Thompson v R

[2015] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

CA368/2014
[2015] NZCA 234

BETWEEN	SEAN CONRAD THOMPSON Appellant
AND	THE QUEEN Respondent

CA389/2014
BETWEEN	ISAAC PAPAROA Appellant
AND	THE QUEEN Respondent

Hearing:	8 June 2015
Court:	Harrison, Andrews and Gilbert JJ
Counsel:	D A Reece for Mr Thompson I A Jayanandan for Mr Paparoa M D Downs for the Respondent
Judgment:	11 June 2015 at 10 am

JUDGMENT OF THE COURT

Both appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Sean Thompson and Isaac Paparoa pleaded or were found guilty after a trial before a Judge and jury at the Auckland District Court on one charge of aggravated robbery involving a firearm, one charge of theft and in Mr Thompson’s case one charge of unlawful possession of ammunition.  Both were convicted and sentenced by Judge Ronayne to terms of eight years and three months imprisonment.[1]  The Judge also imposed minimum periods of imprisonment on Mr Thompson of four years and three months and on Mr Paparoa of three years and 10 months.  Both men appeal against the finite sentences on the ground that they were manifestly excessive; and against the minimum sentences on the ground that they were not appropriate.

Facts

[1]R v Paparoa DC Auckland CRI-2011-044-6244, 6 June 2014.

1. In early May 2011 Messrs Paparoa and Thompson travelled in a vehicle following the route of a security van to a commercial property in Mairangi Bay. They were planning a robbery of the van about a week later.  Shortly afterwards that day they stole a phone and a laptop from a store in Birkenhead to a total value of $1,800. 

2. A week later a vehicle worth $5,500 was stolen.  It was used as one of two getaway vehicles for the robbery.  Messrs Paparoa and Thompson and a third man drove to the Mairangi Bay premises.  Mr Thompson, who was disguised, presented a firearm at a security guard and after a struggle stole $3,300.  He and the third man drove away in one getaway car which they abandoned when they reached the second getaway vehicle driven by Mr Paparoa. 

3. In sentencing, Judge Ronayne adopted a starting point of eight years imprisonment for the aggravated robbery charge, adding another three months for the theft charge.  He was satisfied that there were 10 related aggravating factors.  Among them were planning and premeditation, use of a disguise and a weapon, targeting premises or persons, violence or threatening violence, victim vulnerability, the property stolen and extent of recovery, and the extent of emotional harm.  Both men were fortunate that the Judge was not satisfied to the requisite standard that the firearm was loaded. 

Decision

1. Mr Reece and Ms Jayanandan, for Messrs Thompson and Paparoa respectively, submit that the Judge failed to follow this Court’s statement in its guideline judgment in Mako v R:[2]

   [54]      Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels.  The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years.  Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.  To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

   (Emphasis added.)

   [2]Mako v R [2000] 2 NZLR 170 (CA).

2. Both Mr Reece and Ms Jayanandan submit that the Judge should have adopted a starting point of six years imprisonment given his acceptance that the firearm presented by Mr Thompson was not loaded.  However, as Mr Downs emphasises, Mako is not to be read as if it was a statutory enactment.  It is a guideline judgment and confirms that starting points are to be applied flexibly.[3] Mako allows for starting points greater than six years in circumstances like this robbery, even if the firearm was not loaded: six years is simply the platform for an appropriate starting point.  In this respect we add what is perhaps obvious, that the victim’s trauma is not lessened by learning that the prosecution has failed to satisfy the Judge that the gun was in fact loaded.

   [3]At [60].

3. While the Judge did not explain why he started at a point above six years, he had proper grounds for adopting eight years.  We agree with Mr Downs that the increasing prevalence of armed robberies in the 15 years since Mako was decided justifies a starting point which particularly emphasises the principles of denunciation and deterrence.  The Judge was correct to give weight to those principles where the circumstances of the offending demonstrated a high level of culpability.  In our judgment the starting point of eight years imposed was high but was within range.

4. Both defendants also appeal against their minimum periods of imprisonment.  The Judge, however, inquired in accordance with the statutory prescription[4] whether the potential release of either man at the expiry of one third of the sentence, and thus after two years and nine months, would be insufficient to hold them to account to the victims and community, and to denounce, deter and protect the community.  In his judgment the culpability of both was high and deterrence, denunciation and community protection were important. 

   [4]Sentencing Act 2002, s 86(2).

5. We are not satisfied that there was any error in the Judge’s analysis or in the exercise of his statutory discretion.  Furthermore, in answer to a point raised by Ms Jayanandan, we note that the lesser minimum period imposed on Mr Paparoa reflects an allowance for his personal circumstances and the steps he has taken towards rehabilitation.

Result

1. Both appeals are dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent