Tukaki v R

[2013] NZCA 411

IN THE COURT OF APPEAL OF NEW ZEALAND

CA577/2012 [2013] NZCA 411

BETWEEN  LAURISSA CELIA HUIRUA TUKAKI Appellant

ANDTHE QUEEN Respondent

CA71/2013

BETWEEN  TUKINO TE RANGI Appellant

ANDTHE QUEEN Respondent

Hearing:                   20 August 2013

Court:  White, Venning and Courtney JJ Counsel:         C D Bean for First Appellant

G Boot for Second Appellant
J M Jelas for Respondent

Judgment:                2 September 2013 at 12.30 pm

JUDGMENT OF THE COURT

A    The application made by Tukino Te Rangi for an extension of time to appeal is granted.

B    The appeal by Laurissa Tukaki is allowed to the extent that the reparation order is quashed. The appeal is otherwise dismissed.

C    The appeal by Tukino Te Rangi is allowed.   The sentence of nine years’

imprisonment with a minimum period of imprisonment of five years is

quashed  and  substituted  with  a  sentence  of  eight  and  a  half  years’

TUKAKI V R CA577/2012 AND TE RANGI V R CA71/2013 [2013] NZCA 411 [2 September 2013]

imprisonment with a minimum period of imprisonment of four years nine

months. The reparation order is quashed.

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1]      On the evening of 6 March 2011 the appellants, Laurissa Tukaki and Tukino Te  Rangi,  along  with  a  third  person,  committed  an  aggravated  robbery  of  the Waikato Snooker and 8 Ball Club in Hamilton.  They drove a stolen vehicle to the club.  Ms Tukaki went to the locked glass door and sought entry.  As soon as the door was unlocked, she held it open for Mr Te Rangi and the third offender to enter. Both Mr Te Rangi and the third offender were wearing full disguises.  Mr Te Rangi was carrying a sawn-off shotgun.   The employees and patrons of the club were threatened with the shotgun and one of the patrons was kicked.  $16,000 in cash was taken from the safe and the staff members’ handbags were stolen.  Ms Tukaki drove her co-offenders away.   The cash was mainly split between Mr Te Rangi and the third offender.  Some of the money was used to buy methamphetamine, which was shared among the three offenders.

[2]      After a jury trial in the Hamilton District Court, Ms Tukaki and Mr Te Rangi were both convicted of aggravated robbery.  In sentencing the Judge drew heavily on this Court’s decision in R v Mako.1   In terms of Mako the significant factors were the obvious level of planning and preparation.  The offenders used a stolen car.  They used Ms Tukaki as “bait” to gain access to the premises.  Those actually carrying out the robbery were disguised. A shotgun (albeit unloaded) was used.  It was likely that

significant numbers of people would be on the premises, as was the case.   There were threats of violence.   There was actual violence.   The effect on the victims,

particularly the female staff members, was significant.  These features, as the Judge

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

identified in both sentencing hearings, fell within the kind of offending described at

[54] of Mako, which attracts a starting point of between six and eight years.

[3]      Judge Burnett imposed a sentence of six years eight months’ imprisonment on Ms Tukaki with a minimum period of imprisonment of two years 10 months.2   In addition, she made a reparation order of $3,000.  Ms Tukaki appeals her sentence on the grounds that it is manifestly excessive because:

(a)       the starting point of seven years was too high;

(b)there was no justification for uplifting the starting point by six months to reflect Ms Tukaki’s previous offending;

(c)       the  imposition  of  a  minimum  period  of  imprisonment  was  not appropriate; and

(d)the Judge erred in exercising her discretion to order reparation when she was not in a position to make that payment.

[4]      The Judge imposed a sentence of nine years’ imprisonment with a minimum period of imprisonment of five years on Mr Te Rangi and ordered him to pay $6,000 in reparation.3   He appeals his sentence4 on the ground that it is manifestly excessive because:

(a)       the starting point of eight and a half years was too high;

(b)there was no justification for uplifting the starting point by six months to reflect his previous criminal history;

(c)       the Judge  failed  to  consider his  age  at  the time of the offending

(19 years) as a factor warranting a discount;

2      R v Tukaki DC Hamilton CRI-2011-019-5065, 22 August 2012.

3      R v Te Rangi DC Hamilton CRI-2011-019-5065, 2 October 2012.

4      Mr Te Rangi filed a notice of abandonment in respect of his appeal against conviction on

25 July 2013.

(d)the minimum term of imprisonment was unnecessary and disparately greater than that imposed on Ms Tukaki; and

(e)       the Judge erred in exercising her discretion to order reparation when he was not in a position to make that payment.

[5]      Mr Te Rangi’s appeal was filed approximately three months out of time.  The respondent  does  not  oppose  an  extension  of  time. Accordingly  Mr  Te  Rangi’s application for an extension of time to appeal is granted.

Ms Tukaki

[6]      The Judge took a starting point of seven years’ imprisonment on the basis that Ms Tukaki knew of the presence and intended use of the weapon, facilitated her co-offenders’ entry into the premises and was the getaway driver.

[7]      Mr Bean, for Ms Tukaki, submitted that the appropriate starting point was six years.   He relied, by comparison, on Dobson J’s observation in R v Rewi, that a starting point higher than six years would be justified if there was increased danger of harm as a result of, for example, firearms being loaded or actual violence used.5

However, given the factors that we have referred to, including the actual, albeit brief, violence, and the repeated threats to kill, we consider that the Judge was right in treating this offence as one that should attract a starting point higher than six years. The fact that Ms Tukaki did not commit any of those acts does not, of course, alter the position, given her conviction on the basis of being a party to them.  We do not see any error in the starting point taken in respect of Ms Tukaki.

[8]      The Judge dealt with Ms Tukaki’s personal circumstances by an uplift of six months.   Ms Tukaki was aged 24 years at the time of the offence.   She had a lengthy criminal history.   The pre-sentence report identified her drug use as a significant factor in her offending and the risk of her re-offending was assessed as being high.  The Judge did not refer to Ms Tukaki’s extensive Youth Court history

and seemed to confine the basis for the uplift to Ms Tukaki’s history as an adult

5      R v Rewi [2013] NZHC 995 at [14].

offender which, itself, was extensive, with some 33 convictions entered between

2005 and 2011.   Most of these were relatively low-level offences, particularly for dishonesty and driving offences. There were no previous convictions for violence.

[9]      Given the nature of the previous offences, we would not have considered an uplift to reflect prior offending was necessary.   However, the discount given for remorse and insight was a generous one.  As a result, the end sentence of six years eight months was not manifestly excessive.

[10]     Ms Tukaki also challenges the minimum non-parole period of two  years

10 months imposed.  We note that this is only slightly longer than the point at which Ms Tukaki might otherwise be entitled to apply for parole.  Nevertheless, given the very serious nature of the offending, we do not consider it appropriate to interfere with the Judge’s assessment of the need for a minimum period of imprisonment.

[11]     Finally, we come to the issue of reparation.  The Judge remitted fines owing by  Ms  Tukaki  (amount  unspecified)  and  in  their  place  imposed  a  cumulative sentence of two weeks’ imprisonment.  In addition, the Judge imposed an order of reparation of $3,000.  Whilst the remittance of fines is a matter for the District Court Judge and we do not propose to interfere with her decision on that aspect, we have concerns as to the utility of the reparation order.  Given that Ms Tukaki was unable to pay her existing fines and that she will be imprisoned for a reasonably lengthy period there seems no real prospect of the reparation order ever being paid.

[12]     The appeal is allowed  only to the extent that the order for reparation is quashed.  In all other respects the appeal is dismissed.

Mr Te Rangi

[13]     Because Mr Te Rangi was carrying a shotgun and was one of the two who made serious threats to staff and patrons, actually committed the robbery and took a far greater share of the money than Ms Tukaki, the Judge viewed his culpability as significantly higher and took a starting point of eight and a half years.  Mr Boot, for Mr Te Rangi, submitted that the starting point was excessive, seeking to downplay

the seriousness of the offending on the basis that the shotgun was not loaded and that the violence was brief and not especially serious.

[14]     Whilst the starting point taken was high, it was within the range available to the Judge for offending of this kind.  It is evident from our initial description that this was very serious offending.   The firearm may not have been loaded but it was capable of inflicting serious harm, even unloaded.  Patrons were led to believe that it was loaded.  Mr Te Rangi inflicted a terrifying ordeal on the staff and patrons of the club and there is no basis on which to minimise the seriousness of it.

[15]     The  Judge  uplifted  the  starting  point  by  six  months  on  account  of Mr Te Rangi’s previous convictions.  Given the high starting point, we consider that this uplift led to a manifestly excessive sentence. Although Mr Te Rangi does have a long criminal  history,  with  55 Youth Court  notations  and  28  convictions  in the District Court, the majority of his previous convictions are for burglary and other forms of dishonesty.  He has no convictions for violent offending.  We consider that the Judge’s decision to impose an uplift from what was already a starting point at the top end of the available range failed to recognise that this was the first instance of violent offending by a relatively young offender.  In these circumstances the uplift was unnecessary.

[16]     This brings us to the next ground of appeal, the fact that no discount was given in recognition of Mr Te Rangi’s age.  Mr Te Rangi was 19 years old at the time of the offending.  At sentencing Mr Te Rangi’s age was advanced as a reason not to impose an uplift, rather than justification for a separate discount.  The Judge did not accept that approach because Mr Te Rangi’s history was “not that of a youthful person”.   Before us, Mr Boot submitted that there should have been a separate discount for youth, with the position he had taken in the District Court as an alternative “back-up” position.

[17]     In opposing any further reduction on account of age, Ms Jelas relied heavily on  the statements  at [65]  and [66]  in  Mako  in  submitting that  for this  type of offending a discount  ought  to  be  given only where the offender is,  in  relevant respects, a first offender and appears genuinely motivated to reform.  She pointed out

that Mr Te Rangi’s pre-sentence report was very negative, with no acknowledgement of guilt and no indication of remorse.

[18]     At 19 Mr Te Rangi was at the upper end of the age range that might justify a separate discount for youth.  We consider that the appropriate result is reached by taking away the uplift, without the need for further discount.

[19]     However, we do  have  an observation about  the Crown’s  reliance on  the statements at [65] and [66] of Mako as limiting a youth discount in cases of aggravated robbery to first offenders who are remorseful and have prospects of rehabilitation.  The observations of the Court in Mako as to the need for deterrence because of the high proportion of aggravated robberies committed by young people and the risk of teenagers being used by older offenders still hold true.6    However

Mako is to be read in light of this Court’s subsequent decision in Churchward.7    It

should not be treated as justifying a different approach for aggravated robbery from other types of offending in relation to the treatment of youthful offenders.

[20]   Mr Boot also submitted that the imposition of a minimum period of imprisonment was inappropriate given Mr Te Rangi’s age and the nature of his previous convictions.  We do not propose to interfere with the Judge’s assessment that a minimum period of imprisonment was required to ensure the necessary deterrent factor.  However, given our reduction in relation to the uplift, it would be inappropriate to leave the minimum period of imprisonment at five years and we therefore reduce the minimum period of imprisonment by three months.

[21]     Finally,  we  see  no  practical  utility  in  the  reparation  order  made  against

Mr Te Rangi, given his circumstances and the fact that he is facing a lengthy term in prison. We accordingly quash that order.

6 At [65]. In both Pani v R [2011] NZCA 45 and Koroheke v R [2012] NZCA 368, this Court followed the Mako approach.

7      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].

Result

[22]     The appeal by Ms Tukaki is allowed to the extent that the reparation order is quashed. The appeal is otherwise dismissed.

[23]   The appeal by Mr Te Rangi is allowed.   The sentence of nine years’ imprisonment with a minimum period of imprisonment of five years is quashed and substituted with a sentence of eight and a half years’ imprisonment with a minimum period of imprisonment of four years nine months. The reparation order is quashed.

Solicitors:

Crown Law Office, Wellington for Respondent