Te Kaawa v The King

[2023] NZHC 2708

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-62

[2023] NZHC 2708

BETWEEN

TE KAUWHATA TE KAAWA

Appellant

AND

THE KING

Respondent

Hearing:	27 September 2023
Appearances:	T Braithwaite for Appellant T Afoa for Respondent
Judgment:	28 September 2023

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 28 September 2023 at 11.00 am

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Gordon Pilditch, Office of the Crown Solicitor, Rotorua T Braithwaite, Rotorua

TE KAAWA v R [2023] NZHC 2708 [28 September 2023]

[1]    Mr Te Kaawa pleaded guilty in the District Court to charges of aggravated robbery, unlawfully taking a motor vehicle, unlawfully interfering with two motor vehicles and breaching his bail conditions. On 12 May 2023, Judge A J S Snell sentenced Mr Te Kaawa to two years four months imprisonment on these charges.1

[2]    Mr Te Kaawa appeals against sentence. He contends that errors in the Judge’s sentencing approach led to a sentence that was manifestly excessive. He says the end sentence ought to have been one of two years imprisonment or less, thereby leaving open a sentence of home detention.

Factual background

[3]    The Judge sentenced Mr Te Kaawa using the summary of facts attached to the Crown’s sentencing submissions. It transpires that this was an outdated version and had been replaced by another summary that was more favourable to Mr Te Kaawa.2 In addition, the Judge believed that Mr Te Kaawa was appearing for sentence on a charge of unlawfully interfering with a motor vehicle on 4 May 2022. The prosecution had withdrawn that charge and it should not have featured in the sentencing process.

[4]    The aggravated robbery charge related to an incident that occurred on the evening of 31 August 2022. Earlier that day Mr Te Kaawa’s three co-offenders, two of whom were young persons, broke into a vehicle in the central business district of Rotorua. They got the vehicle started and then picked Mr Te Kaawa up.

[5]    Later in the day Mr Te Kaawa and his three associates decided to rob a liquor store at Kawaha Point. At about 7 pm that day Mr Te Kaawa drove the stolen vehicle to the Kawaha Point shopping centre and parked outside. He and his three associates were disguised using face coverings and other clothing on their bodies and heads. Three of the four were armed with weapons. These comprised a tyre iron, a car jack handle and a spanner. The only person not carrying a weapon was Mr Te Kaawa.

1      R v Te Kaawa [2023] NZDC 9630.

2 See [6].

[6]    Mr Te Kaawa and his associates then entered the liquor store and those carrying weapons immediately began causing significant damage to the interior fittings of the premises.   They  also  threatened  the  store  owner  and  an  employee.   One  of   Mr Te Kaawa’s associates pushed the employee forcibly on the chest so that he stumbled backwards. Mr Te Kaawa and his associates then endeavoured to leave the store carrying boxes of liquor. The owner and employee put up stiff resistance and were able to chase them out  of the  store.  This  prompted the  use of violence by  Mr Te Kaawa’s associates. The summary of facts on  which  the Judge  sentenced  Mr Te Kaawa stated that Mr Te Kaawa had punched one of the victims twice on his mouth and threatened him. The summary of facts on which Mr Te Kaawa ought to have been sentenced did not contain this allegation.

[7]    The owner of the shop and his employee were eventually able to drive the four intruders out of the shop. A member of the public outside the store saw what was happening and intervened to stop them getting back into the stolen vehicle. This prompted one of Mr Te Kaawa’s associates to threaten to smash a bottle on the head of that person. Other threats were made promising gang retaliation and retribution.

[8]    One of the youth offenders was detained at the scene and arrested when the police arrived. Mr Te Kaawa and his other two associates ran off and were not located until approximately three days after the robbery. When interviewed, Mr Te Kaawa admitted his role in the robbery and said that he and his associates intended to steal both cash and alcohol from the store. This incident led to Mr Te Kaawa being charged with aggravated robbery and unlawfully taking a motor vehicle.

[9]    Mr Te Kaawa also faced two further charges of interfering with motor vehicles on 1 June 2022. On that occasion he and two other people were seen sitting inside a Mitsubishi motor vehicle in central Rotorua. The vehicle had a smashed quarter-light window and the ignition barrel had been pulled out. They then got out of that vehicle and got into a second vehicle. This also had a smashed quarter-light window and the ignition barrel had been pulled out. Mr Te Kaawa was seen running from the vehicle and was located after a short chase. He told the police he had been dropped in town by a relative and was breaking into cars to get a ride back to his home address in Ngongotahā.

[10]   The charge of breaching the conditions of his bail was laid after he failed to appear at Court on an earlier occasion.

The sentence

[11]   Not surprisingly, the Judge took the lead charge as being that relating to the aggravated robbery of the liquor store. He considered the aggravating features of the offending included the fact that it was premeditated and involved the use of disguises and a stolen vehicle. It also involved confrontation of the victims by four persons, three of whom were armed with weapons. In addition, it involved threats of violence and actual violence. The offending also created a risk to public safety because of the presence of other members of the public in the vicinity. The Judge also noted that the offending had had a severe psychological impact on the victims. Finally, the offenders had caused significant damage to the liquor store when they used their weapons to smash fittings within the store.

[12]   In setting the starting point, the Judge relied on the guideline judgment of the Court of Appeal in R v Mako.3 He considered the following paragraph in Mako to be relevant to the present offending:

[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.

[13]   Having regard to the aggravating factors he had identified the Judge adopted a starting point of five years four months imprisonment. He then added an uplift of four months for the charge of unlawfully taking the vehicle used in the aggravated robbery. The Judge then added a further uplift of two months to reflect the remaining charges. This resulted in a sentence of five years 10 months imprisonment before taking into account mitigating factors.

3      At [42], citing R v Mako [2000] 2 NZLR 170 (CA).

[14]   The Judge applied a discount of 25 per cent to reflect guilty pleas. He applied a further discount of 30 per cent to reflect the fact that Mr Te Kaawa was just 18 years of age when he committed the offences. The latter discount also reflected mitigating factors contained in a cultural report tendered under s 27 of the Sentencing Act 2002. These included difficulties Mr Te Kaawa had faced in his upbringing. This process resulted in a total discount of 38.5 months, leaving a sentence of 31.5 months imprisonment. The Judge then applied a further discount of three and a half months to reflect the fact that Mr Te Kaawa had spent nine months subject to restrictive electronic monitoring (EM) bail conditions.

[15]   The Judge imposed the resulting sentence of two years four months imprisonment on the charge of aggravated robbery and imposed short concurrent sentences of imprisonment on the charges relating to the unlawful taking of vehicles. He convicted and discharged Mr Te Kaawa on the charge of breaching his bail conditions.

The appeal

[16]   On Mr Te Kaawa’s behalf, Mr Braithwaite advances three arguments. He contends the starting point on the charge of aggravated robbery should have been no more than five years imprisonment and that no uplift should have been applied to reflect the additional charges. He also contends that the discount of three and a half months the Judge applied for the time Mr Te Kaawa spent on EM bail was insufficient.

The starting point

[17]   As I have already observed, it is now common ground that the Judge sentenced Mr Te Kaawa on an incorrect factual basis because he erroneously took into account the statement in the Crown’s sentencing summary that Mr Te Kaawa had punched one of the victims twice in the mouth.

[18]   As the Judge noted, however, the offending involved premeditation including the use of disguises and the use of a stolen car to travel to the liquor store. The victims were confronted by multiple offenders, three of whom were armed with weapons. There were threats of violence and the infliction of some actual violence. The

offending also created obvious danger to members of the public who were in the vicinity and became involved. It also resulted in lasting psychological damage to the victims and considerable physical damage to fittings in the store. Mr Te Kaawa and his co-offenders have no ability to pay reparation.

[19]   Mr Braithwaite characterised the offending as unsophisticated offending by young persons who did not understand the ramifications of what they were doing. However, when the aggravating factors of Mr Te Kaawa’s offending are measured against the passage from Mako upon which the Judge relied it is immediately obvious that a starting point of five years four months imprisonment was well within the available range. The Judge observed that he could have selected a higher starting point4 and I accept the Crown’s submission that this is arguably the case.

Uplift for other charges

[20]   I accept Mr Braithwaite’s submission that it was not necessary for the Judge to add an uplift of four months to reflect the fact that Mr Te Kaawa and his associates travelled to the place where the aggravated robbery occurred in a stolen vehicle. The Judge had already taken that factor into account when he selected the starting point for the charge of aggravated robbery. It formed part of the premeditation involved in the offending.

[21]   As I have already observed, the Judge erroneously sentenced Mr Te Kaawa in the belief that he had pleaded guilty to unlawfully getting into a motor vehicle on     4 May 2022. This charge involved an allegation that Mr Te Kaawa had been picked up at his home address in Ngongotahā by a group of young persons in a vehicle that the group had stolen in Whakatane. They then drove towards Taupō. During the journey the driver lost control and crashed the vehicle through a fence and into a paddock. The police then arrested Mr Te Kaawa and the other occupants of the vehicle. Mr Te Kaawa breached the terms of his bail by failing to appear in Court on this charge when required to do so.

4 At [45].

[22]   Mr Braithwaite submits this was serious offending and the Judge would have given it significant weight in adding the two month uplift to reflect the additional charges. However, I do not consider this to be likely given the relatively minor role played by Mr Te Kaawa in the events that occurred on 4 May 2022.

[23]   The charge of breaching bail conditions was not particularly serious but the remaining charges reflected the fact that Mr Te Kaawa had unlawfully entered two separate vehicles. I accept Mr Braithwaite’s submission that, had Mr Te Kaawa been sentenced on these charges alone, he would not have received a sentence of imprisonment. However, he would have received some form of sanction. Significant damage was caused to each vehicle. The offending also occurred whilst Mr Te Kaawa was on bail for the incident that had occurred on 4 May 2022. Given the sentence the Judge was required to impose on the charge of aggravated robbery a sentence of imprisonment was the only available form of sanction. Taking these factors into account, I consider the uplift of two months that the Judge applied was within the available range even though he mistakenly took into account the charge that had been withdrawn.

[24]   It follows that I consider the end sentence ought to have been one of five years six months imprisonment before taking into account mitigating factors.

Time spent on EM bail

[25]   Mr Braithwaite relies on Paora v R5 to submit that the Judge ought to have provided Mr Te Kaawa with a discount of around 70 per cent of the nine months he spent on EM bail.

5      Paora v R [2021] NZCA 559.

[26]   However, the level of discount to be given for time spent on EM bail is very much a matter of judicial discretion. It is usual for discounts of between 25 and 40 per cent to be given depending on the restrictiveness of the bail conditions in question and  the  level  of  compliance   the   offender   has   demonstrated.   The   Judge  gave Mr Te Kaawa a discount of just under 40 per cent to reflect this factor. I consider this was well within the available range given that Mr Te Kaawa had breached his EM bail conditions on two occasions. On 4 December 2022 he had allowed his tracker to shut down and was given a formal warning under s 39 of the Bail Act 2000. On 3 April 2003, shortly before he was due to be sentenced, Mr Te Kaawa was absent from his address without authority or explanation for a period of approximately two hours. He was then given a further formal warning under s 39.

Result

[27]   Applying discounts totalling 55 per cent to a sentence of five years six months imprisonment results in a deduction of three years. If the discount for time spent on EM bail is rounded up to four months the end sentence becomes one of two years two months imprisonment. It follows that a sentence of home detention is not available.

[28]   The appeal is allowed. The sentence of two years four months imprisonment imposed on the charge of aggravated robbery is set aside. In its place, I impose a sentence of two years two months imprisonment. The sentences imposed on the remaining charges remain intact.

Lang J