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R v Mako (2000) 17 CRNZ 272 (CA)

Case summary provided by BROOKERS

Name: R v Mako
Reported: (2000) 17 CRNZ 272
File number: CA446/99
Date: 23 March 2000
Court: Court of Appeal
Location: Wellington
Judge: Richardson P, Gault, Thomas, Blanchard, Tipping JJ
Charge: Aggravated Robbery
CYPFA:
Key Title: Sentencing in the adult Courts - application of Youth Court principles; Sentencing in the adult Courts - Aggravated Robbery

BROOKERS Summary:

Sentencing - Penalties - Guidelines - Aggravated robbery - Moananui reviewed and superseded - Criminal culpability should be focus, not target premises - Offence of aggravated robbery encompasses wide range of behaviour - Features additional to essential elements of offence considered - Criminality must be assessed by reference to such features - Starting point should be specified - Examples given in judgment informative not prescriptive - Minimal reference to other judgments required - Mitigating and aggravating factors considered - Suspended sentences rarely appropriate in aggravated robbery cases.

Sentencing - Aggravating factors - Aggravating factors included criminal history and offending while on bail or parole.

Sentencing - Allowance for youth - Young offenders with long histories of offending cannot expect leniency in serious aggravated robbery cases.

Sentencing - Guilty plea - Early guilty plea will usually warrant generous discount - Respondent failed to acknowledge totality of offending until start of trial - Modest discount appropriate.

Sentencing - Mitigating factors - Mitigating factors include guilty pleas, assistance to authorities, and age - In aggravated robbery cases, offending prompted by drug addiction not mitigating factor - Participants who do not confront victims not necessarily less culpable - Young offenders with long histories of offending cannot expect leniency.

Sentencing - Suspended sentence - Rarely appropriate in aggravated robbery cases.

Sentencing - Starting point - Should be determined and specified - Important means of ensuring consistency between cases.

This case involved the aggravated robbery of a public bar and TAB betting agency. The respondent pleaded guilty. The Court of Appeal reviewed the sentencing guidelines laid down in R v Moananui [1983] NZLR 537 (CA).

[Note: Consistent with the format of the issued judgment, paragraph numbers rather than line numbers are used in this report.]

Held, (1) in general, an early guilty plea will warrant a generous discount, because the plea reflects acknowledgement of wrongdoing, saves resources, and relieves [(2000) 17 CRNZ 272, 273]victims from the anxieties of trial. However, in this case the respondent entered an early guilty plea on the aggravated robbery charge but failed to acknowledge the totality of offending until the start of trial. A modest discount was appropriate. (p 277, para 14; p 277, para 18)

(2) This was an armed robbery in the first category of R v Moananui [1983] NZLR 537 (CA). The categorisation of target premises such as banks was based on the number of people endangered and potential proceeds. A public tavern full of patrons, also operating as a TAB betting agency, met the same criteria. The offence was well planned, with firearms, disguises, money bags, and a getaway car. Threatening and aggressive behaviour was manifest towards bar patrons, staff, and ultimately the police. A sentence of 7 years’ imprisonment was appropriate. (p 278, para 21)

R v Moananui [1983] NZLR 537 (CA) applied

(3) Since R v Moananui [1983] NZLR 537 (CA), too many sentencing Judges have categorised offending in aggravated robbery cases by reference to target premises rather than the culpability of each offender. In this respect categorisation by type of target premises has proved unsatisfactory, and a different approach is required. (p 278, para 25; p 279, para 31)

(4) In each case of aggravated robbery, features additional to the essential elements of the offence will create variance in the criminality of the conduct. These features include: (p 280, para 34)

(a) The degree of planning and preparation; (p 280, para 36)

(b) The number of participants and the nature of their deployment; (p 280, para 37)

(c) Disguises and other means of concealing identity; (p 281, para 38)

(d) The number, type, and use of weapons; (p 281, para 39)

(e) Target premises or persons; (p 281, para 40)

(f) Presence of members of the public; (p 281, para 42)

(g) Violence (distinct from threats and intimidation); (p 281, para 43)

(h) Property stolen, and whether recovered; (p 282, para 44)

(i) Associated offending such as converting vehicles or taking hostages; (p 282, para 45)

(j) Victim impact; (p 282, para 46)

(k) Gang involvement (although not all criminal offending by gang members has a gang connection); (p 283, para 49)

(l) The need for deterrence; and (p 283, para 50)

(m) Multiple offending involving separate incidents. (p 283, para 51)

(5) The criminality of any aggravated robbery offence must be assessed by reference to the particular combination of features listed above, without undue emphasis on any one feature such as the nature of the target premises. (p 283, para 52)

(6) Once the offending is positioned on the scale of seriousness, it is important to determine and specify the starting point before taking into account individual aggravating and mitigating factors. (The Court of Appeal here illustrated appropriate starting points by reference to diverse examples of aggravated robbery.) (p 283, para 53)

(7) The illustrations given are informative, not prescriptive. (p 284, para 60)

[(2000) 17 CRNZ 272, 274](8) The detail provided in the current judgment and its schedule should minimise the need to research large numbers of analogous sentencing decisions. (p 284, para 60)

(9) Mitigating factors warranting an adjustment in sentence may include guilty pleas, assistance to authorities, age, and other personal circumstances. More specifically: (p 285, para 62)

(a) Robbery prompted by drug addiction is not a mitigating factor. (p 285, para 63)

(b) Participants who do not confront victims, such as a lookout or a getaway driver, are not necessarily less culpable. (p 285, para 64)

(c) Youth and rehabilitation prospects may be mitigating factors, but offenders who have accumulated long lists of prior convictions while still in their teens cannot expect leniency. (p 285, para 65)

Cooper v Police 28/11/98, Eichelbaum CJ, Penlington J, HC Hamilton AP106/98; AP116/98; AP121/98

R v Henry (1999) 46 NSWLR 346

R v Smart 24/5/94, CA57/94 referred to

(10) Aggravating factors include criminal history, and offending while on bail or parole. (p 285, para 62)

(11) Suspended sentences will rarely be appropriate for aggravated robbery. A sentence of less than 2 years is only available if the elements of aggravated robbery are minimal or the offender participated in a secondary role. (p 285, para 67)

Solicitor-General v Lam (1997) 15 CRNZ 18 (CA) referred to

(12) This judgment supersedes R v Moananui [1983] NZLR 537 (CA). (p 286, para 70)

Cases referred to

Cooper v Police 28/11/98, Eichelbaum CJ, Penlington J, HC Hamilton AP106/98; AP116/98; AP121/98
R v Collett 20/12/91, CA271/91
R v Henry (1999) 46 NSWLR 346
R v La’ulu 20/3/00, CA560/99
R v Moananui [1983] NZLR 537 (CA)
R v Smart 24/5/94, CA57/94
R v Tukuafu 23/3/95, CA382/94
Solicitor-General v Lam (1997) 15 CRNZ 18 (CA)

Application

Application for leave to appeal against sentence.