R v Salanoa

[2008] NZCA 185

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/2008
[2008] NZCA 185

THE QUEEN

v

RICHARD SALANOA

Hearing:18 June 2008

Court:Chambers, Priestley and Winkelmann JJ

Counsel:S D Patel for Appellant

A R Burns for Crown

Judgment:3 July 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Winkelmann J)

Introduction

[1]       The appellant pleaded guilty to one count of aggravated robbery under s 235(c) of the Crimes Act 1961.  Judge Perkins sentenced him to a term of imprisonment of two years, three months.  He appeals against his sentence on the following grounds:

(i)The sentence was manifestly excessive.  The Judge adopted too high a starting point in light of the appellant’s limited involvement in the offending.  The Judge also failed to give an adequate discount in sentence because he did not take into account relevant mitigating factors.

(ii)The Judge incorrectly declined to impose a sentence of home detention, or community detention together with community work and supervision, given the appellant’s age and prospects for rehabilitation.

Factual background

[2]       In January 2006 the appellant and four associates were drinking alcohol at an address in Massey.  Whilst at that address the group, with the exception of the appellant, formed the intention to rob a dairy.  In the early afternoon the group of five young men left the Massey address armed with a knife, a claw hammer and a metal pole.  They drove in one of the associate’s cars to the dairy they proposed to rob.  At some point during the journey, or on arrival in the street outside the dairy the appellant became aware of the intention to rob the dairy.  He agreed to remain with the vehicle, keeping its engine running, while his associates carried out the robbery. 

[3]       Before entering the dairy the appellant’s four associates attempted to conceal their faces, using bandannas, hooded sweatshirts and t-shirts.  There was only one staff member working at the dairy that day.  As the four co-offenders entered the premises, the one armed with a metal pole went behind the service counter and approached the victim, demanding that she open the cash register.  When she did not immediately act on that demand, the offender armed with the knife repeated the demand.  The victim opened the cash register and the offenders removed the cash from the register and packets of Benson & Hedges cigarettes from the display stand.  All four then left the dairy, returning to the waiting vehicle.  The appellant drove off at speed, returning all five men to the Massey address. 

[4]       The appellant pleaded guilty to the charge of aggravated robbery.  There was a delay in sentencing him because he disputed aspects of the police summary of facts.  Ultimately the police accepted his account that he was not involved in the planning that took place at the address in Massey and that although he drove on the return journey, he had remained in the car whilst the robbery took place.  The appellant was 17 years old at the time of the offending, and 19 years old at sentence. 

The District Court judgment

[5]       On the day of sentence Judge Perkins had before him information that the appellant had two convictions for recklessly causing injury for which he had been sentenced to 100 hours community work and a one year disqualification from driving.  He had a later conviction for breach of that community work order.  Finally he had one conviction for disorderly behaviour for which he had been convicted and discharged.  The two counts of recklessly causing injury seem to relate to one episode of driving which resulted in a serious car accident.  In that accident the appellant’s twin brother Rickard sustained serious injuries which continue to affect him both physically and intellectually, and which require that he have a full time caregiver. 

[6]       The Judge also had before him, in an appendix to the pre-sentence report, detailed information about the suitability of home detention and community detention.  The proposed home detention or community detention address was the appellant’s family home.  The other occupants of that family home were his twin brother, who would share a bedroom with the appellant, his father, mother and younger sister.  The father is the full time caregiver for the twin brother.  At the time the report was written the father was about to complete a two year parole term, having served a long term of imprisonment from 1999 for historical indecent assault and sexual violation offences. 

[7]       The report recorded that the appellant was in work, which was identified as an important factor in supporting an offence-free lifestyle.  However, the monitoring requirements of a home detention sentence required a single work place environment.  Because the appellant’s employment at the time involved him travelling from place to place a sentence of home detention would require that he terminate his employment.  A sentence of community detention together with community work and supervision was therefore recommended in preference to home detention.

[8]       By the time the appellant appeared for sentence he had been on bail for more than two years. There was no record of him having offended again during that time. 

[9]       The Judge referred to the sentences imposed upon the appellant’s co-offenders.  One of his co-offenders received a “lengthy sentence of imprisonment” (we are told by the Crown that it was a sentence of four years imprisonment).  Two others were dealt with in the Youth Court and the Judge noted that one of them received the maximum sentence which could be imposed by a Youth Court Judge.

[10]     The Judge referred to the victim impact statement in which the victim said that she had been terrified and that because of her robbery she and her husband had sold their business.  The Judge identified as an aggravating feature of the offending, the victim's vulnerability; she was a 49 year old woman in sole charge of the dairy at the time.  Although the Judge noted that the appellant was not involved in all the planning and premeditation of the robbery, he was satisfied that at some point of his involvement, the appellant knew what was going to happen.  The Judge was therefore satisfied that the appellant was involved in part of the planning and premeditation.  Another aggravating factor noted was the use of weapons, disguises and threats of violence with a knife.

[11]     The Judge referred to the additional range of sentences available since the amendments to the Sentencing Act 2002.  As regards the sentence of home detention or community detention, he noted that it was difficult to assess the prospects of rehabilitation and the appellant’s motivation to reform since the appellant had not entered any programmes to assist with his rehabilitation.  The Judge also had concerns regarding the appellant’s father’s background, given that the appellant would be living with him were he to be sentenced to either community detention or home detention.  The Judge considered that the purposes of deterrence and denunciation of the appellant’s conduct required a custodial sentence.  This was a particularly serious aggravated robbery in which the appellant was a “player”.

[12]     The Judge said that he could distinguish the appellant from the other offender who received a lengthy sentence of imprisonment, and accepted a starting point of four years imprisonment.  From that starting point he made a substantial reduction for the appellant’s guilty plea, his lack of serious previous offending, his age at the time of the offending and the fact that the Judge could distinguish the nature of the appellant’s offending from the others involved.  He reduced the sentence by 21 months (approximately 45%) arriving at a final finite sentence of two years, three months. 

First ground of appeal

[13]     It is submitted for the appellant that the Judge should have adopted a lower starting point, in the range of three years, in light of the following features of the appellant’s offending:

1.Lack of premeditation on the appellant’s part as is reflected in the summary of facts. 

2.The appellant was not a ringleader, as his intention to participate came very much later on in the series of events that preceded the offending.

3.The appellant received no part of the stolen money or cigarettes.

[14]     The appellant accepts that a sizeable discount was given by the sentencing Judge.  However, it is said that in doing so he failed to give any consideration to the appellant’s prospects for rehabilitation, the fact that he had been in gainful employment as a builder since his offending and the assessment in the pre-sentence report that the offender was at a low risk of reoffending.  Finally, the appellant submits that the Judge was wrong to conclude that the appellant was not remorseful when he had written a letter of apology, had offered to attend a restorative justice conference to meet and apologise to the victim (the victim declined that opportunity) and he had also offered to pay reparation for emotional harm.

Discussion

[15]     R v Mako [2000] 2 NZLR 170 (CA) provides guidance for sentencing in cases of aggravated robbery. In that case this Court identified a number of features of such offending which were to be regarded as aggravating, whilst noting that the list was not exhaustive and that the task of placing the combination of features comprising an offence in its proper relative position on a scale of seriousness was a matter of judgment calling for careful exercise of the sentencing discretion. The aggravating features identified which are relevant to the appellant are as follows:

(a)The degree of planning and preparation.  In this case the other offenders were involved in planning in advance of the car trip to the dairy.  The appellant joined into the common enterprise late which does reflect a lesser level of criminality than the other participants.

(b)The number of participants and their deployment.  This offending involved five offenders, with four entering the dairy, increasing the degree of intimidation and fear that would have been engendered in the victim.

(c)Disguises and other means of concealing identity and facilitating flight generally.  The disguises would also have increased the degree of intimidation and fear engendered in the victim. 

(d)The numbers and types of weapons and how they are brandished.  The four offenders carried with them into the dairy a knife, a claw hammer and a pole.  The pole and knife were employed by the offenders to back up the demands they made once in the dairy.  In Mako the Court of Appeal remarked upon the danger of knives in the hands of nervous or aggressive offenders when confronted by the unexpected.

(e)The target premises.  In Mako this Court said that the greater the potential reward for robbing the premises, the greater the criminality.  While the potential reward for robbing a dairy is not great in terms of the cash held in the premises, we accept the Crown’s submission that an aggravating feature in relation to small retail premises is that they are often staffed by just one person and they do not usually have sophisticated security systems so that the vulnerability of the victim is increased. 

[16]     This Court discussed the appropriate starting point in cases such as the present.  At [56] this Court said:

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 the 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.

[17]     And particularly relevant to the role that this appellant played in the offending, are the remarks at [64]:

As this Court made clear in Smart [CA57/94 24 May 1994] 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. The lookout, the getaway driver, may in fact be the ringleader.

[18]     In this case the Judge correctly identified the relevant aggravating features of the offending.  The Judge took into account that there was less criminality involved in the appellant’s offending because he was not involved in the early premeditation and planning.  In selecting the starting point the Judge said that he distinguished the appellant from the other offender who received a lengthy sentence of imprisonment, and adopted a starting point of four years imprisonment.  We do not of course know what the starting point for the other offender was, but we infer that it was more than four years since four years was the final sentence imposed. 

[19]     The Judge then proceed to reduce the sentence by approximately 45% in light of the appellant’s guilty plea, his lack of serious previous offending, his age at the time of the offending and the fact that he could be distinguished in some respects from the others. 

[20]     The Judge did not take the appellant’s prospects of rehabilitation or remorse into account as a mitigating factor.  As to rehabilitation he noted that the appellant had taken no steps to address his over-consumption of alcohol even though that was a factor associated with his offending.  As to remorse, the Judge observed that the letter of apology was only offered in court.  The Judge concluded:

While you do not appear to have reoffended since and you now express remorse and a willingness to pay reparation, you have not voluntarily done any of that since the offending and have not entered into any programmes from what I understand, which may assist your rehabilitation. 

That view of the appellant’s remorse and his efforts towards rehabilitation was well supported by the material before the Judge.  The reduction in sentence for mitigating factors was substantial, and even had the Judge taken into account remorse and prospects for rehabilitation, a more generous reduction would not have been justified.  We also note that the Judge seems to have given the appellant credit for his lesser role in the offending twice, since it is taken into account both in fixing a starting point and in the discount.

[21]     It follows that the final sentence of two years and three months was within the appropriate range.  This ground of appeal fails.

The second ground of appeal

[22]     Counsel for the appellant submits that a sentence of home detention or community detention was available to the court in this case and the Judge should have exercised his discretion to impose such a sentence.  Counsel for the appellant drew considerable encouragement for this submission from the Corrections Department’s recommendation of a sentence of community detention and supervision, and from the fact that the Crown did not oppose such a sentence at the sentencing hearing.  Counsel referred to two cases in which sentences of home detention have been imposed in cases of aggravated robbery: Golding v Police HC WHA CRI 2008-488-0003 14 February 2008 and Waterhouse v Police HC HAM CRI 2007-419-130 29 November 2007. 

[23]     We consider that the Judge was correct in this case to refuse to impose a sentence of either home detention, or community detention with supervision.  In R v Hill [2008] NZCA 41 this Court observed that the home detention provisions sit within the general context of the Sentencing Act and therefore must be imposed in a way which is consistent with the purposes and principles of sentencing as set out in the Act.

[24]     In determining whether or not to impose one of the alternative sentences recommended the Judge was required to take into account the purposes of sentencing and in this case, deterrence and denunciation were particularly powerful considerations.  The offending was more serious than the offending in either case relied upon by the appellant.  Moreover, the Judge was not confident as to the appellant’s prospects of rehabilitation.  Finally, the Judge had legitimate concerns regarding the proposed address for either a sentence of home detention or community detention. 

[25]     It is perhaps arguable the Judge could have taken a more favourable view of the prospects of rehabilitation of the appellant if he were able to remain in work.  However, as was identified in the pre-sentence report, a sentence of home detention would not enable him to retain his current employment.  Only a sentence of community detention would allow that, and such a sentence was not appropriate in a case of this seriousness.  As s 10A of the Sentencing Act makes clear, community detention sits below home detention on the hierarchy of sentences, reflecting a lesser level of supervision, monitoring and restriction upon the offender.  That will be so even when combined with an order of supervision.

[26]     In this case the Judge’s decision that a sentence of home detention was not appropriate given the seriousness of the offending was a conclusion he was properly able to reach in light of the purposes of sentencing, and in view of the particular circumstances of the appellant. 

[27]     It follows that this ground of appeal also fails.

[28]     We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington