The Queen v George Meka Tuwhangai

IN THE HIGH COURT OF NEW ZEALAND

CA400/00

WELLINGTON REGISTRY

THE QUEEN

GEORGE MEKA TUWHANGAI

Hearing:	6 December 2000
Coram:	Keith J Robertson J Goddard J
Appearances:	P Dacre for the Appellant S P France for the Crown
Judgment:	7 December 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

The appellant pleaded guilty on the morning of depositions to a charge of aggravated robbery. He was sentenced to five years imprisonment and in terms of the complex provisions of the Districts Court Act 1947 this appeal should have been filed and heard in the High Court. We have sat as members of the High Court and determine the appeal accordingly.
The appellant contends that the Judge’s starting point of 5½ years was too high and that he should have received more than six months discount for his guilty plea.
The appellant on the day of the events had been drinking and consuming drugs. He ran out of money, walked home and, passing a video store, decided to rob it. He went home, acquired a hat and material to provide himself with a disguise and a large butcher’s knife, returned to the shop and robbed it. At the time of the robbery a number of members of the public and two staff members were present in the video store.
He carried the knife in one hand and a shopping bag in the other as he walked up to the counter. He confronted the staff members at the counter, brandishing the knife at them, and demanded that money be placed in his plastic bag. The amount of money stolen was about $350. Throughout the ordeal both staff members were so scared for their lives that they were shaking and that caused some of the coins to miss the bag they were filling. The appellant told them that he had enough, headed for the doorway with the money and suddenly turned around and demanded that the two get down onto the floor. He left the shop, removed his disguise, stuffed it into a rubbish tin and hailed a taxi which was followed and from which he was apprehended.
The District Court Judge, having summarised the facts and the submissions on behalf of the Crown and the defendant, recorded that counsel for the defendant accepted that a prison term was inevitable. While the Crown had submitted that the appropriate starting point in terms of R v Mako [2000] 2 NZLR 170 was 5½ to 6 years, defence counsel contended that an appropriate starting point would be less than that; this was an impulsive act with spartan planning and a primitive disguise carried out by one offender using a rusty old knife as a weapon. The Judge thought it irrelevant that the disguise was primitive given that the security camera photographs clearly showed that it was effective in concealing the offender’s identity or that the knife used was rusty or old. Such knives cause injuries just as serious as the new. Defence counsel also points to the nature of the premises which had been targeted (the briefs of evidence indicating that a number of the public present were unaware that a robbery was being carried out), and the fact that minimum property had been stolen. There was no gang involvement and the victim impact reports indicated that the two staff members had shown considerable resilience with no long lasting effects. He referred to the personal circumstances of the prisoner and to the guilty plea.
The Judge gave the following reasons for his sentence:
As I have already noted, clearly this aggravated robbery presented considerable potential risk, both to members of the public and to the staff. It seems to me that it fits squarely within the category described by the Court of Appeal in paragraph 56 of Mako, the difference being that a number of members of the public were present and at risk; the degree of planing involved; and the previous serious offending in 1988.
With respect, Mr Tait’s explanation for the late guilty plea having been entered on the depositions were entirely unconvincing.
I set a starting point, in light of those factors, of five and a half years, and allow a discount of six months for the late guilty plea. Accordingly, the prisoner is convicted and sentenced to five years imprisonment.
Paragraph [56] of Mako is as follows:
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.
On appeal counsel have essentially covered the same ground as in the District Court. Mr Dacre (who did not appear in the court below), for the appellant, accepted, as did Mr France for the Crown, that paragraph [56] of Mako was the starting point. Mr Dacre submitted that the starting point in terms of that statement should have been around four years. There was no lookout or accomplice. There was only one offender. There was a small amount of money involved. There was little premeditation or planning. That was reflected by the fact that there was no getaway plan and that the appellant was apprehended in a taxi leaving the scene.
Mr France on the contrary said that
•   the timing of the robbery was an aggravating feature. Early evening in a video store can be expected to find customers present with increased danger by them reacting and increased trauma.
•   the brandishing of the knife was very public; it was seen by four of the witnesses as well as by the two shop assistants.
•   there was the final threat to the workers which forced them to the ground. While not major, it added to the mix by increasing the trauma.
In the light of Mako, he said the starting range was five to five and a half years. The Judge had settled upon five and a half years and that must be seen as within range.
So far as the discount for the guilty plea is concerned, the appellant challenges the Judge’s view that this was a late plea. Mr France accepted that six months was the least that might have been expected and that “late” is perhaps a “harsh” description for a plea entered at depositions. The plea was certainly however not early, he said. Depositions had to be prepared. The appellant waited until he had seen them, as he was entitled to do, but of course that enabled him to assess the strength of the case against him.
We agree with Mr France that there were two assessments to be made, the starting point and the quantum of the discount. We also agree with him that neither assessment made by the sentencing Judge favoured the appellant. He however goes on to say that each was within range. At that point we part company with his argument.
So far as the starting point is concerned, we can see no basis for going beyond five years, in terms of Mako, given the limited planning, the fact that there was no accomplice, the small amount of the money involved and the relatively limited impact on the shop assistants and others in the shop. Our real difference from the sentencing Judge however relates to the extent of the discount for the guilty plea.
The offence was committed on 7 July 2000. The appellant was arrested on 8 July and was remanded in custody. As a result of a medical examination shortly after he was arrested he was found to have a weak and irregular heart beat. He had a heart pacemaker fitted on or about 10 July and stayed in hospital for about two weeks. He was then remanded in prison. He did not see the hand up briefs until 28 August, the day fixed for the taking of depositions. On that day, having read them through, he instructed counsel that he wished to plead guilty, which he did.
That appears to us in all the circumstances to be an early plea. The sentencing Judge does not explain his reason for finding the explanation of the timing of the plea to be “entirely unconvincing”. The potential witnesses no longer had the matter hanging over them, until for instance a later call over or some other date nearer the actual trial. The policy in this area is to encourage early pleas, following advice, where a guilty plea is appropriate. Greater credit is given to earlier pleas. In the present circumstances we consider that a discount of 18 months or about one third is appropriate. We accordingly conclude that the sentence should be three years six months.
We mention a matter about his criminal record, about which the appellant has expressed concern. The list includes a 1988 conviction for aggravated robbery causing grievous bodily harm and a sentence of four years three months imprisonment. He states his belief that the conviction on that date was in fact for aggravated assault and with the same result. Either offence is of course a very serious one, as the sentence also indicates. Were there an error it would be of no consequence for the sentence in this case. A check of the available records indicates that the conviction was for aggravated robbery.
The result is that the appeal is allowed, the sentence of five years six months is set aside and a sentence of three years six months is substituted for it.

Solicitors
Crown Law Office, Wellington

[2000] NZCA 373

7 December 2000