robbery by way of reparation. In these circumstances, we do not see that the Judge was obliged to inquire into whether the appellants were in a position to make the repayment.
Disqualification
The Judge disqualified all of the appellants from driving for three years from the date of sentencing. This is the maximum period of disqualification that may be ordered.[18] Mr Te Kanawa and Mr Mata appealed these sentences on the ground that they were manifestly excessive, particularly given that neither was actually involved in driving the get-away cars.
[18] Sentencing Act 2002, s 125(1).
We do have concerns about this penalty. The Crown did not seek a period of disqualification and defence counsel, as a result, did not make submissions on it. Given the length of the terms of imprisonment imposed, the period of disqualification will be completed before the appellants are released. Save for the limited possibility of driving-related tasks within the confines of the prison there is, therefore, no utility in the imposition of a period of disqualification.
Although we canvassed with counsel the possibility of substituting a period of disqualification commencing on the respective release dates, we have concluded that, because some 13 months of the disqualification period has already elapsed and the penalty was of doubtful utility in any event, we will not interfere with it.
Result
As none of the appellants’ grounds has succeeded, their appeals are dismissed.
Solicitors:
Crown Solicitors, Auckland for Respondent
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