R v Kirk

[2017] NZHC 673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-039 [2017] NZHC 673

BETWEEN  THE QUEEN Appellant

ANDSAMMIE-JO KIRK Respondent

CRI-2016-404-040

BETWEEN  THE QUEEN Appellant

ANDALAVINYA VAEAFISI Respondent

Hearing:                   27 March 2017

Appearances:           JEL Carruthers for Appellant

JH Wiles for S Kirk
RM Mansfield for A Vaeafisi

Judgment:                10 April 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 10 April 2017 at 11.00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

THE QUEEN v SAMMIE-JO KIRK [2017] NZHC 673 [10 April 2017]

Table of Contents  Paragraph

Number

Introduction  [1]

The offending  [8] Grand Vue Diary, Manurewa  [8] Great Takeaways, Papatoetoe  [9] High Street Diary, Otahuhu  [10]

7a Kopara Place, Clendon  [11]

Eric Baker Place, Papatoetoe  [12]

1/100 Station Road  [13]

Ms Vaeafisi’s and Ms Kirk’s responses to Police  [14] The District Court    [15] The sentence indications    [18] The indicated sentences  [19]

Post-plea events  [22] The sentencing  [24] Ms Vaeafisi            [25]

Ms Kirk  [30] Summary of appellant’s submissions  [34] Summary of respondents’ submissions  [39] Ms Vaeafisi   [39]

Ms Kirk  [46] Considerations on a sentence appeal  [53] Did the Judge err in his approach?  [54] Starting point  [55]

Uplift to reflect total offending  [61]

Culpability  [68]

Table of Contents  Paragraph

Number

Conclusions on adjusted starting points  [72]

Personal aggravating and mitigating factors – Ms Vaeafisi                  [73]

Personal mitigating factors - Ms Kirk  [78]

Dothe Judge’s errors require a different sentence to be imposed?

[84]

Ms Vaeafisi  [86] Ms Kirk        [88] Result  [92]

Introduction

[1]      Alavinya Vaeafisi and Sammie-Jo Kirk are sisters.  They and other members of their extended family (including Ms Vaeafisi’s partner) formed a criminal gang which planned and executed aggravated robberies and like offending in South Auckland between 10 February and 16 March 2015.   The targets of this serious criminal activity were innocent members of the public in their homes, in dairies, a takeaway  shop  and  in  the  street.    The  summary  of  the  facts  alleged  by  the prosecution refers to a total of 11 separate offences committed by various members of the group:  eight aggravated robberies and one of each of attempted aggravated robbery, burglary and theft.   Ms Vaeafisi and Ms Kirk were charged with being

involved in six of the aggravated robberies.1

[2]      At the time of the offending, Ms Vaeafisi was aged 31 and Ms Kirk was

18 years  old.    They  were  living  in  the  same  household.    It  was  alleged  that Ms Vaeafisi was one of the planners and co-ordinators of the robberies (including acting as an adviser by cell phone while the offending was in progress) and she was said to have acted as a lookout and getaway driver in two of the robberies.  Ms Kirk was physically present during all six robberies, taking on various roles including acting as a lookout (armed with a crowbar on one occasion) and stealing property. Each of them shared in the proceeds of the offending which was of modest proportions except in the case of the High Street dairy in which cash and cigarettes

estimated at around $10,000 and a cell phone were taken.2

[3]      After receiving sentencing indications, the respondents both pleaded guilty to the six charges.   On 21 December 2016, in the District Court at Manukau, Judge DJ McNaughton sentenced Ms Vaeafisi to four years’ imprisonment and Ms Kirk to

10 months’ home detention.3    With the leave of the Solicitor-General, the Crown

appeals against these sentences4 on the grounds that they are wrong in principle and manifestly inadequate. The appeals were heard together.

1      Crimes Act 1961, ss 235(a) and 66; maximum penalty 14 years’ imprisonment.

2      It appears the actual figures were not available to the District Court at the time of sentencing.

3      R v Vaeafisi [2016] NZDC 26230; R v Kirk [2012] NZDC 26280.

4      Criminal Procedure Act 2011, s 246(1).

[4]      The Court must allow an appeal if it is satisfied that:

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

(b)      a different sentence should be imposed.5

[5]      For  the  reasons  set  out  below,  I  have  concluded  that  the  Judge  erred materially in his approach to sentencing both respondents:

(a)       in applying an inadequate uplift to the initial starting point to reflect the totality of the offending;

(b)in  allowing overly generous deductions  from  the adjusted  starting point to reflect the particular culpability of each respondent;

(c)       in how he applied the necessary deductions to reflect the respondents’

guilty pleas; and

(d)in how he treated the mitigating personal factors for which Ms Kirk was entitled to a discount, and the amount of the discount.

[6]      I have concluded that on the basis of a principled approach to the sentencing:

(a)       Ms Vaeafisi should have been sentenced to not less than six to seven

years’ imprisonment; and

(b)      Ms Kirk should have been sentenced to not less than three years’

imprisonment.

[7]      Bearing in mind that this is a Solicitor-General’s appeal, I have concluded

that:

5      Criminal Procedure Act 2011, s 250(2).

(a)      because  of  the  errors  in  Judge  McNaughton’s  approach  to  the imposition  of  Ms Vaeafisi’s  sentence,  a  different  sentence  of  five years  and  six  months’ imprisonment  should  be  imposed  on  each charge, to be served concurrently; and

(b)despite the errors in Judge McNaughton’s approach to the imposition of  Ms  Kirk’s  sentence,  Ms  Kirk’s  special  personal  circumstances mean that a different sentence should not be imposed.

The offending

Grand Vue Diary, Manurewa

[8]      At   around   8.57pm   on   10   February   2015,   five   offenders,   including Ms Vaeafisi and Ms Kirk, drove in two vehicles to the vicinity of the Grand Vue Dairy in Manurewa.   Ms Vaeafisi waited in her vehicle as a lookout, with four children of the offenders, while Ms Kirk and two others, one of whom was carrying a long-barrelled side-by-side shotgun, entered the dairy.   At one point, the armed offender prodded the dairy proprietor with the firearm and threatened him, saying “I will shoot you.”  Ms Kirk stole cigarettes; another offender stole cash from the till. Ms Vaeafisi, who lived close to the dairy, had planned the robbery with another co- offender. After the other offenders drove away, she stayed behind and was spoken to by the Police.   She later gave a false statement, pretending to have been only a witness.  Ms Vaeafisi and Ms Kirk shared in the proceeds of the robbery with the other offenders.

Great Takeaways, Papatoetoe

[9]      At  around  8.50pn  on  16  February  2015,  Ms  Kirk  and  another  offender entered the Great Takeaways shop in Papatoetoe.  They ordered a meal, asked what time the shop closed and then left, saying they had no money.   Ten minutes later three other offenders entered the shop and began stealing cash from behind the counter. When one of the two victims confronted the offenders, one offender pointed a double-barrelled firearm at the victim.   The victims fled out of the rear door.

Ms Vaeafisi planned and coordinated this robbery through text messages with the co- offenders earlier that day.

High Street Diary, Otahuhu

[10]     At 6.23pm on 20 February 2015, four offenders, including Ms Kirk, entered a dairy in High Street, Otahuhu.  One of them was armed with a pistol, and another had a machete. While two victims were forced into a store room and held there by two of the offenders, Ms Kirk and another offender stole cash and cigarettes. A gold Seiko watch and Samsung cell phone belonging to the victims were also stolen. With  others,  Ms  Vaeafisi  planned  and  coordinated  this  robbery  through  text messages, and assisted her co-offenders by looking after their children during the robbery.  Ms Vaeafisi and Ms Kirk shared in the proceeds with their co-offenders.

7a Kopara Place, Clendon

[11]     At about 10.50pm on 26 February 2015, Ms Kirk went onto the property at

7a Kopara Place, Clendon to see who was inside.  In the house were four adults and one child.   Ms Kirk invaded the home with four co-offenders, two of whom were armed with a firearm and a wheel-brace. They demanded the proceeds from the victims’ takeaway business.  One offender asked if they needed to shoot the victims. Ms Kirk and other offenders searched the house and stole cash, cell phones, wallets, purses, a laptop computer and keys, from the occupants.  Ms Vaeafisi assisted in the planning of the robbery, although she later told Police they had planned to rob the victims at their takeaway store and it appeared the other offenders had arrived late and followed the victims to their home.   Ms Vaeafisi and Ms Kirk shared in the proceeds of the offending.

Eric Baker Place, Papatoetoe

[12]     At 4.16pm on 7 March 2015, a female victim walking down a small alleyway in Papatoetoe was approached by an offender who pointed a firearm at her and demanded her handbag.  Ms Kirk, armed with a crowbar, stood lookout.  The stolen handbag contained a cell phone and bankcards.  Ms Vaeafisi was the getaway driver

on this occasion. CCTV footage captured Ms Kirk using the victim’s bank cards

within an hour of the offending.

1/100 Station Road

[13]     At about 3.50pm on 16 March 2015 an offender armed with a knife invaded a home at 1/100 Station Road, Papatoetoe.  When the victim entered his bedroom, the offender threatened to stab him and stole house keys, a cell phone, bankcard and driver’s licence.  Ms Kirk acted as a lookout during the robbery; Ms Vaeafisi acted as the getaway driver.

Ms Vaeafisi’s and Ms Kirk’s responses to Police

[14]     When first spoken to by the Police about the offending, Ms Kirk admitted her roles as alleged but Ms Vaeafisi denied any knowledge of, or involvement in, the robberies.

The District Court

[15]     Ms Kirk and Ms Vaeafisi first appeared in the District Court at Manukau on

21 March 2015 charged with participating in an organised criminal group.6    They were charged with aggravated robbery in April 2015 and pleaded not guilty to the charges the following month, electing trial by jury.   There followed a series of adjournments until 11 February 2016 when Judge McNaughton delivered sentence indications under s 61(1) of the Criminal Procedure Act 2011.  The indications were accepted on 26 February 2016 and Ms Vaeafisi and Ms Kirk duly entered guilty pleas to the six charges of aggravated robbery described above.

[16]     Ms  Vaeafisi,  who  had  served  a  term  of  five  years’ imprisonment  from November 2006 on three charges of aggravated robbery committed in August 2005, was remanded in custody for sentence.  Ms Kirk, who had no previous convictions, was remanded on bail on strict terms which included a curfew.  It appears that the Judge  was  particularly  concerned  that  efforts  should  be  made  to  encourage  the

victims of the offending to engage in a restorative justice process and the sentencing

6      Crimes Act, s 98A; maximum penalty 10 years’ imprisonment.

was delayed several times for that purpose.   None of the victims was prepared to participate but nine of them provided the Court with victim impact statements.

[17]     On 21 December 2016, Judge McNaughton imposed the sentences against which the Crown now appeals.

The sentence indications

[18]     At  the  sentence  indication  hearing,  it  was  agreed  between  counsel,  and accepted by the District Court Judge, that the home invasion robbery at 7a Kopara Place, Clendon should be taken as the lead offence for the purposes of setting a starting point in the sentencing exercise.   The Crown submitted by reference to authorities that the appropriate starting point for the lead offence was eight years’ imprisonment, with an uplift of between five and seven years being appropriate to reflect the totality of the offending.

The indicated sentences

[19]     In calculating an indicated sentence for each respondent, Judge McNaughton took a starting point of seven years for the lead offence.   He then uplifted the sentence to ten years to reflect the totality of the offending.

[20]     The  Judge  considered  Ms  Vaeafisi’s  role  in  the  offending  warranted  a reduction of one year from the initial starting point, but he said he would set off that deduction by an uplift of one year to reflect Ms Vaeafisi’s prior offending.  Next, a

25 per cent discount for an anticipated early guilty plea was applied, meaning the indicated  result  was  seven  years  and  six  months’  imprisonment,  before  any allowance for mitigating personal factors, such as assistance to the police or restorative justice.  The Judge made it clear that Ms Vaeafisi would be facing a term of imprisonment regardless of any consideration of additional mitigating personal factors.

[21]     Considering Ms Kirk’s role in the offending to be significantly less than those

of the other offenders, Judge McNaughton said he would reduce the 10-year starting

point to seven years and six months’ imprisonment.  A further discount of one-third would be allowed for youth and lack of previous convictions and a further 25 per cent for anticipated guilty pleas, bringing the sentence to three years and six weeks’ imprisonment.   The Judge then referred to the possibility that other personal mitigating factors, such as restorative justice, co-operation with the Police and demonstrated psychological vulnerability, might reduce the sentence further.

Post-plea events

[22]     Following acceptance of the sentence indications and the entry of guilty pleas, but before she was sentenced, Ms Vaeafisi made a full statement to the Police, confessing her part in the criminal activity, implicating other family members as co- offenders and identifying the roles they played.  It is said she will give evidence at the trials of those who have not pleaded guilty.   She also wrote an apologetic and remorseful letter to the victims of her offending and expressed similar sentiments in a letter to the Court.  The probation officer’s pre-sentence advice to the Court noted that Ms Vaeafisi did not appear to minimise her involvement in the offending and noted her remorse.

[23]     Ms Kirk obtained a psychologist’s report which speaks of her difficult past, her positive qualities (including her high intelligence, academic success and demonstrated work ethic), the adverse influence of family members and the pressure to offend, and her remorse and ambition to succeed.  Ms Kirk has a son, now aged nearly three, who lives with her aunt.  In a pre-sentence report, the probation officer said Ms Kirk had distanced herself from her former associates and become immersed in the “pro-social” family of her new partner.

The sentencing

[24]     At sentencing, Judge McNaughton adopted the approach he had signalled in his sentence indications to setting a starting point, before allowing for personal factors.   Taking the home invasion robbery at Kopara Place, Clendon as the lead

offence, the Judge referred to the Court of Appeal's guideline judgment in R v Mako7

7      R v Mako [2000] 2 NZLR 17 (CA).

as justifying "a starting point of at least seven years' imprisonment, aggravated by the home invasion element."  The Judge went on to say, however, that the lack of actual violence and the relatively modest value of the property stolen essentially cancelled out the aggravation of the home invasion element, meaning that he would take a starting point of seven years' imprisonment.   In considering what increase should be applied to reflect the other five aggravated robberies, the Judge said that the robberies needed to be seen, "in the context of robberies which were carried out for reasons of financial desperation where there was little or no violence done to the victims in each case and where, in the end, the actual financial return to the people involved was relatively modest."  He uplifted the sentences overall by three years to

10 years' imprisonment.

Ms Vaeafisi

[25]     The Judge said that Ms Vaeafisi was "involved in instigating, organising and planning these robberies."  He noted that she and a sister (not Ms Kirk), an alleged co-offender,  were  older  than  the  other  people  involved  and  that  Ms Vaeafisi's previous convictions were an indicator of her character and  responsibility.   The Judge said Ms Vaeafisi knew exactly what she was doing; she knew how serious the offending was and what would happen if she got caught.  He said her involvement went well beyond being just a get-a-way driver and described her as "essentially the leader or one of the leaders of this group."

[26]     The Judge also observed that there was little distinction to be drawn between Ms Vaeafisi and what he described as “the principal offenders” who were actually armed and carrying the robberies out, confronting the complainants, threatening them and taking their property.  The Judge indicated if there could be any discount on the basis of a reduced role it would be limited.  He reduced the starting point to nine years on that basis but then added an uplift of one year’s imprisonment for her prior convictions for aggravated robbery, bringing the adjusted starting point back to

10 years' imprisonment.

[27]     The Judge then said he would apply a 25 per cent discount for the guilty pleas, as he had indicated earlier, reducing the sentence from the adjusted starting point to one of seven years and six months’ imprisonment.

[28]     Next, he referred to a number of personal mitigating factors:

(a)      The   Judge   recorded   that   the   Crown   had   accepted   that   what Ms Vaeafisi said in her Police statement was true and corroborated by other evidence.   It was also accepted that her evidence would be of assistance at the trial of the co-offenders who have not pleaded guilty, or may encourage them to plead guilty.  The Judge noted the Crown's submission that the assistance to the Police had come late but said that a total discount of 50 per cent should be applied to recognise the guilty pleas and assistance to the Police, reducing the sentence to five years.

(b)Ms Vaeafisi did not minimise her involvement and expressed remorse and the Judge noted her willingness to attend a restorative justice conference.  Judge McNaughton referred to Ms Vaeafisi's letters and the change in her attitude since she had been remanded in custody leading to resolution to turn her life around.  The Judge accepted that those   expressions   of   remorse   were   genuine   and   noted   the rehabilitative steps that Ms Vaeafisi had undertaken while in custody. From the five-year sentence reached after taking account of guilty pleas and assistance, he applied a further discount of one year (or 20 per cent) accordingly.

[29]     That led to a total effective end sentence of four years' imprisonment which was imposed on each of the six charges concurrently.

Ms Kirk

[30]     The Judge accepted that Ms Kirk's role in the robberies "was less than the others" and said that, given her age and lack of convictions, he would reduce the ten-

year starting point by 25 per cent to reflect that.  He then acknowledged that, to a certain extent, a "discount for youth and lack of previous convictions overlap" but proceeded to apply a further one-third discount on that basis, reducing the sentence from seven-and-a-half years to five years' imprisonment.  The Judge then applied the

25 per cent discount to reflect the early guilty plea, taking the sentence to three years and six weeks.

[31]     The Judge turned next to other personal mitigating factors which he had not been able to consider at the time of the sentence indication.  He noted that the pre- sentence report recorded Ms Kirk’s remorse and the improvement in her situation since the offences were committed in February and March 2015, including that she was employed.  The Judge discussed the detailed psychological report which noted that her father had left the family home when she was aged five and that her mother, who had been ill with kidney disease, died when she was nine years old.  For a while Ms Kirk lived with her grandmother and then with her father, who was involved with crime and drugs.   Ms Kirk reverted to living with her grandmother but found that difficult as she was forced to work in her grandmother's business.   Nevertheless, Ms Kirk was a good student at school and she made efforts to succeed in that environment until she fell pregnant.   Ms Kirk worked in a number of retail and hospitality jobs and obtained a certificate in employment skills from the Manukau Institute  of  Technology.    After  the  birth  of  her  child  she  suffered  post-natal depression and then moved in with her older sister, Ms Vaeafisi, and says that she was then drawn into the offending.  She felt pressured, did not know how to back out of the enterprise and that any financial gain was minimal.  Her child was removed by Child, Youth and Family Services and currently lives with Ms Kirk’s grandmother.

[32]     The Judge noted that the psychologist had observed that while Ms Kirk "had led a pseudo-adult life her emotional development had not caught up", due in part to the lack of consistent emotionally-connected parental figures and to her adolescence. These factors, in the view of the psychologist, made her especially vulnerable to the environment in which the offending occurred.  The Judge told Ms Kirk that she had "shown considerable resilience and courage through your life and still do, holding down a difficult job and working towards getting your son back and it is impossible

not to be moved by all of that.   I agree, a prison sentence would be absolutely devastating at this point in your life."

[33]     Judge McNaughton then said he proposed to discount the sentence by a further 15 per cent to recognise Ms Kirk's "psychological vulnerability in these very difficult circumstances", reducing the sentence to exactly two years' imprisonment. That meant the sentence was within the range available for the substitution of the concurrent sentences of 10 months' home detention.8

Summary of appellant’s submissions

[34]     The   Crown   appeals   against   the   respective   sentences   of   four   years’ imprisonment for Ms Vaeafisi and 10 months’ home detention for Ms Kirk on the grounds that the sentences are manifestly inadequate and are wrong in principle.

[35]     Consistently with the submissions made at the sentence indication hearing, Mr Carruthers argued that the sentencing judge erred in assessing the seriousness of the offending and the respondents’ culpability, before taking account of personal factors:

(a)       The Judge misapplied the guidelines set out in R v Mako,9 at [58]

particularly.

(b)An uplift of only three years' imprisonment from the initial starting point was inadequate, the Crown submits, to recognise the number of other offences and the type of offending.   An uplift of at least five years should have been applied before consideration of personal mitigating or aggravating factors.

(c)       The Judge erred in the way he assessed the particular culpability of

Ms Vaeafisi and Ms Kirk respectively.

8      Sentencing Act ss 15A and 80A.

9      Above n 7.

[36]     Mr Carruthers argued that if the Judge had taken the appropriate starting point of not less than 12 years' imprisonment, a discount of one year to reflect Ms Vaeafisi’s remorse, willingness to engage in restorative justice and rehabilitative activity  prior  to  sentencing,  would  have  been  generous  but  not  unavailable. Applying next a 45 per cent reduction to take account of her guilty pleas (20 per cent) and assistance to the Police (25 per cent) a final sentence of around seven years would have been appropriate.

[37]     Mr Carruthers also challenges what he submits are excessive discounts for youth and personal features allowed to Ms Kirk, arguing that it is clear the Judge had accumulated separate but overlapping allowances for youth, lack of previous convictions, vulnerability to influence and psychological vulnerability as well as factoring those considerations into the 25 per cent discount given by the Judge for what he held was Ms Kirk’s lesser role.

[38]     Taking an adjusted starting point of 12 years for Ms Kirk, and allowing reductions of 40 per cent for youth and personal circumstances (including psychological factors), and a further discount of 20 per cent for the guilty pleas, the sentence should have been no less than five years and nine months’ imprisonment. Given that this is a Crown appeal, five years’ imprisonment is said to be considered appropriate as a substitute sentence for Ms Kirk.

Summary of respondents’ submissions

Ms Vaeafisi

[39]     Ms  Vaeafisi’s  offending  was  discovered  through  text  messages  which revealed that her role was planning and coordination of the robberies, including looking after her co-offenders’ children while the robberies occurred.  Mr Mansfield highlights that the offending occurred within the context of a familial environment and  arose from  financial  desperation  after Ms Vaeafisi  felt  the responsibility to provide for her young family.

[40]     Mr Mansfield submits that the prosecution had ample opportunity to raise

perceived errors in the sentencing judge’s indication and failed to do so, making it

unjust  to  raise  these issues  on  appeal.    Counsel  points  to  the two-week  period between sentence indication and the deadline to accept that indication, as well as the

10 month period before the defendant was actually sentenced.  The only perceived error the prosecutor raised at the sentencing hearing related to the full 25 per cent discount being available.

[41]     In the course of oral argument, however, Mr Mansfield acknowledged that the Criminal Procedure Act provides specifically that no party may appeal against a decision to give or not to give a sentence indication which, by necessary implication, carries  with  it  a  prohibition  on  appealing  the  indication  itself.    Mr  Mansfield modified  his  submission  by  arguing  that,  in  fairness  to  both  Ms Vaeafisi  and Ms Kirk, the Crown should have signalled to defence counsel by memorandum that the indication given by the Judge was not accepted by the Crown and that it would be making submissions to that effect at any sentencing which followed guilty pleas. I do not accept that criticism as valid; the Crown was entitled to wait to see whether the sentence indications were accepted and then to repeat its submissions on sentencing.

[42]     Mr Mansfield submitted here is no basis for criticism of the Judge’s selection of 10 years as an overall starting point, given the presence of additional aggravating factors in the cases cited by the Crown which were not present in this case.   In following the requirement in the Sentencing Act to assess Ms Vaeafisi’s culpability, which must be determined in the context of her role in the robberies, the Judge was entitled to conclude that it was a lesser role as she was not an actual participant. A one-year discount was appropriate.

[43]     Counsel  submits  that  the  full  25  per  cent  guilty  plea  discount  was  not excessive. While the pleas were not entered at the earliest opportunity, they were made soon after full disclosure, review, and resolution of discussions with the prosecutor.

[44]     While  acknowledging  the  strength  of  the  Crown’s  submission  that  the

sentencing judge should have applied the 50 per cent discount for guilty pleas and

assistance to Police after the discount for Ms Vaeafisi’s efforts at rehabilitation,10

Mr Mansfield argues that any error in doing so has not resulted in an end sentence that is manifestly inadequate.  If the Judge had applied a discount for Ms Vaeafisi’s efforts at rehabilitation from a starting point of 10 years, followed by the 50 per cent discount, the sentence would have been less than five years’ imprisonment before extraordinary  remorse  was  considered.    As  the  Judge  considered  her  remorse genuine, he was entitled to grant a discount which would have resulted in an end sentence of no more than four years six months imprisonment. This is within range of the four-year sentence imposed.

[45]     Mr Mansfield submits that while the sentence was lenient, it was justified and appropriate and should not be interfered with on a Solicitor-General’s appeal. Accepting the Crown’s invitation to impose a sentence of seven years in the absence of an argument that the discount for assistance to Police was excessive, will lead to injustice and potentially a harmful cycle of re-offending.  That would not be in the interests of justice, the Crown, the community, or the offender who becomes eligible for parole later this year.

Ms Kirk

[46]     For Ms Kirk, Mr Wiles submits that the Judge’s notional starting point of seven  years’ imprisonment was  within range,  and it was  a figure reached by a lengthy and careful consideration of the numerous authorities provided.  Mr Wiles argues that, while an uplift of three years to an overall starting point of 10 years was at the lower end, it also remained within the available range and did not demonstrate a clear and demonstrable error which should be changed on appeal.

[47]     Counsel submits that it was appropriate for the Judge to make findings as to mitigating features of each defendant’s offending and their reduced culpability.   It was entirely orthodox for the Judge to then adjust the starting point according to Ms Kirk’s lesser role in the offending, as a scout or lookout, or mere gatherer of

proceeds.  In  particular,  counsel  suggests  that  an  element  of  coercion  from

10     Hessell v  R  [2010] NZSC 135, [2011] 1 NZLR 607 at [73]; R v  Hadfield CA337/06, 14

December 2006; R v Taueki [2005] 3 NZLR 372 (CA).

Ms Vaeafisi,  being  older  and  more  experienced  in  prior  aggravated  robberies,

appropriately reduced Ms Kirk’s culpability.

[48]     Mr Wiles contends that a discount of one-third for youth and lack of previous convictions is not unusually high.  In particular, youth is a powerful mitigating factor for the reasons given by the Court of Appeal in Churchward v R.11   Further, a lack of previous convictions can attract a discount of 10 to 15 per cent.   Accordingly, a discount of one third for both is “unimpeachable”.

[49]     Ms Kirk rejects the Crown’s submission that her youth and lack of previous convictions was double-counted by the Judge. These did not in themselves reduce the notional starting point, but rather partially informed the inferences the Judge made regarding her role in the offending, along with other relevant factors, to conclude that she was less than a full participant. The discounts were then later correctly  applied  in  accordance  with  Churchward  in  that  young  offenders  have greater prospects of rehabilitation and suffer disproportionately in the prison environment.

[50]     Mr  Wiles  argues  that  Ms  Kirk’s  willingness  to  participate  in  restorative justice; the positive pre-sentence report; the revealing psychological report and genuine remorse render an additional 15 per cent discount valid and not in error. Ms Kirk’s personal circumstances are compelling and unique, and in the face of significant adversity she has continued to show resilience and courage, even after her offending, through her continued efforts to rehabilitate and live a pro-social life.  The psychological report showed an additional significant vulnerability beyond the generic vulnerability of ordinary youth.   Furthermore, the Judge did not grant any discount for the time the defendant spent on strict curfew from March 2015 to June

2016, which could itself have attracted a discount of at least several months.

[51]     The full 25 per cent was available to the Judge for her pleas, as it is not uncommon for guilty pleas to be entered shortly after callover.  As there is no clear

cut error, this Court should not interfere on appeal.

11      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

[52]     It is accepted by Mr Wiles that the way the guilty plea discount was applied was an error but he submits it does not justify interfering with the sentence on a Solicitor-General  appeal.    Taking  into  account  also  Ms  Kirk’s  compliance  with several  months  of  the  sentence  of  home  detention,  quashing  that  sentence  and sending her to prison now would cause her substantial injustice.

Considerations on a sentence appeal

[53]     Section 246 of the Criminal Procedure Act 2011 provides for the prosecutor's right to appeal against a sentence.  Section 250 provides that the Court must allow an 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.

Did the Judge err in his approach?

[54]     I address first the issue of whether the sentencing judge erred materially in his approach.

Starting point

[55]     Delivering its guideline judgment for aggravated robbery in R v Mako,12 the Court of Appeal referred to different combinations of the features of the offending in that case which could be taken by way of example to indicate appropriate starting point levels. The Court said:

[54]      Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels.  The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a  group,  with  a  lethal  weapon,  disguises  and  other  indications  of preparation, should attract for adult perpetrators after a defended trial a starting point of 6 or perhaps more years.  Where firearms are loaded or the

12     Above n 7.

danger of harm is increased in other ways, or if actual violence is used, the starting point would be 8 years or more….

(Emphasis added)

[56]     Referring then to other combinations of features typical of many aggravated robberies, the Court also said:

[58]     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 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.

[57]     It is clear that the guidelines are intended not to prescribe the starting point but to inform the assessment the sentencing judge was required to make.

[58] Adopting that approach, it may be seen that the lead offence in this case has a number of the characteristics of both the robbery of commercial premises, as discussed by the Court at [54], and the forced entry into premises at night by a number of offenders seeking money, as discussed as [58]. Considering the features in the present case of multiple offenders; the presence of weapons but only the threat to use them rather than actual violence; night-time offending and the particular vulnerability of people in their own homes, would suggest a starting point of six or seven years at least.

[59]     The element of home invasion is a serious aggravating feature.  Although the home invasion provisions referred to at [58] of Mako no longer exist, s 9(1)(b) of the Sentencing Act requires that element to be treated as an aggravating factor, meaning that for the lead offence a sentence of eight to nine years would have been appropriate.

[60]     The starting point chosen by the Judge of seven years was, therefore, very much at the bottom end of the available range.  Although it was lenient, however, it was not so out of range as to amount to an appealable error.

Uplift to reflect total offending

[61]     Nevertheless, I am satisfied that the Judge erred in applying, from a low starting point, a modest increase of only three years for the five further robberies, one of which, a home invasion, could have attracted a starting point of at least seven years if taken by itself.  I consider that the Judge was far too lenient in determining that the adjusted starting point to take account of the totality of the offending should be a sentence of only 10 years' imprisonment.

[62]     In reaching that view, I bear in mind the particular need for an emphasis on denunciation, deterrence and community protection in sentencing for this kind of offending.13   Statistical evidence would be necessary before it would be proper for a court to conclude that the aggravated robbery of dairies, takeaway outlets and service stations has reached epidemic proportions deserving of higher sentences than might ordinarily be imposed by applying the current guidelines.14     But R v Mako was decided over 17 years ago and there may be an argument for the appellate courts, in an appropriate case, to revisit the range suggested for this particular type of robbery.

[63]     Protection must be afforded to ordinary citizens in their homes or out in the street at night.  There can be no doubt that serious offending against shopkeepers and service station attendants, particularly at night, is far too prevalent.  People who are often alone in their business premises at night are particularly vulnerable and must be  protected  also.    The  victim  impact  statements  presented  in  this  case,  which describe  the  distress  and  anxiety  caused  by  the  offending,  speak  eloquently  in support of that approach.  Unless the courts impose deterrent sentences for planned robberies involving weapons and actual or threatened violence against vulnerable citizens, there is a serious risk that potential victims will take the law into their own hands.  The likely consequence of shopkeepers arming themselves for protection is increasing violence and  unacceptable risk to  members of the public who might

merely be present during a confrontation.

13     Sentencing Act 2002, ss 7(e),(f) and (g); R v Mako, above n 7, at [42].

14     See the discussion by the Court of Appeal in Christofides v R [2011] NZCA 126 at [11] – [15].

[64]     The Judge  erred  also  in  accepting sympathetically a  submission  that  the robberies needed to be seen "in the context of robberies which were carried out for reasons of financial desperation … and where in the end the actual financial return to the people involved was relatively modest".15    Poverty or other evidence of social malaise, such as drug addiction, can never justify terrorising ordinary citizens in their own homes or places of work.  The absence of a commercial motive in these

robberies amounts to a lack of an aggravating factor rather than the presence of a mitigating factor.

[65]     Moreover, it does not assist the respondents that in all but one instance they obtained  only  small  amounts  of  money  or  property  through  their  offending. Relatively small returns are characteristic of this type of offending, where cigarettes and cash are the principal targets, but that is also the absence of aggravation and not a mitigating factor.

[66]     I am satisfied that, in view of the seriousness of this particular offending and the  need  for  the  Court  to  recognise  deterrence  and  community  protection  as important sentencing factors for this type of offending, the Judge erred seriously. An uplift of not less than six years was necessary to reflect the five other aggravated robberies, four of which would have justified individual starting points of six to eight years.16

[67]     The overall seriousness of the six robberies committed by these respondents warranted an adjusted starting point of not less than 13 years' imprisonment.

Culpability

[68]     I am also satisfied that the Judge erred in the way he treated the roles of

Ms Vaeafisi and Ms Kirk in the offending as part of the exercise of determining their particular culpability in the overall offending.

15     R v Vaeafisi [2016] NZDC 26230 at [6]; R v Kirk [2016] NZDC 26280 at [6].

16     In accordance with the Court of Appeal's views in R v Mako at [59], the street robbery would not have attracted a sentence of more than about two years.

[69]     It was not open to the Judge to describe Ms Vaeafisi as being involved in instigating, organising and planning the robberies and accept that she was essentially a leader or one of the leaders of the group, and then take one year off the adjusted starting point for a reduced role.   Although she may not have participated in threatening the  victims,  it  is  not  suggested  that  Ms Vaeafisi  did  not  know that weapons,  including  various  firearms,  were  to  be  carried.    The  brandishing  of weapons had only one purpose:  to threaten and terrorise the intended victims.

[70]     This was a case in which the Judge failed to recognise the direction of the Court of Appeal in Mako that there is no justification for treating those assigned roles other than of confronting the victims as less culpable, unless they are truly less than full participants.17   Ms Vaeafisi's admissions to the Police after entering her plea make it clear that she was fully engaged in the overall enterprise, by planning the attacks and giving directions and instructions to the others by text message during those robberies where she was not present.

[71]     I am also satisfied that the Judge erred seriously in discounting the starting point for Ms Kirk's sentence by 25 per cent on account of what he described as her "reduced role".  There was no evidence of actual coercion of Ms Kirk by the other offenders.  While the Judge was entitled to conclude that her age and circumstances made Ms Kirk vulnerable to influence by her older sister, that was a factor relative to her personal circumstances, not to the seriousness of the actual offending.  Ms Kirk played an active and important role in each of the offences, including holding a weapon on one occasion, and stealing property on others.   Because she was not a leader in this offending, however, a discount of a year, to bring the sentence below what was appropriate for Ms Vaeafisi’s role might not have attracted much criticism, but a discount of 25 per cent for reduced participation, taken from an already overly generous starting point which reflected the same considerations, was inconsistent

with a principled approach.

17 Above n 7, at [64].

Conclusions on adjusted starting points

[72]     In my view, the adjusted starting point for Ms Vaeafisi before personal factors were taken into account ought to have been one of not less than 13 years' imprisonment.   For Ms Kirk, an adjusted starting point of not less than 12 years' imprisonment was called for to reflect the offending and her culpability.

Personal aggravating and mitigating factors – Ms Vaeafisi

[73]     The discount for Ms Vaeafisi’s reduced participation, which I have held to be unjustified, was used by the Judge to off-set what would have been a proper increase of a year on account of her conviction in 2006 for three aggravated robberies for which she was sentenced to five years' imprisonment in total.  Her failure to respond positively to that sentence suggested that an increase to reflect her character and a greater need for deterrence should have lifted the sentence to one of at least 14 years’ imprisonment before the application of any discounts for mitigating factors.

[74]     After uplifting the sentence on account of Ms Vaeafisi's prior history, the Judge was entitled to allow her a discount to reflect genuine remorse, her willingness to engage in restorative justice and rehabilitative steps taken by her prior to sentencing. The discount of one year which was given was available to the Judge for those factors.

[75]     I  agree  with  Mr  Carruthers  that  Ms Vaeafisi's  assistance  to  the  Police, although coming late, justified a discount of 25 per cent.  The allowance of 25 per cent for Ms Vaeafisi's guilty pleas was generous in view of its timing and given, particularly, her initial denials of offending and misleading the Police by making a false statement about the offenders who carried out the first robbery at the Grand Vue Dairy in Manurewa.  I am persuaded, however, that allowing a total discount of

50 per cent for those two factors, while generous, was within the range available to the Court.

[76]     The Judge's principal error, however, lay the way in which he used the guilty plea and assistance discounts in calculating the end sentence.   It is clear from the

authorities such as Hessell, Taueki and Hadfield18 that the guilty plea discount must be  applied  at  the  end  of  the  analysis,  after  the  starting  point  and  any  other adjustments for personal aggravating or personal mitigating factors are taken into account.  Applying the discount directly to the adjusted starting point, as the Judge did  in  this  case,  inflates  the  significance  of  the  discount.    Here  the  generous allowance of 50 per cent, deducted from the adjusted starting point of 10 years the Judge adopted, had the effect of reducing the sentence by five years.  Had the Judge applied it at the correct stage of the analysis, the adjustment would have been four years and six months.

[77]     The   end   result   of   a   principled   approach   to   sentencing   Ms Vaeafisi consistently with authority should have produced a sentence in the range of six to seven years.  Instead, the compound effect of the Judge's errors resulted in an end sentence of only four years' imprisonment.  It is clear that was manifestly inadequate.

Personal mitigating factors - Ms Kirk

[78]     The Judge was entitled to take a sympathetic view of Ms Kirk's personal circumstances and to allow her a generous discount on account of her youth, her troubled background and the psychological factors articulated in a lengthy and sympathetic psychologist's report.   Ms Kirk has many positive qualities and the Judge was entitled to remark on them, including her resilience and determination, and to acknowledge her history of obtaining and holding employment.  He was also entitled to infer that it would not have been easy for her to resist her older sister's influence in setting out to remedy her financial difficulties by committing serious crimes.

[79]     The Judge was also right to recognise that Ms Kirk has taken positive steps at rehabilitation and that she acknowledges that she made a serious mistake resorting to crime.  The Judge was particularly entitled to recognise the steps taken by Ms Kirk on the path to rehabilitation by severing her family associations and establishing

herself in a new and supportive family environment.

18     Above n 10.

[80]     On account of her youth and the other personal mitigating factors a discount of up to 60 per cent overall, from the adjusted starting point of 12 years, was reasonably available and would have resulted in a sentence of around four years and nine months’ imprisonment.  At that point, a discount for the guilty pleas would be applied.  In respect of Ms Kirk also, however, the Judge inflated the impact of the discount by applying it to the adjusted starting point rather than to the result of the application of personal factors.

[81]   Adopting a principled approach and applying the correct sequence of considerations, a discount of between 20 and 25 per cent for Ms Kirk's guilty pleas would have resulted in a total effective end sentence of between three years and six months’ and three years and ten months’ imprisonment.  Such a sentence could not have been replaced by a sentence of home detention, notwithstanding the Judge's view that a sentence of imprisonment would have been devastating for Ms Kirk.19

[82]     In Pouwhare v R, the Court of Appeal said: 20

… the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of  the  offender  cannot  be  accorded  presumptive,  let  alone  paramount, weight. The objective seriousness of the offending, the young person's part in it, anything aggravating and otherwise mitigating must also be weighed. The analysis Mako calls for is always indispensable.

(emphasis added)

[83]     The nature of the offending, involving six aggravated robberies, was such that,  even  after  making  a  merciful  allowance  for  youth  and  other  extenuating personal factors, a sentence other than imprisonment could not possibly be justified. The sentence imposed resulted from the Judge's material errors I have referred to.

Do the Judge’s errors require a different sentence to be imposed?

[84]     Having identified the errors made by the sentencing judge and determined the least restrictive sentences which should have been imposed upon Ms Vaeafisi and

19     Sentencing Act, s 15A(1)(b).

20     Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].

Ms Kirk, I turn now to consider whether the errors by the sentencing judge were such that different sentences should be imposed.21

[85]     A sentence may be increased on appeal by the Solicitor-General if a review of the facts and circumstances of the case make it clear that the sentence imposed was manifestly inadequate or the result of some error in principle by the sentencing judge.22     But an appellate Court will generally only increase a sentence in clear cases.23    A sentencing judge's discretion to take a merciful approach, or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence, should easily not be overridden by an appellate court.24

Even if the appellate Court determines that a sentence is manifestly inadequate or unprincipled, it will still be reluctant to interfere if this would cause injustice to the offender.  Where a community-based sentence has been imposed and complied with or partially served, an appellate Court would be more disinclined to interfere than in

cases where an inadequate custodial sentence is in issue.25

Ms Vaeafisi

[86]     Applying those  principles  to  the sentence imposed on  Ms Vaeafisi,  I am satisfied that the effective end sentence of four years' imprisonment cannot stand. This was serious repeated offending for which Ms Vaeafisi was an instigator and organiser and in which she played a significant part.  As the Judge noted, she knew full well what she was doing and, having offended previously in the same way, what the consequences would be if she was caught.  Notwithstanding proper allowances for her remorse, guilty pleas and assistance to the Police, it was necessary to deter both her and others from this type of calculated offending.   The element of community protection provided by a deterrent sentence should have been uppermost in the Judge's mind, but it was lost in his focus on the offender rather than the

victims and potential victims of this type of offending.

21     Criminal Procedure Act, s 250(b).

22     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36].

23     R v Beaman CA177/82, 16 December 1982.

24     R v Wihapi [1976] 1 NZLR 422 (CA), R v Hunter [1985] 1 NZLR 115 (CA).

25     R  v  Clark  CA266/81, 2  March  1981;  R  v  Parker  CA246/87, 29 April  1988;  R  v  Peters

CA309/85, 11 April 1986.

[87]     Although  imprisonment  for  seven  years  would  have  been  appropriate,  I consider on an appeal by the Crown that the sentence should be increased to one of five years and six months’ imprisonment.

Ms Kirk

[88]     I have concluded that Ms Kirk ought to have been sentenced to not less than three years and six months' imprisonment.   She was treated too leniently by the Judge, but she has now served nearly one-third of the sentence of 10 months' home detention imposed in the District Court.

[89]     The psychologist's report on Ms Kirk finishes in this way:

It appears that her offending and its consequences have motivated critical self-reflection in Sammie-Jo and helped her to affirm her desire for a pro- social and stable existence.  She is aware that the structured and supportive environment she now has is what she needs to turn her life around.  She uses her work skills and resilience to prove to herself and to others that she is worthy and can be regarded as responsible.  Her long-term goal, to regain custody of her son is a strong motivator in this regard.

From a clinical perspective a prison sentence would interrupt the positive trajectory on which she now finds herself.  It would be much preferable if Sammie-Jo could be supported to continue on her current course.   Home detention which would allow her to continue to work and to keep contact with her son would help her to consolidate her gains.

[90]     I was informed from the Bar that Ms Kirk has been taking steps to obtain leave from home detention in order to return to the workplace.  What I have read in the pre-sentence reports indicates that she is well placed to benefit from such leave. Imposing a sentence of imprisonment now, even one which allowed for the fact that she has partly served the sentence imposed in the District Court, would be crushing for someone demonstrating that  she has taken  proper advantage of the extreme leniency extended to her.   In the special circumstances of this case, it would give undue prominence to the need for deterrence and fail to address adequately the

sentencing purpose of assisting in this offender's rehabilitation and reintegration.26

26     Sentencing Act 2002, s 7(1)(h).

[91]     I bear in mind the constraints on substituting imprisonment for a part-served sentence of home detention on a Solicitor-General's appeal.  In the light of Ms Kirk's particular circumstances,  I have concluded  that, despite the significant  errors in Judge McNaughton’s approach to the imposition of the sentence of home detention, a different sentence should not be imposed.

Result

[92]     I dismiss the appeal in CRI-2017-404-039 against the sentence imposed on

Ms Kirk.

[93]     I allow the appeal under CRI-2017-404-040 against the sentence imposed on Ms Vaeafisi.   I quash the sentences of four years' imprisonment imposed in the District Court and in their place impose sentences of five years and six months' imprisonment  on  each  of  the  six  charges.     The  sentences  shall  be  served concurrently.

……………………………

Toogood J