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R v Bidois

R v Bidois

Case [2009] NZCA 426 23 September 2009

Sentencing

Aggravated & Exemplary Damages

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Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA178/2009
[2009] NZCA 426
THE QUEEN
v
VICTOR WIREMU BIDOIS
Hearing:12 August 2009

Court:Baragwanath, Randerson and Panckhurst JJ
Counsel:J Fuimaono-Sapolu and V Vui for Appellant

C R Walker for Crown

Judgment:23 September 2009 at 9.30am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
[1]       The appellant appeals against sentence following his plea of guilty to charges of aggravated robbery of a superette at Manurewa and subsequent conversion of a car. A starting point of four years imprisonment was reduced to two years nine months on account of mitigating factors.
[2]       The appellant and his co-offenders discussed robbing the superette. One of his co-offenders produced a knife, of which Judge Andrée Wiltens was satisfied the appellant had been unaware, and used it to threaten the shopkeeper and his father-in-law who was helping him. Another offender punched one of the victims and pushed the other, telling both to lie on the floor. The offenders took some $950 in cash, together with cigarettes and chocolates. They required the shopkeeper to hand over his car keys and cell phone. They then got into the shopkeeper’s car and drove it away. They divided among themselves the proceeds of the aggravated robbery, none of which has been recovered.
[3]       The co-offenders were 17 years of age and the appellant 19. Two of the co-offenders, including the one who produced the knife, were brothers. Judge Johns, who sentenced one and Judge Andrée Wiltens, who sentenced the other, both adopted a five year starting point. The knife-wielder offended while on bail and had been convicted for exactly the same type of offending. The Judge made, but did not specify, an uplift to reflect these factors and then gave credit for his plea of guilty, imposing an end sentence of three years six months. The other brother was sentenced by Judge Johns, who, from the starting point of five years, made a two year discount to reflect a plea of guilty at an early opportunity, the Judge’s acceptance that the prisoner was remorseful, the fact that he had no previous convictions, that he was a young man, and that he had co-operated with the police. He was therefore sentenced to three years imprisonment. The third alleged co-offender has not yet been dealt with.
[4]       Because the appellant was unaware of the knife, the starting point in his case was reduced to four years six months. On account of his prompt plea of guilty, his youth, and his lack of previous convictions, the Judge made the reduction to two years nine months imprisonment with a concurrent 18 months term for the car conversion.
Submissions
[5]       On appeal Ms Fuimaono-Sapolu and Ms Vui contended for a lower starting point citing R v Mako [2000] 2 NZLR 170 (CA), R v St John CA 404/03 24 May 2004, and R v Salanoa [2008] NZCA 185. They further submitted that insufficient weight had been given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bidois

Details

AGLC: R v Bidois [2009] NZCA 426
Case: [2009] NZCA 426
Decision Date: 23 September 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Victor Wiremu Bidois against his sentence, following his guilty plea to charges of aggravated robbery and conversion of a car. The appeal was dismissed, and the original sentence of two years and nine months in imprisonment was upheld. The appellant, along with co-offenders, had planned and executed an aggravated robbery at a superette, during which a knife was used to threaten the victims. The appellant was unaware of the knife but participated in the robbery, taking cash and items from the shop and subsequently driving away in the victim's car. The court examined the starting point of the sentence, which was set at four years and six months, and the substantial reduction for mitigating factors, resulting in the final sentence of two years and nine months. The appellant's counsel argued for a lower starting point and more weight given to mitigating factors, citing previous cases. However, the court found that the starting point was within a legitimate range and the reduction for mitigating factors was also appropriate. The court dismissed the appeal, noting the appellant's breaches of bail conditions, which disqualified him from any additional consideration for time spent under restrictive bail conditions.

The primary legal issue before the court was whether the starting point for the appellant's sentence was appropriately set at four years and six months, and whether the significant reduction for mitigating factors was justified. The court examined relevant case law and found that the starting point was within the appropriate range, considering the aggravating factors of assault and confrontation by multiple offenders. The court also assessed the substantial reduction for mitigating factors, including the appellant's youth, lack of previous convictions, and his plea of guilty. The court determined that the appellant's breaches of bail conditions, which were not adequately accounted for by the sentencing judge, further supported the decision to dismiss the appeal. The court concluded that the sentence imposed was within the appropriate range and reflected the mitigating factors, warranting the dismissal of the appeal.

Orders