The Queen v Vaipo

[2009] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND

CA47/2009
[2009] NZCA 206

THE QUEEN

v

JIM KEN VAIPO

Hearing:22 April 2009

Court:O'Regan, Hugh Williams and MacKenzie JJ

Counsel:M E Mann for Appellant

S B Edwards for Crown

Judgment:25 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Hugh Williams J)

Introduction

[1]       Following trial in the Manukau District Court the appellant, Mr Vaipo, and a co-accused, Mr Alfred Mata, were each convicted on one count of aggravated robbery of a Mr Lui in his Manurewa takeaway bar on 14 March 2007.

[2]       Mr Viapo has appealed to this Court against the sentence of four years imprisonment imposed on him by the trial Judge, Judge Wade, on 19 December 2008 on the ground that the sentence is manifestly excessive.

Facts

[3]       The facts as described by Judge Wade were that on the evening of 14 March 2007 the two appellants and a brother of Mr Alfred Mata, Mr Alex Mata, hatched a plan to rob a takeaway bar situated near the Mata home.  Both the Messrs Mata were regular patrons and were known to the proprietor.

[4]       After waiting outside until other customers left, the three entered.  Mr Alex Mata jumped over the counter and punched the proprietor in the face, knocking him to the ground, causing significant bruising.  Mr Alfred Mata then jumped over the counter, knocked the cash register to the ground and took about $100 from it.  Mr Vaipo stayed on the customers’ side of the counter but shouted out words such as “take the money”.  The three then decamped and later shared the proceeds.

Sentencing remarks

[5]       After reviewing the appellants’ personal circumstances, including their previous conviction histories, the Judge discussed as an aggravating feature for Mr Alfred Mata the fact he had committed a second robbery whilst on bail but had pleaded guilty to that offence shortly before sentencing.

[6]       After reviewing the circumstances of that offence, the Judge noted his task was made “somewhat easier” because Mr Alex Mata pleaded guilty to the robbery of the takeaway bar at an earlier stage and had been sentenced by another Judge to three and a half years imprisonment from a starting point of five and a half years imprisonment.  The reduction was to recognise both the guilty plea and Mr Alex Mata’s preparedness to give evidence against his co-offenders.

[7]       The Judge then reviewed the position of those being sentenced that day.  The Judge held that Mr Alex Mata had taken the leading role in the offending and had been the one who had inflicted personal violence.  In relation to Mr Vaipo he noted that, when delivering its verdict, the jury had spontaneously added a rider that “although we feel Vaipo is guilty we feel leniency should be shown”.  The Judge interpreted that rider as being the jury’s view that Mr Vaipo had played a lesser role because he was not physically involved either in the violence or the taking of the money and did no more than offer encouragement to his co-offenders.

[8]       After referring to the remarks in R v Mako [2003] 2 NZLR 170 at [56] (CA) as to starting points for sentencing those involved in robberies of small retail shops involving actual violence and multiple offenders, the Judge chose both a starting and a finishing point for Mr Alfred Mata of five years imprisonment for the robbery of the takeaway bar and then added a further one year term of imprisonment for the second robbery.

[9]       Turning to Mr Vaipo, the Judge first dismissed the possibility of home detention and said (at [43]):

... even making every discount that I can I cannot reduce the sentence in your case to anything less than four years imprisonment and that is the sentence I impose – four years.

Submissions

[10]     For Mr Vaipo, Mr Mann queried whether, having regard to the sentencing notes, the Judge had chosen a starting point of five years imprisonment and reduced that to four years for the jury rider and other mitigating features, or whether the starting point chosen was four years having regard to the appellant’s lesser involvement in the offence and the sentence imposed remained at that figure as the Judge was unable to discern any mitigating features.

[11]     Whichever approach was adopted, Mr Mann submitted it gave insufficient weight to the appellant’s lesser role in the offending by comparison with his co-offenders, failed to give sufficient weight to mitigating features of the appellant’s age – he was 20 years old at the time of the offence – his supportive family circumstances, his employment, his remorse, his offer of reparation and, naturally, the jury’s rider.  Mr Mann submitted Mr Vaipo received a disproportionate sentence by comparison with his co-offenders.  Those sentences, too, he submitted were excessive having regard to the offenders’ lack of disguise, their committing a robbery at premises where they were known and the aggravating feature for Mr Alfred Mata arising from the second robbery.

[12]     Mr Mann submitted the starting point for Mr Vaipo should have been four years imprisonment and should have been significantly reduced having regard to those mitigating features.  He submitted the sentence imposed should have been in the region of three years.

[13]     The Crown’s position put by Ms Edwards was that, notwithstanding the lack of a nominated starting point, the sentence imposed on the appellant was appropriate in terms of the authorities and could certainly not be regarded as manifestly excessive.

[14]     She noted the starting point chosen by the Judges for both the appellant’s co-offenders were about the mid point of the range for offending of this sort appearing in Mako.  Having regard to the incapacitating violence used at night by the three robbers, the probability was Judge Wade chose a starting point of four years imprisonment as appropriate having regard to the appellant’s lesser role in the offending and the jury’s rider, but could see no mitigating features warranting reduction beyond that term.  That was the approach he took in respect of Mr Alfred Mata.

Discussion and Decision

[15]     There were three robbers involved in this offending.  There was an element of premeditation in the hatching of the plan and, more, in the trio waiting outside the shop until it was vacant.  The person robbed was one of two occupants of a small suburban takeaway bar.  Significant personal violence was used to subdue him and avoid intervention in the offending.  Significant violence was also used in the throwing of the till to the floor and the theft of the takings.  The Matas were encouraged by the appellant urging them to “take the money”.  Those factors show plainly that a starting point of five to six years imprisonment for all three might have been warranted in terms of Mako at [56].

[16]     In the appellant’s case there were the aggravating features of his previous conviction history, but he was entitled to call in aid his lesser role in the robbery and, to a limited extent, his personal circumstances.  The jury’s unprompted rider also warranted consideration in the sentencing process.

[17]     Although it would plainly have been preferable had the Judge expressly fixed a starting point in the appellant’s case before imposing the ultimate sentence, we are inclined to think the Judge chose a starting point in the region of five to five and a half years, as had been chosen for the Matas, and then reduced it for the mitigating circumstances previously  mentioned.  But it matters little since, as this Court has repeatedly emphasised, the task on appeal is to consider whether the final sentence imposed was manifestly excessive.

[18]     Whatever the starting point in the Judge’s mind, we are of the view that a final sentence of four years imprisonment for offending of this nature could certainly not be categorised as manifestly excessive. 

[19]     Mr Vaipo’s appeal against sentence is accordingly dismissed.

Solicitors:

Public Defence Service, Manukau City, for Appellant
Crown Law Office, Wellington