Singh v Police HC Gisborne Cri-2010-416-9

[2011] NZHC 25

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2010-416-000009

BETWEEN  DAVINDER SINGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 February 2011

Appearances: R A A Weir for Appellant

J Lucas for Crown

Judgment:      4 February 2011 16:00:00

JUDGMENT OF VENNING J

This judgment was delivered by me on 4 February 2011  at 4 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Gisborne

Woodward Chrisp, Gisborne

Copy to:            R A A Weir, Auckland

SINGH V NEW ZEALAND POLICE HC GIS CRI-2010-416-000009 4 February 2011

[1]      The appellant pleaded guilty to charges of attempted aggravated robbery and aggravated robbery.   On 1 December 2010 Judge Wilson sentenced him to imprisonment for three years three months.  He appeals against the sentence.

Background to the offending

[2]      The offending was directed at a restaurant owned by the appellant’s family. Members of the appellant’s family, including his wife, worked in the restaurant.  The appellant and an associate, Mr Henry, decided to stage an aggravated robbery at the restaurant to steal the cash located at the restaurant.  During the evening of 5 May

2010  the  appellant  was  at  the  restaurant  with  his  wife  and  sister-in-law.    The appellant arranged for Mr Henry to attend at closing time.  Mr Henry was driven to the restaurant by another co-accused Mr Katipa.   Because of a miscommunication between the offenders Mr Henry got his timing wrong and arrived at the back door at the same time the owner’s wife was checking it was secure. That attempt foundered.

[3]      The appellant then arranged for Mr Henry to return to the restaurant at the end of business the next day.  They again agreed to stage a robbery.  When Mr Henry burst inside the restaurant holding a large knife a pre-planned struggle then ensued between the appellant and Mr Henry.  The appellant’s wife came to the rear of the restaurant to see what the commotion was.   Mr Henry then told her to “get over here” and gathered the appellant, his wife and the owner’s wife in one place.  Mr Henry then  made  repeated  demands  of  the  appellant’s  wife  for  the  money and instructed her to put it in a bag.  She put $20,000 into the bag which was passed to Mr Henry.  Mr Henry then ran out of the restaurant to the vehicle where the other accused Mr Katipa was waiting.   The appellant then rang the police and advised them of the robbery but told them that Mr Henry had left via the front door of the restaurant heading in the direction of a Woolworths supermarket.  That was in the opposite direction to the route taken by Mr Henry.   As a result the police set up cordons and were unable to locate the accused.   The offenders later met up and

divided up the $20,000.  As a result of the police investigation all three were spoken to on 21 May 2010 and admitted the offending.

[4]      The appellant pleaded guilty at an early stage and attended a restorative justice meeting with his family.   He has been forgiven by his family who have advanced him $15,000 to repay his share of the money taken in the aggravated robbery.  He, however, maintains an obligation to repay them that sum.

The District Court judgment

[5]      In sentencing the appellant Judge Wilson took the view the appellant was the master mind of the robbery.  The Judge referred to the Court of Appeal decision in the tariff case of R v Mako[1]  and considered that an example given in that case was directly applicable to the present case.   He took as a start point five years’ imprisonment.   From that the Judge gave credit for remorse, the offer to make amends, the restorative justice process and his assistance to police, in all totalling eight months.  The Judge then gave what he described as a full credit for the early pleas of guilty of 25 per cent consistent with the Supreme Court decision in R v Hessell.[2]

[1] R v Mako [2002] 2 NZLR 170.

[2] R v Hessell [2010] 2 NZLR 298 (CA).

Appellant’s case

[6]      The  appellant  appeals  on  the  basis  the  sentence  imposed  is  manifestly excessive and submits that a sentence of home detention should have been imposed. Mr Weir says the sentence is manifestly excessive because the Judge was wrong both as to his start point of five years and because he failed to give sufficient credit for mitigating factors.

[7]      Mr Lucas submits that the start point of five years was open to the Judge but that in any event it was the end sentence that was relevant, not how it was arrived at. He submitted that three years three months was within a range available to the Judge in this case.

Decision

[8]      As a matter of principle the approach that Mr Lucas advocated for is the approach that the Court of Appeal has endorsed on a number of occasions.   The ultimate question for this Court on an appeal against sentence is whether the end sentence, however it may have been structured, is manifestly excessive or not. However, in assessing that it can sometimes be instructive to consider the sentencing process afresh as I propose to do in this case.

[9]      Mr Weir  first  submitted the Judge fell  into  error by considering himself bound to impose a start point of five years by reference to R v Mako, particularly where he took a start point in relation to the co-offender, Mr Henry of four and a half years.

[10]     The relevant passage from R v Mako is:[3]

[3] At [56].

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.

[11]     Mr Weir emphasised that the summary of facts the appellant pleaded guilty to did not suggest there was any violence directed at the female workers and that the

fight between the appellant and Mr Henry was a staged fight.  That submission is correct insofar as it goes.  However, Mr Henry was armed with a knife.  The very purpose of the staged fight which was pre-planned was to intimidate the appellant’s wife and the other woman so that they would hand over the money on demand to Mr Henry, which is exactly what occurred.  A large sum of money was taken.  So, while the other victims may not have been assaulted, in my judgment, a start point of five years was open to the Judge in this case.

[12]     Mr Weir sought to support his submission for a start point of significantly less than five years by reference to the case of Joel v New Zealand Police.[4]   However that  case  was  quite  different  and  is  readily  distinguishable.    Joel  was  a  young offender who had confronted a woman in her home.  While he was armed with a knife, the offending was not premeditated.  There was no actual violence directed towards the victim (which I accept is similar to the present case).   However, importantly, when the victim in that case said she would get the keys but the car didn’t work the appellant immediately tried to leave the property and get away.  He threw away the knife.  It was, as the Court observed, a particularly unsophisticated

[4] Joel v New Zealand Police HC Auckland CRI-2010-404-000062, 10 May 2010.

burglary.   It is of quite different nature to the present case where the aim was achieved and $20,000 taken.

[13]     Finally, it was open to the Judge to adopt a lesser starting point in this case for Mr Henry, given that the Judge took the view (open to him on the facts) that the appellant was the principal instigator of the offending.  Also, it was the appellant who gained most from the robbery.  He took $15,000 with the balance $5,000 being shared between Mr Henry and the other offender, the driver.  I conclude that a start point of five years was open.

[14]     The Judge then allowed a reduction of eight months for mitigating factors other than the guilty plea.  As noted he then applied a discount of 25 per cent in line with the Supreme Court decision in R v Hessell.[5]

[5] R v Hessell [2010] 2 NZLR 298 (CA).

[15]     For the purposes of this appeal Mr Lucas confirmed the police accept that having regard to the comments of the Court of Appeal in  R v Tai[6]  that as the appellant pleaded guilty at a time when the Court of Appeal decision in Hessell was operative, which may have affected the decision to plead guilty, a full discount of 33 per cent should be allowed in this case.

[6] R v Tai CA410/2010, 8 December 2010.

[16]     That leaves the issues of reparation and assistance to the police.  In this case the reparation was significant.   The appellant has assumed an obligation to repay

$15,000 to his family.  That has been accepted in full by his family as the reparation required from the appellant. I note that the appellant was supported in Court by his father, his wife and by the other family member affected by the robbery.   That is particularly significant.   Section 10(1)(a) and 10(2)(b) of the Sentencing Act are directly applicable.  In the present case I am also satisfied that, having regard to the notes of the restorative justice meeting, the appellant’s remorse is exceptional and is demonstrated in a practical and material way warranting its own reward.   In my judgment a full allowance of one year from the start point would have been appropriate for the reparation and the exceptional remorse, in addition to the guilty plea.

[17]     I am, however, unable to accede to Mr Weir’s submission that a further allowance for the assistance to the police should be provided.  The assistance was very limited.  While the appellant and Mr Henry pleaded guilty, the driver Mr Katipa took the matter to trial.  The police wished to interview the appellant regarding Mr Katipa’s involvement.   The appellant acceded to that request.   The letter from the police confirms that the appellant was reinterviewed and “while he was not able to positively assist police with his knowledge, he did provide a statement”.

[18]     The  summary  of  facts  notes  the  driver  had  previously  admitted  his involvement. As the Court of Appeal noted in R v Hadfield[7]  and R v A and B[8]  the extent of the discount depends on the value of the help given and expected to be

[7] R v Hadfield CA337/06, 14 December 2006.

[8] R v A and B [1999] 1 Cr App R (S) 52.

given.  The assistance given in the present case was of very limited value and would

not warrant a further reduction.  The appellant did not, for example, give evidence against Mr Katipa.

[19]     Deducting one year from the start point of five years and then applying the one-third discount to the adjusted four year sentence leads to an end sentence in the present case of two years eight months.

[20]     It follows that I accept the general submission that the sentence of three years three months was manifestly excessive.   However, the appropriate sentence is still well above the level at which home detention could be considered.

Result

[21]     The appeal against sentence is allowed.   The sentence of three years three months  is  quashed.    It  is  replaced  with  a sentence of two  years  eight  months’

imprisonment.

Venning J