The Queen v Te Whata

[2006] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

CA229/05

THE QUEEN

v

AARON WILLIAM AROMOANA TE WHATA

Hearing:22 February 2006

Court:Robertson, Randerson and Panckhurst JJ

Counsel:D P Hoskin for Appellant

K B F Hastie for Crown

Judgment:23 February 2006 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Robertson J)

Introduction

[1]       Mr Te Whata appeals against a sentence of two years and six months imprisonment imposed upon him in the District Court at Auckland by District Court Judge J P Doogue after he had pleaded guilty to one charge that, jointly with another, he robbed Manuel Parsons of property to the value of $1,955 contrary to s 235(b) of the Crimes Act 1961.

[2]       He appeals on the basis that the sentence is manifestly excessive, that there is unjustifiable disparity between the sentence imposed on him and that imposed on a co-offender, and that the sentence does not adequately reflect all the relevant circumstances.

[3]       The appeal was filed out of time because counsel lodged it in the wrong Court.  The Crown takes no objection to leave being granted.  We accordingly deal with the matter.

Factual basis

[4]       There is no dispute as to the primary facts.  At about 3.30am on Saturday 6 March 2004, three teenagers were outside the Countdown Supermarket in the Lynfield Shopping Centre.  The appellant and the co-accused, Robert Daniel Wiki, were purchasing cigarettes in the vicinity at this time.

[5]       An altercation erupted between the two groups in the course of which Mr Wiki demanded that two of the young men give him the shoes they were wearing indicating that he would beat them up if they didn’t hand them over. 

[6]       A short time later, Mr Wiki approached a third person who was standing in the area and punched him in the face.  One of the teenagers escaped into the supermarket to seek assistance.  Another (Manuel Parsons) ran to his car, which was parked nearby.  He drove off out of the shopping centre car park.  Mr Parsons was pursued by the appellant and Mr Wiki in Mr Wiki’s car (which Mr Wiki was driving) into a cul de sac and into the driveway at the end of the road.  The vehicle was positioned to prevent Mr Parsons escaping.

[7]       The two men approached the car and the victim was taken from it.  Mr Wiki and Mr Te Whata began patting him down to ascertain what property he had for them to steal.  The appellant began searching the vehicle for further items of value while Mr Wiki held the victim against the car by his shirt.  They eventually removed Mr Parsons’ watch, trousers and shoes which the appellant and Mr Wiki took with them when they drove away.

[8]       When spoken to by the police, Mr Wiki admitted his involvement and said he wanted to teach the victim a lesson.  Mr Te Whata denied taking any part in the incident.  The approximate value of the goods taken (some of which were recovered) was $1,955.  The reparation schedule showed an outstanding loss of $1,205.

Sentencing of Mr Wiki

[9]       Notwithstanding his initial admissions to the police, Mr Wiki pleaded guilty to demanding with menaces, aggravated robbery and common assault only on 27 January 2005 following a sentencing indication.  He was sentenced before District Court Judge A E Kiernan on 23 March 2005.

[10]     The Judge noticed that Mr Wiki had 50 previous convictions, some for violence and robbery, but that there had been no offending from 2001 to 2004.  A pre-sentence report indicated that he had been a resident of Odyssey House since December 2004.  The Judge noted there was a denial of their having dragged the victim from the vehicle and that Mr Wiki contended that Mr Parsons had alighted from his car of his own free will.  It was also said that all stolen items had been returned.

[11]     The Judge noted a particularly sympathetic probation report and assessment from Odyssey House and detected a real possibility of a change in attitude and approach.  The Judge referred to the decision of this Court in R v Mako [2000] 2 NZLR 170 and concluded that an appropriate starting point would be three and a half years’ imprisonment.

[12]     The Judge then said:

[18]     I consider, Mr Wiki, the aggravating features of this offending are that it involved actual and threatened violence.  I note however that there was no weapon used and no hospital treatment required for either of your victims.  I also regard as aggravating that both these young men were vulnerable because of their age. They were aged 17 and 18 at the time.  You are a much older person and I regard as an aggravating feature that you chose to pick on these younger teenagers however irritating they were being.  I also regard as aggravating that you pursued Mr Parsons and it was you driving the car.  It was unprovoked behaviour.  You essentially lost your temper and you became angry and aggressive.  Also aggravating are your previous convictions.

[19]     In your favour are the pleas of guilty that you have entered, what I accept is the remorse that you now express, and the steps you have taken to address this behaviour.  I cannot take into account in your favour that you may have been affected by alcohol or drugs at the time of this offending.

[13]     Having considered the purposes and principles of sentencing, the Judge confirmed the three and a half years starting point, but held she was justified in giving a substantial discount for the plea of guilty and other mitigating factors.  The effective sentence was therefore reduced to two years for the aggravated robbery, with concurrent sentences of one year for demanding with menaces and six months for the assault.  She granted leave to apply for home detention in light of Mr Wiki’s involvement with Odyssey House.

The appellant’s sentencing

[14]     In what Mr Te Whata’s counsel describes as a “Blitz” callover in the Auckland District Court on 11 March 2005, the appellant pleaded guilty to a charge of aggravated robbery.  His counsel tells us that he was informed that he would be granted “the maximum credit for a plea”.  The Crown offered no evidence on a charge of demanding with menaces which had been laid against him.  He was sentenced by Judge J P Doogue on 12 April 2005 on the single charge.

[15]     The Judge noted what had occurred in respect of Mr Wiki.  Not surprisingly he concluded that a starting point of four to four and a half years could have been justified.  He said:

I do not intend to conduct a minute analysis or apportion responsibility between you and Wiki for what happened. It was a joint enterprise and I accept that some recognition, and it cannot be great, must be given to the fact that Wiki actually punched McQuoid and you did not.  That does not, I am afraid, loom very large in the overall sentencing.

[16]     He then discussed the appellant’s non-co-operation and aggression in a pre-sentence interview with a probation officer.  The Judge had regard to Mr Te Whata’s criminal history which had started when he was 15 in 1986 and concluded that there was a high risk of reoffending.  He said:

[8] … There is no real prospect of rehabilitation as far as I can see it.  I say that with great reluctance because if there is any seed of hope or glimmer of hope I will seize on it when I am sentencing defendants.

[17]     He eventually concluded:

[10]     … I am going to adopt the starting point that Wiki received of three and a half years.  Even though your plea of guilty came late, I am going to give you the fullest credit I can for that, and I am going to take 12 months off your sentence I would otherwise have imposed.  I can find no other mitigating feature which would justify any further discount than that.  Accordingly you are sentenced to two years and six months’ imprisonment.

Submissions

[18]     The appellant argued that, compared with Mr Wiki, his involvement was at a much lower level.  The prosecution did not pursue the demanding with menaces charge and Mr Te Whata was not involved directly in the physical assault on the other young man in the shopping mall.

[19]     Mr Hoskin submitted that the two years and six month term of imprisonment, when compared with two years (with leave to apply for home detention) created unjustifiable disparity.  This required that this Court should impose an effective sentence which was not more than that imposed on Mr Wiki, especially as there were additional charges against Mr Wiki and Mr Te Whata’s actual involvement in the aggravated robbery was submitted to be less serious.

[20]     The appellant accordingly argued that a reasonably minded observer, aware of all the circumstances of the offence and offenders, would think that something had gone wrong in terms of R v Lawson [1982] 2 NZLR 219 when, with less charges, Mr Te Whata received a sentence that was effectively more severe.

[21]     Counsel submitted that there really were two issues of criminality – the first in the shopping mall and the second in the cul de sac – and that Mr Te Whata was to be sentenced only in respect of the second of these.

[22]     Ms Hastie for the Crown submitted that the two and a half year sentence was clearly within range having given substantial credit for the guilty plea and recognition to the lesser role which Mr Te Whata had in the offending.  She noted the following identifiable aggravating features:

(a)       the presence of threats and intimidation;

(b)the offending was persistent – the victim was followed from the scene of the initial incident, forcibly removed from his vehicle and detained;

(c)the offending occurred in a public place;

(d)the offending has affected the victim who was a vulnerable teenager.

[23]     She referred to the disparity test as enunciated in R v Rameka [1973] 2 NZLR 592 and repeated in R v Lawson.  She submitted that, in all the circumstances, the differences in sentence were explicable and justified, particularly having regard to Mr Wiki’s prospect for rehabilitation.

Discussion

[24]     On any objective assessment, the starting point employed for both this appellant and his co-accused on the aggravated robbery charge was merciful.  This appellant is aged 33 years and his co-accused was 29.  There was an altercation with three teenagers in the early hours of the morning.  Whether or not those youngsters had been drinking and were provocative, the responsive behaviour from Mr Wiki was totally unacceptable.  Mr Te Whata knew exactly what had happened.  He went along with Mr Wiki when he got into Mr Wiki’s car and pursued one of the victims.

[25]     A starting point of four years is unlikely to have been interfered with by this Court.  It is quite apparent why the sentencing Judge commenced from the same starting point for the two offenders.  The aggravated robbery was the most serious of the offences.  This appellant involved himself in that aspect with full knowledge of what had previously occurred.  His behaviour was totally unacceptable especially by a grown man against someone about half his age. 

[26]     The 12 month reduction from that starting point, which was given to Mr Te Whata, was also merciful.  There was no credible evidence of real remorse or contrition.  He played the system and entered a plea of guilty at a very late stage.  He was described as hostile and intimidating.  He refused to answer questions about the offending or his background.

[27]     Had a Court in the exercise of discretion given a discount of six months there would have been no basis for intervention by an appellate Court, even after the sentencing indication that he would be granted “the maximum credit for a plea”.

[28]     We therefore have a net sentence which is mercifully low on the basis of both its components.  A substantially longer term of imprisonment could have been justified for the offending and the circumstances of the offender and a lesser discount would have been appropriate.

[29]     The unjustifiable disparity argument has no validity.  Mr Wiki also is the beneficiary of a low starting point.  The 18 month discount which was allowed to Mr Wiki, while particularly merciful, is properly to be understood by reference to the particular circumstances of the offender and the fact that there was a realistic prospect of a turnaround in his attitude and approach as evidenced by his involvement with Odyssey House.

[30]     The fact that a Judge has been moved to extend extreme leniency in one case does not lead to an unjustifiable disparity with another offender’s sentence where the factors which influenced that leniency do not apply to the second person.

Conclusion

[31]     There is no basis for this Court to intervene with the exercise of the sentencing discretion.  The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington