The Queen v Turipa

[2008] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

CA7/08
[2008] NZCA 14

THE QUEEN

v

JOSEPH WIREMU TURIPA

Hearing:18 February 2008

Court:Hammond, John Hansen and Priestley JJ

Counsel:A G V Rogers for Appellant

N P Chisnall for Crown

Judgment:22 February 2008 at 10 am

JUDGMENT OF THE COURT

A        AN EXTENSION OF TIME FOR APPEALING IS GRANTED.

B        THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The Issue

[1]       The sole issue raised by this appeal against sentence is whether the absence of a disputed facts hearing led to a manifestly excessive sentence being imposed by the sentencing Judge.

Preliminary Issues

[2]       Before the hearing we granted leave, under Rule 12A(3) of the Court of Appeal (Criminal) Rules 2001, for exemption from providing a written waiver of privilege in respect of an affidavit filed by the appellant’s counsel at sentencing, Mr Brock.

[3]       The appeal was lodged out of time.  The Crown did not oppose leave being granted, there being a sufficient explanation for the delay.  An extension of time for appealing is accordingly granted.

Background

[4]       The appellant pleaded guilty on arraignment to a count of aggravated robbery laid under s 235(1) of the Crimes Act 1961.

[5]       Stevens J imposed a sentence of 18 months imprisonment in the High Court at Auckland on 27 July 2007.  Leave to apply for home detention was refused.

[6]       The appellant, his cousin Mr Baker, and two others offered to take the victim home from a party.  En route they played touch rugby on a reserve.  Mr Baker tackled the victim.  Both he and the appellant held the victim down whilst the appellant searched his pockets removing a wallet and a packet of tobacco to a total value of approximately $100.  Throughout this robbery Mr Baker held a knife to the victim’s face and threatened to stab him.

[7]       The appellant was aged 19 at the time.  He came from a violent family background.  Family influences led to the appellant offending from an early age.  He had 40 previous convictions, including offences involving dishonesty and a conviction for assault with intent to rob.  He had previously been in prison.

[8]       Stevens J accepted that the appellant had been pressured by Mr Baker.  He referred to the appellant’s expression of remorse and his desire to change his life.  He did not accept the Crown’s submission that there was reliable evidence to suggest the aggravated robbery had been planned.

[9]       Referring to the R v Mako [2000] 2 NZLR 170 (CA) guidelines the Judge considered that factors relevant to culpability included four people being involved, the use of a knife by Mr Baker, and holding the victim down. He referred to a two year final sentence imposed seven months previously on Mr Baker by Harrison J.

[10]     The Judge, although identifying various other aggravating factors, did not specify, as he might have, the appellant’s criminal history.  He considered a start point of two years and three months imprisonment was appropriate.  He reduced this by one third to a final sentence of 18 months to reflect the mitigating factors of the appellant’s guilty plea, his co-operation with the police, his remorse, and his youth.

[11]     Pertinently, Stevens J commented that in fixing a two years three months start point, he accepted the appellant played a secondary role to that of Mr Baker and was to some extent pressured into the offending.

Discussion

[12]     Mr Rogers’ submission, in essence, was that had there been a disputed facts hearing, it would have been clear the appellant participated in the aggravated robbery under a significant degree of duress.  That should have led to a shorter sentence, coinciding perhaps with the unserved portion of a sentence he was already serving. 

[13]     Counsel referred us to R v Valentini (1999) 43 O.R. (3d) 178, a decision of the Court of Appeal for Ontario. This authority did not strike us as particularly relevant or helpful.

[14]     The concerns raised by Mr Brock in his affidavit related in the main to his failure to seek a disputed facts hearing.  He was concerned in particular that the Crown contended there was a premeditated plan to rob the victim.  He considered further that the extent to which the appellant participated in the robbery under duress was not apparent.

[15]     We do not consider a disputed facts hearing would have led to a reduced sentence.  Stevens J clearly stated he did not consider there was reliable evidence to justify a finding of planning.  Mr Brock’s submissions on sentence (which counsel placed before us) set out fully the deposition evidence which might justify a finding the appellant was acting under duress.  As stated, (supra [11]), the Judge accepted the appellant played a secondary role and was to some extent pressured into the offending.  He factored that into his start point.  Elsewhere in his sentencing notes he indicated that he could understand the basis for the appellant being motivated by fear of Mr Baker.

[16]     In short we do not consider a disputed facts hearing was warranted.  Had one occurred we do not consider the sentence imposed would have been any different. Nor do we consider that the 18 month sentence imposed by Stevens J was manifestly excessive.  It was a sentence soundly based and within range.

Result

[17]     An extension of time for appealing is granted.

[18]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington