Te Wake v The Queen - [2012] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA634/2011
[2012] NZCA 228

BETWEEN JOHN LEIGH TE WAKE
Appellant

AND THE QUEEN
Respondent

Hearing: 14 May 2012

Court: Randerson, Keane and Asher JJ

Counsel: M W Ryan for Appellant
K A L Bicknell for Respondent

Judgment: 5 June 2012 at 11.45 am

JUDGMENT OF THE COURT

A The time to appeal is extended.

B The appeal against sentence is allowed.

CThe sentence of six years imprisonment is quashed and a sentence of five years imprisonment is substituted. The appellant is ordered to pay reparation of $3,750.00 to the District Court in respect of a one-quarter share in the value of the motorcycle which has not been recovered.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant Mr Te Wake, along with five others, faced trial before Judge Spear and a jury in the District Court on a charge of aggravated robbery. Mr Te Wake and three others were convicted. The other two were discharged or acquitted. The appellant was subsequently sentenced to six years imprisonment.[1] Mr Te Wake appeals against sentence on three grounds:
(a)The sentence starting point was too high.
(b)A discount should have been given for the appellant’s remorse and personal circumstances.
(c)The appellant is in a position to pay reparation.
[1] R v Te Wake DC Hamilton, CRI 2009-019-6980, 30 September 2010.
The appeal was filed out of time and an extension of time to appeal is sought. That application is opposed by the Crown, but it is accepted that the outcome of the application is largely dependent upon the merits of the substantive appeal.

The circumstances of the offending

Mr Te Wake’s conviction arose from his part in the robbery of a motorcycle store in Kihikihi on 28 July 2009. The co-offenders who were convicted were Messrs Power, Williams and Hepi. The Judge found that Mr Power hired a trailer and brought it to his home. The next day the men assembled at Mr Power’s address. Mr Power stayed there but the others travelled in two vehicles to Kihikihi. As well as providing the trailer, Mr Power provided his vehicle to tow it. Another vehicle was provided by Mr Te Wake.
The Judge found that four or five of the group went into the store including Messrs Williams and Hepi. Mr Te Wake remained outside. The Judge found that Mr Williams was the leader of the group. He demanded that the two shop assistants present hand over four valuable motorcycles with a total value of approximately $78,000. Other items of motorcycle equipment were also taken.
The Judge accepted that no disguises were worn, no actual violence was used and that no weapon was produced. However, he noted that Mr Williams had threatened to shoot a barking dog and accepted the Crown’s submission that there was intimidation and an implied suggestion that Mr Williams had a firearm with him.
The Judge found there were definite gang connotations surrounding the robbery. Mr Williams claimed to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Te Wake v The Queen

Details

AGLC: Te Wake v The Queen [2012] NZCA 228
Case: [2012] NZCA 228
Decision Date: 5 June 2012

CaseChat Overview and Summary

John Leigh Te Wake appeals against his sentence of six years imprisonment imposed following his conviction for aggravated robbery. The appeal raises three issues: the appropriateness of the sentence starting point, whether a discount should have been given for the appellant’s remorse and personal circumstances, and whether the appellant is in a position to pay reparation. The appeal was filed out of time, but an extension of time to appeal is sought. The Crown opposes the application but acknowledges that its outcome depends on the merits of the substantive appeal.

The appellant was part of a group of six that committed a gang-related robbery of a motorcycle store. Te Wake provided a vehicle to transport stolen motorcycles and remained outside the store during the robbery. The court found the offence to be serious, warranting a starting point of six years imprisonment. The court did not differentiate between the roles of the offenders, considering all equally culpable. Te Wake’s previous criminal record did not warrant an uplift in his sentence, but the court added six months for the other two offenders based on their criminal histories.

The court rejected the argument that Te Wake’s role was less significant than that of the other offenders, finding him to be an active participant. The court also found that Te Wake’s expressions of remorse and voluntary attendance at the police station were not sufficient to warrant a discount. However, the court found that the Judge was not justified in ignoring Te Wake’s personal circumstances, which included being a dedicated student and having strong family support. The court also found that Te Wake’s father could now provide the funds to make reparation for his share of the value of the stolen motorcycle that has not been recovered.

The court concluded that a reduction of 12 months from Te Wake’s sentence was warranted based on his personal circumstances and the payment of reparation. An extension of time to appeal is granted, and the sentence of six years imprisonment is quashed and replaced with a sentence of five years imprisonment. The appellant is also ordered to pay reparation of $3,750.00 to the District Court in respect of his one-quarter share in the value of the motorcycle which has not been recovered.

Orders