The Queen v Winikerei

[2008] NZCA 407

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/2008
[2008] NZCA 407

THE QUEEN

v

QUANDO WINIKEREI

Hearing:22 September 2008

Court:O'Regan, Gendall and Fogarty JJ

Counsel:A M M Schulze for Appellant

M T Davies for Crown

Judgment:8 October 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1]       On 21 May 2008 the appellant was sentenced to two and a half years imprisonment for aggravated robbery, having been convicted on that charge following trial at the District Court at Rotorua.  A co-offender, Mr O’Brien, was sentenced to nine months home detention with 200 hours of community work.

[2]       The appellant appeals against his sentence on the grounds it is manifestly excessive and relies on two points:

1.That considered alone the appeal is manifestly excessive; and

2.That there is an unjustified disparity in the sentences received. 

Factual background

[3]       In February 2007 the appellant and Mr O’Brien were on a property at Taupo.  Four teenagers arrived in a car with the intention to buy cannabis.  One of them got out of the vehicle and approached Mr O’Brien.  Mr O’Brien told that young man that his father owed him some money and became aggressive towards him.  The young man ran off.  Three or four other persons then arrived at the property in another car, parking it immediately behind the first car.  The persons in this car were associated with the Mongrel Mob.  One appeared to have been wearing a patch.  The appellant himself was wearing a leather jacket with red strips and displaying the word “Mighty”.  There was a reference to the dogs (the Mob) in conversation.     Mr O’Brien, the appellant, and those other persons from the second car surrounded the first car.  A variety of thefts then took place.  The appellant was involved in these.  He took $15 cash from a wallet.  He demanded of one of the teenagers that they hand a cellphone to him and took the battery out of the phone to prevent them ringing the police.  Together with Mr O’Brien he removed Sony sub-woofer speakers, an amplifier, and two boogie boards from the rear of the car. 

Starting point

[4]       It was common ground at the sentencing in the District Court and before us that the appropriate starting point for this level of offending was between 18 months and three years, being akin to the “street robbery” example provided in
R v Mako [2000] 2 NZLR 170.

[5]       The sentencing remarks of Judge Weir were brief.  He did not follow the steps of setting a starting point for the culpability of the offending and then adding on additional time for aggravating features.  He went straight to two and a half years.  Judge Weir’s sentence of two and a half years is justified by the aggravating features of the offending and the criminal history of the appellant who had just been released from a sentence for aggravated robbery.  Mr Schulze had to agree that there were these aggravating features so at best he could only argue for a reduction of six months on the sentence.  We think the sentence was within the range available to the Judge and cannot be regarded as excessive.

Unjustifiable disparity

[6]       In our view the only significant point on appeal is the question of unjustifiable disparity of sentence.  In R v Lawson [1982] 2 NZLR 219 (CA) McMullin J said: (at 223):

The disparity argument is not infrequently raised in this Court.  For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument.  Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another.  The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each.  But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute …

[The test is] whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

(at 223)

[7]       In R v Te Whata CA229/05 23 February 2006, Mr Te Whata appealed against a two year and six month sentence of imprisonment for aggravated robbery on the basis of disparity with the sentence imposed on his co-offender, Mr Wiki. 

[8]       Mr Te Whata and Mr Wiki had become involved in an altercation with a group of three teenagers in the course of which Mr Wiki demanded that two of the young men give him the shoes they were wearing, indicating he would beat them up if they did not hand them over.  Mr Te Whata and Mr Wiki then pursued one of the victims in their car.  They positioned their vehicle to prevent the victim escaping, pulling the victim from the car and patting him down to search for property to steal.  Mr Te Whata also searched the victim’s car.  They eventually took the victim’s watch, trousers and shoes.  Mr Wiki pleaded guilty to demanding with menaces, aggravated robbery and common assault.  He had 50 previous convictions, but no previous convictions between 2001 and 2004.  The police sentence report indicated he had been a resident of Odyssey House.  The pre-sentence report was favourable and the sentencing Judge detected a real possibility of a change in attitude and approach.  She took a starting point of three and a half years imprisonment with a final sentence of two years with leave to apply for home detention.

[9]       Mr Te Whata pleaded guilty to aggravated robbery.  The Crown offered no evidence on a charge of demanding with menaces.  The sentencing Judge, with reference to Mr Wiki’s sentence, noted a starting point of four to four and a half years could have been justified.  Mr Te Whata had been non-co-operative and aggressive in his pre-sentence interview.  He had a significant criminal history and it was concluded he was at high risk of re-offending.  There was no real prospect of rehabilitation.  The Judge took the same starting point as that imposed on Mr Wiki of three and a half years with full credit for a guilty plea.  A final sentence of two years and six months was imposed. 

[10]     Mr Te Whata argued that compared with his co-offender, Mr Wiki, his involvement was at a much lower level.  The prosecution had not pursued the additional charge of demanding with menaces.  He had not been directly involved in a physical assault. 

[11] This Court held that the discount allowed to Mr Wiki was properly understood by reference to the particular circumstances of that offender and the fact there was a realistic prospect of a turn-around as evidenced by his involvement in Odyssey House. Further, the fact that a Judge had been moved to extend extreme leniency in one case does not lead to an unjustifiable disparity with another sentence where the factors which influenced that leniency do not apply to the second person: at [30].

[12]     The Court’s decision in Te Whata has particular relevance to this case.  Judge Weir recognised that Mr O’Brien was the instigator of the offending.  But he was clearly persuaded that given his youth (being 17 at the time of offending), his clean criminal record, and the intervention of his step-father, a sentence of imprisonment was inappropriate.  The Judge took into account that he had already spent four and a half months in custody.  His step-father had given an undertaking to the Court that all activity with the Mongrel Mob had ceased. 

[13]     At the time of sentence in this case, Judge Weir considered the difference between Mr O’Brien and Mr Winikerei who was still awaiting sentence.  He said that the difference between them was Mr O’Brien’s youth.  His final sentencing remark reflected the fact that he was giving this offender a chance, that he had escaped prison by the finest of margins and that if he breached his home detention he would know what was in front of him. 

[14]     In Mako this Court included adjustments that can be made for age: at [62]. This was developed further:

[65]     Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. As noted in the judgment of the Full Court of the High Court in Cooper [HC HAM AP 106/98 28 November 1998] a high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and an unlikelihood of reoffending.

[66]     However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[15]     We are satisfied that the sentencing in the case of Mr O’Brien was according to the policy directions of this Court in Mako.

[16] When sentencing Mr Winikerei the Judge clearly took into account parity issues, see paragraph [6]. The sentencing Judge did not expressly rely in those sentencing notes on Mr O’Brien’s youth as justifying the disparity, but reading the two sentencing notes together and taking into account Mako and Te Whata, we are satisfied that there is no basis for a reasonably minded independent observer to think that something had gone wrong with the administration of justice that there was an unmarked and unjustified difference in the sentencing. The disparity in sentence is explained by the different personal circumstances of each offender.  

Result

[17]     The appeal is dismissed.

Solicitors:
Lance & Lawson, Rotorua for Appellant
Crown Law Office, Wellington