Papa v The Queen

[2014] NZHC 2832

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-34 [2014] NZHC 2832

BETWEEN

MIHARO JASON PAPA

Appellant

AND

THE QUEEN

respondent

Hearing:	12 November 2014
Counsel:	EJ Forster for appellant M Mitchell for respondent
Judgment:	14 November 2014

JUDGMENT OF FAIRE J

Solicitors:           Crown Solicitor’s Office, Napier

To:  EJ Forster, Hastings

Papa v R [2014] NZHC 2832 [14 November 2014]

Table of Contents

Introduction ............................................................................................................[1]

Background ............................................................................................................[3] District Court decision ...........................................................................................[4] Appeal against sentence .........................................................................................[6]

Submissions................................................................................................................

Appellant’s submissions  [10]
Respondent’s submissions  [13]

Discussion ............................................................................................................[16] Uplift for previous offending  [21] Remorse  [26]

Result....................................................................................................................[28]

Introduction

[1]      On 8 August 2014, Mr Papa was sentenced to four years and three months’

imprisonment on one count of aggravated robbery. [2]           He now appeals against that sentence.

Background

[3]      On 4 January 2014, Mr Papa went into a shop, wearing a bandana to conceal his face.  Mr Papa brandished a screwdriver and yelled at the shop attendant to get on the ground. He pushed her to the floor.  He opened the till and removed $1,220 in cash.  He had placed the screwdriver on the counter.  The shop attendant was able to reach  up  and  grab  it  and  throw  it  into  the  back  of  the  store.    Mr  Papa  took

600 packets of synthetic cannabis, valued at $12,000, from behind the counter.  He ran from the store and got into his friend’s waiting vehicle.  The vehicle was abandoned a short distance away.  Mr Papa and his associate then got into another vehicle and drove off.  Mr Papa was later spoken to by the police. At first he said he

knew nothing about the robbery.   Subsequently, he pleaded guilty to a charge of aggravated robbery. The shop attendant was not injured but was badly shaken.

District Court decision

[4]      In sentencing the appellant Judge Rea recited the facts of the offending and then referred to the Court of Appeal decision R v Mako.1   He adopted a starting point of five years’ imprisonment.   This was because Mr Papa had taken over $13,000 worth of property and had knocked the shop attendant around.   Judge Rea then imposed an eight month uplift for Mr Papa’s previous convictions.   Mr Papa was given a 25 per cent guilty plea discount.  That bought the sentence to four years and

three  months’  imprisonment.    Judge  Rea  referred  to  Mr  Papa’s  expression  of remorse.   He took that into account by not imposing a minimum period of imprisonment.

[5]      Mr Papa appeals that sentence on the ground that the sentence is manifestly excessive.  He submits that an uplift for previous convictions was not justified.  He also questions that there was no discount given for remorse.

Appeal against sentence

[6]      Section 250 of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[7]      In any other case, the Court must dismiss the appeal.2

[8]      Section 250 confirms the…