IN THE COURT OF APPEAL OF NEW ZEALAND

CA486/2012 [2013] NZCA 227

BETWEEN	PATARIKA APIATA Appellant	

AND	
THE QUEEN Respondent	

Hearing:	30 April 2013	

Court:	
Arnold, Heath and Keane JJ	

Counsel:	
W D McKean for Appellant
S B Manning for Respondent	

Judgment:	
12 June 2013 at 3 pm	

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)
Introduction
[1]	Prior to trial, the appellant, Mr Apiata, entered guilty pleas to three counts of aggravated robbery, four counts of kidnapping and one count of theft of a motor vehicle.  Judge de Ridder sentenced him to nine years, six months’ imprisonment.  Mr Apiata now appeals against his sentence on the ground that the starting point adopted by the Judge was too high, in that it did not recognise that there was no significant violence in the offending and did not reflect the approach adopted by this Court in R v Tiori.
Factual background
[2]	The summary of facts to which Mr Apiata entered his guilty pleas records the circumstances of the three aggravated robberies as follows.
Tavern in Whangarei
[3]	On 6 October 2011 between 7.30 and 9.45 pm Mr Apiata and two accomplices stole a vehicle from outside a tavern in Whangarei.  The following day, around midnight, they committed an aggravated robbery at another tavern in Whangarei to which they had driven in the stolen vehicle.  Mr Apiata and his accomplices entered the tavern wearing balaclavas, gloves and black nondescript clothing and brandishing firearms and a metal pipe.  They ordered the staff and patrons to lie on the ground and told them to keep their heads down.  Having forced the bar manager to open the safe, they removed its contents, including some $3,000 in cash.  In addition, they took personal belongings from the staff and patrons – bags, wallets, cash, cell phones and such like.  They then fled.  The stolen vehicle was later recovered, burnt out.
Home on the North Shore, Auckland 
[4]	Around midnight on 12 October Mr Apiata and his two colleagues broke into a house on the North Shore in Auckland.  The two occupants awoke to find two of the intruders standing at the foot of their bed.  They were wearing dark clothing, masks and gloves and one was holding a shotgun that he was pointing at the occupants.  One of the men demanded to know where the cash was.  He was directed to a handbag, from which he took $190 and a cell phone.  The men also took a laptop and a gold chain that one of the occupants was wearing around his neck.  One of the intruders then asked the occupants where their safe and money was, saying “if you lie to me you will die”.  However, a door alarm went off shortly after, so the three intruders left the address having put the occupants into a wardrobe in their bedroom.  When they emerged from the wardrobe after around 10 minutes, the occupants noticed that a flat screen television had been removed from their dining room wall.  In all, the stolen property was worth around $8,480.
Home on East Tamaki Drive, Auckland
[5]	The following day, Mr Apiata and his two colleagues waited in a car outside the Sky City Casino in the early hours of the morning.  Their plan was to identify someone, preferably Asian, emerging from the casino with a large amount of cash.  They planned to follow the person home and, once there, to rob him or her.  They had two shotguns in the vehicle.  After several false starts, they identified a person and followed him to his home in East Tamaki, where he lived with his wife, their son and daughter-in-law and their two young children and a boarder.  All the occupants were of Asian background and spoke little English.
[6]	After arriving at the house, Mr Apiata and his colleagues waited until the occupants had settled down.  Then, armed with the two shotguns and wearing balaclavas, the three broke into the house.  The unarmed intruder having obtained a knife from the kitchen, the three went systematically from bedroom to bedroom tying the occupants up (with the exception of the daughter-in-law and the two young children).  They confronted the adult son and demanded to know where the money and the safe were.  When the son tried to get to his feet, one of the intruders hit him on the shin with the barrel of the shotgun and told him not to move.  The intruders searched the property extensively and took a variety of items including four cell phones, two laptops, necklaces and other jewellery and around $2,800 in cash.  The total value of everything that was stolen was around $16,600.  The son was placed on the floor of the bathroom with his hands tied and a sock stuffed into his mouth.  He was told not to call the police – if he did, he would be shot.  The intruders then left.  The occupants managed to untie themselves.  They did not report the matter to the police for some time, however, for fear that they would be shot.

The sentencing
[7]	Judge de Ridder took the lead offence as the East Tamaki aggravated robbery.  The Judge was conscious that one of Mr Apiata’s co-offenders had been sentenced by the time that Mr Apiata came up for sentence, so that parity issues arose.  In sentencing the co-offender Judge McDonald had taken a starting point of 10 years.  Mr McKean for Mr Apiata argued that a 10 year starting point was too high and that eight years should be adopted, on the basis of this Court’s decision in Tiori.
[8]	Having considered Tiori (including the authorities discussed in that decision), Judge de Ridder concluded that there were significant differences between it and the present case.  He said:
[16]	In my view, in this case of the East Tamaki robbery there are significant differences.  Firstly, there was violence involved in this case; a blow was delivered to one of the occupants.  Four of the occupants were tied up.  One of those was gagged and that same person was directly threatened with being killed if they reported the matter to the police.  The amount of property taken in this case was significant and certainly far in excess of that taken in the case of Tiori v R.  There was considerable premeditation and planning in respect of this case, although I accept there was some premeditation in the case of Tiori v R.  Of most significance also, in my view in this case, is that clearly the people inside the house at East Tamaki were extremely vulnerable.  You deliberately waited until they were asleep, thus you had a strong element of surprise in your favour, something which was not present in Tiori v R.  Finally, again most significantly in my view, in this case children were present and clearly would have been terrorised by your behaviour.
[17]	In my view, all of those factors distinguish your offending in the East Tamaki property from the circumstances that existed in Tiori v R and, in my view, a 10 year start point is clearly appropriate.  It is less than the higher start points referred to by the Court of Appeal in Tiori v R in the cases I have just referred to and, in my view, given the overall circumstances a start point for that lead charge of 10 years is appropriate.  In that respect I concur with the Judge who sentenced your co-offender, although I have reached the same result by a different route.
[9]	Having adopted a starting point of 10 years for the East Tamaki aggravated robbery, Judge de Ridder considered that three years’ imprisonment was appropriate for the North Shore offending and two years’ imprisonment for the Whangarei offending, to be served cumulatively.  This produced an end sentence of 15 years’ imprisonment.  The Judge then allowed a 25 per cent discount for Mr Apiata’s guilty pleas and a further 10 per cent discount for personal mitigating factors, producing an end sentence in respect of the aggravated robberies of nine years, six months’ imprisonment.  The Judge then sentenced Mr Apiata to two years’ imprisonment on the kidnapping charges and one year’s imprisonment on the theft of a motor vehicle charge, to be served concurrently.
Basis for appeal
[10]	Mr McKean submitted that the starting point adopted by Judge de Ridder was too high in light of Tiori.  He noted that when sentencing the co-offender, Judge McDonald referred to R v Mako but to no other cases.  Mr McKean accepted that parity was important but argued that Judge de Ridder should not have adopted the same starting point given that Judge McDonald did not take Tiori into account.  He submitted that Tiori was important because it set out the approach to be adopted to aggravated robbery involving home invasion after the repeal of the home invasion provisions.  Had the correct approach been followed, he submitted, a starting point of eight years’ imprisonment would have been adopted.
Evaluation
[11]	We begin by setting out the facts in Tiori, as recorded in the judgment:
[2]	The robbery took place at a house across the road from Mr Matthews’ house.  The occupants were known to the appellants.  Sometime earlier, there had been an assault on Mr Tanirau by someone associated in some way with the occupants.  The three appellants (together with a fourth person who, at the time of sentencing, was facing trial), were gathered at Mr Matthews’ house one day in late August, and discussed retaliation against the occupants of the house for the assault on Mr Tanirau.  A plan was hatched that Mr Tanirau would go to the house, which was known to be a tinnie house, on the pretext of purchasing cannabis, to obtain information about who was there and how access could best be obtained.  He would alert the others, who would then enter to carry out the intended retaliation.  There was some preparation in that Mr Tanirau purchased a second cellphone SIM card which he intended to use to conceal the sending of text messages in carrying out the plan.  Weapons, including a slug gun and a hammer, were obtained.  
[3]	On the night of 2 September 2010, they agreed to carry out the planned invasion of the house.  Mr Tanirau visited the house at about 10.30pm.  He purchased a small amount of cannabis and was invited inside.  The usual occupants of the house were three men and three women, with two children aged under two.  On this night there were a further four adults visiting.  There were three males and two females still up at the time.  Mr Tanirau texted the others advising the number of occupants, the best time to enter, which door to use and the approach to that door.  A time of 11.30pm was fixed for entry.  At that time the other three persons, including Mr Tiori and Mr Matthews, burst into the address through the back door wearing balaclavas and brandishing weapons.  The weapons included the slug gun and a hammer.  They demanded that the occupants lie on the ground and demanded money and drugs.  One of the occupants who started to move to comply with the demands was hit on the back of the head with the slug gun, and the barrel of the slug gun was pushed into his body and head.  A wallet and some drugs were taken.  The three who had entered departed, leaving Mr Tanirau who, when police arrived, acted the part of a victim.  The summary of facts states that the victims believed there was also a single barrelled shotgun, which had not been located.  The offenders denied this, and Mr Matthews said he was carrying a crowbar not a firearm.  
[12]	When discussing the appropriate starting point, the Court noted that Mako was decided when the home invasion provisions in the Crimes (Home Invasion) Amendment Act 1999 (the Amendment Act) were in effect.  The Sentencing Act 2002 repealed those provisions.  The maximum penalty for an aggravated robbery involving a home invasion reverted to 14 years and the fact that the offence was committed during a home invasion became an aggravating feature to be taken into account by the sentencing Judge.
[13]	The Court then referred to R v Fenton and R v Royal, where this Court said that despite the repeal of the provisions in the Amendment Act, Parliament’s intent remained that home invasion should be reflected in an increased sentence.  The Court said:
[15]	These cases demonstrate that a “home invasion” element is a seriously aggravating factor in aggravated burglary cases, justifying a significantly higher starting point than would otherwise be appropriate.  The way in which that outcome is achieved is, however, different from the approach adopted in the home invasion legislation.
[14]	The Court went on to say that, given the different approach, it was not appropriate to consider the correct starting point by direct application of the starting point suggested for a home invasion case in [58] of Mako.  The Court then considered the sentences imposed in Fenton, Royal and several other cases before concluding that a starting point of eight years was appropriate on the facts before it.
[15]	As we have said, Judge de Ridder distinguished Tiori.  We consider that he was entitled to do so.  We give particular emphasis to the following matters:
(a)	Four of the occupants in the present case were restrained by being tied up and one had a sock stuffed in his mouth.  This feature was not present in Tiori, as the Court in that case noted.
(b)	One of the occupants was hit with the barrel of a shotgun, so that there was actual violence albeit of a comparatively minor sort.  While we accept that the violence in Tiori was similar, perhaps worse, the violence inflicted in the present case must be seen in the context in which it occurred, particularly in light of what is identified in (a) above and (c) below, the fact that the intruders were carrying three weapons, namely two shotguns and a knife, and the fact that the invasion lasted approximately one hour.
(c)	The occupants were vulnerable both because they were asleep in their home when the robbery occurred and because they had a limited command of English (which Mr Apiata and his colleagues must have appreciated was possible given that they set out to target Asians).  It is not difficult to understand the terror that the adult occupants must have felt at being woken up and confronted by intruders who were disguised, carrying firearms and threatening their lives.  The threats were successful in the sense that the occupants were too scared to report the crime after the offenders had left but did so only significantly later.  These circumstances provide a point of distinction from Tiori, where the house was a tinnie house and, no doubt, frequented by people from outside the family circle, and the occupants were still up when the offenders entered. Moreover, the attack in Tiori was in retaliation for an earlier assault by the occupants of the tinnie house.  While this does not excuse what occurred in that case, it is a relevant feature of the circumstances of the attack and is a feature which is not present in relation to the East Tamaki robbery.  That robbery involved a premeditated attack on people of Asian origin whom Mr Apiata and his colleagues had chosen to attack essentially at random to obtain money and goods.
(d)	The house was systematically searched for valuables and what was taken appears to have been significantly more valuable than the property stolen in Tiori.  The value of the property taken is relevant to the assessment of the seriousness of the offence.
[16]	In the result, then, we do not accept that a starting point of 10 years was excessive either on its merits or when considered against the background of other relevant cases.  Rather, we consider that a starting point of 10 years’ imprisonment was clearly within range.
Decision
[17]	The appeal against sentence is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent