Tauariki v The Queen

[2004] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA455/03

THE QUEEN

v

TAMA TAUARIKI

Hearing:1 July 2004

Coram:Chambers J
Gendall J
Potter J

Appearances:  S Tait for Appellant

M F Laracy for Crown

Judgment:15 July 2004 

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1]       The appellant appeals against a sentence of six years imprisonment imposed upon him after he pleaded guilty in the District Court at Manukau to crimes of aggravated robbery and theft of a machete.  For completeness we record that a concurrent sentence of three months imprisonment was imposed in respect of the theft charge.  The appeal is on the grounds that the sentence of imprisonment was manifestly excessive, and the contention is that the sentencing Judge gave disproportionate weight to aggravating features and insufficient weight to the mitigating feature of the appellant’s guilty pleas.  In a broad sense counsel’s contention was that there was an apparent lack of credit given for the guilty pleas because Judge Tompkins said that “no discount is available for the sole mitigating feature identified…, namely the guilty plea”.

Background

[2]       The background facts are that on 18 January 2003 the appellant went onto a property in the Otahuhu area and stole a machete from an open shed on that property.  A short time later on that day, armed with the machete, and with his face disguised, he entered a suburban dairy, threatened the shop owner and demanded money.  He met with initial resistance from the shop owner who, by using a hockey stick, was able to break the machete.  Thereafter the shop owner fell to the ground and the appellant proceeded to threaten him with the machete, falling upon him and endeavouring to stab the victim with it.  Using his full body weight, the appellant tried to push the machete into the victim who was only rescued when a neighbour struck the appellant over the head.  The victim was not able to make an escape even after that, as the appellant continued to struggle with him.  The appellant was eventually subdued by bystanders who held him to the ground until the police arrived.  The victim suffered some physical injuries but thankfully not serious.

[3]       The appellant admitted taking the machete and using it in trying to rob the dairy but denied assaulting the victim.  That denial however was pointless where the events were witnessed and obvious.  The appellant initially pleaded not guilty and it was not until 5 November 2003 that he entered pleas of guilty.  That delay however may have been occasioned in part through the problems in the District Court system having depositions heard.

[4]       In imposing sentence the Judge referred to the range for this type of aggravated robbery of suburban dairies as described in R v Mako [2000] 2 NZLR 170 at para [56]. The Judge said that at para [4] of his sentencing notes:

…if there was a robbery of a small retail shop by demanding money from the owner, backed up by the use of a weapon, then if there was no actual violence, the starting point should be around four years.  The Court of Appeal go on to note “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”.

[5]       The Judge said although the appellant was a single offender there had been actual violence used during a sustained struggle and it was only because of the degree of defence put up by the victim and subsequently the victim’s daughter, that serious injuries were avoided.  The Judge went on to say that in his view:

…this aggravated robbery falls squarely within, what can be termed a bad case of aggravated robbery, given the threat and actual use of violence, the fact that injury was only avoided by the spirited defence of the shopkeeper and his daughter, the extensive previous criminal convictions, and the low or absent response to rehabilitative opportunities offered to the prisoner, the continued use of drugs, and the traumatic effect of this offending had on the victim, six years should be the starting point.

[6]       The Judge then concluded his sentencing remarks by saying:

The combined effect of the aggravating features means that in the circumstances, no discount is available for the sole mitigating feature identified by [counsel], namely the guilty plea.

Discussion

[7]       In this Court Mr Tait contended that a starting point of five years was appropriate.  He accepted that, in light of what this Court said at para [62] of Mako, an increase of a year was justified, taking into account “the offender’s criminal history” and the fact he was also being sentenced for the theft of a machete.  He submitted that there should be at least a one year discount for the guilty pleas.  That should have resulted, he submitted, in a sentence of five years imprisonment.

[8]       It is apparent that some counsel and some Judges use the term “starting point” to describe different things.  It leads to confusion.  In R v Mako (supra) Gault J in delivering the judgment of the Court re-emphasised, to dispel any doubt, that in this context a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.  That involves reaching a conclusion as to the seriousness of the particular combination of features which is reflected by the conduct of the offender and the overall criminality involved.  Seriousness of the particular combination of features is assessed and the starting point is then reached.  Thereafter, the question of further aggravation or mitigation by an offender’s particular personal circumstances becomes appropriate.

[9]       There do appear some difficulties with the phraseology adopted by Judge Tompkins in the sentencing notes which has led to an erroneous perception that the Judge did not allow any discount for the guilty plea.  But despite those slight difficulties the end result is unexceptional. 

[10]     On the basis of Mako a starting point of six years could be justified.  This was a serious aggravated robbery involving premeditation, a disguise, the use of a lethal weapon, and actual violence inflicted upon the shop owner.  Aggravating features personal to the offender include his continued abuse of drugs (including on the night in question) and an appalling criminal record totalling 55 convictions – including aggravated robbery, robbery, aggravated burglary, assault with a weapon, all of which suggest a higher than normal sentence was required for purposes of deterring him from reoffending.  Given the separate crime of theft of the machete, if concurrent sentences were to be imposed the lead sentence would require increasing so that a penalty appropriate for the totality of the offending is reached (Sentencing Act 2002 s85(4)(a)).  Aggravating factors would justify an increase of at least one year.  As against that the mitigating factor of guilty pleas would justify a discount of one year.  It is the effective sentence that in the end result must be appropriate, and the six year term was within the ambit available to the Judge.

[11]     We have been referred to examples of other sentences upheld, or substituted in the Court of Appeal.  These include R v Borrell (CA228/01, 31 October 2001) (six years imprisonment); R v Anderson and Tipene (CA138/01, CA49/01, 20 June 2001) (six years for Anderson and five years for Tipene); R v Downs (CA423/03, 19 May 2004) (seven years imprisonment).  Those cases demonstrated that a term of six years imprisonment in this case could not be said to be manifestly excessive.

Conclusion

[12]     It must follow that the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington