R v Terewi

[2014] NZHC 2862

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-319 [2014] NZHC 2862

BETWEEN

THE QUEEN

Appellant

AND

DEL-JACOB TEREWI Respondent

Hearing:	18 November 2014
Appearances:	M D Downs for Appellant M Mason for Respondent
Judgment:	18 November 2014

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 18 November 2014 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v TEREWI [2014] NZHC 2862 [18 November 2014]

[1]      Mr Terewi pleaded guilty in the District Court to a charge of aggravated robbery.   He entered his guilty plea after Judge McNaughton had  given him a sentence indication on 17 December 2013.1   On 22 August 2014, Judge McNaughton sentenced Mr Terewi to four months home detention. 2   The Crown appeals against the  sentence  on  the  basis  that  it  was  both  wrong  in  principle  and  manifestly

inadequate to reflect the gravity of Mr Terewi’s offending.

Background

[2]      Mr Terewi and his co-offender, Mr Rangirangi, robbed a liquor store in Takanini on the evening of 25 July 2013.   During the course of the robbery, Mr Rangirangi assaulted two persons who were working in the store at the time of the robbery.   The assaults  took the form of numerous punches to the face  of both victims.  It resulted in one complainant being taken to hospital with a broken jaw, whilst the other was taken to hospital with a fractured right eye socket.

[3]      Up until the point where Mr Rangirangi assaulted the two occupants of the store, Mr Terewi’s role had been as a lookout.   He entered the store during the course of the assaults, however, and produced  a pistol.   The summary of facts records that one of the victims heard Mr Rangirangi calling out to Mr Terewi “Shoot him”.   On hearing this, Mr Terewi yelled at the complainants “I’ll shoot you, I’ll shoot you” whilst pointing the pistol at them.  Mr Terewi then grabbed the top of the pistol and made a motion as if he was racking the weapon by pulling the slide at the top of the weapon towards him.  This caused the victims to back away.  Mr Terewi and Mr Rangirangi then left the store and drove away at speed.  During the incident Mr Rangirangi was wearing clothing wrapped around his neck and mouth, and Mr

Terewi wore a hooded jersey with the hood over his head.

1      R v Terewi DC Manukau CRI-2013-055-001868, 17 December 2013.

2      R v Terewi DC Manukau CRI-2013-055-001868, 22 August 2014.

The structure of the sentence

[4]      The Judge took a starting point of five years imprisonment.  He reduced this by 25 per cent to reflect mitigating factors personal to Mr Terewi, including remorse and rehabilitative efforts he had undertaken since his arrest.   He also provided a further credit of 25 per cent to reflect the fact that Mr Terewi had indicated he was prepared to give evidence against Mr Rangirangi.  The Judge then applied a further discount of 25 per cent to reflect Mr Terewi’s guilty plea.   This produced an end sentence  of  15  months  imprisonment,  which  enabled  the  Judge  to  consider  a sentence  of  home  detention.    Several  factors  persuaded  the  Judge  that  home detention was appropriate.   These included Mr Terewi’s strong commitment to rehabilitation, his age, the fact that he had no previous relevant criminal convictions and had a strong family support.   These factors prompted the Judge to impose a sentence of four months home detention.

The appeal

[5]      The Crown has appealed on the basis that the Judge adopted a starting point that was too low, and then adopted discounts that were excessive to reach the end starting point of 15 months imprisonment.   The Crown also takes issue with the conversion of that end sentence to a sentence of four months home detention.

[6]      In his written submissions counsel for the Crown initially contended that an end sentence of two years six months imprisonment was appropriate.   This would have precluded the Judge from imposing a sentence of home detention.

Disposition

[7]      Prior to the hearing, the Crown modified its position.  It now accepts that a sentence of home detention was available, but contends that a sentence of four months detention was manifestly inadequate.

[8]      Mr Terewi accepts that the Crown’s argument has merit.  He accepts that the maximum available sentence of 12 months home detention was appropriate to reflect the gravity of his offending.

[9]      I agree with this approach.   Although I consider that the Judge adopted an appropriate starting point of five years imprisonment, I consider that the discounts he applied were overly generous.  At 23 years of age, Mr Terewi does not have youth on his side.  More importantly, the statement that Mr Terewi gave to the police after the sentence indication hearing minimised his role in the robbery and caused the Crown to elect not to call him as a witness at Mr Rangirangi’s trial.  These factors persuade me that an end sentence of no less than two years imprisonment would have been appropriate.  This translates to approximately 12 months home detention.

Result

[10]     The  appeal  is  allowed  by  consent.    The  sentence  of  four  months  home detention  is  quashed.    In  its  place,  I substitute a sentence of  12  months  home detention on the same conditions as those imposed by the Judge in relation to the

previous sentence.

Lang J

Solicitors:

Crown Law Office, Wellington

Counsel: M Mason