The Queen v Paul Hemana Tipene
[2002] NZCA 111
•27 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 269/01 |
THE QUEEN
V
PAUL HEMANA TIPENE
| Coram: | Gault P McGrath J Anderson J |
| Appearances: | M Dyhrberg for Appellant A Markham for Crown |
| Judgment (on the papers): | 27 May 2002 |
| JUDGMENT OF THE COURT |
This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. An initial decision on mode of hearing was made in accordance with r 23 of the Court of Appeal (Criminal) Rules 2001 and notified to the parties. Ms Dyhrberg then made further submissions seeking a reconsideration of that decision under rr 25 and 29(4). She argued that the appeal would involve significant conflicts most effectively addressed orally and, as disparity of sentence was at issue, would require hearing together with the appeals of the appellant’s co-accused. The Court has considered these further submissions on mode of hearing, but has not been persuaded of the necessity for an oral hearing. The appeal can fairly be dealt with on the basis of the relevant materials, including written submissions received in accordance with r29. These have been considered by the members of the Court who have conferred and agreed upon this judgment.
Offences and sentence
The appellant pleaded guilty during trial to one count of aggravated robbery after having been discharged pursuant to s347 Crimes Act 1961 on a further three counts of aggravated robbery and two counts of unlawfully taking a motor vehicle. The charges related to a series of five bank robberies in Auckland between 29 December 1999 and 24 January 2000. The appellant pleaded guilty to the second robbery, of the Avondale branch of the Bank of New Zealand on 31 December 1999 and, on 17 April 2001, was sentenced to seven years imprisonment.
Three co-accused also faced charges in respect of the robberies. One co-offender, Joseph Balle, had pleaded guilty at an earlier stage to the Avondale robbery, and was sentenced in the District Court to four and a half years imprisonment. The two remaining co-accused, Elder Browne and John Koteka, maintained not guilty pleas and were found guilty after trial. Mr Browne was found guilty of five counts of aggravated robbery and three counts of unlawful taking of a motor vehicle. He was sentenced to 12 and a half years imprisonment. Mr Koteka was found guilty of four counts of aggravated robbery and one count of unlawful taking of a motor vehicle. He was sentenced to 10 years and five months imprisonment.
The Crown opened on the basis that an aggravating element of the robberies was the use of weapons but in the course of trial resiled from that, contending only that the aggravating element was the being together of the robbers. In his sentencing notes the Judge acknowledged that the screwdrivers were not in fact used as weapons, nor was anyone threatened with them.
Relevant facts
On 31 December 1999, the appellant and three associates entered the Avondale branch of the Bank of New Zealand. One of the men carried a screwdriver. They demanded in loud threatening voices that the staff and customers “get down”. One person remained in the foyer of the bank, keeping watch and monitoring the time taken while the other three men gained access to the staff area of the bank. The appellant and one other co-accused climbed over the bank counter, while the remaining person kicked open a door and gained access to the staff area by that means.
Once in the staff area, the appellant and his associates demanded the keys to the drawers from the tellers. They gained access to the teller drawers from which they took $11,495.00 and cash deposit bags. When the associate in the foyer shouted “time!”, all four left the bank.
Sentencing
The sentencing Judge held that the offending fell to be considered within the general range referred to in R v Mako [2000] 2 NZLR 170 at 183 which should attract a starting point of six years or more, involving:
The robbery of commercial premises where member 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…
The relevant features of the offending in this case included:
[a]The timing of the robberies, involving bank premises when a significant number of staff and members of the public could be expected to be present,
[b]The conduct of the robberies, involving a high level of intimidation, caused by:
· The abrupt and forceful entry
· Loud and threatening demands to get down
· The carrying of screwdrivers, which the Judge found were intended to be seen as weapons,
[c]That the operation was carried out in a way which bewildered and frightened the victims,
[d]The high level of premeditation and sophistication,
[e]The significant amounts of money stolen.
The Judge also noted that there was in fact no physical violence caused to any victim, and no evidence to suggest that the offenders were in the possession of weapons such as firearms. He then considered the particular circumstances relevant to the appellant. The Judge considered that the appellant’s late guilty plea did not achieve any of the accepted objectives of reflecting acknowledgement of wrongdoing and contrition, saving in resources and releasing victims from the anxiety of a long and upsetting criminal process and rejected the plea as a basis for a reduction in sentence. The Judge was also referred to the sentence imposed on the co-accused, Mr Balle. He noted however, that Mr Balle pleaded guilty well before trial and that it was unclear that his involvement was at the same level as that of the appellant.
The appellant, aged 23 at sentencing, had amassed some 111 convictions since turning 17, and of those, 25 are burglary related and 59 are other dishonesty offences. He has also been imprisoned for assault and has an extensive Youth Court history. The Judge also considered that the present offending occurred while the appellant was on parole after being released from imprisonment. He concluded that the appellant’s pattern of offending reflected a predilection for criminal behaviour and that the present offending represented an escalation in the seriousness of that offending. The appellant had been afforded leniency in the past but had scorned the opportunities for rehabilitation. The Judge held that a deterrent sentence was required and one which reflected the need to protect the public. He imposed on the appellant a sentence of seven years imprisonment, increasing the starting point by one year.
Grounds of appeal
Counsel for the appellant advanced three grounds in support of the appeal. It was submitted that there is unjustifiable disparity between the appellant’s sentence and the sentences imposed on the appellant’s co-accused. It was also argued that the sentence was manifestly excessive in that the appellant entered a guilty plea at the first reasonable opportunity but was not given credit for that plea, and that while weapons were not used in the Avondale robbery, the appellant was sentenced on the basis that the presence of weapons was an aggravating feature.
Reasons
Issues of disparity fall to be considered on the basis of principle, as exemplified in R v Lawson [1982] 2 NZLR 219 at 223, of whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice. It is elementary that there will be no relevant disparity unless there is reasonable comparability. In this case, the circumstances are disparate. The co-offender Balle pleaded guilty at a far earlier stage than the appellant and was called as a Crown witness at the trial of his co-accused. In addition, as was noted by the sentencing Judge, it was not clear that Mr Balle’s involvement was at the same level as that of the appellant. The co-offenders Browne and Koteka were sentenced on a different basis from the appellant, the additional offences were taken into account and so too was the totality principle. When considered in this way, the case is far from one in which it would appear that something had gone wrong with the administration of justice. On the contrary, the different approaches are appropriate in this case.
As to the guilty plea, Ms Dyhrberg’s submission was that the appellant’s plea was made at the first reasonable opportunity because an earlier admission of guilt might have jeopardised the appellant in relation to the three counts on which he was later discharged. This submission fails to distinguish between a plea at the earliest opportunity for which credit will be given, and delaying a plea for tactical reasons, however reasonable that tactic might seem to the guilty person, the timing of which may deprive the offender of a discount. We are satisfied that in the circumstances of this case, it was appropriate that no reduction in sentence was made to take into account the guilty plea, and the resulting sentence cannot, on this ground, be seen as manifestly excessive.
On the matter of weapons we think, with respect to the sentencing Judge, that there is a tension between the Crown’s acknowledgement that the robbery was not aggravated by reason of weapons and the Judge’s conclusion that the screwdrivers were intended to be part of the intimidatory tactics, which conclusion had connotations of use as weapons. The screwdriver is not commonly a weapon but may become one when intended to be used as such. The Judge was no doubt entitled to regard as an aggravating element the inherently dangerous potential of such objects in the circumstances of the robberies. But the difference between intending the screwdrivers to be weapons, and intending them to be perceived by the victims as weapons is largely semantic. The Judge’s view effectively reinstated for sentencing purposes an allegation from which the Crown had resiled for want of evidence. Although this aspect of the reasons for sentence would not, on its own, in view of the generally aggressive method of the robbery, justify any amelioration of the sentence, it does have a cumulative effect on the appropriateness of the sentence when combined with the next matter we mention.
Although the Judge stated that the present offending occurred a month after the appellant was released on parole in respect of a sentence of 18 months imprisonment imposed on 18 May 2000, in fact the present offence took place on 31 December 1999 and clearly predates that term of imprisonment. The Crown acknowledges that the Judge erred in this respect but submitted that the appellant’s history reflected a blatant disregard for Court sanctions.
Although the Judge rightly stressed the seriousness of the offending in this case and the importance of deterrence, we think that the Judge’s view of the intention of the appellant in respect of the screwdriver and the Judge’s error in respect of parole has unduly elevated the sentence by at least a year. A sentence of six years imprisonment appropriately recognises the need to deter and the protection of the public while also adequately reflecting the appellant’s criminality.
For these reasons the appeal is allowed. The sentence of seven years imprisonment is quashed and a sentence of six years imprisonment is substituted.
Solicitors
Crown Law Office, Wellington
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