The Queen v Mako

[2000] NZCA 407

N THE COURT OF APPEAL OF NEW ZEALAND CA446/99

THE QUEEN

V

JAMIE TUHOE MAKO

Coram:

Richardson P

Gault J

Thomas J

Blanchard J

Tipping J

Hearing:

9 February 2000

Counsel:

R J Stevens for Respondent

J C Pike and M T Davies for Crown

Judgment:

23 March 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] The Solicitor-General seeks leave to appeal against the sentence of 5½ years imprisonment imposed on one of three co-offenders for the aggravated robbery of The Colonial Inn at Mana.

[2] Over recent years the decision of this Court in R v Moananui [1983] NZLR 537 has served as the principal appellate judgment guiding sentencing for aggravated robbery. Since it was decided there have been changes in kinds and frequency of criminal conduct involving this offence and in community responses to it. The decision was directed primarily at offending at the high end of the scale of seriousness and particularly armed bank robberies. The Court did, however, collect and comment upon sentences imposed for offences regarded as less serious. This resulted in three categories being referred to, though the Court emphasised they were not rigid and necessarily merged into each other. Experience has shown a tendency to overlook this qualification with resulting over-emphasis on the appropriate category for particular offences and under-emphasis on the true criminality. The Court therefore informed counsel in advance of the hearing that this appeal would provide an opportunity for the Court to review guidelines for aggravated robbery sentences. We are grateful to counsel for their assistance in their written and oral submissions.

[3] It is convenient first to set out the facts of the particular case before us. In the evening of Monday 21 December 1998 the appellant, a 27 year old man, set out with two co-offenders from the Mongrel Mob headquarters at Waitangirua in a car apparently owned, and driven, by one of the co-offenders. Disguised with shirts wrapped around their faces the respondent Jamie Mako and one of the others, shortly after 9.00pm, entered the upstairs public bar of The Colonial Inn where there was also operated a TAB agency. There were about twelve patrons in the bar at the time. Mako carried a sawn-off shotgun. He went behind the bar and demanded the contents of the till at gunpoint. His companion remained at the top of the stairs with one hand behind his back to give the impression he too was armed. The patrons were instructed initially to get down on to the floor but shortly after they were herded into the toilets and instructed with aggressive threats to remain there. After having the contents of the bar till emptied into one of his money bags, Mako demanded that the safe be opened. He was told that was downstairs. He then forced the barman at gunpoint to lead him to the safe. In the office the duty manager, who had been working in the lounge bar downstairs which had just closed, was required to open a safe and empty the money contents into money bags. Both employees were taken upstairs and forced into the toilets with the patrons while the offenders made their escape in the waiting car.

[4] Fortuitously when the robbers arrived in the bar the barman was on the telephone to his partner who heard what was happening and alerted the police. Also a nearby resident informed the police of the direction of travel of the getaway car and gave a general description of it. The police quickly located the car. A chase ensued during which a police car positioned to block the entrance to the gang headquarters was struck by the offenders’ vehicle which eventually came to a halt after colliding with the back of another car in a private driveway. The co-offenders made off on foot. Mako left the car with the shotgun. He challenged the police as they emerged from the pursuing cars. He was called on to drop the gun; he did not do so and was shot by one of the officers sustaining a bullet wound to his buttock. He was arrested on the spot. From the car the police recovered close to $2,500 in cash. The shotgun was found to be unloaded.

[5] The driver of the car, Charlie Karaka, was chased by a police officer and caught nearby. He had been recognised in the car as a known patched member of the gang and plainly had no defence. He pleaded guilty at an early stage. He was sentenced by a different Judge on the basis that his part "was limited to the driving of the getaway car" and did "not have to be regarded as on the same basis as the people who carried out the robbery". He was referred to as comparatively young with a number of previous convictions for burglary but spoken of favourably by the probation officer. His sentence was of imprisonment for four years. Upon sentencing the Judge said that had he carried out the robbery the sentence would have been "well in excess of six or seven years".

[6] The second co-offender, Newton Moki, avoided capture after leaving the getaway car, though he was seen by persons whose properties he went through. He denied involvement but was found guilty after trial. He was sentenced after Jamie Mako but by the same Judge. His offending was regarded as involving slightly less criminality than Mako who had the shotgun and who was the instigator. Moki was sentenced to seven years imprisonment for the armed robbery and four years concurrent on the incidental kidnapping (detaining the bar patrons).

[7] Jamie Mako, whose sentence is the one presently under appeal, was sentenced on 22 October 1999 after he pleaded guilty to the charge of kidnapping at the commencement of his trial. He had earlier, at callover on 12 July 1999, pleaded guilty to the charges of aggravated robbery and presenting a firearm at the police. He subsequently sought to vacate the plea to the firearm charge but did not pursue that and sentencing proceeded.

[8] The sentencing Judge fixed the sentence on the aggravated robbery charge to reflect the overall offending. He referred to Moananui and placed the offending "between the first and second classes" commenting that there was little planning involved. He fixed a starting point as "not less than between seven and eight years". Aggravating features were identified as use of the sawn-off shotgun and the impact on the victims as appeared from the victim impact statements. There were references also to alcohol and gambling problems to which the offending was attributed, to anger problems and to Mako’s claim to the probation officer that he regularly carried a firearm.

[9] Mitigating factors referred to were that the shotgun was not loaded, the late guilty plea and absence of similar serious offending in the past. Personal circumstances (break-up of family and loss of employment) were also mentioned. The Judge added:

Further, the wound you received will give you very considerable trouble in the future as well as the pain and suffering you have had from it to date. I consider that in itself to be a punishment.

[10] The Judge stated that he would give the matters mentioned "as much credit as possible". He imposed the sentence of 5½ years for the aggravated robbery with concurrent sentences of three years for the kidnapping and three years for the offence of presenting the firearm.

[11] For the Solicitor-General it was submitted that the sentence was an inadequate response to the total offending and that the only truly mitigating factor was the guilty plea which was entered at a late stage and in the face of a strong Crown case so that the discount allowed could not be justified.

[12] For the respondent Mr Stevens supported the Judge’s starting point of between seven and eight years. He argued for full credit for the guilty plea and for the fact that the offender received the gunshot wound. In addition he submitted that any increase in the sentence would disturb the "parity" with the sentences imposed on the co-offenders.

[13] Before turning to the broader issue of the appropriate sentencing level, some comment is necessary on two aspects of the submissions specific to this case.

[14] The first is the guilty plea and the credit appropriate in the circumstances. This Court has repeatedly stated that pleading guilty should attract a meaningful discount from an otherwise appropriate sentence. The Court has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. Generally, however, it is accepted that the earlier the plea the more generous the discount. This is not the appropriate occasion to reiterate the reasoning underlying such discounts but it can be said that an early plea is likely to reflect acknowledgement of wrongdoing and contrition. The consequent saving in resources and early release of victims from the anxiety of the long and upsetting criminal processes are further factors.

[15] In the present case Mr Stevens relied on two matters as justifying the apparent generous discount allowed by the Judge. One was that the victims were (or would have been but for Moki’s trial) spared the ordeal of giving evidence at the trial. The other was that the guilty plea to the aggravated robbery charge entered earlier should have full recognition without being detracted from by the late plea on the kidnapping charge and the application to change the plea on the firearm charge. The delay in taking these steps was justified, he said, because it was only at that late stage that he had been able to eliminate concern that the Crown would seek a greater overall sentence. In his written submissions he said:

During a discussion in Chambers the Crown prosecutor indicated that the Crown would not be seeking a cumulative sentence in respect of either the firearms charge or the charge of kidnapping. Following this indication, and prior to the commencement of the trial, Mako withdrew his application to vacate the guilty plea and entered a plea of guilty to the charge of kidnapping.

[16] This reflects misunderstanding of sentencing principles and falls far short of justification for full credit for the pleas of guilty as if entered at an early stage.

[17] It is not for Crown prosecutors to make deals on appropriate sentences. Nor should there be any expectation that in cases of multiple offences there will be any difference in ultimate outcome whether the sentences are cumulative or concurrent. Where concurrent sentences are imposed that for the most serious offence must be set to reflect the totality of offending.

[18] In this case some credit is due for the pleas of guilty but in light of what occurred that credit was plainly not warranted until the totality of offending was acknowledged and pleaded to at the start of the trial. The case against the respondent was strong, indeed unanswerable. Accordingly the appropriate discount was a modest one.

[19] The second matter calling for comment is the allowance the Judge made for the fact that the respondent suffered a gunshot wound. This he brought upon himself by his own conduct right at the end of the events of the evening. It was an inevitable result of his seeming to be about to shoot at a policeman. We do not see that it qualifies to mitigate the criminality of all that went before. Indeed the impact upon the police officer required to fire in the course of duty is not to be overlooked.

[20] We therefore accept the Crown submission that the reduction by the Judge from his specified starting point to allow for mitigating factors was over-generous.

[21] It might give the appearance of unfairness to the respondent to formulate revised guidelines for sentencing in aggravated robbery cases and then to apply them in his case. We therefore propose to consider the sentence, as the Judge did, by reference to what was said in Moananui. This armed robbery was plainly in the first category properly construed. The categorisation of target premises such as banks or main post offices was designated because of two significant features; the number of people endangered and the potential proceeds. A public tavern where patrons congregate and which also operates as a TAB betting agency must be seen as meeting these criteria. The element of planning is not to be minimised. The operation had the hallmarks of a gang exercise with sufficient planning to provide the shotgun, disguises and money bags. They went after not just the till contents but the safe as well with getaway means organised. With reference to overall offending there were the added, seriously aggravating factors of the treatment of the patrons, the dangers created by the car chase and the confrontation when it ended with a crash. The seriousness of presenting a firearm to the police is graphically evidenced in the victim impact statements of the officers involved. Police officers are not immune from ongoing trauma when placed in fear of their lives. There is also the ordeal to which the bar patrons and staff were subjected and which fully justified the further charge of kidnapping. The essence of the offence, particularly where an unloaded or imitation firearm is employed, is in the fear instilled in the victims by threatening and aggressive behaviour. That was manifested in large measure over a considerable period in this robbery.

[22] While making due allowance for the fact that no actual violence occurred, that the shotgun was not loaded, and money was recovered, we do not assess the overall criminality any lower than we would for an armed robbery of a bank in similar circumstances.

[23] With the particular dimension of the use and presentation of the firearm we consider that for the overall offending a sentence of eight years imprisonment, after allowing for the guilty plea, would have been appropriate. However, since this is an appeal by the Solicitor-General we think a sentence of not less than seven years is appropriate.

[24] We have not overlooked the sentences imposed on the co-offenders. That for the driver plainly was lenient. That for Moki is under appeal and need not be commented upon.

Guidelines for aggravated robbery sentences

[25] We turn then to the broader issue of sentences for aggravated robbery. Both Mr Pike for the Solicitor-General and Mr Stevens submitted that the categories identified in Moananui, as they have been used in practice, have tended to constrain sentencing discretions and inhibit true assessments of the criminality in particular conduct. This seems to stem in part from over-emphasis on the type of premises involved and in part on a reluctance by sentencers to treat the categories as guidelines which are to be departed from where the circumstances dictate a more or less severe response. In this Court we have noticed the frequency with which the focus has been more on the applicable category at the expense of an assessment of the true culpability of the offender.

[26] Mr Pike submitted that we should increase sentence levels for aggravated robberies because it has become apparent that present levels are not having the effect of protecting the public. He referred to the increase in aggravated robbery offending since Moananui was decided, perceptions of more frequent violent and armed incursions into premises and to the reduction in the average sentence from 42.2 months in 1992 to 39.9 months in 1997.

[27] The statistics relied upon are incomplete and incapable of analysis with reference to the features of the offending. As Mr Pike said, the range of conduct encompassed by the crime of aggravated robbery extends from street "muggings" to major organised and violent operations against large commercial targets. Much more detailed analysis than was made available to us would be required to establish a case for increases in sentences in relation to all or some particular types of aggravated robberies. That must be so particularly since intrusions in private homes have very recently been the subject of specific legislation directed to sentences for "home invasions". There are obvious difficulties in proceeding on the basis of perceptions of the incidence of particular kinds of offending as was demonstrated in the instructive judgment of the Full Court of the High Court in Cooper v Police, High Court AP106,116 and 121/98, Hamilton Registry, judgment 28 November 1998 per Eichelbaum CJ and Penlington J. In that judgment the unreliability of limited statistics on aggravated robberies in the Waikato area was found to have led the original sentencing Judge into error.

[28] A review of the decisions of this Court since Moananui shows a significant trend to higher sentences for the more serious cases of aggravated robbery – see R v Collett CA271/91 judgment 20 December 1991, R v Smart CA57/94 judgment 24 May 1994, R v Tukuafu CA382/94 judgment 23 March 1995. For serious organised robberies having the attendant features of dangerous weapons, terrorising conduct or actual violence a starting point of imprisonment for 10 years for conviction after trial but before allowances in mitigation has been accepted. There have, of course, been higher sentences for repeat and multiple offenders.

[29] In the cases perceived as falling within the second Moananui category any trend is difficult to discern although in Solicitor-General v Lam (1997) 15 CRNZ 18, 25 no increase at the "lower end of the scale" was considered necessary. The diverse factual situations and personal circumstances of offenders make comparisons difficult. It is in this second category, which covers a wide range of criminal conduct and specifies such a broad sentencing range, that Moananui has proved less helpful as a guide.

[30] The third category in Moananui has been overtaken by the home invasion legislation. Further, the judgment in that case gives no real guidance in sentencing for "street" crime at the low end of the scale.

[31] For reasons already mentioned in this judgment, we see categorisation of aggravated robberies for seriousness by reference to the type of target premises as having operated to constrain proper assessments of criminality. In referring to types of premises the Court was providing a broad indication of the danger likely to be caused and the potential value of the target. But it can never have been intended to replace a proper assessment in each particular case of the significance of those factors. To the extent that it has done so the guidelines have been unsatisfactory. We have decided that a different approach should be adopted. In reaching this view we have given careful consideration to the approaches in other countries. These are helpfully summarised in the judgment of Spigelman CJ in R v Henry (1999) 46 NSWLR 346, 374 et seq.

[32] The actual sentencing levels adopted in Australia, United Kingdom and Canada must be looked at in light of the different maximum sentences and the different systems of administration of custodial sentences. We have not attempted to draw any conclusions in respect of sentences actually served in each jurisdiction. We do not have the necessary information to enable us to do so, nor do we see it as the role of this Court.

[33] In New Zealand the offence of robbery comprises theft accompanied by violence or threats of violence used to extort the property stolen or to overcome resistance to the stealing (s234 Crimes Act 1961). It becomes aggravated robbery by more than one person acting together or by the person acting alone being armed with an offensive weapon or causing grievous bodily harm to any person. "Offensive weapon" includes imitation and unloaded firearms. When so armed or when more than one person act together the offence may be completed by an assault with intent to rob (s235).

[34] The range of conduct that can constitute aggravated robbery is very wide. In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, that will contribute to or detract from the seriousness of the conduct and the criminality involved. It is the particular combination of these variable features which requires assessment for sentencing in each case. Once the seriousness of the particular combination of features is assessed and a starting point reached, it will be necessary to consider whether overall the crime is aggravated or mitigated by the offender’s particular personal circumstances such that the sentence to be imposed should be higher or lower than the starting point. We emphasise to dispel any doubt that in this context a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.

[35] Bearing in mind that the sentencing discretion extends across the range from non custodial sentences to the maximum of imprisonment for 14 years (19 years in the case of home invasion) the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of judgment calling for the careful exercise of the sentencing discretion. Features of the offending requiring assessment cannot be exhaustively listed. But some of those generally to be taken into account can be mentioned, if only to emphasise their variability.

[36] The degree of planning and preparation will reflect criminality. Detailed activity over a sustained period indicating care and sophistication in organisation are hallmarks of serious criminals particularly criminal organisations. Such conduct is plainly to be regarded more seriously than less premeditated or spontaneous exploits.

[37] The number of participants and their deployment similarly may reflect more sophisticated or organised activity and may increase the degree of intimidation and fear engendered among victims.

[38] Disguises and other means of concealing identity and facilitating flight generally suggest premeditation and planning. Hoods and other adornments also contribute to intimidation.

[39] The number and types of weapons and how they are brandished will bear upon the level of culpability. It is not to be assumed necessarily that the more potentially lethal the weapon the more serious the offence although there will be greater danger of harm to a greater number of people where a loaded firearm is presented. The danger of knives in the hands of nervous or aggressive offenders when confronted by the unexpected is all too familiar. Similarly the insidiousness of threats by horrible weapons such as syringes or harmful substances must not be minimised. The actual or potential danger should be evaluated, not merely assumed from the nature of the target premises. Generally the use of unloaded firearms (though no comfort to victims) gives rise to less danger – but it can be noted that in the case under appeal an unloaded weapon still led to shots having to be fired by the police in a residential area. It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any less risk that victims might react in ways dangerous to themselves or others believing they are in mortal danger.

[40] The target premises or persons will be an important feature. The potential gain goes directly to seriousness. That is partly the reason for the common view that bank robberies were at the top of the scale. The likely presence of members of the public in numbers is higher in banks and similar premises. But the selection of premises is just one feature to be assessed. This, of course, is affected by the specific provisions of the Crimes (Home Invasion) Amendment Act 1999 and the need to give effect to the increased penalties therein provided – see R v La’ulu CA560/99, judgment 20 March 2000.

[41] An organised robbery of an individual carrying a payroll in the street gives rise to the same elements of public danger and potential gain. But those indications of criminality might be equalled by the cowardly targeting of a disabled or otherwise particularly vulnerable individual known to have items of significant value.

[42] Presence of members of the public is accepted as raising the risk of injury or worse and as increasing the number of victims. But it should be recorded, as Mr Pike pointed out, that the real danger may not always lie in bank and similar premises whose staff are trained and robberies more organised. He referred to five cases in recent years where robberies of smaller business premises involving little apparent planning have led to loss of life. Further, as soon as actual violence is employed in tense robbery situations the likelihood of serious injury is very real. The vulnerability of small business operators and the frequency with which they are targeted give rise to the need for deterrence.

[43] Apart from the increased danger from the introduction of even minor physical force in the tension generated by robbery, actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably higher rating in overall seriousness. The extent of any violence and its consequences will be highly relevant either in assessing the robbery offence or, if the subject of an additional charge, the total criminality.

[44] The property stolen and the extent of any recovery naturally bear upon the offending. They are factors to be taken into the overall assessment of the crime.

[45] Associated offending such as vehicle conversion, detention or abduction of victims, and hostage taking will add to the overall criminality and must be assessed for sentencing in totality.

[46] Victim impact is of considerable importance in assessing the seriousness of aggravated robbery offences. The reasons for this are succinctly expressed by Hulme J in his judgment in R v Henry. He said (paras 322,324):

In considering the actions of an offender, it should be recognised that robbery is a denial of one of the elementary freedoms on which our society is based. Robbery involves the imposition of the will of the offender by force or the threat of force on the rights and ability of the victim to go about his own affairs in his own way. Some actions on the part of offenders, for example, being in company, being armed, the malicious infliction of actual bodily harm, find express recognition in the statement of the offences. Others are also relevant. Thus conduct calculated to cause terror rather than merely the fear necessarily involved in an offence is an aggravating circumstance. Relevant also are the risks created by an offender: R v Readman (1990) 47 A Crim R 181 at 185; R v Lane (Court of Criminal Appeal, 3 November 1995, unreported). A consideration of the cases demonstrates that not all victims meekly acquiesce in a robber’s demands. Commonly a robbery occurs in circumstances charged with emotion and experience within and without the courts shows that there is but a fine line between a threat and a weapon on the one hand and injury or death on the other. Although an offender who crosses that line may lay him or herself open to further charges, it is important that the courts impose real sanctions to discourage the creation of the risk.

Some impact on the victim is specifically referred to in the statutory provisions. But it is also important to bear in mind that it is an essential element in every robbery that the victim will be put in fear of an offender and of what that offender might do. After all it is the engendering of that fear which is the offender’s intention and by which he is able to carry out his subjection of the victim or his will.

In many cases the fear will be of imminent death with the concomitant loss of all that life holds and everything the victim holds dear. Experience of life and experience within the courts demonstrates that not all persons readily recover from such traumatic events. In other cases the fear may not be extreme and in not all cases will it continue to have an impact or significant impact on the victim after the threat causing it is removed. Not all people react to circumstances of stress in the same way. However, as I indicated above when referring to R v Broxham [Court of Criminal Appeal, 3 April 1986, unreported], R v Bell [Court of Criminal Appeal, 11 May 1993, unreported] and R v Stefanovski [Court of Criminal Appeal, 9 June 1994, unreported], the potentially devastating psychological damage consequent on armed robberies is something of which the courts have taken judicial notice over many years.

[47] Counsel presented submissions on the significance of gang involvement. Mr Pike submitted:

Further, to reflect one of the most pernicious features of this offence it is submitted that if there is evidence that the robbery is committed by members of an organised crime cartel (The Mongrel Mob and Black Power being the dominant figures in this field) or to fund a drug dealing offence that, too, should attract the higher sentencing range.

[48] Mr Stevens accepted that membership of "an organised criminal cartel" may on occasions be relevant but he was opposed to assumptions that gangs use robberies to finance their activities in the absence of evidence.

[49] Gangs have long been part of New Zealand communities. Their objectives and activities vary. Some have drawn attention to themselves by their behaviour. The members of some have engaged the criminal justice system disproportionately. Evidence given in the criminal courts has disclosed a clear picture of the structure and internal discipline of the higher profile gangs. It would be naïve to expect the courts to disregard the reality that some gangs organise and carry out aggravated robberies and other crimes or that at times the true organisers or directors stay remote from actual events, preferring to expose younger members and prospective members. It appears, however, that discipline is not such that members of gangs do not independently commit crimes. It is not to be assumed that all criminal offending by gang members results from organisation and planning within the gang or is carried out as a gang operation. The fact that an offender is shown to be coincidentally a gang member cannot increase the seriousness of the offence. However, where a sentencing Judge is satisfied of connections between one of the notorious gangs and the particular offending so as to indicate a gang operation that should be taken into account. The established sentencing principles of deterrence and protection of the public demand no less. Gangs or any other groups within the community who are responsible for major organised crime must expect their members representing them in criminal conduct to have the connection recognised as increasing the seriousness of the offending.

[50] Deterrence is a factor in sentencing. This generally is accommodated in the sentencing levels indicated. But there may be circumstances where a particular form of offending or offending in a particular area will call for special consideration. It is entirely appropriate to take into account the need to protect the public.

[51] Multiple offending involving separate incidents, which is all too common, gives the criminality an added dimension which must be accorded full response on totality principles. In this respect, maximum sentences (against which all sentences must be kept in perspective) apply for each offence.

[52] What we have said about these features amply demonstrates that the criminality in any aggravated robbery offence must be assessed by the particular combination of features of which it is composed. That assessment must be made as a matter of judgment unconstrained by over-emphasis on one feature such as the nature of the target premises.

[53] When positioned on the scale of seriousness in this way a starting point for sentence as identified in para [34] should be determined. This is the true point of comparison with other offending before individual aggravating and mitigating factors are taken into account. Fixing the starting point is the mechanism for seeking consistency in sentencing.

[54] Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels. The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

[55] As we said in Tukuafu for very serious armed robberies (even without multiple or repeat offending) a starting point of around 10 years will be appropriate.

[56] 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.

[57] Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.

[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.

[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

[60] The illustrations given are intended for guidance and should minimise the need to trawl through large numbers of previous sentencing decisions seeking those in which the offending appears similar. The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then to select a starting point. That can be related to the examples given. They are not intended to prescribe the starting point for any case but are to inform the assessment the sentencer is required to make.

[61] For further guidance there is appended to this judgment a schedule of selected recent sentencing decisions of this Court. There have, of course, been very many more decisions but those we have included should be sufficient to indicate sentence levels. Reference to others generally will be unnecessary. It must be kept in mind however that where appeals by prisoners have been dismissed a higher sentence than the sentence actually imposed may not have been interfered with. Further, in successful appeals by the Solicitor-General the Court imposes the lowest sentence appropriate to the case so that a higher sentence might well have been warranted.

[62] Once the appropriate starting point is fixed, adjustments can be made in mitigation to allow for such matters as pleas of guilty, assistance to the authorities, age and other personal circumstances. At the same stage matters of aggravation may warrant some increase. These could include the offender’s criminal history, the fact of bail or parole at the time of offending and the like. Some of these factors can present difficulties. We have already commented (paras [14] – [17]) on discounts for guilty pleas.

[63] For the same reasons as are fully reviewed in the judgments of the Court of Criminal Appeal of New South Wales in Henry, generally the fact that robbery is committed to feed drug addiction should not be treated as a mitigating factor.

[64] As this Court made clear in Smart there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.

[65] Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. As noted in the judgment of the Full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and unlikelihood of re-offending.

[66] However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[67] That leads us to the question of suspended sentences. We repeat what this Court said in Lam (p24), that it is wrong to commence by considering whether a suspended sentence is the appropriate response and, if so, then to tailor the mode or length of sentence so as to make suspension possible. Any distortion in the term of imprisonment, for the purpose of invoking s21A of the Criminal Justice Act 1985, is precluded. The decision in Lam (p25) confirms that the cases where imposition of suspended sentences for aggravated robbery is appropriate will be rare.

[68] A sentence of two years or less is available to the sentencing Judge only if the elements which convert a robbery into an aggravated robbery are present to a small degree or the offender’s participation in the crime and its planning (if any) was very much in a secondary role. Several Solicitor-General’s appeals against suspended sentences for aggravated robbery have succeeded in recent years because not enough weight was given by the sentencing Court to the seriousness of the crime and the offender’s role in it. The need for deterrence to others is an important consideration.

[69] These comments on aggravating and mitigating factors are intended to assist but not constrain the broad sentencing discretion to be exercised in particular cases. Full consideration of the circumstances of the offending and matters disclosed in presentence reports, victim impact statements and other relevant material is necessary.

[70] Although it does not represent any general change in sentencing levels for aggravated robbery, this judgment should be taken as superseding Moananui. It requires a departure from the categorisation of offending by reference to Moananui and assessment of the true culpability in the circumstances of particular offending. The examples given in the judgment and the cases listed in the schedule are intended to update the guidelines given in Moananui and provide assistance to sentencers in determining the appropriate sentencing level (starting point) to which adjustments for personal circumstances may then be made.

[71] Reverting to the instant case, we grant leave to the Solicitor-General to appeal and allow the appeal. The sentence of 5½ years for aggravated robbery is quashed and there is substituted a sentence of 7 years.

CASE NAME	CHARACTERISTICS	STARTING POINT FIXED BY SENTENCING JUDGE	PLEA	SENTENCE	APPEAL
Leslie Maurice GREEN (CA488/93, 15 June 1994)	Series of bank robberies and associated offences; appellant wore disguises; carried a large .44 Magnum pistol; escaped in stolen car; obtained $100,500 cash plus $46,000 travellers cheques; on last occasion gun found to be loaded. Appellant is professional criminal.	Not stated.	Guilty.	20 years imprisonment, effective sentence.	Appeal allowed – sentence reduced to effective sentence of 15 years –12 years concurrent for each aggravated robbery, and three years concurrent for each other offence. No injustice done if court takes 14 year maximum for aggravated robbery as basis for appropriate sentence.
Jarrod Ivan STEVENS (CA12/98, 23 February 1998)	Four aggravated robberies. Robbery of bank; armed with imitation pistol; obtained $5,000; next day robbery of pharmacy while on bail; associate had shot gun; drugs and cash stolen; next day robbery of bank; armed with hand gun; obtained $5,000; following week appellant robbed bank; armed with hand gun; obtained nearly $17,000.	Not stated.	Guilty.	Twelve years imprisonment. Seven years for first robbery; five years cumulative for next three.	Appeal dismissed. Total sentence imposed within range, albeit towards top end of range.
Colin Frank GRIFFITHS (CA458/92, 31 March 1993)	Robbery of bank on one occasion; on second occasion, attempted robbery of bank. On first occasion, armed with firearm; threatened to shoot customers; obtained $33,000. On second occasion, attempted to rob same bank, but police had been notified; armed with sawn-off rifle; opened fire on police in bank.	Eight years imprisonment for first offence.	Not guilty.	Ten years effective imprisonment: seven years imprisonment for one robbery, cumulative with three years for another.	Solicitor-General appeal allowed – sentence increased to effective sentence of twelve years. Increased incidence of armed robberies since Moananui demonstrated need for sterner sentences. First robbery called for higher starting point such as nine years. Sentence for attempt increased to five years, so effective sentence twelve years.
Dinesh MANOHARAN (CA287/98, 15 October 1998)	Appellant and associate robbed taxi driver; armed with hammer; struck driver on head repeatedly; left victim in grassed area, believing he was dead; obtained $150. Robbery well planned. Appellant aged 22 years; no previous convictions.	Not stated.	Guilty, reasonably early.	Ten years imprisonment.	Appeal dismissed. Supposed starting point of twelve years not inappropriate on facts.
Lee Errol James SYLVESTER (CA583/95, 20 May 1996)	Appellant and associate robbed person in office one night; armed with knife; assaulted victim; obtained victim’s wallet, cellphone; made victim accompany offenders at knifepoint for over 12 hours; used victim’s bankcard to obtain $5,820 cash; tortured victim. Appellant aged 23 years; substantial criminal record.	Not stated.	Guilty.	Ten years imprisonment.	Appeal dismissed. Court considered starting point must be 11 years six months or twelve years. Sentences within available range.
Freddie BAICE (CA37/98, 27 April 1998)	Robbery of bank; armed with loaded sawn-off shotgun; obtained over $17,000. Appellant was in getaway car, and was involved in planning.	Not stated.	Not guilty.	Nine years imprisonment.	Appeal dismissed. Although sentence severe and at upper end of appropriate range, not manifestly excessive.
Duane David WILSON (CA39/98, 27 April 1998)	Co-offender with Baice. Appellant was not at robbery, but was prosecuted on the basis of being principal planner.	Not stated.	Not guilty.	Nine years imprisonment.	Appeal dismissed.
Paul Andrew TULAFONO (CA427/98, 5 May 1999)	Appellant and three associates robbed butchers shop. Cooffender with Rongo (CA238/98, 22 October 1998). Armed with pistols; obtained about $32,000 in cash and cheques. Appellant was major player, if not ringleader.	Not stated.	Not guilty.	Eight years imprisonment.	Appeal dismissed. Sentence of eight years unremarkable for a serious, premeditated, planned and violently executed robbery with arms.
Patrick John WILLIAMS (CA392/97, 31 March 1998)	Appellant and two associates lured the victim away from his house to an isolated area; victim subjected to prolonged and vicious beating; forced to divulge location of cannabis cache so it could be stolen; left tied up.	Not stated.	Not guilty.	Eight years imprisonment.	Appeal dismissed. Even if role secondary to other assailants, appellant was still a party. Having regard to the seriousness of the attack and the harm to the victim the sentence was not manifestly excessive.
Graham John KING (CA138/97, 10 September 1997)	Robbery of Pizza Hut; armed with shotgun; threatened manager; obtained contents of safe.	Not stated.	Not guilty.	Eight years imprisonment.	Appeal dismissed.
Andrew Michael KANDZIORKA (CA461/94, 20 March 1995)	Robbed currency exchange premises in Auckland twice; on each occasion appellant had recently entered the country, left between offences; obtained cash of different currencies to value of $17,411.55 on first robbery and $23,868.72 on second robbery; appellant extradited from UK; no indication of prior offending.	Not stated.	Guilty.	Eight years imprisonment.	Appeal dismissed. Court noted that starting point above eight years appropriate, so eight years imprisonment justified. Court noted that since Moananui the Court has emphasised the flexibility of the guidelines and the need in appropriate circumstances to consider higher sentences.
Michael Ross PENNY (CA262/97, 23 September 1997)	Respondent and two associates robbed café; armed with knife; jewellery stolen from proprietor; one proprietor struck on head and stabbed; property worth $23,000 taken. Respondent aged 21; many previous convictions.	Six to seven years imprisonment.	Guilty.	Five years imprisonment.	Solicitor-General appeal allowed – sentence increased to seven years imprisonment. Totality of offending extremely serious.
John Paul PEHI (CA82/99, 29 April 1999)	Appellant and associate robbed grocery store; armed with air pistol; well planned; struck shop-owners; at least $250 obtained though amount not precise. Appellant initial planner. Appellant 19-years-old, has substantial list of previous convictions.	Eight years imprisonment.	Guilty.	Six years imprisonment.	Appeal dismissed. Starting point not restricted to seven years. Here, sentence stern but within limits.
Matthew FRIESAN (CA225/99, 20 September 1999)	Appellant and two associates decided to rob dairy; two entered dairy; associate inflicted serious violence on dairy owners; armed with knife. Not established whether appellant or associate was second person in shop, but all aware of robbery plans. Appellant has lengthy list of previous convictions.	Seven years imprisonment.	Guilty, after six months.	Five years six months imprisonment.	Appeal dismissed. Seven years available starting point, allowance for guilty plea properly reflected in sentence.
Andrew HAMILTONSEYMOUR (CA338/98, 27 May 1999)	Robbery of bank; armed with plastic air pistol; no members of public present; obtained $5,124. Appellant aged 25 years; has recent conviction for a violent offence.	Eight years imprisonment.	Guilty.	Six years imprisonment.	Appeal allowed – sentence reduced to five years imprisonment. Starting point between six and seven years appropriate.
Andrew Bruce NODWELL (CA475/99, 8 March 2000)	Appellant stole rental car; robbed security van; armed with unloaded cut-down rifle; obtained $11,706. Appellant aged 32 years, no previous convictions. Expressed genuine remorse, offered to pay reparation to victims.	Seven years imprisonment.	Guilty.	Five years imprisonment.	Appeal dismissed. Reduction for mitigating factors not insufficient. Sentence stern but within available range. Amends not major factor as they were modest. Need for deterrence paramount.
Nigel John SMART (CA57/94, 24 May 1994)	Robbery of bank; associate robbed bank, appellant was getaway driver; $12,550 taken; imitation weapon used; appellant not principal offender.	Not stated.	Guilty.	Four years six months imprisonment.	Appeal dismissed – fact that weapon was imitation was taken into account by Judge.
Jason Reece THOMPSON (CA3/95, 23 May 1995)	Robbery of bank; no weapons observed; obtained $10,000. Appellant driver of second getaway car, received $200. Appellant was 20-years-old, has previous convictions, but nothing serious, has mental health problems.	Not stated.	Guilty. Police assistance.	Four years six months imprisonment.	Appeal allowed – sentence reduced to three years imprisonment. Many mitigating factors.
Quentin Duane PUKEROA (CA507/94, 1 June 1995)	Robbery of dairy; armed with kitchen knife; forced proprietor to floor, then made him open till; obtained $420; amateurish, not well planned; appellant aged 18 years; appellant was principal offender; no significant previous record.	Not stated.	Guilty plea soon after arrest.	Four years six months imprisonment.	Appeal allowed – sentence reduced to three years imprisonment. Low level of risk, nature of premises, modest amount involved. Starting point of 5 years justified; mitigating factors made significant reduction appropriate.
Michael Francis RUMP (CA195/94, 13 September 1994)	Robbery of suburban food centre on Saturday night; armed with knife; $165 obtained; threatened shop assistant; took money in shop assistant’s wallet as well; no previous convictions of this nature.	Not stated.	Guilty.	Four years imprisonment.	Appeal dismissed – violent offence.
Floyd SAO (CA129/99, 15 July 1999)	Robbery of dairy; armed with kitchen knife with six inch blade; shopkeeper screamed and appellant fled. Appellant aged 23 years, no previous convictions.	Five years imprisonment.	Guilty.	Three years imprisonment.	Appeal dismissed. Two to seven year range. Sentence appropriate for such a serious offence, even when mitigating factors taken into account.
Plecky JOHNSON (CA389/98, 29 April 1999)	Appellant and four associates robbed taxi driver; armed with screwdriver; stabbed driver in arm; repeatedly punched driver; obtained cigarettes and lighter; planned. Appellant aged 17.	Four years imprisonment.	Guilty.	Three years imprisonment.	Appeal dismissed. Sentence within tariff notwithstanding youth, contrition and guilty plea.
Steven James MILFORD (CA332/98, 14 December 1998)	Appellant and associate robbed taxi driver; taxi driver grabbed around neck, struck repeatedly in face. Appellant aged 21 years; first offender.	Four years imprisonment.	Guilty.	Three years imprisonment.	Appeal dismissed. Starting point and final sentence within range available. Disparity with sentence of co-offender justifiable.
Trevor Anthony GONZALEZ (CA168/98, 5 August 1998)	Robbery of bank; armed with air pistol and bogus bomb; obtained $2,080. Respondent aged 57 years; first offender. Gambling problem.	Four to seven years imprisonment.	Guilty.	Two years imprisonment suspended for two years, and 12 months periodic detention.	Solicitor-General appeal allowed – sentence increased to three years imprisonment. Mitigating factors do not amount to special circumstances justifying suspension. Four years may have been appropriate.
Thanh Tam LAM (CA68/97, 30 June 1997) (1997) 15 CRNZ 18	Respondent and associate robbed pizza parlour; armed with loaded BB pistol; obtained $600. Respondent aged 22 years; first offender.	Not stated.	Guilty.	Two years imprisonment, suspended for 18 months, nine months periodic detention, $600 reparation.	Solicitor-General appeal allowed – sentence increased to three years. Imposition of suspended sentence for aggravated robbery will be rare. Sentences ought to have been at least three years six months imprisonment. Sentences significantly below established tariff.
Christopher John Gordon HATHAWAY (CA312/98, 27 October 1998)	Appellant and three others robbed a service station; armed with a replica pistol and a BB pistol; obtained $180 in cash and 13 packets of cigarettes. Robbery well planned. Appellant aged 18 years; first offender.	Three years imprisonment.	Guilty.	Two years three months imprisonment.	Appeal dismissed. Sentence of co-offender merciful, but appellant received lenient sentence as well (cooffender received 18 months suspended).
Timothy Alan COSSENS (CA196/96, 9 July 1996)	Respondent and associate stopped victim, demanded walkman; assaulted victim; stole walkman. Respondent aged 21 years; has previous convictions though none for violent offending.	Eighteen months imprisonment.	Guilty.	Twelve months imprisonment.	Solicitor General appeal allowed – sentence increased to two years imprisonment. Lowest available starting point was two years six months imprisonment. Offending witnessed, so admission of guilt does not merit reduction more than six months.
Nauma Nicholas NIKORA (CA413/96, 5 December 1996)	Appellant and male associates assaulted two women in alleyway; stole handbag. Appellant was 18-years-old, no previous custodial sentence though he does have previous convictions.	Not stated.	Guilty.	Two years six months imprisonment.	Appeal allowed – sentence reduced to 18 months imprisonment. Lesser sentence would adequately mark seriousness of offence and need for deterrence; many mitigating factors.
William Akaranga EPIHA (CA75/98, 29 April 1998)	Appellant and three associates robbed person on street; victim had just been to automatic teller machine; armed with two fence battens; stole wallet and took $75; victim hit with batten. Appellant aged 18 years; first offender.	Not stated.	Guilty.	Two years imprisonment.	Appeal allowed – sentence reduced to 18 months imprisonment. Mitigating factors, and co-offenders treated in youth justice system, so will get lenient sentences. Starting point of above two years appropriate.
Jacob Jeremy MARSTERS (CA474/99, 16 December 1999)	Robbery of restaurant; armed with axe handle and sawn-off shotgun; obtained $640. Appellant was getaway driver, 18-years-old; not one of planners; did not know what was going to happen.	Three years imprisonment.	Guilty. Assisted police.	Fifteen months imprisonment.	Appeal allowed – sentence reduced to 15 months imprisonment suspended for one year. Appellant had good prospects of rehabilitation – s21A applied. Special circumstances – assisting police. Court agreed that aggravated robbery reached "epidemic proportions" in NZ.

Solicitors:

Fanselows, Wellington, for Respondent

Crown Law Office, Wellington