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…

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 Salanoa

Details

AGLC: R v Salanoa [2008] NZCA 185
Case: [2008] NZCA 185
Decision Date: 3 July 2008

CaseChat Overview and Summary

Richard Salanoa appealed against his sentence for aggravated robbery, arguing that the sentence imposed by the District Court was manifestly excessive and that the court should have imposed a sentence of home detention or community detention instead of imprisonment. The appeal was heard by the Court of Appeal of New Zealand, which dismissed the appeal. The Court found that the sentence was within the appropriate range, and the court was correct in refusing to impose a sentence of home detention or community detention. The appellant pleaded guilty to aggravated robbery under section 235(c) of the Crimes Act 1961. The appellant and four associates were drinking alcohol at an address in Massey when the group formed the intention to rob a dairy. They drove to the dairy armed with a knife, a claw hammer and a metal pole. The appellant remained in the vehicle while his associates carried out the robbery. The appellant was 17 years old at the time of the offending, and 19 years old at sentence. The District Court Judge sentenced the appellant to a term of imprisonment of two years, three months. The appellant appealed 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. The Court of Appeal found that the Judge correctly identified the relevant aggravating features of the offending and 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. The Judge distinguished the appellant from the other offender who received a lengthy sentence of imprisonment, and adopted a starting point of four years imprisonment. The Judge then proceeded 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. The Court of Appeal found that the final sentence of two years and three months was within the appropriate range. This ground of appeal fails. The Court of Appeal found that the Judge was correct in this case to refuse to impose a sentence of either home detention, or community detention with supervision. The purposes of sentencing, deterrence and denunciation were particularly powerful considerations in this case. 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. The Court of Appeal found that 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. This ground of appeal also fails. The Court of Appeal dismissed the appeal.

Orders