The Queen v John Tahikaraka Manuel

[2003] NZCA 50

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 356/02

THE QUEEN

v

JOHN TAHIKARAKA MANUEL

Hearing:18 March 2003

Coram:Blanchard J
Robertson J
William Young J

Appearances:  P J Kaye for Appellant

M A Woolford for Respondent

Judgment:18 March 2003 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       This is a sentence appeal.

[2]       The appellant, John Tahikaraka Manuel pleaded guilty in the District Court at Auckland to two charges of aggravated robbery.  He was sentenced to four years imprisonment.  He now appeals against sentence.

Factual background

[3]       The first robbery was on 19 August 2001.  The appellant and five (or perhaps four) friends robbed a Video-Ezy store in St Heliers.  Four men initially entered the store.  Two were armed, one with a knife and the other with a steering wheel lock.  There were two people working in the shop.  Each was subjected to threats and some force.  One was pushed against a wall with considerable force.  The other was pulled by the hair and kicked in the back.  Goods worth approximately $8,000 were stolen.

[4]       The appellant came into the store when the robbery was under way. So he was the fifth man to enter the store.  He took away a television set. 

[5]       The sixth man said by the Police to have been involved in the robbery stayed in a motor vehicle and, according to the Police, his role was that of a get-away driver.  We note that he was acquitted at trial in respect of this robbery.

[6]       There is scope for argument as to the extent to which the appellant participated in the planning of the first of the robberies.  The appellant’s position is that he only became aware of the robbery when he entered the store.  He was not directly involved in the threats and violence to which the victims were subjected.

[7]       The second robbery took place on 19 September 2001.  This was of another Video-Ezy store, this time in Clendon.  Four of the six men who were involved in the earlier robbery participated in this second robbery.  There were two people working in the shop.  Both were thrown to the ground.  After the robbery was underway the appellant entered the store along with another man.  The appellant was carrying a bag in which there was a short iron bar. One of his co-offenders locked the store’s doors and re-arranged posters and promotional material to shield the activities inside the store from the public view.  Before the men left the store one of them confronted one of the shop-assistants.  Holding a knife to her throat he insisted on her showing him where the video surveillance equipment was kept.  He removed the tape from the recorder.  The property stolen on this occasion was worth in excess of $12,000.

[8]       The appellant denied any significant role in relation to the planning of this second robbery.  But the fact that he brought a bag into the store does point to him having had a pre-arranged role.  He denied being aware of the presence in the bag of the short iron bar.  Although the sentencing Judge plainly thought that this denial was implausible, he would appear to have put the presence of the iron bar on one side as a possible aggravating feature given that it was not used.

What happened to the co-offenders?

[9]       Three of the appellants co-offenders were sentenced on 26 April last year.  One (who the Judge plainly regarded as the most culpable) was sentenced to six years imprisonment.  The other two received sentences of four and a half years imprisonment.  Each of these men had been involved in both robberies.

[10]     By way of completeness, we should refer to the two other men who had been (or were alleged to have been) involved in the first of the robberies only.  As we have indicated, one of the men was acquitted at trial.  The other pleaded guilty and was sentenced to three and a half years imprisonment on 31 May 2002.

The proceedings in the District Court

[11]     The appellant himself appeared for sentence on 6 September 2002.  He had deferred his pleas of guilty to allow him time to sit University exams.

[12]     The Judge who sentenced him had earlier sentenced the first three offenders to be sentenced.

[13]     The appellant certainly posed a sentencing problem. 

[14]     The offending was very serious.  It had profound effects on the victims (which are referred to at length in victim impact reports).  It plainly called for substantial sentence.

[15]     On the other hand the appellant is only 20.  His co-offenders were his best friends throughout his school career and there was almost certainly an element of peer pressure in the background to the offending.  He has no previous convictions.  He has also shown considerable academic promise and has achieved well at the University of Auckland. 

[16]     That he should have offended in so serious way and with such serious personal repercussions is a matter of great sadness for him, for his family and for his many supporters.  Indeed he has a great deal of support and many favourable references were provided to the sentencing Judge.

[17]     What was the approach of the Judge?

[18]     He plainly saw the appellant as having broadly the same level of culpability as the two lesser offenders whom he had sentenced in April.  He identified a starting point sentence for the appellant “in the region of 7-8 years”.  This is broadly comparable to the seven year starting point which he had identified for the two lesser offenders whom he had sentenced in April.  He gave the appellant a slightly more generous discount than he had seen as being appropriate for the other two men;  this to reflect the peer pressure element which he saw as a significant contributor to the appellant’s offending.

The basis of the appeal

[19]     The appeal was presented on the basis that the Judge’s starting point of 7 – 8 years was too high.  Mr Kaye, for the appellant, sought to argue that an overall starting point of 5 - 6 years would have been appropriate.

[20]     The second robbery was marked by a number of aggravating features, the number of men involved, the use of force against the shop assistants, the use of a knife, the relative sophistication which characterised the execution of the robbery, the removal of the video tape and the value of the goods stolen. 

[21]     The events of August plainly provided something of a template for the September robbery.  These events showed to the appellant that his friends had a  capacity for violence (if he was not aware of this already). There are limits to the number of times that the appellant can legitimately claim peer pressure and being out of the planning loop as mitigating factors.

[22]     The pleas of guilty (which came nearly 12 months after arrest) were hardly prompt.  They had been delayed to suit the appellant’s University programme.   

[23]     The appellant received a sentence which was somewhat lower (at 4 years) than the 4½ years which was imposed on the two co-offenders whose culpability was most closely comparable to his own.  In fixing a sentence for the appellant, the Judge was no doubt entitled to allow for his conclusion that the peer pressure factor meant that the appellant’s culpability was not as great as that of the other men.  However, the reality is that the appellant was fortunate, to say the least to have received so substantial a discount from the starting point identified given the lateness of his pleas.

[24]     We are unable to see any legitimate basis upon which we could interfere with the sentence.  If the second of the two robberies stood alone, it would have warranted a starting point sentence of up to six years.  A sentence of four years for that robbery, standing alone, could not have been successfully challenged given the lateness of the plea.  Accepting as we do that the appellant’s culpability in relation to the first of the robberies may have been somewhat less, it is difficult to see that his participation in this robbery did not warrant something additional on top of what was otherwise appropriate for the second of the robberies. 

[25]     In those circumstances, we are of the view that the sentence of four years imposed on the appellant was merciful to say the least.   The contention that it was manifestly excessive is simply not sustainable.

Disposition

[26]     In those circumstances, the appeal is dismissed.