The Queen v Benjamin Tuitama

[2001] NZCA 436

IN THE COURT OF APPEAL OF NEW ZEALAND  CA44/01

THE QUEEN

V

BENJAMIN TUITAMA

Hearing:  20 June 2001

Coram:  Gault J

Robertson J Hammond J

Appearances:  S D Cullen for the Applicant J M Jelas for the Crown

Judgment:  20 June 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1]         This is, in effect, an application under s144(3) of the Summary Proceedings Act 1957 for special leave to appeal from a decision of the High Court dismissing an appeal against a sentence of four years nine months for aggravated robbery.

[2]         In terms of s144(1) jurisdiction for a second appeal is confined to a determination of the High Court on a question of law arising in any general appeal and subs(3) goes on to provide that, where leave to appeal is refused by the High Court, this Court may grant special leave if in the opinion of this Court

the question of law involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision.

[3]         The circumstances giving rise to the present application were that on the evening of 26 February 2001 the appellant, along with two others, while drinking planned the aggravated robbery of a service station to obtain money. In the early hours of the following morning the three men drove to a service station in Otahuhu. Only one person was working there at the time and he was serving behind a night window. The glass doors were locked. The appellant and one of his co-offenders, Mr Tuli, disguised themselves, covering their faces with clothing and armed themselves with large steak knives. The third co-offender,  Mr Magele, waited in the car. Mr Tuli then kicked and smashed the glass door enabling the two to enter the shop. The victim behind the counter was rushed  and threatened with the knives. Money was demanded. Mr Tuli took about $300 from the cash register and handed it to the appellant. The two offenders then returned to the waiting car and made off.

[4]         The appellant entered an early plea of guilty on one count of aggravated robbery in the District Court at Otahuhu. Taking a starting point of 5½ years imprisonment, the sentencing Judge deducted nine months for the early guilty plea and other factors in mitigation and imposed the sentence of four years and nine months imprisonment. At the time of sentencing neither of the two co- offenders had been sentenced.

[5]         The appellant appealed to the High Court in the first instance on two grounds. One was that the sentencing Judge had selected an incorrect starting point by reference to R v Mako (2000) 17 CRNZ 272, and the second was that the discount of nine months, while within the range commonly accepted, was inappropriately low given the timing of the plea in the particular case.

[6]         The matter came before Fisher J on 26 September 2000. In relation to the  first point the Judge concluded that, taking into account the factors of aggravation in the present case, 5½ years was an appropriate starting point open

to the Judge. On the second point Fisher J concluded, by reference to the principles extracted from Hall on Sentencing and relevant cases that, the 14 percent discount accorded to the appellant, while low compared with the norm, could not be said to be outside the range open to the sentencing Judge.

[7]         Leave was then sought in the High Court to appeal to this Court pursuant to s144 of the Summary Proceedings Act 1957. In support of the application Mr Cullen argued before Laurenson J that the discount accorded for the early plea was unjust in the circumstances and that it would be desirable for the administration of justice that practitioners in the criminal field should have a clear idea of what discounts are appropriate.

[8]         In a judgment delivered on 5 December 2000 Laurenson J declined the application on the basis that it revealed no discernible point of law which could provide a basis for any appeal. He said:

I regret to say that I cannot see that the problem which Mr Cullen seeks to address can be regarded as a matter of law. The law clearly states that the issue of discount in sentencing for pleas of guilty is a matter of discretion and one which the Court of Appeal is not prepared to prescribe in specific terms. In the present case Fisher J found that the discount fell within accepted limits, although admittedly at the lower end, and accordingly I am unable to discern a point of law which can provide a basis for any appeal.

[9]         Turning to the proposed further appeal to this Court, the points on appeal focus primarily on the two grounds relied upon before Fisher J in the High Court appeal. In support written submissions were filed inviting the Court to consider the decision in R v Tuwhanai CA 400/2000, judgment 7 December 2000, in which this Court rejected a starting point of 5½ years on similar facts. In  addition Mr Cullen sought to argue that the disparate sentences imposed upon the appellant’s co-offenders meant that his sentence of four years nine months imprisonment is manifestly excessive in the circumstances.

[10]         The purpose and effect of s144 of the Summary Proceedings Act 1957 is clearly set out by the President in R v de Montalk CA297/2000, judgment 28 November 2000.

[11]This Court stated that:

It is not surprising that the legislation confines the right to a second appeal. The first appeal from a general jurisdiction court is ordinarily seen as providing appropriate opportunity for consideration and correction of material error at trial whether the material error is of law or fact. Thereafter considerations of finality and cost  ordinarily require a more stringent test before leave may be given for a second appeal. In enacting s144 Parliament clearly intended that any such further appeal be directed to material questions of law and confined to cases where the conditions specified are met.

[12]         Having considered the first two grounds of the proposed appeal, those relating to the starting point and the discount for the early guilty plea, we are not persuaded that the statutory criteria for granting leave are met. In terms of s144 the focus must be on questions of law involved in the appeal to the High Court and the determination of the High Court on those questions. We are not satisfied that there was any relevant question of law involved in the determination of the Court which by reason of its general or public importance or for any other reason ought to be submitted to this Court for decision. The decision based on disparity is in an even worse position. No submission directed to that was before the High Court. That was simply because at that time the co-offenders had not been sentenced. But we have no jurisdiction to entertain the point, even if  an important question of law were involved.

[13]         That appellant’s co-offenders pleaded guilty after undergoing residential treatment assessment as part of the Odyssey House Drug and Alcohol Rehabilitation Programme. Following a satisfactory performance in that programme, they came to be sentenced on 20 December 2000 and each received a sentence of three years imprisonment in respect of the aggravated robbery. In sentencing those two co-offenders the Judge took the same starting point has had been adopted in the case of the present appellant but gave credit for guilty pleas and the time spent in rehabilitation at Odyssey House. Essentially Mr Cullen argues that the disparity in the sentences imposed tends to bring the administration of justice into disrepute and that it sends an inappropriate signal that it is beneficial in terms of sentence to delay a plea of guilty and seek

rehabilitative treatment rather than to acknowledge responsibility by early guilty pleas.

[14]         Mr Cullen further contends that the disparity is particularly unjust when he advised the appellant at an early stage that an attempt to participate in an Odyssey House programme in his case might be seen as an attempt to delay the court processes.

[15]         We are not without sympathy for the appellant’s position. However, the law in respect of s144 is quite clear. As this Court said in R v Slater [1997] 1 NZLR 211, 215 the requirements of subs2 and 3 are not to be diluted. This Court cannot enlarge the jurisdiction conferred upon it by statute simply by construing its discretion more broadly than the statute allows.

[16]         The applicant is really asking this Court to consider the facts in the light of the sentences imposed upon co-offenders. There is no question of law dealt with by the High Court which is involved in this case. That precludes the grant of special leave to appeal which, accordingly, is declined.

Solicitors

Crown Law Office, Wellington