IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-28 [2013] NZHC 1229

BETWEEN	HAGAI ALAN TERA Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	30 July 2013

Appearances:	D Malcolm for Appellant
A Hill for Respondent

Judgment:	30 July 2013

ORAL JUDGMENT OF KATZ J

Solicitors:
A Hill, Fletcher Pilditch, Rotorua
D Malcolm, MDR Legal Ltd, Rotorua

TERA v NEW ZEALAND POLICE [2013] NZHC 1229 [30 July 2013]

Introduction

[1]       Mr Tera appeals against a sentence of three years nine months’ imprisonment imposed by Judge McGuire in the District Court at Rotorua, following Mr Tera’s guilty plea to one count of aggravated robbery with an offensive weapon. That offence is punishable by up to 14 years’ imprisonment.   Mr Tera appeals on the ground that the sentence imposed on him was manifestly excessive.

Facts

[2]       At around 2:00 pm on 19 January 2013, Mr Tera walked into the Aotea Shopping Centre in Tokoroa.   He had been drinking.   He saw the complainant working alone at the petrol station.  Mr Tera went home and got a kitchen knife, a t-shirt and a brown hooded sweatshirt.

[3]       Mr Tera walked back to the petrol station and entered holding the knife. Using the clothing to cover his face, he approached the complainant behind the counter.  He threatened her with the knife and demanded money.  She opened the till and handed Mr Tera $245.  He then ran away, dumping the knife and the clothing in a nearby reserve.  He was arrested shortly afterwards.

[4]     Although the complainant was not injured in any way she was deeply traumatised by the incident.

The starting point

[5]       Based on the guideline judgment of R v Mako1 the Judge concluded that four years’ imprisonment was an appropriate starting point.  Counsel for Mr Tera did not take issue with that starting point.   In my view that was appropriate.   This was a premeditated robbery. Mr Tera first “scoped out” the petrol station and then armed himself with a dangerous weapon and disguised himself before returning to rob the premises.  The  victim  was  alone.    Mr Tera  threatened  her  with  a  knife.    Not surprisingly, she was terrified.   Such facts certainly justify the four year starting
point.

1	R v Mako [2000] 2 NZLR 170 make clear at [46].

Personal factors

[6]       The next step is to look at whether the sentence should be increased or reduced from that starting point by taking into account factors that are personal to Mr Tera.  Such factors may make Mr Tera either more or less blameworthy in the particular circumstances.

[7]       Judge McGuire was clearly right to take into account that Mr Tera has an appalling record of previous convictions, some 59 in all, at the age of only 27 years. Since November 2007 Mr Tera has been convicted 14 times of shoplifting and three times of theft.  He has three burglary convictions since June 2011.  Mr Tera was also convicted of many charges of intentionally damaging property.   Mr Tera has, unfortunately, clearly not learned from the community-based sentences or the short terms of imprisonment imposed on those earlier occasions.

[8]       The Judge also rightly took into account that Mr Tera was on bail for other offending when he committed this crime.  This indicates that he has little respect for orders of the Court.  Judge McGuire increased Mr Tera’s sentence by nine months to take into account these factors.  I find no error in the Judge’s approach to this issue.

[9]       Counsel for Mr Tera submitted that Mr Tera has serious mental health issues, the full extent of which may not have been available to the sentencing Judge.  There is no fresh evidence on the topic before me on appeal.  While I have noted counsel’s submissions on the issue, in the circumstances there is no basis for adjusting the sentence on appeal to take account of this factor.

[10]     The Judge also, however, increased the sentence by a further three months due to the trauma to the victim arising from Mr Tera disguising himself and using a knife.  It appears that this factor was inadvertently “double-counted”.  The fact that Mr Tera had disguised himself and threatened the victim with a knife were aggravating features of the offending that were appropriately taken into account in fixing the four-year starting point in accordance with the principles in R v Taueki. The Crown has properly conceded that the Judge erred in adding a discrete three month uplift to the starting point on account of this factor.

[11]     Accordingly,  following  the adjustments  to  the  starting point  for personal factors, the sentence should have been one of 4 years 9 months’ imprisonment, rather than 5 years’ imprisonment.

Remorse

[12]     Counsel for Mr Tera submitted that the Judge had erred in not allowing any discount for remorse.  In particular, the pre-sentence report stated that Mr Tera had shown “genuine remorse” for the victim and had offered to make some amends by cleaning for her, writing a letter of apology and paying reparation.  The offer to pay reparation was frankly, unrealistic, as was the offer of cleaning.  Given the trauma suffered by the victim it was clear that she would not wish to have any further contact with Mr Tera.

[13]     Of more significance, this is not a case where the Judge simply “overlooked” the issue of remorse.  He expressly referred to a letter of apology that Mr Tera had written.   However the Judge appears to have viewed any issues of remorse in the overall context of Mr Tera’s ongoing offending.  He concluded that Mr Tera had the intelligence to make changes if he wanted to “but you just cannot be bothered”.  The damage Mr Tera had done to other victims was noted as being “reflected in [the] reparation figure for earlier crimes you have committed”.

[14]     From the overall tenor of the judgment it must be inferred that the  Judge’s view was that Mr Tera’s protestations of remorse ring somewhat hollow in circumstances where he kept re-offending (with escalating seriousness) and made no efforts to change his lifestyle.  This conclusion is perhaps also consistent with the fact that the pre-sentence report identified Mr Tera as posing an ongoing high risk of harm to others.  This conclusion is not particularly consistent with genuine remorse, which would normally be associated with a commitment to changed behaviour going forwards.

[15]     A discount  for  remorse  is  not  automatically  applied  simply  because  an offender expresses remorse.   The sentencing Judge must be persuaded of the genuineness of any such remorse.  Judge McGuire clearly was not.  On the basis of all the information available to him he was entitled to reach that view.

Guilty plea discount

[16]     The Judge did, however, give Mr Tera the maximum 25% discount for his guilty plea and there is no issue with that.

End sentence

[17]     Applying a 25% discount to the figure of 4 years and 9 months (rather than

5 years) I end up (with some slight downwards rounding) with an end sentence of three years six months’ imprisonment.  That is three months less than the sentence imposed by the District Court Judge.

[18]     The Crown submitted that the difference is such that it cannot be said that the sentence imposed by Judge McGuire was manifestly excessive. There is some force in that submission.   However Mr Tera has established an error in the sentencing methodology followed and, in my view, it would be appropriate to err in his favour on the issue of whether the end sentence was manifestly excessive.

Remission of fines

[19]     I note that there also appears to be a calculation error in relation to the remission of fines.  The Judge saw it as appropriate that Mr Tera’s fines be remitted given that his sentence of imprisonment would no doubt seriously impact on his ability to pay his fines.   However, the figure the Judge referred to was $1,617.34. That was the outstanding figure for enforcement fees and costs. Adding unpaid fines of $2,185.00 to that amount, the total amount owing was $3,802.34.

[20]     In my view that oversight should be corrected to properly accord with the Judge’s intentions, as expressed in his judgment.   I am not prepared, however, to interfere with Judge McGuire’s decision not to remit the outstanding reparations that Mr Tera owes his victims of previous offending.

Result

[21]     The result is that the appeal is allowed in part.  The sentence of three years nine  months’ imprisonment  is  quashed  and  replaced  by  one  of  three  years  six months’ imprisonment.  The order made by the District Court remitting Mr Tera’s fines is also quashed and in its place I make an order remitting fines, enforcement
expenses and costs totalling $3,802.34.

Katz J