Tamati v The Queen

[2017] NZHC 1078

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-2 [2017] NZHC 1078

BETWEEN

ANGELO DION TAMATI

Appellant

AND

THE QUEEN Respondent

Hearing:	22 May 2017
Appearances:	B Kilkelly for the Appellant R Smith for the Respondent
Judgment:	22 May 2017
Reasons:	23 May 2017

REASONS FOR JUDGMENT OF MANDER J

[1]      The appellant, Angelo Tamati, was sentenced to five years imprisonment, having pleaded guilty shortly before his trial to a charge of aggravated robbery.  He appealed his sentence on the ground the length of the prison term breached the principle of parity.   His co-offender was sentenced to a term of four years and 10 months imprisonment.

[2]      After hearing from Mr Tamati’s counsel I dismissed the appeal.  I now set out my reasons.

Background

[3]      Mr Tamati’s co-offender, Corey Elliman, lived with the victim of the robbery. Mr Elliman was evicted after a falling out.  He was aware of a large amount of cash which the victim had in his possession.  He contacted Mr Tamati, informed him of the cash, and explained various details to assist in the carrying out of a robbery.  He

also  provided  a  key  to  the  victim’s  house.    With  this  information  Mr  Tamati

TAMATI v R [2017] NZHC 1078 [22 May 2017]

contacted two unidentified men and made arrangements with them to rob the victim in his own home.

[4]      The two men recruited by Mr Tamati went to the victim’s house.  One was armed with a rifle, the other with a knife.  They used the key to enter the property and undertook a violent robbery of the occupant.  It is not necessary for the purposes of Mr Tamati’s appeal to go into the detail of the victim’s ordeal.  It is sufficient to note that he was assaulted, threatened with the rifle which was pointed at his forehead, and shot through his upper left thigh before being able to escape.   The offenders left the house taking a watch, $70 cash and two cell phones.  Neither of these two offenders have been apprehended.

District Court decision

[5]      The appellant and his co-offender, Mr Elliman, were sentenced together by Judge Crosbie.   Both men had separately obtained sentence indications from the same Judge of no more than five years imprisonment.  This was based upon neither man being aware that a firearm would be used in the course of the robbery.

[6]      After reviewing the relevant factual circumstances of the offending, the Judge proceeded to sentence each offender in an orthodox manner.  A starting point was identified before taking into account personal circumstances relating to each offender and credit for their guilty pleas.   The appellant was sentenced to a term of imprisonment of five years on the charge of aggravated robbery.  Mr Elliman was sentenced to four years and 10 months imprisonment on the charge of robbery.

Leave to appeal out of time

[7]      The  appellant  explained  he  had  difficulties  accessing  advice  regarding  a possible appeal from his trial lawyer.  He incorrectly filed a notice of appeal himself in the Court of Appeal which was rejected.   The Crown did not oppose the application, and in the circumstances leave was granted.

The appeal

[8]      Mr Tamati’s appeal is based on the sole ground of parity.  He maintained the sentencing Judge should have adopted the same starting point as for Mr Elliman because there was nothing to distinguish their roles in the offending and both were equally culpable.  He maintained the two month difference breached the principle of sentencing that it is generally desirable that there be consistency of sentencing levels between similar offenders and co-offenders committing similar offences in similar circumstances.

[9]      Mr Tamati submitted that a reasonably minded independent observer would believe that something had gone awry in the administration of justice because of the two month difference between the two sentences.   He maintained the sentencing Judge ought not to have distinguished between their respective roles in the events leading up to the commission of the violent robbery, particularly as it was accepted that neither knew a firearm would be used.

[10]     In  support  of  his  appeal,  Mr  Tamati  submitted  that,  in  terms  of  their presentation before the sentencing Court, he was the more contrite and remorseful. This  had  been  recognised  by the Judge but  was  not  reflected in  the  respective sentences imposed.  He submitted there was no basis for any differentiation between himself and Mr Elliman, and that he too should have received the same sentence as his co-offender.

Approach to appeal

[11]     An appeal against sentence may only be allowed if there has been an error in the imposition of the sentence and a different sentence should be imposed.1   Where the sentence under appeal is properly justified having regard to relevant sentencing principles, it is not open to this Court to intervene and substitute its own views for

those of the sentencing Judge.2

1      Criminal Procedure Act 2011, s 250(2) and (3).

2      Ripia v R [2011] NZCA 101 at [15].

Decision

[12]     The answer to Mr Tamati’s complaint lies in the different offences for which they were convicted.  Mr Tamati was charged with aggravated robbery which carries a maximum penalty of 14 years imprisonment.   In the formal sentence indication provided by Judge Crosbie, he arrived at a starting point of seven years before making discounts for remorse, reparation, cooperation, offers to attend restorative justice, and his plea.

[13]     Mr Elliman appeared before the Court on a charge of robbery simplicita which  attracts  a  maximum  penalty  of  10  years.    At  sentencing  Judge  Crosbie recorded that he took a starting point of six years imprisonment.

[14]     Both the difference in the charge for which each offender was convicted and the associated respective starting points reflected the varying seriousness of their involvement.    Mr Tamati,  acting  on  the  information  provided  by  Mr  Elliman, arranged for the men to go to the victim’s house to rob him.  His contact with the offenders resulted in him being charged with being a party to aggravated robbery because he knew that two people would act together to rob the victim.   That was inherent in the charge of aggravated robbery to which Mr Tamati pleaded guilty.

[15]     The Crown did not proceed with the same allegation against Mr Elliman.  He pleaded guilty to the lesser alternative charge of robbery which does not require proof that he knew that more than two people would be involved in the commission of the robbery.  The different starting points taken by Judge Crosbie are immediately explicable on that basis.

[16]     The minor  two  month  difference  in  the length  of the ultimate sentences imposed reflects the greater credit that Mr Tamati received for mitigating factors in comparison  to  Mr  Elliman.   As  a  result,  Mr Tamati’s  complaint  in  that  regard immediately falls  away.    Despite  the  uniform  timing  of  their  pleas,  Mr Tamati received a two year discount whereas Mr Elliman’s starting point was reduced by

14 months.  That included a significant credit for a lengthy period on electronically monitored bail.

[17]     The approach to be taken to the question of parity between co-offenders is well established.  In R v Lawson, the Court of Appeal observed:3

...differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of the co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument.  Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another.   The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each.  But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute... But the test is objective, not subjective.   It is not merely whether the offender thinks he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances  of  the  offence  and  of  the  offenders  would  think  that something has gone wrong with the administration of justice.

[18]     Parity will best be achieved by each offender being appropriately sentenced for his role in the overall offending, in light of any previous history and taking into account aggravating and mitigating features personal to the offender.4

[19]     In the present case, the different level of involvement of the two offenders was reflected in the respective charges each faced.  Mr Tamati was actually involved with the robbers.   He recruited the men to carry out the robbery based upon intelligence  and  encouragement  provided  by  Mr  Elliman.    The  fact  Mr Tamati arranged for the two unknown offenders to carry out the robbery is the central feature of his culpability.  However, despite his greater culpability, reflected in the more serious charge and the higher starting point, the personal mitigating factors which the Judge took into account resulted in only a two month difference in the final sentences.

[20]     I do not consider that difference gives rise to any error.   The reasonably minded independent observer aware of the circumstances of the offences and the

offenders would have no concern regarding the respective sentences imposed.  In the

3      R v Lawson [1982] 2 NZLR 219 (CA) at 223.

4      R v K (2003) 20 CRNZ 62 (CA) at [20].

absence of any identified error in the approach taken by the sentencing Judge the appeal was dismissed.

Solicitors:

Brian Kilkelly, Barrister, Dunedin

RPB Law, Dunedin