Ngerengere v Police HC Wellington CRI 2010-485-51

[2010] NZHC 1145

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-51

CRI 2010-485-52

BRAEDEE JACKSON NGERENGERE JORDEN PAKU

v

NEW ZEALAND POLICE

Hearing:         6 July 2010

Counsel:         K Lakshman for Ngerengere

P Gilbert for Paku
K Grau  for Respondent

Judgment:      8 July 2010

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Messrs   Ngerengere   and   Paku   both   appeal   sentences   of  three   years’ imprisonment imposed in relation to the same aggravated robbery.   Mr Paku also appeared on other unrelated charges for which concurrent penalties were imposed.

[2]      The  appellants  are  separately represented  but  there  are  common  themes. Both say a starting point of six years’ was too high.  Both had sought, and continue

to seek, outcomes less than full imprisonment.

[3]      The Judge took a starting point of six years and reduced it by half to reflect the guilty plea, the appellants’ age (18-19), their previous clean record and their rehabilitative   prospects.      The   pre-sentence   reports   had   suggested   home   or community detention sentences, and generally recommended a rehabilitative focus with various courses and programmes suggested.   The Judge was sympathetic but considered the nature of the offending left little choice.

Facts

[4]      The two men were part of a group of four who pushed into a private dwelling in order to steal from the occupants.  The group had earlier stolen three dozen beer from the garage of a house.  They went away and drank it.  They decided to return to the same house and look for more goods inside.  It was known that there would be a person or persons inside.  The summary of facts records:

The defendants returned sometime around 5.00 a.m. on the 14th  November. A loose plan was made that two persons would kick through the front door while the remaining two went to the back door.

The defendants covered their faces with t-shirts and bandannas to obscure their identities from the victim.

The defendant WAITERE removed a fence paling from the property to use as a weapon.

All four defendants approached the front door of the property and knocked at the door.  The victim opened the door thinking he may have locked his sister outside.

All four defendants forced their way into the dwelling via the front door and directed the victim to sit down in the lounge.

The defendant WAITERE stood over the victim pointing the fence paling at him and threatening him.

The  defendant  FLANAGAN  went  to  the  kitchen  of  the  dwelling  and searched it for items to steal.  He located a meat cleaver and then returned to the  lounge  and  threatened the  victim holding the meat  cleaver  near  the victim’s throat.

Whilst  this  was  occurring  the  defendant’s  NGERENGERE  and  PAKU

searched through the address looking for items to steal.

They went into the bedroom where the victim’s mother was sleeping, saw her and left the room.

The defendants noticed a third room in the house which had a locked door. Attempts were made by the defendants NGERENGERE, FLANAGAN and PAKU to kick the door open as they believed there were items of value locked in the room.

After kicking the door numerous times without success, attempts to enter the room were abandoned.

Fearing for his safety, the victim offered the defendant WAITERE the keys to his BMW motor vehicle.   The vehicle registration was ZX9069 and is valued at approximately $3,600 dollars.  It was not insured.

The keys were given to the defendant NGERENGERE.

The defendant WAITERE took the victim’s cellphone, a black Nokia valued at approximately $200.00.

Also removed from the address by one of the defendant’s was a bottle of brandy, valued at approximately $40.00.

Having found nothing else that they wished to steal, all four defendants left the address.   The defendant FLANAGAN discarded the meat cleaver in grass near the fence of the property.

[5]      I should add for completeness that the appellants damaged the uninsured car in a crash, and then sold it off for parts, obtaining for themselves $200.

Submissions on appeal

[6]      On behalf of Mr Ngerengere, Mr Lakshman challenges the starting point.  He does so on two fronts, namely that it is too high in itself, but also by comparison to the co-offender who armed himself with the fence post.

[7]      Considering first the correctness of six years in itself, there is a paragraph in the guideline judgment of R v Mako which appears apposite.  It provides:[1]

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.

[1] R v Mako [2000] 2 NZLR 170 at [58].

[8]      Recognising that there have since been changes to the home invasion laws, this example would nevertheless appear to suggest a starting point of six years was within range.  Mr Lakshman sought to overcome this by emphasising those passages of Mako that state the examples are just that, and that each case needs individualised assessment.  His submission, and indeed that of Mr Gilbert, is that the present case is just not that bad.   Although one can identify factors and build up to this sort of starting  point,  when  you  consider  the  age  of  the  offenders,  the  unplanned  and amateur nature of the offending, the lack of violence, and the relatively low dollar value of items taken, a starting point of six years is too high.

[9]      The second focus of complaint is that the same starting point was taken for these offenders as for Mr Waitere who was the one who armed himself with the paling and who threatened the residents.   At this stage of the submissions there emerges a factual dispute that was not resolved at the hearing either because it was not appreciated to exist or not thought relevant to the final outcome.

[10]     The summary of facts says:

The defendant Ngerengere knew that there was at least one occupant at the house and as a result of this a decision was made to take a weapon.

Mr Lakshman says that is not his client’s position.  He had told the prosecutor (not Ms Grau) that Mr Ngerengere’s position was that there was no agreement to arm themselves.  Mr Ngerengere says that Waitere, without his knowledge, grabbed the fence paling at the property just before they went in.   He did not know what was happening in the lounge until he returned there having been looking around the house.  He accepts he continued to participate after gaining this knowledge, at which time the keys to the car were obtained.  Hence the pleas to an aggravated robbery charge involving the use of weapons.

[11]     I understand that Mr Paku’s position is the same.

[12]     Mr Lakshman submits that this lesser role would entitle a starting point of not more than four years’ imprisonment.   Given then the same 50% deduction for mitigating  factors,  a  sentence  of  home  detention  would  then  be  possible.    The

submissions portray both Mr Ngerengere and Mr Paku as people who were led by others.   Mr Gilbert emphasises that a sentence of home detention would better fit with the reality of young men who made an error but who were not instigators. Society would be better off in the long run if a rehabilitative focus were taken.

Decision

[13]     The first issue is whether a six year starting point was incorrect for this offending.  I do not accept Mr Lakshman’s proposition that one can put to one side the examples given in Mako.   Their purpose is to provide guidance in order to achieve consistency across offenders.

[14]     Looking at the passage from Mako cited earlier, it is very difficult to see that an appeal court could find a six year starting point was unavailable.   Most of the features mentioned there are present.  I accept it is not the worst example of them, but nor has the Judge overlooked that.  The starting point is towards the bottom of the range.  If one considers a different Mako example, the robbery of a shopkeeper (para [56]), the starting point in this case is also consistent with that, once one factors in that this was a multiple person intrusion into a private dwelling.

[15]     In my view there is no basis on appeal to disturb the Judge’s starting point assessment.

[16]     I turn then to the comparison with co-offenders.  Given that six years was an available starting point, it must be shown that the culpability of the appellants was sufficiently   different   to   necessitate   a   marking   out   between   them   and   the co-offenders.  Generally I consider it was open to the sentencing Judge to treat the offenders alike.  As was noted in Mako (para [64]), the fact that different members of a group perform different roles does not mean different starting points are required. Here, if one detains the occupant whilst another searches the house for things to steal, I see no need, or indeed basis, to differentiate.

[17]     There is one aspect that troubles me.   Mr Lakshman submits that it was

Mr Ngerengere’s position throughout that there was no plan to go in armed.  He says

he told the prosecutor (not Ms Grau) this, and it was agreed it would be addressed at sentencing.  The matter appears not to have been expressly resolved at sentencing, and it seems the issue was not sufficiently brought to the Judge’s attention.

[18]     There are problems with the proposition:

a)        the appellants pleaded guilty to aggravated robbery with a weapon.

This necessarily involves an acknowledgement of knowledge of the weapon.   Mr Lakshman says it relates to the time when his client returned to the lounge, saw what was happening, and stayed involved thereafter;

b)as noted, the summary of facts expressly says a weapon was part of the   plan   because   it   was   known   the   house   was   occupied. Mr Lakshman says that this aspect was the subject of a reservation;

c)       the weapon was a fence paling, picked up on the property just before the four of them together went through the front door.  How could the appellants not have known?

[19]     It can also be observed that since the offenders knew the house was occupied, some level of force was always on the cards if the occupant proved unco-operative.

[20]     I consider that if the appellants (Mr Paku maintains the same position) did not, initially know of the weapon and it was not initially part of the plan, then some adjustment is needed.  I am sceptical about it, and consider the factors noted above anyway limit the scale of any differentiation.   However, it is appropriate to make some adjustment, and I set that figure at 10 months, which is, I consider, generous to the appellants.  The same 50% reduction for mitigating factors applied by the Judge will be applied to the adjusted figure.

Conclusion

[21]     The appeal is allowed.  On the charge of aggravated robbery, the sentences of three years’ imprisonment are quashed, and in their place I impose sentences of two years, seven months.  The concurrent sentences that were imposed on Mr Paku are

unaffected.

Simon France J

Solicitors:

K Lakshman, Barrister, PO Box 13373, Johnsonville, Wellington

P C Gilbert, Principal, Wellington, email: [email protected]

K Grau, Luke Cunningham & Clere, PO Box 103 57, Wellington