Teina v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA393/2021
[2021] NZCA 615

BETWEEN	KAVAE TEINA Appellant
AND	THE QUEEN Respondent

Court:	Kós P, Simon France and Katz JJ
Counsel:	D S Niven for Appellant S R Norrie for Respondent
Judgment: (On the papers)	19 November 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

B The conviction appeal is not pursued and is dismissed.

CThe sentence appeal is allowed.
D The sentence of 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, imposed on one count of aggravated robbery, is quashed.
E A sentence of 10 years and nine months’ imprisonment, with a minimum period of imprisonment of five years and four months, is substituted.
FThe other sentences are unchanged.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Mr Teina applies for an extension of time to appeal a sentence imposed on 12 February 2021.[1] The reason for the appeal is disparity with the sentences of co‑defendants. In the unusual circumstances that exist, the Crown agrees Mr Teina’s sentence should be reduced. The Crown not opposing, we grant the extension of time.
[1]R v Teina [2021] NZHC 3481. An appeal against conviction is not pursued and will be dismissed.
Mr Teina was one of a number charged with two counts of aggravated robbery, one count of conspiracy to commit aggravated robbery and two counts of unlawful use of a motor vehicle. While the co-defendants were convicted, the jury could not agree on Mr Teina’s involvement and his case proceeded to a retrial. In the interim, his co‑defendants were sentenced and appealed their convictions and sentences.
Mr Teina was convicted at his retrial and was sentenced to 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months.[2] The sentencing Judge had regard to the starting points taken earlier by a different Judge when that Judge was sentencing the co-defendants.[3]
[2]At [30]–[31].
[3]At [19].
The co-defendants were unsuccessful in their conviction appeals but succeeded in relation to their sentence appeals. The sentences were remitted to the High Court for resentencing.[4] At the resentencing, lower starting points than those originally imposed were identified.[5] This was due to a decision of this Court in Carr v R which had emphasised the significance of the presence or absence of actual violence or a gun that was loaded.[6] This emphasis drove a reduction in the co-defendants’ starting point of one year’s imprisonment,[7] and it is that adjustment which drives this appeal.
[4]Emery v R [2021] NZCA 158.
[5]R v Williams [2021] NZHC 1849 at [12] and [17]–[18].
[6]Carr v R [2020] NZCA 357.
[7]R v Williams, above n 5, at [14]–[18].
The Crown accepts that parity principles are engaged. There is no basis here to distinguish between co-defendants. We agree and note again that the original sentencing of Mr Teina’s co-defendants influenced the resentencing of Mr Teina.
Counsel are agreed on the impact of the adjustment to Mr Teina’s sentence. We accept the accuracy of the calculations, which need not be detailed.

Result

The application for an extension of time to appeal is granted.
The conviction appeal is not pursued and is dismissed.
The sentence appeal is allowed.
The sentence of 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, imposed on one count of aggravated robbery, is quashed.
A sentence of 10 years and nine months’ imprisonment, with a minimum period of imprisonment of five years and four months, is substituted.
All other sentences are unchanged.

Solicitors:
Crown Solicitor, Manukau for Respondent

CaseChat Overview and Summary

The appellant, Kavae Teina, sought an extension of time to appeal against his sentence, which was imposed on 12 February 2021. Teina was convicted on one count of aggravated robbery following a retrial after a jury could not reach a verdict in his initial trial. The appellant’s co-defendants were also charged with multiple counts of aggravated robbery, conspiracy to commit aggravated robbery, and unlawful use of a motor vehicle. While Teina’s co-defendants were convicted and subsequently had their sentences reduced on appeal, Teina’s case proceeded to a retrial. Teina was sentenced to 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, for the aggravated robbery conviction. Teina appealed against the sentence on the basis of disparity with the sentences of his co-defendants. The Crown accepted that parity principles were engaged and did not oppose the appeal.

The legal issue before the Court of Appeal was whether the appellant’s sentence was appropriately aligned with the sentences of his co-defendants, particularly in light of the resentencing of the co-defendants following their appeal. The Court had to consider whether the original starting points used in sentencing Teina were consistent with the resentencing of the co-defendants, which was influenced by a decision of the Court of Appeal in Carr v R. This case emphasised the significance of the presence or absence of actual violence or a loaded gun, which led to a reduction in the starting points for the co-defendants and, by extension, Teina’s sentence.

The Court of Appeal granted the extension of time to appeal and allowed the appeal on the ground of disparity. The Court accepted the Crown's concession that parity principles were engaged and found no basis to distinguish Teina’s case from that of his co-defendants. Consequently, the Court quashed the original sentence of 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, and substituted a sentence of 10 years and nine months’ imprisonment, with a minimum period of imprisonment of five years and four months. The Court noted that this adjustment aligned Teina’s sentence with that of his co-defendants, thereby addressing the disparity issue. The Court dismissed the conviction appeal as it was not pursued.

The Court of Appeal ordered that the application for an extension of time to appeal was granted. The conviction appeal was dismissed, and the sentence appeal was allowed. The original sentence of 11 years and eight months’ imprisonment, with a minimum period of imprisonment of five years and 10 months, was quashed. A new sentence of 10 years and nine months’ imprisonment, with a minimum period of imprisonment of five years and four months, was substituted. All other sentences remained unchanged.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established