The Queen v Wayne Te Hira
[2002] NZCA 148
•26 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA73/02 |
THE QUEEN
V
WAYNE TE HIRA
| Hearing: | 18 June 2002 |
| Coram: | Anderson J |
| Williams J | |
| Appearances: | S D Cassidy for the Appellant |
| K J Raftery for the Crown | |
| Judgment: | 26 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PATERSON J |
Mr Te Hira, along with four others, one of whom was carrying a knife, entered a dwellinghouse occupied by three elderly women and a middle aged man. The offenders demanded to know where the drugs were and carried out a systematic search of the house. Drugs were not found but other property, including cash, telephones, a watch, a mountain bike and the male victim’s car, were taken. Mr Te Hira admitted his involvement and was subsequently found guilty by a District Court jury on one charge of aggravated burglary. Mr Te Hira appealed on the grounds that he did not know that someone would be carrying a knife, that weapon being the aggravating feature of the burglary. The conviction was quashed by the Court of Appeal which ordered a new trial: see R v Mokaraka [2002] 1 NZLR 793. Mr Te Hira then pleaded guilty to a charge of burglary, and was sentenced to five years imprisonment. He has appealed against this sentence on the grounds that it is manifestly excessive and, in particular, the Judge failed to give a sufficient discount for his guilty plea and placed too much weight on the aggravating features of the case.
The sentencing
The same District Court Judge sentenced Mr Te Hira on each occasion. He noted that Mr Te Hira and his co-offenders made a mistake when they thought they were burgling a drug house. There was violence used, property stolen, and the effect on the elderly victims was significant. In his first sentencing, the Judge went into the effect on the victims in some detail. The pre-sentence report described Mr Te Hira as low risk offender, although the Judge thought that description was somewhat generous. Mr Te Hira has previous convictions for assault, possession of cannabis and unlawfully interfering with a motor vehicle. The Judge did not consider these as serious as the burglary charge to which he pleaded guilty.
The aggravating features noted by the Judge were the planning, the prospect of confrontation of and danger to the people, and the violence used to ensure that the intentions of the offenders were carried out. In addition the co-offenders intimidated, and stole property.
The Judge found some difficulty in assessing the credit to be given for the guilty plea and did not accept a submission that he should give a one third discount. Other matters for which Mr Te Hira was given a credit were his full and frank admission of his involvement at the time of his arrest, and the assistance he gave the police in locating the stolen vehicle. The Judge accepted Mr Te Hira was not the principal offender, that he was remorseful and that he had not used any violence.
The Judge took as the starting point, because of the aggravating features, a six year term of imprisonment. He gave credit for the mitigating features and reduced the sentence to five years.
Counsel’s submissions
Mr Cassidy, for Mr Te Hira, submitted that if Mr Te Hira had been facing a daytime burglary charge where the occupants of the house were not present, he could have expected to be sentenced to periodic detention or a short term of imprisonment of between six to twelve months. This was not a case involving home invasion in the statutory sense of that term because burglary is not a specified offence. The aggravating features were not sufficient to increase the “ordinary tariff” from between six to twelve months imprisonment (in the worst case scenario) to a term of five years imprisonment. In summary, Mr Te Hira’s position was that the District Court Judge gave too much weight to the aggravating features and insufficient discount to the prompt guilty plea. Accordingly, the sentence was said to be manifestly excessive.
Mr Raftery, for the Crown, submitted that a sentence of five years imprisonment was not manifestly excessive and that the offending was more akin to aggravated robbery or aggravated burglary than a typical burglary. That evaluation has already been recognised in this Court on the sentence appeal of the co-offender: R v Mokaraka. The evidence presented at the first trial could have led to a conviction for aggravated robbery. The Crown submitted that there were several aggravating features and these will be referred to later in the judgment. In the circumstances of this case, a discount of one year was said to be appropriate.
Conclusions
When this Court considered Mr Te Hira’s appeal at the same time as it considered Mr Mokaraka’s appeal against sentence, it noted that it would be difficult to argue that Mr Te Hira did not enter voluntarily, did not know that the entry was without the express or implied consent of the occupiers, and did not have the intent of stealing drugs once in there. Mr Te Hira entered the house through the window and opened the door so other co-offenders could enter. The Court noted it would scarcely have been realistic to suggest that Mr Te Hira was anything other than a willing participant in a planned robbery. It was also the Court’s then view that with or without a weapon, an offence involving the entry of five men into a house at night, through a combination of deception and force, for the purpose of stealing once inside, could not have been anything other than a serious offence. On conviction, it would be likely to attract a substantial term of imprisonment.
Mr Mokaraka was subject to a maximum term of 19 years imprisonment because his offence was one of home invasion. The Court did note that in the peculiar circumstances of this case there was little distinction to be drawn between aggravated burglary and aggravated robbery for sentencing purposes. The intended crime was aggravated robbery. The sentencing Judge was correct in applying the decision of this Court in R v Mako [2000] 2 NZLR 170. This Court dismissed Mr Mokaraka’s appeal against a sentence of 10 years for his involvement.
This was a serious offence. The aggravating features identified by Mr Raftery were present. There were five intruders who entered a private house at night, knowing it was occupied. They intended to steal drugs and must have anticipated a confrontation with the occupants of the house, if not the need to use violence to achieve their objective of obtaining the drugs. They persisted in their plan to rob, even after it became apparent that there were no drugs in the house and that three of the four occupants were elderly women. The female occupants were menaced and violence was applied to the male occupant who was beaten and suffered injury. All four occupants have since moved from the home they loved and have suffered serious psychological effects. Property was stolen. Of course many of these features cannot fairly be attributed to the appellant in view of the lesser offence of which he now stands convicted. But he committed the burglary with a jointly held intent to rob whoever the inhabitants were, and some measure of violence and willingness to employ it must have been anticipated by all four of the offenders.
We are of the view that an appropriate starting point of six years, after taking into account the aggravating features, is a stern sentence but cannot be said to be manifestly excessive. This was in effect an aggravated robbery. Mr Te Hira may have had a lesser role than Mr Mokaraka, but a sentence of one half of Mr Mokaraka’s sentence does not infringe parity considerations, even allowing for Mr Te Hira’s guilty plea.
The remaining issue is whether a discount of one year was inadequate for the early guilty plea. While Mr Te Hira pleaded guilty at an early opportunity to the burglary charge, and was entitled to a minor credit for the other mitigating features, we are not of the view that the discount given was manifestly inadequate. The discount given was reasonably within the Judge’s discretion.
As we do not find the sentence of five years imprisonment manifestly excessive the appeal is dismissed.
Solicitors
Crown Solicitor, Auckland
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