Stratton-Pineaha v R

[2020] NZCA 50

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA787/2018
 [2020] NZCA 50

BETWEEN	JORDAN STRATTON-PINEAHA Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2020
Court:	Clifford, Simon France and Lang JJ
Counsel:	N M Graham for Appellant Z A Fuhr for Respondent
Judgment:	11 March 2020 at 1 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

1. Mr Stratton-Pineaha pleaded guilty in the District Court to a charge of aggravated robbery.  On 14 December 2018, Judge Rea sentenced him to five years and two months’ imprisonment.[1] 

   [1]R v Stratton-Pineaha [2018] NZDC 26238 [Sentencing notes].

2. Mr Stratton-Pineaha appeals against sentence on the basis the Judge adopted a starting point that was too high and failed to give him adequate discount for his guilty plea.[2]  He contends these errors resulted in the Judge imposing a sentence that was manifestly excessive.

The offending

[2]During the hearing Ms Graham advised us that Mr Stratton-Pineaha abandoned an argument that the Judge failed to give him adequate discount for mitigating factors other than his guilty plea.

1. The Judge sentenced Mr Stratton-Pineaha on the basis of a summary of facts prepared for a sentence indication the Judge gave on 24 September 2018.[3]  This recorded that Mr Stratton-Pineaha and an associate had gone to the complainant’s address at about 11 pm on 26 March 2018.  Mr Stratton-Pineaha was wearing Mongrel Mob regalia, including a black leather vest, a hooded sweatshirt and a red bandanna around his neck.  His associate was also wearing a black hooded sweatshirt and had a red bandanna covering his face.

   [3]R v Stratton-Pineaha DC Napier CRI-2018-020-965, 24 September 2018 [Sentence indication].

2. The complainant was asleep when Mr Stratton-Pineaha knocked on his door.  When the complainant came to the door, Mr Stratton-Pineaha and his associate entered without invitation, causing the complainant to step backwards.  Mr Stratton-Pineaha and the complainant then went to the complainant’s bedroom, whilst Mr Stratton‑Pineaha’s associate remained in the kitchen.  Mr Stratton-Pineaha told the complainant he was there to take some of his property because the complainant had taken Mr Stratton-Pineaha’s father to court.  This was a reference to the fact that the complainant was to give evidence against Mr Stratton-Pineaha’s father on charges of assault and wilful damage of a vehicle.

3. Mr Stratton-Pineaha then produced a knife having a blade approximately 15 centimetres in length.  He brandished this at the complainant and told him he would be cut with the knife if he went to the police or tried to stop Mr Stratton-Pineaha from doing what he was about to do.  Mr Stratton-Pineaha then took the complainant’s laptop computer and cellphone from the bedroom.  His associate took the complainant’s car keys and wallet from the kitchen area.  The two men then left the address. 

4. The complainant immediately went to a neighbouring address where he called the police.  He later found a spare key to his car and, fearing that Mr Stratton-Pineaha and his associate would return, he drove to the police station.  Mr Stratton-Pineaha was located and arrested the following day.

The sentence indication and sentence

1. The Judge gave Mr Stratton-Pineaha a sentence indication on the first day of the week in which he was to stand trial on charges of aggravated robbery and attempting to pervert the course of justice.  The Judge relied on the following passage from the judgment of this Court in R v Mako in setting the starting point:[4]

   [58]      Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.  Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

   [4]R v Mako [2000] 2 NZLR 170 (CA).

2. The Judge observed:[5]

   [10]     The approach that I take to this is that the Court of Appeal has encapsulated exactly the situation that I am confronted with here and has set the starting point at a minimum of seven years’ imprisonment and that is where I intend to start. 

   [5]Sentence indication, above n 3.

3. From the starting point of seven years’ imprisonment the Judge indicated a discount of nine months, or 10 per cent, would be available for any guilty plea.  This reflected the late stage at which any plea would be entered.  The Judge left open the possibility of further discounts being available to Mr Stratton-Pineaha to reflect mitigating factors revealed by the pre-sentence report and other material that might be available at sentencing.

4. Mr Stratton-Pineaha accepted the indication and entered a guilty plea to the charge of aggravated robbery later the same week.  When Mr Stratton-Pineaha was sentenced on 14 December 2018, the Crown offered no evidence on the charge of attempting to pervert the course of justice. 

5. At sentencing the Judge maintained the starting point of seven years’ imprisonment but allowed a further discount of 15 months, or 18 per cent, to reflect mitigating factors personal to Mr Stratton-Pineaha.[6]  These included the fact that he was just 22 years of age at the time of the offending, he had demonstrated extreme remorse and attempted to make amends to the complainant.  The 10 per cent discount for the late guilty plea produced the end sentence of five years and two months’ imprisonment.

Starting point

[6]Sentencing notes, above n 1, at [9].

1. On Mr Stratton-Pineaha’s behalf Ms Graham acknowledged that Mr Stratton‑Pineaha’s offending has several of the aggravating factors identified in the passage set out above from Mako.She submitted, however, that his overall culpability justified a starting point of less than seven years’ imprisonment.  Ms Graham pointed out that Mr Stratton-Pineaha and his associate did not force entry to the complainant’s dwelling.  Rather, they walked through the door when the complainant opened it.  She also relied on the fact that, although Mr Stratton-Pineaha threatened the complainant with a knife, no actual violence was used.

2. In addition, Ms Graham relied on other cases in support of her submission that a starting point of around four years and six months’ imprisonment was warranted.  These included Marsh v R[7] and Reid v R,[8] both of which have some factual similarities to the present case.  Starting points of three and a half years’ and four years’ imprisonment respectively were selected in those cases for offending involving the theft of property from private dwellings when threats of violence were used.  In Reid, however, this Court clearly considered the starting point to be lenient.[9]

   [7]Marsh v R [2019] NZCA 220.

   [8]Reid v R [2017] NZCA 451.

   [9]At [15].

3. Like the Judge, however, we consider the aggravating features in the present case place it squarely within the category of offending identified in Mako as requiring a starting point of at least seven years’ imprisonment.  Mr Stratton-Pineaha’s offending involved uninvited entry into a residential address late at night.  The complainant was confronted by two persons, both of whom were dressed in gang-related regalia that was no doubt designed to intimidate.  Furthermore, at least one of the purposes of the offending was to punish or dissuade the complainant from giving evidence against Mr Stratton-Pineaha’s father.  In addition, the offending involved the theft of valuable property accompanied by threats of violence using a large knife.  Taking those factors into account, we consider the offending fell squarely within the category of case identified in Mako as requiring a starting point of at least seven years’ imprisonment.  This ground of appeal fails as a result.

Discount for guilty plea

1. Ms Graham acknowledged that Mr Stratton-Pineaha’s guilty plea was entered very late.  She pointed out, however, that the charges against Mr Stratton-Pineaha had come on for trial within six months of his arrest.  Furthermore, he had a late change of counsel and this may have affected the approach taken to the defence of the charge.

2. We acknowledge these factors, but a guilty plea entered during the week in which a defendant is to stand trial will routinely attract a discount of around 10 per cent.  The fact that the charges in the present case came on for trial quickly does not affect that fact.  Mr Stratton-Pineaha had ample opportunity between March and September 2018 to reflect on his position.  Furthermore, there is nothing to suggest the change of counsel affected the timing of his plea.  We are therefore satisfied the discount the Judge applied was within the available range. 

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent