The Queen v Ah You

[2009] NZCA 534

IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/2009
[2009] NZCA 534

THE QUEEN

v

OLINALE AH YOU

Hearing:10 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ

Counsel:S D Cassidy for Appellant

B D Tantrum for Crown

Judgment:12 November 2009 at 4 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       This is an appeal against an effective sentence, imposed by Potter J, of 12 years’ imprisonment with a minimum period of imprisonment of eight years: HC AK CRI 2009-092-002028 15 May 2009.

[2]       Mr Ah You pleaded guilty, prior to depositions, to two charges of aggravated robbery and three charges of robbery.  The District Court declined jurisdiction to impose a finite sentence of imprisonment and transferred sentencing to the High Court so that preventive detention could be considered as a sentencing option.

Background

[3]       Potter J described the facts as follows:

Robbery 6 December 2005: Colmell Road Dannemora

[5]       The prisoner entered a house where the victim was tiling.  He pinned the victim against the wall and threatened him.  He took a cellphone from the victim and demanded his wallet in exchange.  When the victim refused the prisoner departed with the phone.

24 August 2007: Ranfurly Road, Papatoetoe

[6]       This address served as both a home and business premises for the victim.  The prisoner encountered the victim in the business part of the premises and demanded money.  He entered the residential part of the premises and attacked the victim by pulling her hair and pushing her and demanding money.  The prisoner also repeatedly threatened to harm the victim’s three month old baby if she did not give him money.  The prisoner took a hand-held cordless telephone, a cellphone and the victim’s purse containing $480.

19 September 2007: Pitt Avenue, Clendon

[7]       The victim, as in the case of the robbery at Colmell Road, was working as a tiler in a residential property.  The prisoner entered the house with an associate.  He pushed the victim into the garage and then into a room by the garage.  He grabbed the victim by the collar and threw him to the ground.  He then punched and kicked the victim about the body, continuing until his associate arrived and pulled him off the victim.  The victim suffered lacerations to the head, bruising all over his body, a small skull fracture and a compound knee fracture that required surgery.  During the assault the prisoner removed a set of keys from the victim’s pockets.  This incident gave rise to the first of the two aggravated robbery charges.

27 May 2008: Redoubt Road, Flatbush

[8]       The prisoner entered the victim’s home address and approached the victim, a seventeen year old male, with a spanner-like tool which the prisoner took from his vehicle.  He pushed the victim in the chest causing him to fall backwards on to a couch.  H threatened the victim, asking him where money and jewellery were located.  He told the victim that his father owed the prisoner $3,000.  When the victim stood up, the prisoner pulled him by the neck of his shirt.  The prisoner took a watch and jewellery totalling approximately $25,000 in value.  He told the victim that he was not to tell anyone about the incident or he would come after him.

27 June 2008: Plumley Crescent, Manukau City

[9]       Again the prisoner entered a residential home, this time occupied by the 34 year old victim who was caring for a four year old child. The prisoner told the victim he knew her husband and he had come to collect money owed to him.  He spoke to the victim’s aunt on the telephone.  He used his body to push open the front door and force his way inside the house.  He pointed a pocket knife at the victim and slammed the door when she tried to leave.  As she ran towards the door he grabbed her from behind and dragged her into the lounge by her hand.  He put her in a headlock and used his other hand to cover her mouth, while he dragged her down the hallway to her bedroom.  He searched the bedroom, placing jewellery, money and a cordless phone in his pockets.  The child had followed them into the bedroom.  He left the bedroom telling the victim to shut the bedroom door and remain inside.  This incident gave rise to the second charge of aggravated robbery.

[4]       A substantial issue in the sentencing exercise was whether the matter could be dealt with by way of a lengthy finite sentence with a minimum period of imprisonment.  Potter J concluded that it could and that aspect has not been an issue on the appeal.

The appeal

[5]       The appeal is advanced on the basis that the effective sentence was manifestly excessive in that:

(a)the starting point of 14 years’ imprisonment for the total offending was too high; and

(b)the minimum period of imprisonment of two-thirds of the effective sentence was not necessary.

[6]       It was submitted that the classification of the High Court Judge was not in conformity with R v Mako [2000] 2 NZLR 170 (CA). On the basis of the categories identified in that case and allowing for the various aggravating features, Mr Cassidy argued that for the most serious offence (the aggravated robbery of 27 June 2008), a starting point of seven or eight years would have been appropriate. Allowing for an uplift of three to four years for the totality of the offending, and a further year or two because of past offending, would mean that 12 to 14 years was appropriate as a starting point. There would then need to be a discount, which was accepted to be 25 per cent, for the early plea of guilty. Counsel submitted this meant an effective sentence of eight and a half to ten and a half years’ imprisonment was required.

[7]       The Crown did not accept this analysis.  Mr Tantrum submitted that a 14 year starting point for the totality of the offending could not be challenged and that there needed to be an uplift for personal aggravating factors including the appellant’s previous convictions.  Those previous convictions arose both in New Zealand and Australia for not dissimilar offending and spanned a period from 1997 to 2008, interrupted only by a lengthy period in which the appellant was incarcerated in Australia.

[8]       Mr Tantrum argued that a 16 year figure was well within sentencing discretion and that the 12 year effective sentence, after the discount for the plea of guilty, could not be challenged.

Discussion

[9]       We agree with the Crown. 

[10]     The appellant, a 29 year old man, had accumulated an appalling list of previous convictions by the time he came for sentence before Potter J.  The aggravating factors identified by Potter J (at [17]) speak for themselves:

(a)The offences involved actual and threatened violence or the actual and threatened use of a weapon.

(b)The offences involved unlawful entry into, or unlawful presence, in a residential dwelling place.

(c)The harm suffered by the victims.  This was particularly so in respect of the victim of the aggravated robbery in Pitt Avenue, Clendon.  This attack involved an attack to the victim’s head, evidenced by the injuries he sustained.

(d)Vulnerability of the victims.  The victims included two women at home alone with young babies, and in the case of the robbery at Redoubt Road, a seventeen year old young man at home.

(e)Premeditation and planning.  This is clear from the nature of the offending.  The offending evidences a modus operandi developed by the prisoner.

(f)Multiple offending involving separate incidents.  There are five completely separate incidents of offending, although they all carry the same hallmark.

(g)Property was stolen from all the victims and has not been returned.

(h)Cruelty and callousness.  The victim of the Pitt Avenue offending was left lying severely injured and possible unconscious.

[11]     Some care needs to be taken with particular reliance being placed on rigid delineations of Mako categories, particularly when dealing with offending which involves home invasion as was undoubtedly the case in the present circumstance on a number of offences.  As Potter J emphasised, by the time Mr Ah You was before her for sentence, he had committed five offences, all of which involved entry into private homes.

[12]     We have no doubt that, in respect of the two offences of aggravated robbery taken by themselves, a sentence in the order of ten years’ imprisonment was appropriate.  There had to be a substantial uplift because of the three other serious offences which easily took the matter to within the sentencing range of 14 years.  On top of that, the Court was obliged to consider the appellant’s appalling list of similar previous offending.  Allowing for a 25 per cent discount, an effective sentence of 12 years’ imprisonment was clearly in the available range and is beyond challenge.

[13]     In the High Court, the Crown sought a minimum period of two-thirds of the end sentence and that was not disputed by defence counsel then appearing.

[14]     Before us, Mr Cassidy argued that, although a minimum period of imprisonment may have been justified in light of the psychiatric reports and the assessed risk of re-offending which arose from the investigations undertaken with regard to the potential sentence of preventive detention, a minimum period of two-thirds was excessive in light of the appellant’s readiness to accept responsibility.

[15]     One cannot overlook the fact that this offending occurred over a period of two and a half years.  Protection of the public from this sort of invasion and intrusion is of prime importance.  Condemnation and general deterrence must be given weight.  It could not be said that the Judge’s exercise of discretion in this regard was not available.  It was rather inevitable, in light of the totality of the offending.

Result

[16]     The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington