R v Bidois

[2009] NZCA 426

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 to the mitigating circumstances personal to the appellant. They submitted finally that insufficient weight was given to the element of rehabilitation, citing R v Uili CA148/06 24 October 2006. 

Discussion

[6]       This Court in R v Mako stated at [56]:

A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[7]       It may be noted that the four year starting point in Mako was before aggravating factors, here assault of the shop keeper and confrontation of multiple offenders, were taken into account.  Those both being present here Mako points to a five year starting point.  In St John this Court recognised that the sentencing Judge could have adopted a five year starting point.  In Salanoa this Court dismissed an appeal where the Judge had selected a four year starting point and then made a reduction for a guilty plea and other personal factors, arriving at a final sentence of two years three months.  Although [56] of Mako was cited, the question was not discussed whether, in terms of that case, the four year starting point should have been higher.

[8]       The four years six months selected by the Judge was within a legitimate range.

[9]       The very substantial reduction for mitigating factors is also within range.  The fact that the appellant was described in the pre-sentence report as “somewhat naïve for his age” is to be weighed against the fact of his being two years older than his co-offenders.  We questioned counsel on the statement in the pre-sentence report that the appellant “advised that he could not say no or refuse because he would have been beaten up”.  Any suggestion of compulsion or duress which might have raised questions as to the convictions was disavowed.  We take the comment as an emphatic statement of the appellant’s naivety, for which the Judge made ample allowance.  We say the same of rehabilitation.

[10]     We sought and obtained further submissions on a consideration that was not taken into account by the Judge or by counsel before us, namely that the appellant was on 24 hours a day curfew at his mother’s home from 17 June 2008 until his sentence on 13 March 2009, a period of some nine months. 

[11]     This Court in R v Faisandier CA185/00 12 October 2000 made a lump discount for time spent on restrictive bail conditions.  In R v Bishop [2009] NZCA 265 no allowance was made for the time spent on such conditions by an appellant who had breached bail on four occasions. This Court made clear that there is no right to discount; whether one is granted is a matter for assessment by the sentencing judge according to the circumstances of the case.

[12]     We are advised that the appellant breached his bail by not being at his address on 5 July, 16 July, 3 October and 4 November 2008.  On the last occasion he was arrested, brought before the Court and given a final warning. 

[13]     The police file records a further breach of bail, on 13 November 2009.  But the breach was not admitted or proved and we disregard the allegation.

[14]     We have considered the treatment of his co-offenders during the remand period.  One brother was kept in custody.  The other brother was on 24 hour curfew for a period of two weeks and a seven hour a day curfew for eight weeks, the latter to allow him to undertake a training course.  He did not breach bail.

[15]     Had the appellant not breached his conditions of bail we would have been minded to allow the appeal to a degree to recognise the period of 24 hour curfew.  But by such conduct he has brought himself within R v Bishop rather than R v Faisandier and has disqualified himself from such consideration. 

[16]     The appeal is dismissed.

Solicitors:

Crown Solicitor, Napier