IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA98/2023
 [2023] NZCA 356

	
BETWEEN	
LIAM URUAMO
Appellant	
	
AND	
THE KING
Respondent	

Hearing:	
25 July 2023	

Court:	
Collins, Lang and Woolford JJ	

Counsel:	
G H Vear and D J Taumihau for Appellant
H D L Steele for Respondent	

Judgment:	
10 August 2023 at 9.30 am	

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)
[1]	On 1 July 2022, following a jury trial in the Auckland District Court, Mr Liam Uruamo was found guilty and convicted of aggravated robbery.  He subsequently pleaded guilty and was convicted of two unrelated charges of burglary.
[2]	On 13 January 2023, Mr Uruamo was sentenced to five years and five months’ imprisonment on the above charges.  He now appeals against that sentence on the basis it is manifestly excessive.
Factual background
Aggravated robbery
[3]	On 6 November 2019, the appellant and one unidentified co-offender entered Roop Darshan, an Indian fashion store located in Mt Roskill.  Both offenders were wearing black face coverings to conceal their identities and were armed with hammers.  They moved directly to the back of the store where jewellery was displayed in glass cabinets, used their hammers to smash the glass and began to steal a substantial amount of gold jewellery.  Soon after, a third unidentified co-offender, also disguised and armed, joined in smashing cabinets and stealing jewellery.  A staff member activated the store’s panic alarm and fog cannon security system.  This caused all three offenders to flee from the store.  The store’s staff were not injured.  The jewellery stolen was valued in excess of $200,000.  
[4]	The appellant was subject to a sentence of home detention at the time of the aggravated robbery.  He was later convicted of breaching home detention and sentenced to one months’ imprisonment.
Burglaries
[5]	On 14 June 2021, the appellant had been released from prison on compassionate bail to attend his father’s tangihanga.  He was required to return to prison on 15 June 2021.  He did not.  He was at liberty for the next eight months and subject to a warrant to arrest.  It was during this time that he committed two burglaries.
[6]	On the morning of 7 December 2021, the appellant and two co-offenders broke into a residential address in Hillsborough by smashing a rear window leading into the basement of the property.  They took $2,000 in cash and power tools valued at $500.  While still inside the house, the offenders were disturbed by a witness, which caused them to decamp from the address through a gate in the back fence.
[7]	On the morning of 21 January 2022, the appellant and an unidentified co-offender entered a residential address in Mangere by forcing a window open.  They took items valued at over $10,000 and $1,500 in cash before leaving via the rear of the address.
District Court sentence
[8]	After recording the facts of the aggravated robbery offending, and the effect on the victims, Judge Maxwell referred to the guideline decision for aggravated robberies of R v Mako.  She then noted the Crown’s submission that, in terms of Mako, the following aggravating factors applied: premeditation, the use of disguises, targeting premises, the presence of members of the public and the nature of the property stolen.  The Judge said that she agreed with the Crown that, in those circumstances, a starting point of five years’ imprisonment was justified.
[9]	The Judge then turned to the two burglary charges.  She said she agreed with appellant’s counsel that if the Court was to look at the two charges in isolation, a starting point in the order of two years and three months’ imprisonment would be justified.
[10]	Next the Judge noted that a discount of 25 per cent would be available for the appellant’s guilty pleas to the two burglaries, which would reduce the starting point to around one year and eight months’ imprisonment.
[11]	An adjustment for totality was, however, required because the appellant was being sentenced for the earlier aggravated robbery at the same time as the burglaries.  The Judge determined that the starting point for the two burglaries should be further reduced from one year and eight months’ imprisonment to a sentence of 12 months’ imprisonment.  That was then added to the starting point for the aggravated robbery of five years’ imprisonment to reach an adjusted starting point of six years’ imprisonment.
[12]	The Judge then considered the availability of a discount for the appellant’s personal circumstances.  She had the benefit of two cultural reports under s 27 of the Sentencing Act 2002, which she said made for “depressing reading”.  She noted that the following factors may have contributed to his offending: mental health issues, dysfunctional childhood factors, adverse childhood experiences, psychosocial factors, and undue influence and duress.
[13]	The Judge granted a 15 per cent discount to take into account the appellant’s background of deprivation and other personal factors.  At the same time, she also uplifted the sentence by four months for the appellant’s criminal history and the fact he had offended while on sentence and on bail.  The Judge concluded: 
[30]	So, taking into account the starting point of six years, reducing that by 15 per cent, namely, just under 11 months, and then increasing that by four months for aggravating factors, that leaves a final sentence of five years and five months’ imprisonment.
Appellant’s submissions
[14]	Counsel for the appellant, Ms Vear and Mr Taumihau, do not take issue with the starting point adopted by the Judge.  They submit, however, that insufficient credit was given for mitigating factors — his youth, personal background, prospects of rehabilitation and remorse.  They also suggest that because the Judge converted what she had described as a 15 per cent discount into a reduction of 11 months before applying the uplift of four months, the discount for personal mitigating factors was in reality only 14.47 per cent.
Youth
[15]	The appellant was 22 years old at the time of the aggravated robbery and 24 years old at the time of the burglaries.  Counsel submits that his offending has many of the hallmarks of youth, including showing a lack of self-control, an inability to consider alternative courses of action to provide for his family, a tendency to engage in risky behaviour, committing brazen daytime offending, and a vulnerability to peer pressure, noting that all offending had occurred in the presence of others.
[16]	While acknowledging that the appellant is at the upper end of the age range for a youth discount, counsel seeks a separate discount of five per cent.
Personal background
[17]	As noted above, the Judge had two cultural reports under s 27 of the Sentencing Act before her.  Both reports detailed the appellant’s history as involving an intergenerational loss of culture, language, and customs.  The report written by Mr Alexander El Amanni summarises the appellant’s background as follows:
Mr Uruamo was exposed to adverse childhood experiences, including being a victim of physical and sexual abuse, physical neglect, and household dysfunction as he and his family were forced to move around to different refuges to avoid the domestic violence of his father.  He was unable to engage in school fully and ended up living on his own from age 13.  To financially support himself and pay rent, he began working from a young age.  He had several undue influences from family members who instructed him on how to commit crimes to earn a living.
…
He perceives undue pressure from society and his partner and her family to earn money and provide a good life for his children.  Mr Uruamo also has undue duress from antisocial peers who offer and encourage him to commit burglary and robbery with them.
[18]	Mr El Amanni concludes:
To the writer, it appears Mr Uruamo’s background has significantly contributed to his offending.  There appear to be causal links between his current charges and his mental well-being, dysfunctional childhood, [adverse childhood experiences], psychosocial dysfunction, Systemic Māori Deprivation, and undue influences.
[19]	The Judge had granted a 15 per cent discount for all personal factors.  Counsel submits that a 15 per cent discount was warranted to recognise the effect of the appellant’s background alone.
Prospects of rehabilitation and remorse
[20]	Counsel submits that young people are more receptive to treatment and therefore have better prospects of rehabilitation than adult offenders who find it more difficult to alter entrenched behaviours.  In the present case, counsel submits that the appellant has taken active steps while in custody to access the rehabilitative programmes that are available.  Prior to sentencing, the appellant had completed Life 101’s Money & Me programme, had participated in the National Whakataetae Kapa Haka Competition 2022 and was undertaking the Dynamics of Whanaungatanga Programme.  After sentencing, he completed the Dynamics of Whanaungatanga Programme, term one of the Auckland Prison Art Therapy Programme and the Head Start Programme.
[21]	The appellant expressed remorse to Mr El Amanni about the aggravated robbery because he was now aware that the shopkeeper’s elderly father was present.  He also wrote a letter addressed to the Judge expressing his remorse.
[22]	Counsel submits that recognition ought to have been given for the appellant’s prospects of, and active steps taken towards, rehabilitation and his remorse.  An additional discount of at least five per cent is said to be warranted for this factor.
[23]	In summary, counsel for the appellant submits that an overall discount of 25 per cent was warranted, rather than the 15 per cent that was granted.  A 25 per cent discount would result in a sentence of four years and nine months’ imprisonment, rather than the sentence of five years and five months’ imprisonment, which is a difference of eight months.
Discussion
[24]	The Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence and that a different sentence should have been imposed.  The Court will intervene where the sentence is manifestly excessive, but will not engage in “tinkering”.  The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.
Process
[25]	At the outset, it should be noted that the methodology employed by the Judge to reach the end sentence followed the approach set out in Moses v R.  The Judge reduced the starting point of six years’ imprisonment by 15 per cent for personal mitigating factors before increasing that by four months for personal aggravating factors.  That is the correct approach.
Youth
[26]	Counsel acknowledged that the appellant is at the upper end of the age range for a youth discount.  However, counsel argued that a youth discount was appropriate in this case because the offending had “many of the hallmarks of youth” — including a lack of self-control, an inability to consider alternative courses of action to provide for his family, risky behaviour, brazen daytime offending and a vulnerability to peer pressure.  
[27]	The aggravated robbery does not, however, show a lack of self-control.  The Judge described it as “quite calculated and highly premeditated”.  The CCTV footage shows that it was “very swift and well organised”.
[28]	There is also no evidence that the proceeds of the aggravated robbery were intended to be used for Mr Uruamo’s family.  Although the appellant said that he and his partner (with whom he has five daughters) were experiencing relationship difficulties centred around his inability to provide for the family, he recalled using large quantities of methamphetamine most days.  The PAC report writer identified the factors contributing to the offending as the presence of criminal associates and connection with gang culture, a propensity for violence, the problematic use of methamphetamine and alcohol, relationship difficulties, an unhelpful lifestyle, attitudinal entitlement and offending supportive beliefs, and inability to manage associated negative emotions.
[29]	As to the description of the aggravated robbery as risky behaviour or brazen daytime offending, the two other offenders remain unidentified because of the disguises used.  The appellant was identified from a fingerprint found in the dumped getaway vehicle.  The offence was committed during the daytime, presumably because of easy access to the store, the ability to effect the robbery very quickly and the ease of the getaway, which are all indications of planning and premeditation.
[30]	There is also no basis for the suggestion that the appellant may have been acting under peer pressure.  The co-offenders remain unidentified.  There is no basis advanced upon which the comparative roles played by each of the offenders in the aggravated robbery can be ascertained.  
[31]	We are of the view, however, that the youth discount should not be limited to offending that appears “impulsive”.  The discount exists to recognise the relationship between a young person’s age and their offending.  Limited neurological development and immaturity can be implicated in a young person’s offending even when their behaviour does not necessarily appear impulsive.  
[32]	However, we are not persuaded that a discrete discount for youth is warranted in this case.  The offending was particularly serious — given it involved multiple offenders who carried weapons, and clear premeditation.  Mr Uruamo also has a concerning history of prior offending and offending while on bail or serving a sentence.  We are of the view that the availability of the youth discount in this case must be tempered against these factors.  Therefore, a discount for youth is not appropriate. 
[33]	We are not persuaded that the Judge was in error not to grant a separate discount for youth.
Personal background
[34]	The appellant does not take issue with the 15 per cent discount granted by the Judge for the personal mitigating factors identified in the s 27 reports.
Rehabilitation and remorse
[35]	The s 27 reports discussed the prospect of rehabilitation for the appellant.  For instance, Mr El Amanni states:
Mr Uruamo has plans and goals for living in the community again.  His immediate goal is to get a job and get into a routine of going to work and coming home like he used to.
He and his partner need to move out of their parent’s place and get their own home now that they have six children.  That is another goal he wants to work on, although his partner has made progress and may already have a social house to go to when he gets out.
Mr Uruamo’s next goal is to reconnect with his culture and his family members.  He wants to be a role model for his younger brothers, who are starting to follow in similar footsteps to him.  While in prison, he has been doing a course called ‘Dynamics of Whanaungatanga’.  This is helping him learn about his culture and his whakapapa.  He wants to motivate his brothers to re-engage with their culture and learn about their whakapapa to deter them from ending up in prison.
Mr Uruamo wants his partner to be proud of him as she has been in the past.  He knows he’s at his best when he’s got a routine and a job to go to.  When he’s got a job, he does not engage in criminal activity.  Since he stopped using substances, many former associates are no longer interested in socialising with him.  This is a positive sign because he has less negative influence from antisocial peers to encourage him to commit crimes with them.
[36]	These are good aspirational goals.  The appellant has also taken some positive steps in the courses he has attended in prison, but these are early steps.  They cannot be equated with, for example, attendance at a residential drug rehabilitation programme for which a discount is usually granted for the prospects of rehabilitation, although we do acknowledge that the appellant has taken what steps he can while on remand in prison.  In the present case, we do not see the Judge as being in error in not granting a separate discount for the prospects of rehabilitation and remorse.  The Judge recognised the appellant’s early steps in the 15 per cent discount for personal mitigating factors when she stated:
[28]	In the circumstances I am going to give a 15 per cent discount to take into account your background of deprivation and your other personal factors which have been outlined in the report.  That also takes into account a glimmer of remorse, which I now see today.
End sentence
[37]	Stepping back and looking at the end sentence, we are of the view that it is not manifestly excessive, but within the range that could have been imposed.  The starting point of five years’ imprisonment cannot be criticised.  However, the uplift of one year’s imprisonment for the two burglaries could have been higher.  There were two separate burglaries, a considerable amount of property was taken, and one of the burglaries involved confrontation with a witness.  Defence counsel acknowledged that an uplift in the range of 12 to 15 months would be appropriate.  In the end, the Judge imposed the lowest uplift acknowledged by counsel as being appropriate.
[38]	Furthermore, the uplift for personal aggravating factors could have been higher.  The Judge described the uplift of four months as being “relatively modest”.  We agree.  The aggravated robbery was committed while the appellant was subject to a sentence of home detention for, among other offences, burglary, demanding with intent to steal, and using a document for pecuniary advantage.  The burglaries were committed when the appellant was in breach of a short term of compassionate bail and subject to an active warrant to arrest.
[39]	The appellant had also amassed 18 convictions in a three-year period from 2015 to 2018, nine of which related to driving offences such as unlawful taking or getting into a motor vehicle, being an unlicensed driver and failing to comply with a prohibition, failing to stop, and operating a motor vehicle recklessly.  Other offences included burglary, demanding with intent to steal, using a document for pecuniary advantage, and numerous breaches of community work.
[40]	In those circumstances, where the uplift for the two burglaries and for personal aggravating factors could have been higher and the case for a separate discount for youth and rehabilitation and remorse is not the strongest, the end sentence is clearly within the range available to the sentencing Judge.  It is not manifestly excessive.
Result
[41]	The appeal against sentence is dismissed.

Solicitors:
Public Defence Service | Ratonga Wawao ā-Ture Tūmatanui, Auckland for Appellant
Crown Solicitor, Auckland for Respondent