R v Kite

[2007] NZCA 385

IN THE COURT OF APPEAL OF NEW ZEALAND

CA210/07
[2007] NZCA 385

THE QUEEN

v

JOSHUA MASON KITE

Hearing:21 August 2007

Court:Chambers, Randerson and John Hansen JJ

Counsel:W M Ryan for Appellant

S B Edwards for Crown

Judgment:31 August 2007 at 12 pm

JUDGMENT OF THE COURT

AAn extension of time for appealing is granted.

BThe appeal against the order fixing a minimum period of imprisonment is allowed, that order is quashed, and, in substitution therefor, an order is made that the appellant serve a minimum period of imprisonment of six years eight months in relation to the sentences for the aggravated robberies.

CThe balance of the appeal is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

[1]       Between September and November of 2006, Mr Kite was responsible for the planning and execution of three major armed robberies in Auckland.  In each case the method was the same.  Mr Kite would carry out a reconnaissance of the relevant area and the movements of security personnel.  He would arrange for the placement of stolen motor vehicles to be utilised in the robberies, and recruit associates to carry out the robberies armed with firearms.  Mr Kite remained nearby in another vehicle equipped with a police scanner.  As soon as that revealed the robberies had taken place, he would drive off and meet his associates at a predetermined point.  The money was then divided between them and the stolen vehicles disposed of.  In each case the robberies were carried out in busy commercial areas at times when significant numbers of people could be expected to be present.  In each case the victim impact reports reveal that the security guards suffered significant, and understandable, psychological trauma.

[2]       On 1 September $43,928 was taken from two Chubb security guards who were delivering money to an ASB outlet in Epsom.  On 14 September a total of $50,549.25 was taken from two ADT guards delivering money to a BNZ branch in Panmure.  On 13 November $140,000 was taken from two ADT security officers replenishing an ATM machine in Otara.  Only $4,161.45 was recovered. (Given Mr Kite’s associates have pleaded not guilty, it can be inferred that no other funds will be recovered.)

[3]       In July of 2006, using two separate stolen credit cards, the appellant obtained, or attempted to obtain, cash and goods.  He succeeded in purchasing items to the value of $4,622.36.

[4]       On 17 January 2007 the appellant successfully persuaded Court staff he was another person who had been granted bail.  He then escaped from custody.  He had persuaded the person he was impersonating to provide sufficient details to allow the impersonation.

[5]       The appellant pleaded guilty to three aggravated robberies; six charges of using, and four of attempting to use, a document to obtain a pecuniary advantage; and one of escaping from lawful custody.  The appellant was aged 24, with a small number of previous convictions for violence, but significantly including one conviction for aggravated robbery using a firearm.

[6]       The sentencing judge, Judge Blackie, adopted a starting point of 14 years for the aggravated robberies.  He made a four-year allowance (28.6%) for cooperation, the guilty pleas and limited expressions of remorse.  For the fraud charges he imposed a sentence of one year’s imprisonment, and for escaping from custody, eight months.  Both sentences were cumulative, giving an effective sentence of 11 years and eight months’ imprisonment.  He set a minimum parole period of two‑thirds of the sentence imposed and stated it would be nearly eight years before Mr Kite could seek parole.

[7]       The appeal is out of time, but without opposition from the Crown we grant an extension of time for appealing.  The appellant appeals his sentence on three grounds.  He says the starting point of 14 years was too high; that the sentences for fraud and escaping should not have been cumulative; and an error was made in setting the level of minimum non-parole. 

[8]       We disagree with the first two grounds, but we agree, to a limited extent, with the third.

[9]       In our view the starting point was within the range available.  The Judge could have approached the setting of the starting point in two ways:

i)The last of the three aggravated robberies is the most serious.  Mr Ryan accepted that he could not argue with a starting point for that offence alone of ten years’ imprisonment (R v Mako [2000] 2 NZLR 170 at [55] (CA)). In Mako terms, both of the other two aggravated robberies warranted starting points of eight years: at [54]. The Judge could have then stood back and looked at the matter on a totality basis. He would have properly arrived at the starting point he did;

ii)Alternatively, he could have taken ten years for the third robbery and considered an uplift of four years appropriate for the other two robberies.

Either approach demonstrates that the starting point adopted was appropriate for such serious, armed offending, of which Mr Kite was the ringleader and planner.

[10]     An additional ground was advanced by Mr Ryan that was not in the notice of appeal.  That was that the discount for mitigating factors was insufficient.  In our view the allowance made for the guilty plea was appropriate and sufficient (R v Fonotia [2007] NZCA 188). It is hard to see how the other matters claimed as mitigation could attract an additional allowance. There is nothing to indicate any cooperation of significance from Mr Kite. In light of the pre-sentence report, the Judge was entitled to be sceptical as to the claimed remorse.

[11]     In imposing cumulative sentences, the Judge has correctly applied the principles set out in s 84(1) of the Sentencing Act 2002.  The frauds and the escaping were different types of criminality which were not connected to each other, or to the aggravated robberies.  Although it appears his escape may have been linked to the death of the appellant’s young son, the Judge was right to treat the matter in the way he did.

[12]     The Judge ordered the appellant serve a minimum period of imprisonment of two-thirds of the total term of eleven years and eight months.  In doing so, he appears to have overlooked the provisions of s 86(1) of the Sentencing Act which provides that where a sentence of more than two years’ imprisonment is imposed for a particular offence, a minimum period may be imposed in relation to “that particular sentence”.  It follows there was only jurisdiction to impose a MPI on the ten year sentence (ie six years and eight months) (R v Bell [2007] NZCA 17).

[13]     In our view this was a case that warranted the imposition of a minimum non-parole period.  Despite Mr Ryan’s criticism, the Judge has clearly considered the relevant statutory criteria and given compelling reasons, in which we concur, for imposing a two-thirds MPI on the aggravated robbery sentence.

[14]     An extension of time for appealing is granted.  The appeal against the imposition of the MPI is allowed, to the extent the period is reduced to six years and eight months.  The balance of the appeal is dismissed.

[15]     We record that Mr Ryan has said everything possible on Mr Kite’s behalf. 

Solicitors:
Haigh Lyon, Auckland, for Appellant

Crown Law Office, Wellington