Tera v Police - [2013] NZHC 1229

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-28 [2013] NZHC 1229

BETWEEN HAGAI ALAN TERA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 30 July 2013

Appearances: D Malcolm for Appellant
A Hill for Respondent

Judgment: 30 July 2013

ORAL JUDGMENT OF KATZ J

Solicitors:
A Hill, Fletcher Pilditch, Rotorua
D Malcolm, MDR Legal Ltd, Rotorua

TERA v NEW ZEALAND POLICE [2013] NZHC 1229 [30 July 2013]

Introduction

[1] Mr Tera appeals against a sentence of three years nine months’ imprisonment imposed by Judge McGuire in the District Court at Rotorua, following Mr Tera’s guilty plea to one count of aggravated robbery with an offensive weapon. That offence is punishable by up to 14 years’ imprisonment. Mr Tera appeals on the ground that the sentence imposed on him was manifestly excessive.

Facts

[2] At around 2:00 pm on 19 January 2013, Mr Tera walked into the Aotea Shopping Centre in Tokoroa. He had been drinking. He saw the complainant working alone at the petrol station. Mr Tera went home and got a kitchen knife, a t-shirt and a brown hooded sweatshirt.

[3] Mr Tera walked back to the petrol station and entered holding the knife. Using the clothing to cover his face, he approached the complainant behind the counter. He threatened her with the knife and demanded money. She opened the till and handed Mr Tera $245. He then ran away, dumping the knife and the clothing in a nearby reserve. He was arrested shortly afterwards.

[4] Although the complainant was not injured in any way she was deeply traumatised by the incident.

The starting point

[5] Based on the guideline judgment of R v Mako1 the Judge concluded that four years’ imprisonment was an appropriate starting point. Counsel for Mr Tera did not take issue with that starting point. In my view that was appropriate. This was a premeditated robbery. Mr Tera first “scoped out” the petrol station and then armed himself with a dangerous weapon and disguised himself before returning to rob the premises. The victim was alone. Mr Tera threatened her with a knife. Not surprisingly, she was terrified. Such facts certainly justify the four year starting
point.

1 R v Mako [2000] 2 NZLR 170 make clear at [46].

Personal factors

[6] The next step is to look at whether the sentence should be increased or reduced from that starting point by taking into account factors that are personal to Mr Tera. Such factors may make Mr Tera either more or less blameworthy in the particular circumstances.

[7] Judge McGuire was clearly right to take into account that Mr Tera has an appalling record of previous convictions, some 59 in all, at the age of only 27 years. Since November 2007 Mr Tera has been convicted 14 times of shoplifting and three times of theft. He has three burglary convictions since June 2011. Mr Tera was also convicted of many charges of intentionally damaging property. Mr Tera has, unfortunately, clearly not learned from the community-based…

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 Tera v Police

Details

AGLC: Tera v Police [2013] NZHC 1229
Case: [2013] NZHC 1229
Decision Date: 30 July 2013

CaseChat Overview and Summary

The appeal in the case of Tera v Police involves Mr. Hagai Alan Tera, who appeals against the sentence of three years and nine months' imprisonment imposed by Judge McGuire in the District Court at Rotorua. Mr. Tera pleaded guilty to one count of aggravated robbery with an offensive weapon, which is punishable by up to 14 years' imprisonment. The appeal is grounded on the contention that the sentence imposed on Mr. Tera was manifestly excessive. The primary legal issues before the court include whether the starting point for sentencing was correctly determined, whether personal factors affecting Mr. Tera's culpability were appropriately considered, whether the judge erred in not allowing a discount for remorse, and whether the guilty plea discount was correctly applied. The court found that the starting point of four years' imprisonment was appropriate, given the nature and premeditation of the offence. It also determined that Judge McGuire was correct in increasing the sentence by nine months, taking into account Mr. Tera's extensive criminal history and his lack of respect for court orders. However, the court identified an error in the sentencing methodology whereby an additional three-month uplift was mistakenly added for the trauma caused to the victim, which had already been accounted for in setting the starting point. Additionally, the court noted a calculation error in the remission of fines. As a result, the appeal is allowed in part, and the sentence is reduced to three years and six months' imprisonment. The court also corrects the remission of fines to a total of $3,802.34.

Orders