Sika v R
[2011] NZCA 376
•9 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA70/2011 [2011] NZCA 376 |
| BETWEEN TEVITA SIKA |
| AND THE QUEEN |
| Hearing: 2 August 2011 |
| Court: Ellen France, Heath and Lang JJ |
| Counsel: M N Pecotic for Appellant |
| Judgment: 9 August 2011 at 9 am |
JUDGMENT OF THE COURT
A The appeal against the sentence imposed on the charge of aggravated robbery is dismissed.
BThe appeal against the sentence imposed on the charge of common assault is allowed. The sentence imposed on that charge is quashed and a sentence of three months imprisonment is imposed in its place. That sentence is to be served cumulatively upon the sentence imposed on the charge of aggravated robbery.
REASONS OF THE COURT
(Given by Lang J)
Introduction
Mr Sika pleaded guilty in the District Court at Auckland to charges of aggravated robbery and common assault. On 12 January 2011 Judge Wade sentenced him to two years three months imprisonment on the charge of aggravated robbery.[1] He imposed a cumulative sentence of six months imprisonment on the charge of assault. Mr Sika now appeals against the sentences on the ground that they are manifestly excessive.
The facts
The charge of aggravated robbery
[1] R v Sika DC Auckland CRI-2011-004-4664.
The charge of aggravated robbery arose out of an incident that occurred on 12 March 2010. On that evening Mr Sika was a member of a group of young men who went to the carpark of the Wesley Community Centre in Sandringham. The group approached a parked van, in which the complainant and his brother were sitting. The complainant’s own van was parked nearby.
One of the members of Mr Sika’s group asked the complainant’s brother for a cigarette. The complainant’s brother complied with this request, but he and the complainant then realised that the van in which they were sitting was surrounded by Mr Sika’s associates. At that point they decided to drive away from the carpark, leaving the complainant’s van where it was.
A short time later, the complainant and his brother decided to call the police and to go back to the carpark in order to retrieve the complainant’s van. The complainant and his brother drove up to the complainant’s van, which they saw surrounded by the members of Mr Sika’s group. The complainant then got out of his brother’s van and into his own vehicle. Before he could lock the doors, one of Mr Sika’s associates managed to open the passenger’s door. He then climbed into the complainant’s van and began to punch him. He also demanded that the complainant hand over his cigarettes, money and wallet.
The complainant initially started up the engine of his van in an effort to leave, but decided not to do so because he did not want to hurt members of Mr Sika’s group who were standing around outside the van. He then told his assailant that he could have the van. Notwithstanding this, the man in the passenger seat continued to punch the complainant and to grab his shirt.
Once the complainant got out of his van, Mr Sika got behind the wheel and drove the van away from the carpark. A short time later, a police patrol saw the van and signalled for it to stop. Mr Sika slowed down, but before the van came to a complete stop he jumped out of it and ran into a nearby park. When the police found him a short distance away, he denied any involvement in the robbery. He said that he was only going for a jog.
Mr Sika was the only person arrested as a result of the robbery of the van. When spoken to by the police, he declined to provide any assistance regarding the identity of his co-offenders.
The charge of common assault
The charge of common assault arose out of an incident that occurred in the early hours of Sunday 17 October 2010. On that occasion Mr Sika was outside a nightclub in Karangahape Road. He approached a person who was fundraising on the footpath near the nightclub. Without provocation, Mr Sika punched this person on the left cheek with a closed fist. He then walked away down a nearby side street. The victim suffered bruising to his cheek and a headache as a result of the assault.
When the police arrived on the scene, they saw Mr Sika walking back towards the nightclub dressed in different clothing to that which he had been wearing when he committed the assault. He offered no explanation for his actions.
This offending occurred whilst Mr Sika was on bail on the charge of aggravated robbery. He was also in breach of bail conditions requiring him to observe a curfew at night and to abstain from drinking alcohol.
The approach taken in the District Court
Judge Wade did not accept a submission that Mr Sika had been intoxicated at the time of the robbery of the van to the extent that he had no real recollection of the events that occurred at that time. He considered that Mr Sika’s actions during and immediately following the robbery demonstrated that he was in full control of his faculties throughout the incident.
The Judge also rejected a submission that Mr Sika was so intoxicated at the time of the assault outside the nightclub that he did not know what he was doing. The fact that Mr Sika had had the presence of mind to change his clothing in an effort to avoid detection suggested to the Judge that he knew exactly what he was doing at the time of the assault.
The Judge acknowledged that Mr Sika was not the principal offender in the aggravated robbery because he was not the person who physically assaulted the complainant and demanded that he give up his vehicle. Similarly, he accepted that Mr Sika was not obliged to name those persons who had been with him at the time of the robbery. The Judge agreed, however, with the Crown’s submission that the appropriate starting point was a sentence of two years six months imprisonment.
The Judge then noted that Mr Sika had several previous convictions. These included two convictions for assault, one for theft and one for disorderly behaviour. The most serious of his previous convictions was in respect of a charge of attempted unlawful sexual connection. On that charge he had received a sentence of two years three months imprisonment on 5 June 2008. The Judge applied an uplift of three months to reflect Mr Sika’s previous convictions, thereby producing an end starting point of two years nine months imprisonment.
Although Mr Sika did not enter his guilty plea until the morning of his trial, the Judge accepted that there had been late disclosure of relevant material, and that the indictment and summary of the facts had been amended to reflect Mr Sika’s lesser involvement in the offending. He allowed a discount of six months, or approximately 18 per cent, to reflect the guilty plea.
The Judge was not, however, prepared to allow a further discount for the remorse that Mr Sika had expressed prior to sentencing. He considered the claim of remorse was unsubstantiated and not genuine, as demonstrated by the events that gave rise to the charge of assault on 17 October 2010. The end sentence on the charge of aggravated robbery was therefore two years three months imprisonment.
The Judge noted that the assault that Mr Sika committed on 17 October 2010 was totally separate offending. It occurred when Mr Sika was on bail facing a very serious charge, and in breach of bail conditions obliging him to observe a curfew and not to consume alcohol. He therefore selected a starting point of 12 months imprisonment on that charge, being the maximum sentence available.
The Judge reduced the starting point by six months, or 50 per cent, to recognise totality principles and the very prompt plea of guilty. This produced an end sentence of six months imprisonment. He ordered Mr Sika to serve that sentence cumulatively on the sentence imposed on the charge of aggravated robbery.
Grounds of appeal
Counsel for Mr Sika pointed out that Mr Sika did not participate in the violence inflicted on the complainant during the robbery, or in planning the offence. She contended that the offence was opportunistic in nature and not pre-meditated in any significant way. Although Mr Sika was responsible for driving the complainant’s van away, he had not been involved in the acts that led to the complainant abandoning his motor vehicle. For these reasons she contended that his culpability was much less than that of the person who had assaulted the complainant and stolen his personal possessions. Counsel submitted that an appropriate starting point would have been in the vicinity of 18 months to two years imprisonment.
For this reason counsel contended that the Judge had selected a starting point on the charge of aggravated robbery that was too high. She relied for this submission on the following passage from R v Mako:[2]
A sentence of two years or less is available to the sentencing Judge only if the elements which convert a robbery into an aggravated robbery are present to a small degree or the offender's participation in the crime and its planning (if any) was very much in a secondary role. Several Solicitor-General's appeals against suspended sentences for aggravated robbery have succeeded in recent years because not enough weight was given by the sentencing Court to the seriousness of the crime and the offender's role in it. The need for deterrence to others is an important consideration.
[2] R v Mako [2000] 2 NZLR 170 (CA) at [68].
Next, counsel contended that the Judge had overstated Mr Sika’s criminal history. She based this submission on the Judge’s observation that these were Mr Sika’s “seventh and eighth appearances”. The true situation was that, although Mr Sika had six previous convictions, they arose out of just four sets of charges. The earliest of these was committed when Mr Sika was still a youth. The Judge had also observed that it was undoubtedly an aggravating feature when an offender came before the Court with as many convictions as Mr Sika had. Counsel submitted that Mr Sika’s criminal history was not such that it required recognition by way of the three month uplift that the Judge applied.
Counsel also submitted that the Judge had failed to give sufficient recognition to Mr Sika’s guilty plea. She pointed out that the trial scheduled for the date upon which he entered his plea was allocated on a standby basis. For that reason the entry of the plea on the day of the trial did not waste Court resources or time, and witnesses had not been required to attend that day.
Mr Sika had also entered his guilty plea after the Crown had amended the indictment and the summary of facts so as to reflect his true role in the offending and to make it clear that he was only involved in the theft of the van and not other personal items taken from the complainant. In addition, the Crown had only disclosed important identification evidence three weeks prior to the entry of the plea. In those circumstances counsel submitted that the Judge ought to have given Mr Sika greater credit for the guilty plea than he did.
Counsel for Mr Sika also submitted that the Judge had failed to give adequate credit for the remorse he had expressed for his offending, and steps that he had taken to rehabilitate himself. She pointed out that the Supreme Court confirmed in Hessell v R[3] that genuine remorse may be recognised separately from credit given in respect of a guilty plea. She contended that the Judge had failed to undertake a robust and proper evaluation of the circumstances demonstrating Mr Sika’s remorse. An important factor in this regard was the letter of apology that Mr Sika had written prior to sentencing. In this, Mr Sika had said that he would address issues relating to his consumption of alcohol and anger control. Counsel submitted that the Judge ought to have given Mr Sika further credit for these factors.
[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
Finally, counsel for Mr Sika contended that the starting point the Judge selected in respect of the assault charge was manifestly excessive. Had it been dealt with on its own, she submitted that it would probably have attracted a community-based sentence. The complicating factor here was the charge of aggravated robbery. This precluded the Judge from imposing a community-based sentence on the assault charge. Had the Judge imposed a sentence of home detention on the charge of aggravated robbery, he would have been in a position to impose a similar sentence in relation to the charge of assault. As matters stood, counsel submitted that the cumulative sentence of six months imprisonment on the assault charge resulted in a sentence that was manifestly excessive.
Analysis
The charge of aggravated robbery
Starting point
The aggravated robbery comprised two distinct phases. In the first, Mr Sika’s associates surrounded the van in which the complainant and his brother were sitting. Their behaviour was clearly intimidating, because it persuaded the complainant and his brother to drive away from the scene. The second phase commenced when the complainant and his brother returned to the carpark after having called the police. By this stage Mr Sika’s group had clearly formed an intention to rob the complainant and/or his brother. It was at this point that one of Mr Sika’s associates physically assaulted the complainant after the complainant had managed to get back into his own van. This resulted in the complainant abandoning his van to the group. Mr Sika immediately involved himself directly in the robbery by climbing into the complainant’s van and driving it away.
Viewed as a whole, the incident amounted to a concerted and persistent effort by a group of young men to rob an innocent person using force of numbers and intimidatory behaviour. Actual violence was also employed by the person who got into the passenger seat of the complainant’s van. Although he was not physically responsible for inflicting that violence, Mr Sika’s role as the driver of the stolen vehicle meant that his participation in the offending could not be described as secondary.
We do not consider that the offending, and Mr Sika’s participation in it, fits within the category of offending described in Mako upon which his counsel relies. We do not accept, either, that the elements that converted the robbery into an aggravated robbery were only present to a small degree. Mr Sika and his associates confronted the complainant and his brother in numbers, and this was very much a central feature of the offending.
We consider that the nature of the offending is most readily captured by the following passage from Mako:[4]
At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.
[4] At [59].
Based on this passage, the starting point for the person who inflicted actual violence on the complainant would have been three and a half years imprisonment or more. Viewed in that light, we do not see how a starting point of two and a half years for Mr Sika’s role in the robbery can be considered excessive.
The uplift for previous convictions
We do not consider, either, that the Judge can be criticised for applying an uplift of three months imprisonment to reflect Mr Sika’s previous convictions. These included two separate sets of charges involving the use of violence by Mr Sika whilst committing other offences. Although the earliest of these occurred in 2002, the previous convictions were sufficient to suggest an emerging trend of offending accompanied by violence.
For this reason we are satisfied that the Judge was justified in applying the uplift that he did.
Discount for the guilty plea
Mr Sika did not enter his guilty plea until the day of his standby trial. As the Supreme Court noted in Hessell, the maximum credit now available for a guilty plea is 25 per cent.[5] The Supreme Court also confirmed that the level of discount to be given in respect of a guilty plea is not to be determined solely having regard to the timing of the plea. Instead, the Court must have regard to all relevant circumstances, including the strength of the case against the accused.[6]
[5] At [75].
[6] At [74].
Mr Sika entered his guilty plea in the face of evidence that the police had found him driving the stolen van within six minutes of the complainant and his brother having contacted the police before returning to the carpark. This meant that he must have begun driving it just a minute or two before the police found him behind the wheel of the vehicle. In those circumstances the Crown case against him must be regarded as having been reasonably strong.
For that reason, even allowing for the late disclosure and the amendment of the indictment and summary of facts, the discount of approximately 18 per cent cannot be regarded as being outside the available range.
Remorse
Counsel for Mr Sika rightly pointed out that a sentencer is entitled to apply a discount for genuine remorse independently of any discount given in respect of a guilty plea.[7] Whether or not the remorse is to be viewed as genuine and deserving of recognition in this way requires the sentencer to undertake a robust review of all relevant factors.
[7] Hessell at [64].
In the present case the Judge was clearly of the view that Mr Sika’s expression of remorse was not genuine. He was influenced in that view by the fact that Mr Sika had consumed alcohol and offended again in a violent way whilst on bail on the charge of aggravated robbery. In addition, he had not expressed any remorse or apologised to the complainant prior to the letter that he wrote the day before he was due to be sentenced.
We consider that the sentencing Judge was best placed to determine whether or not Mr Sika’s expressions of remorse were genuine. He gave reasons to explain why he had concluded that they should not attract a further discount. We are not prepared to disturb the Judge’s conclusion on this point.
Conclusion
For these reasons we do not detect any error in the manner in which the Judge formulated the sentence that he imposed on Mr Sika in relation to the charge of aggravated robbery.
The charge of common assault
The starting point that the Judge selected on the charge of common assault was the maximum sentence available for that charge. This probably included an allowance for the aggravating factors arising out of Mr Sika’s previous convictions and the fact that he was on bail (and in breach of his bail conditions) at the time of this offending.
Of its type, the assault was undoubtedly serious in the sense that it was a completely unprovoked attack on a person lawfully going about his business. It was restricted, however, to a single punch and did not result in lasting physical injury for the victim. That being the case, it would not ordinarily have attracted a custodial sentence. In the present case counsel for Mr Sika contended that the offending could adequately have been dealt with by the imposition of a very short cumulative sentence of imprisonment.
Even allowing for aggravating factors, we consider that the starting point that the Judge adopted was too high. We acknowledge that the reduction of 50 per cent to reflect the guilty plea and totality principles was generous in terms of conventional sentencing principles. Nevertheless, the end cumulative sentence of six months imprisonment effectively increased Mr Sika’s overall sentence by approximately 20 per cent. As serious as the circumstances surrounding the assault were, we think that this resulted in a sentence that was manifestly excessive. It made no allowance, either, for the fact that Mr Sika appears to have undertaken genuine efforts to rehabilitate himself following his arrest on the charge of assault and his marriage in December 2010.
We consider that an end cumulative sentence of no more than three months imprisonment was warranted on the charge of common assault.
Result
The appeal against the sentence imposed upon the charge of aggravated robbery is dismissed.
The appeal against the sentence imposed on the charge of common assault is allowed. The sentence imposed on that charge is quashed and a sentence of three months imprisonment is imposed in its place. That sentence is to be served cumulatively on the sentence imposed in respect of the charge of aggravated robbery.
Solicitors:
Crown Law Office, Wellington for Respondent
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