R v Moke - [2007] NZCA 110

IN THE COURT OF APPEAL OF NEW ZEALAND
CA388/06
[2007] NZCA 110
THE QUEEN
v
ARATEMA MOKE
Hearing:27 March 2007

Court:Chambers, Chisholm and Gendall JJ
Counsel:P H H Tomlinson for Appellant

K B F Hastie for Crown

Judgment:30 March 2007 at 2 pm

JUDGMENT OF THE COURT

AAn extension of time for filing the appeal is granted.
B        The appeal is allowed and the concurrent sentences of nine years imprisonment imposed in the District Court on the six charges of aggravated robbery are quashed.
C        For the aggravated robbery of the Kelburn Four Square the appellant is sentenced to eight years imprisonment.
D        On the remaining five charges the appellant is sentenced to concurrent sentences of three and a half years imprisonment which are also concurrent with the sentence imposed under C above.

____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1]       Having pleaded guilty to six counts of aggravated robbery the appellant, who was aged 17 years at the time of the offending, was sentenced by Judge Treston in the District Court at Auckland to concurrent sentences of nine years imprisonment on each charge. He appeals against those sentences on the grounds that they were manifestly excessive because insufficient credit was given for his guilty pleas and age.
[2]       The appeal was filed a few days late. The Crown does not oppose the time for appealing being extended and leave is granted accordingly.
Background
[3]       Along with two others the appellant was involved in a spree of offending throughout the North Island over a period of approximately 11 days during April and May 2006.
[4]       The first robbery of a South Auckland service station took place at approximately midnight on 28 April 2006. The appellant and his male co-offender entered the service station while their female companion waited in a car. The appellant was armed with an aluminium baseball bat and his co-offender with a cut down semi-automatic rifle. Both were disguised. After threatening a security guard and another employee the appellant and his co-offender removed the till, stole cigarettes, and were driven away by their female companion.
[5]       This pattern was repeated on a further four occasions when service stations in Tauranga, Papamoa, Rotorua and Palmerston North were robbed. On each occasion the robbery took place at night, the appellant was armed with a baseball bat, his co-offender with a cut down semi-automatic rifle and both were disguised. At one service station the offenders bound an attendant’s arms and legs. On two occasions the offenders removed the surveillance tape.
[6]       The final robbery on 8 May 2006 also followed a similar pattern, including the binding of an attendant’s arms and legs and the removal of a surveillance tape. On this occasion, however, the appellant also threatened to kill the children of a service station attendant if she did not do as she was told and he later struck another employee on the head with the baseball bat. The employee required hospital treatment.
[7]       In total cigarettes and…

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 Moke

Details

AGLC: R v Moke [2007] NZCA 110
Case: [2007] NZCA 110
Decision Date: 30 March 2007

CaseChat Overview and Summary

In the appeal of R v Moke, the appellant, who was 17 years old at the time of the offending, had pleaded guilty to six counts of aggravated robbery and was sentenced by Judge Treston in the District Court to concurrent sentences of nine years imprisonment on each charge. The appellant appealed against those sentences, arguing they were manifestly excessive as insufficient credit was given for his guilty pleas and age. The appeal was filed a few days late, but the Crown did not oppose the extension of time for appealing, and leave was granted accordingly. The appellant, along with two others, was involved in a series of robberies throughout the North Island, targeting service stations and shops, over an 11-day period. The appellant was armed with a baseball bat and his co-offenders with a cut down semi-automatic rifle, and they wore disguises during the robberies. The appellant's age and guilty pleas were accepted as mitigating factors by the sentencing Judge, but the Judge did not consider these factors to outweigh the seriousness of the offending, the degree of planning, the number of participants, use of disguises, premeditation, intimidation and the use of weapons. The Court of Appeal, however, found that the discount allowed for mitigating factors was inadequate in this case, and that the appellant was entitled to a further discount on account of his youth. The Court concluded that the sentence imposed in the District Court was manifestly excessive and quashed the sentences accordingly. The appellant was sentenced to eight years imprisonment for the aggravated robbery of the Kelburn Four Square, and concurrent sentences of three and a half years imprisonment on the other aggravated robberies, with those sentences being concurrent with each other and with the sentence imposed on the lead offence.

Orders