The Queen v Taylor and Taia
[2009] NZCA 586
•11 December 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA404/2009
CA431/2009
[2009] NZCA 586THE QUEEN
v
WHETU TAYLOR
RAHUI PAUL TAIAHearing:2 November 2009
Court:William Young P, Chisholm and Priestley JJ
Counsel:D G Slater for Mr Taylor
H T Young for Mr Taia
M J Inwood for Crown
Judgment:11 December 2009 at 11.30 am
JUDGMENT OF THE COURT
The appeals are dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] In the early hours of Sunday 23 November 2008, the two appellants approached the victim. He was sitting in a bus shelter. He had with him a bicycle and a backpack. The two appellants spoke briefly to him and then began punching him. The victim tried to escape but Rahui Taia sought to continue the assault. At this point Whetu Taylor told Mr Taia to leave the victim alone. They then left the area taking both the backpack and bicycle with them. During the incident, Mr Taia assaulted the victim using a beer bottle.
[2] Not long afterwards, the appellants were located by the police hiding in a tent on the front lawn of an address within two blocks of where the offending had taken place.
[3] The upshot of the legal process was as follows:
(a)On 1 May 2009 Mr Taia pleaded guilty to aggravated robbery and injuring with intent to injure;
(b)Mr Taylor was found guilty following trial of aggravated robbery and was discharged on a count alleging injuring with intent to injure; and
(c)Both pleaded guilty to a summary charge of being found on a property without reasonable excuse.
[4] Judge Doherty sentenced Mr Taylor to three and a half years imprisonment from a starting point of three years, which was uplifted by six months for previous offending. In the case of Mr Taia, the Judge started at four years (which encompassed the injuring charge), applied a six month uplift for his previous convictions before making a 25 per cent reduction for personal mitigating factors (guilty plea, offer to pay reparation and attempts at rehabilitation) resulting in a final sentence of three years four months imprisonment.
[5] Both now appeal against sentence.
The basis of the appeals
[6] The primary focus of the appeal on behalf of Mr Taylor was that the end result (under which the more culpable Mr Taia received a lesser sentence) is unacceptable. Associated with this argument is the contention that Mr Taylor was not practically able to plead guilty to aggravated robbery because he faced an allegation of being directly implicated in the use of the beer bottle on the victim (which was reflected in the injuring with intent charge).
[7] The basis of the appeal by Mr Taia is that the starting points for both appellants were too high and that, in his case, the starting point should not have been higher than three and a half years imprisonment.
[8] On this basis we propose to discuss the appeals by reference to:
(a)The starting points adopted;
(b)The adjustments to the starting points; and
(c)Disparity.
The starting points adopted
[9] There is no shortage of aggravating features in this case: multiple offenders, actual violence (punches inflicted to the victim’s head by both appellants and the use of the beer bottle by Mr Taia) and victim vulnerability and impact.
[10] The challenge to the starting points was advanced by Mr Hugo Young for Mr Taia. His contention was that the offending by Mr Taylor warranted no more than a two and a half year starting point and that, allowing an uplift for Mr Taia in relation to the use of the bottle, the starting point for Mr Taia ought to have been no higher than three and a half years.
[11] In picking his starting points, the Judge sought to apply R v Mako [2000] 2 NZLR 170 (CA). There the Court observed:
[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.
This passage must be read in light of what had earlier been said in that judgment:
[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.
[12] Although the starting points adopted by the Judge are consistent with what was said in Mako, Mr Young was able to take us to High Court decisions in which, in circumstances broadly corresponding to those of the present case, lower starting points were adopted. He also referred us to two Court of Appeal decisions, R v Turipa [2008] NZCA 14 and R v Bishop [2009] NZCA 265 where lower starting points had been adopted by the sentencing Judges and later appeals by the offenders were dismissed.
[13] One of the purposes of guideline judgments such as Mako is to obviate the need to trawl through High Court and District Court sentencing decisions and for this reason we place little weight on the High Court cases which resulted in sentences which, at first sight, appear to be lenient. In Turipa and Bishop, the violence which was treated as relevant was arguably of a lower order than in this case and in any event, the appeals were by the offenders. Those judgments are not therefore necessarily an indication that sterner sentences would have been interfered with. And, as counsel for the Crown pointed out, in R v Lakatani [2008] NZCA 507, a three and a half year starting point was treated as “lenient in the extreme” despite the level of violence being lower than in this case, albeit that there were somewhat different aggravating features.
[14] In this context we have no difficulty with the three year starting point adopted in the case of Mr Taylor and, although we do see the four year starting point in relation to Mr Taia as stern, we consider that it was within (albeit at the top of) the permissible range.
The adjustments to the starting points
[15] The major difference between the two offenders was that Mr Taia pleaded guilty whereas Mr Taylor did not. Mr Slater, who appeared for Mr Taylor both at trial and on appeal, argued that Mr Taylor was practically compelled to go to trial to make good his defence in relation to the injuring with intent to injure charge (which related to the use of the bottle) and that it is unfair that he should be treated more harshly than Mr Taia on this account.
[16] We do not accept this argument. Mr Taylor did not have to go to trial on the aggravated robbery charge. He could have pleaded guilty to that charge and defended the injuring with intent to injure charge. He likewise could have made a conditional offer to plead to the aggravated robbery charge if the other charge was abandoned. No such offer was made.
[17] In those circumstances, there could be no basis for providing Mr Taylor with a discount for a plea of guilty which he never made or offered and he can have no logical claim to a discount for the guilty pleas of Mr Taia (which in effect is what he is seeking in this appeal).
Disparity
[18] As to disparity, as is now apparent, we have no difficulty with either:
(a)The starting points adopted including the differential in favour of Mr Taylor and against Mr Taia reflecting the additional charge and his greater culpability; and
(b)The differential in favour of Mr Taia and against Mr Taylor in relation to personal considerations and, most significantly, the plea of guilty.
Disposition
[19] Accordingly the appeals are dismissed.
Solicitors:
Crown Law Office, Wellington
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