Pani v R
[2011] NZCA 45
•4 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA267/2010 [2011] NZCA 45 |
| BETWEEN ADRIAN SOANE PANI |
| AND THE QUEEN |
| Hearing: 1 March 2011 |
| Court: Chambers, Chisholm and Venning JJ |
| Counsel: M J Dyhrberg and P J Barrowclough for Appellant |
| Judgment: 4 March 2011 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Venning J)
Introduction
Following his guilty pleas to charges of aggravated robbery and assault with a weapon Mr Pani was sentenced by Judge Blackie to five years three months’ imprisonment. He appeals against that sentence.
The offending
One morning in May 2009 the appellant and an associate Mr Elia entered the victim’s home. They smashed their way into his bedroom. The appellant then set upon the victim with a wooden baseball bat. He struck the complainant repeatedly around the head and upper body whilst his associate screamed “Where’s all the money”? The victim held his arms up around his head to protect himself from the blows. He suffered a severely bruised elbow as a result.
The victim was then dragged from his bedroom, put into the back seat of his own car with the appellant and taken to an ATM machine some distance away. The appellant’s associate had a long knife with him in the front of the car. The victim was forced to withdraw $150. The victim was then returned to his home. There the appellant stood over him while the appellant’s associate searched the house and took a number of items, including a fashion branded bag, wrist watch, wallet, laptop and computer.
At the time of the offending the appellant was 20 years old. He is Tongan. His father died when he was three months old. His first stepfather was physically abusive towards him and his mother but the appellant says his current stepfather is good to him. When speaking to the probation officer the appellant gave an explanation for the offending. He said that he had fallen in with some Asian men who were involved in drug dealing. He was paid up to $3,000 a week to act as a runner for them. The appellant volunteered that the victim was targeted as being associated with the Asian gang and had taken a substantial amount of money from them without supplying the drugs. The appellant says that he and his co-offender were effectively contracted “muscle” whose job it was to obtain the drugs or retrieve the money. He was to be paid $4,000 for the job.
The sentence
Judge Blackie sentenced the appellant and his co-offender Mr Elia at the same time. The co-offender faced a number of further charges. Although Mr Elia was only 17 at the time of the offending, the Judge took a start point of 10 years’ imprisonment and imposed an end sentence of seven and a half years’ imprisonment. For the appellant, the Judge took a start point of seven years’ imprisonment after referring to this Court’s decision of R v Mako.[1] The Judge then allowed a reduction of 25 per cent for the guilty plea, leading to an end sentence of five years three months’ imprisonment.
The appeal points
[1] R v Mako [2000] 2 NZLR 170.
In her written submissions Ms Dyhrberg submitted the ultimate sentence was manifestly excessive because the Judge erred in:
setting the start point at seven years;
giving insufficient weight to the factors that detracted from the seriousness of the conduct and criminality; and
the discount.
The starting point
The first two factors really collapse into one, namely that the starting point was too high in the circumstances of this case. During her oral submissions, Ms Dyhrberg accepted that, given this Court had expressly upheld the starting point for the co-offender’s sentence,[2] it was difficult for her to pursue this aspect of the appeal.
[2] Elia v R [2010] NZCA 382.
Despite that concession Ms Dyhrberg did suggest that the Judge had made an error in saying that when in the car the appellant had a knife to intimidate the victim, which might have affected the starting point. The Crown conceded the Judge was wrong about that. The co-accused Mr Elia had the knife in the front of the car. However, in our view, that error would not have made any difference to the appropriate starting point for the appellant. In terms of the appellant’s culpability, he and Mr Elia were involved in a joint venture. The appellant was sitting in the back, armed with the bat, keeping the victim under control. The victim knew that in addition to the bat the offenders had a knife.
In her written material Ms Dyhrberg also submitted the Judge erred by not considering the particular features that may have detracted from the seriousness of the appellant’s conduct or the level of criminality in this particular case. However, with respect to that submission, consideration of the individual features of the offending does not assist the appellant in this case. The circumstances of the offending as disclosed by the appellant to the probation officer are serious, involving as they do a background of drug dealing and gangs. Further, the taking of a weapon such as a baseball bat to the victim’s home, the forcible entry into the home and bedroom followed by the assault on an unarmed victim to enforce a demand for money, the detention of the victim over a period of time, and that there were two offenders, all support the start point of seven years taken by the Judge.
Finally, there is nothing in the point the home invasion occurred during the day rather than at night: R v Fenton.[3]
The discount
[3] R v Fenton [2008] NZCA 379 at [13].
Ms Dyhrberg submitted that the appellant pleaded guilty promptly once the charge of kidnapping was withdrawn and the charge of injuring with intent to injure was amended to an assault with a weapon. She submitted a reduction of closer to 33 per cent from the start point should have been applied.
Counsel’s submission is based on this Court’s judgment in Hessell v R.[4]But in Hessell this Court emphasised the first reasonable opportunity for an offender to plead guilty will generally be the second appearance and that the date should not be extended on the basis of plea negotiations.[5] The plea was not entered in this case until the appellant’s eighth appearance. It followed the dropping of a charge of kidnapping. However, the lead charge was always the aggravated robbery, which was not amended. To gain full credit for the guilty plea to that charge the appellant should have pleaded earlier. In the circumstances the deduction of 25 per cent was perhaps generous. In Hessell v R[6]the Supreme Court said that no more than a 25 per cent discount should be available for an early guilty plea which, for the above reasons, this cannot be categorised as.
[4] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.
[5] At [29]–[31].
[6] Hessell v R [2010] NZSC 135, (2010) 24 CRNZ 966 at [75].
Ms Dyhrberg also referred to the appellant’s relative youth at the time of the offending and submitted the lack of relevant previous convictions should have been taken into account. But as this Court observed in R v Mako, a high proportion of aggravated robberies are committed by young people, even teenagers. It is only if there are real prospects of rehabilitation and an unlikelihood of reoffending that the Court might consider a significantly reduced sentence for youth.
Further, the appellant has a number of previous convictions, albeit that they may not be for violent offending. The appellant did not present to the Court as a young man who in all relevant respects, was a first offender and genuinely motivated to reform.
In the particular circumstances of this appellant, the reduction of 25 per cent for personal mitigating factors including the guilty plea was appropriate.
Result
For the above reasons the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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