In the Court Of Appeal of New Zealand
CA713/2009
[2010] NZCA 155

BETWEEN	MOEAIA TOLEAFOA
Appellant

AND	THE QUEEN
Respondent

Hearing:	12 April 2010

Court:	Hammond, Chisholm and Priestley JJ

Counsel:	P J Kaye for the Appellant
K Raftery for the Crown

Judgment:	29 April 2010 at 2.15 pm 

JUDGMENT OF THE COURT	

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal
[1]	The appellant was tried in the Manukau District Court in August 2009.  He faced five counts laid under s 235(c) of the Crimes Act 1961 of aggravated robbery.  A sixth count was laid under s 239 of demanding money with menaces.
[2]	The jury acquitted the appellant on one of the aggravated robbery counts.  He was found guilty and convicted on the other five counts.
[3]	Judge Singh presided over the trial.  On 25 September 2009 the Judge sentenced the appellant to 11 years imprisonment on the four aggravated robbery convictions.  On the lesser s 239 conviction the appellant was sentenced to five years imprisonment.  All terms of imprisonment were to be served concurrently.  The Judge refused the Crown’s request to impose a minimum period of imprisonment under s 86 of the Sentencing Act 2002.
[4]	This appeal challenges the 11 year sentence on the grounds that it is manifestly excessive.  
Background
[5]	Over a 17 month period, between September 2006 and May 2008, the appellant robbed (or in respect of the s 239 charge attempted to rob) banks and bars in various Auckland suburbs.  His motive appears to have been to obtain money to resolve problems flowing from a gambling addiction.  
[6]	His modus operandi was to disguise his head and facial features in a variety of ways, using scarves, turbans, sunglasses, false beard and moustache, beanies, and other items of apparel.  When he entered the target premises he would approach an employee and demand money in a menacing fashion.  In respect of the s 239 count he used a note.  In respect of the other counts he presented or displayed a pistol, shotgun, or knife.  One business, which the appellant robbed twice in December 2006 and October 2007, was a TAB agency.  Two of the premises were banks.  Another target was a bar.  The amount of cash robbed was between $10,000 and $15,000.  
[7]	When sentenced the appellant was 28 years old.  His three previous convictions were of no relevance to the sentencing.  The appellant emigrated to New Zealand from Samoa when he was a young child.  He had been employed for most of the time since he left secondary school.  He and his partner of five years standing have two young children.  
[8]	The appellant expressed remorse when being interviewed by the probation service.  His risk of re-offending was considered to be low provided he undertook counselling to address his gambling addiction.  Favourable testimonials were placed before the Judge from the appellant’s family and from members of the congregation of his church.
The sentence
[9]	Judge Singh reviewed all the relevant materials before him.  He referred to the sentencing guidelines discussed by this Court in R v Mako. 
[10]	The Judge referred to the 14 year maximum sentence for aggravated robbery.  He identified as aggravating features (with reference to Mako) the appellant’s premeditation and planning; the wearing of disguises; his use of weapons, being firearms in four cases; the targeting of commercial premises where one would expect to find large amounts of cash; and the success of the robberies.
[11]	The Judge referred to various authorities.  He noted the Crown submission that the start point should be in the 11-13 year range and defence counsel’s suggested start point of a range between 10-11 years.  The Judge considered a 12 year start point was appropriate.  The Judge referred to written expressions of remorse contained in the appellant’s letter to the Judge and to other supporting letters.  The Judge expressed the hope that the appellant was genuinely remorseful “… albeit somewhat late, but better late than never”.  He referred to the s 8(g) Sentencing Act 2002 principle of observing the least restrictive outcome.
[12]	The Judge concluded that a 12 year start point, with a final sentence of 11 years imprisonment for the four aggravated robbery counts, was appropriate. He imposed a five year sentence for the s 239 count.  All periods were imposed concurrently.  As we have observed, the Crown submission for a s 86 minimum term was rejected.
Counsel’s submissions
[13]	Mr Kaye advanced two general submissions for the appellant.  The first was that the Judge’s 12 year start point was too high, having regard to the appellant’s overall culpability, when compared with other aggravated robbery sentencing authorities.  The second submission, pursued but faintly at the hearing, was that the 12 month discount was insufficient.
[14]	With reference to Mako, Mr Kaye submitted that the offending was essentially unsophisticated, that the appellant was the only participant, and that the disguises were clumsy.  Firearms deployed were not presented.  Counsel accepted it was unknown whether the firearms were loaded or unloaded.
[15]	Counsel referred to R v Stevens and R v Collett.  Stevens involved an unsuccessful appeal against a 12 year sentence imposed.  That sentence, however, had involved related methamphetamine possession and firearms counts.  Collett  involved a first offender, similarly facing four counts for aggravated robbery, where a seven year term had been imposed.
[16]	Other authorities to which we were referred (by both counsel) included R v Ah You and R v Kite.  We have considered these authorities but see no need to analyse them.  We do not consider any of the authorities cited to us justify the conclusion that the sentence imposed on the appellant diverges markedly.  
[17]	Mr Kaye further submitted that a 12 month discount gave insufficient weight to the appellant’s prospects of rehabilitation, particularly were he to address his gambling problem.  Nor had his remorse, patently expressed in his letters to the Court, been given sufficient weight.
[18]	In Mr Kaye’s submission an end sentence of eight years, or possibly nine, would have been the appropriate outcome.  Thus the 11 year sentence was manifestly excessive.
Discussion
[19]	We do not consider the Judge erred in his approach in sentencing the appellant.  The various aggravating factors canvassed by this Court in Mako were correctly identified.  In Mako this Court said: 
… The robbery of commercial premises 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.
[20]	Although the appellant was a lone offender, he persisted with his robberies over a 17 month period.  The effect on the employees in the targeted premises was, as the victim impact statements showed, considerable.  There was a substantial degree of preparation.  That the disguises used were unsophisticated or comical does not detract from the fact they were effective.  Five offences committed over a 17 month period suggested a sustained and arguably more sinister culpability than, for instance four or five aggravated robberies committed in spree fashion over a few days.  The appellant was only apprehended because of a DNA match left in one of the robbed premises.
[21]	Possibly the appellant’s remorse, his gambling addiction, and the perceived low risk of re-offending if he addressed that addiction, could have attracted a more generous discount.  Possibly too an 11 rather than a 12 year start point could have been deployed.  But such considerations do not qualify the imposed sentence as being manifestly excessive.
[22]	We consider the Judge’s sentence can fairly be described as stern.  Certainly it is at the top of the permissible range.  However, we do not consider the sentence passes across the threshold of being manifestly excessive.  
Result
[23]	For these reasons the appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington