REASONS OF THE COURT(Given by Hinton J) On 4 June 2020 in the District Court at Whangarei, following Mr Mau€™s guilty plea to a single charge of aggravated robbery, Judge de Ridder sentenced him to five years and four months€™ imprisonment. Mr Mau seeks to appeal against sentence, saying it was manifestly excessive. In particular, he says the starting point adopted was too high for his level of involvement and the Judge did not allow adequate discounts to reflect his personal circumstances and cultural background.Leave to appeal out of time Mr Mau€™s appeal was filed 45 working days out of time. His counsel, Ms Taylor-Cyphers, says this was because former counsel had incorrectly filed the appeal in the High Court. The delay having been explained, and absent prejudice to or opposition by the Crown, we grant leave to appeal out of time.Offending On 22 March 2018, Mr Mau€™s half-brother and an associate robbed the ANZ Bank in Whangarei. Mr Mau was the get-away driver. The summary of facts, on the basis of which Mr Mau pleaded guilty, records that he was called on the morning of the robbery and asked to participate as the driver of the car that would pick up the co-offenders, drive them to a location in the Avenues, wait, then drive them away following the robbery. It is common ground on appeal that Mr Mau was not involved in planning the robbery in the preceding days. Mr Mau dropped his half-brother and associate at Cafler Park, near the ANZ. They were both heavily disguised. Mr Mau€™s two-year-old daughter was in the car. He had taken the day off work to look after her as she was sick. The two co-offenders entered the bank, one of them opening a set of glass doors by force. Mr Mau€™s half-brother removed a sawn-off rifle from his trousers and pointed it aggressively at bank staff and customers as his associate jumped over the counter, taking about $9,000 from the tills. Mr Mau€™s half-brother continued to point the firearm in an erratic manner at both bank staff and customers. At one stage he pointed the firearm into the back of a customer€™s neck, causing the customer to move away. The associate then took the large sum of cash the customer was depositing. The men fled back towards Cafler Park. A member of the public, suspecting the men had committed an offence, ran after them. One of the men pointed the gun at their pursuer, telling him to €œback off€. They met up again with Mr Mau, who drove off at speed. Unsurprisingly, the robbery left the staff and customers traumatised, the Judge noting the effects of the robbery were still €œdeep seated and ongoing€ as of the date of sentencing some 16 months later.Decision under appeal The Judge adopted a seven-year starting point, the same that had been adopted in respect of Mr Mau€™s half-brother, treating Mr Mau as being equally culpable. The Judge said he was following the guideline case of this Court in R v Mako, and in particular, this Court€™s statement that get-away drivers play a crucial role in armed robberies by providing the principal offenders with comfort that they can speedily escape. There was no uplift to reflect Mr Mau€™s disqualification from driving at the time of the robbery. The Judge allowed Mr Mau a four month discount in respect of the 14 months he had spent on electronically-monitored bail (EM bail) (noting there had been considerable exceptions allowed to his 24-hour curfew) and allowed a 20 per cent guilty plea discount. The only other discount considered by the Judge was for remorse, which he rejected. Accordingly, the Judge arrived at an end sentence of five years and four months€™ imprisonment.Appellant€™s submissions Ms Taylor-Cyphers invites this Court to revisit the approach to sentencing for aggravated robbery so as to place less emphasis on deterrence and greater emphasis on offenders€™ personal circumstances that impair their €œchoice€ to offend or otherwise. This is in line, she says, with this Court€™s recent reconsideration of sentencing for serious drug offending. Ms Taylor-Cyphers says research demonstrates that offenders cannot be assumed to rationally weigh the consequences of offending. She refers also to rates of recidivism, the disproportionate rate of aggravated robbery offending by young Mori men, and the role of drug addiction in motivating such offending. Even applying the current approach, Ms Taylor-Cyphers submits the starting point adopted was too high. She says Mr Mau knew nothing of the robbery until after he collected his younger brother, nor of the weapon until he saw the principal offenders returning to the car after the weapon had been used. For these reasons, she submits a starting point of between four and five years was justified. Ms Taylor-Cyphers also submits the Judge should have allowed Mr Mau discounts in respect of his cultural and personal circumstances traversed in the pre sentence report, and for the impact of his incarceration on his family. She also raises the possibility of a discount being available in respect of remorse. Without specifying a percentage, she submits that appropriate discounts could result in an end sentence where home detention would be a possibility.Crown€™s submissions For the Crown, Miss Fuhr rejects the suggestion that this Court ought to revisit the guidance offered in Mako, and says that unlike with drug offending pre-Zhang, guidance on aggravated robbery offending has never sought to limit the ability of sentencing courts to consider the personal circumstances of the offender. Applying the Mako approach, she submits the starting point adopted was within range in light of the facts of the offending and Mr Mau€™s involvement. She submits further that there is no evidence to support the greater discounts in respect of personal factors for which Ms Taylor-Cyphers contends, and that the end sentence cannot be said to be manifestly excessive.DiscussionGeneral approach to aggravated robbery sentencing We do not consider it appropriate for a Divisional Court to undertake a general revision of the sentencing guidelines in respect of armed robbery offending provided by a Full Court in Mako. It will be for the Permanent Court to determine whether to undertake such an exercise, if and when an appropriate case arises for its consideration. We note, however, that the leading authorities on sentencing for armed robbery do not suggest that the personal circumstances of offenders should be subordinated to deterrence objectives, unlike the approach that prevailed in respect of serious drug offending until recently. That emerges clearly on the face of the decision in Mako itself. More generally, contemporary sentencing practice recognises that outcomes emphasising deterrence may be inappropriate where an offender has diminished moral culpability for their offending by reason of diminished agency. Discounts are regularly awarded on this basis in respect of personal factors including family and cultural background; mental illness; and youth. As stated, nothing in Mako precludes such discounts being afforded where appropriate. We therefore decline to embark on the proposed reconsideration of Mako. We accept however that, applying conventional principles, issues arise both in terms of the starting point adopted by the Judge and whether a discount should be allowed for Mr Mau€™s personal and cultural background.Starting point We note first Mr Mau€™s challenge to the Judge€™s factual finding that he was asked to pick up his co-offenders and to wait for them during the robbery. Ms Taylor Cyphers€™ instructions are that Mr Mau was merely asked for a ride by his younger half-brother and, being at home anyway, he obliged. A similar contention was rejected by the Judge. The difficulty, as Ms Taylor Cyphers concedes, is that the instruction is clearly inconsistent with the summary of facts on the basis of which Mr Mau pleaded guilty. We see no basis to disturb the Judge€™s relevant factual findings based on the summary of facts. He noted at sentencing:The summary of facts to which you pleaded specifically states that you were asked to be the driver for a robbery and furthermore, specifically states that the two co-offenders were heavily disguised and were so when they exited the vehicle. Clearly you knew something was up ...If there was any hesitation or uncertainty about what was going on, there can have been none when you dropped the two co-offenders off prior to the robbery, being as they were heavily disguised. At that point you had the opportunity to simply drive away and leave them to it. The fact that you did not, is because you knew full well that they were going to commit a robbery, you had been asked to act as the get away driver ... Mr Mau was asked to be the driver for a robbery before he picked up the co offenders and, as the Judge indicated, that is borne out by the fact they got into the car heavily disguised and the fact he waited for them. Mr Mau€™s co-offenders then proceeded to execute a robbery matching almost exactly one of the hypotheticals described by this Court in Mako:The robbery of commercial premises where members of the public can be expected to be present, 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 ... a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. We do, however, accept as consistent with the summary of facts Ms Taylor Cypher€™s contention that Mr Mau was less than a full participant in the robbery. There is no evidence to suggest he had been involved in the planning of the offence beyond the morning phone call. In fact, it is agreed he was not. Also, the summary of facts is silent as to whether Mr Mau knew of the weapon. He says he only saw it on his co-offenders€™ return to the vehicle by which time the weapon had already been used. That version of events is consistent with the summary of facts, and we proceed on that basis. Therefore, while Mr Mau must still be held accountable for his role in facilitating the principals€™ offending by serving as the get-away driver, we agree with Ms Taylor-Cyphers his culpability on the facts of this case is substantially less than that of his co-offenders. Unlike his co-offenders, Mr Mau€™s involvement was substantially unpremeditated and he did not fully appreciate the risk of harm to the public until after the weapon had been used. Ms Taylor-Cyphers did not provide authority in support of her argument that, if Mr Mau€™s lesser degree of participation is accepted, a starting point of four to five years is appropriate. The hypothetical cited above from Mako and other cases from our own research indicate that discounts of between one and two years from the starting point adopted for the principal offenders would be appropriate in these circumstances. There is no contest that the starting point of seven years was appropriate in respect of the principal offenders. Taking into account Mr Mau€™s lesser, but nonetheless instrumentally important, involvement in the offending, we consider the appropriate starting point in his case was five years and six months€™ imprisonment.Personal mitigating circumstancesDiscount for personal and cultural background We turn to the submission that the Judge ought to have allowed a considerable discount on the basis of the pre-sentence report for Mr Mau€™s deprived personal and cultural background circumstances. Such a discount was not addressed by the Judge, but we note that in sentencing Mr Mau€™s half-brother, Judge C M Ryan allowed a 10 per cent discount for personal circumstances including an appalling childhood and other factors not applicable here. No report under s 27 of the Sentencing Act 2002 is available. Ms Taylor Cyphers submits that a s 27 report is not essential to justify a discount for personal and cultural background in a case such as this, having regard to the other information available, and in particular, the pre-sentence report prepared by Corrections. The pre-sentence report records that Mr Mau is a 28-year-old of Ngpuhi descent who experienced the effects of systemic cultural deprivation during his childhood. He has 16 half-siblings. He alludes to gang connections within his whnau, reports being a victim of physical abuse while growing up and claims there is a €œcomplex€ dynamic within his whnau that left him feeling obliged to answer his half-brother€™s call for assistance on the day of the robbery. On the basis of the limited information available to us, we are prepared to infer the existence of a nexus between the offending and the significant economic and cultural deprivation Mr Mau reports having experienced during his upbringing. He also says that his first brushes with the criminal justice system were the result of his getting €œcaught up€ with his half-siblings€™ offending and that he felt €œduty bound€ to give his brother a lift. We are not prepared to accept these latter propositions without better evidence, especially where, as we understand it, Mr Mau is the oldest of the siblings. However, in the adverse circumstances Mr Mau describes, we accept that the present offending is at least in part the result of personal and cultural deprivation. To recognise Mr Mau€™s personal and cultural deprivation, we consider a discount of seven and a half per cent is appropriate.Discount for present family circumstances We turn to the submission that some discount ought to have been afforded for the impact of Mr Mau€™s imprisonment on his partner and their five children. In particular, one daughter was born with Rett Syndrome. Ms Taylor-Cyphers advises that is a rare and incurable genetic disorder affecting brain development in girls that causes a progressive loss of motor skills and speech. All five children are now in the sole care of Mr Mau€™s partner. He and the partner have been in a relationship since he was 14 years old. Hardship to an offender€™s family can attract recognition in the form of a (generally modest) discount at sentencing if an offender€™s imprisonment is unduly depriving their family of a reliable source of support. However, as Ms Fuhr notes, Mr Mau is the subject of a protection order made in favour of his partner and children, he has two convictions for assaulting his partner, and there have been numerous family violence call-outs to their home address. Also Mr Mau€™s EM bail was revoked following a police call-out to their home address during which his partner made it clear she did not want him in the home. Relatedly, we note Corrections€™ pre-sentence advice that, while the family home is technically feasible as a home detention address, the Department of Corrections was unable to support Mr Mau€™s being placed there on home detention due to Oranga Tamariki€™s concerns about Mr Mau living at an address where children are present. Ms Taylor-Cyphers submits that Mr Mau€™s partner is prepared to €œwaive€ the protection order if that will reduce the sentence and facilitate Mr Mau€™s earlier return to the family home. She refers to Mr Mau€™s partner having written a letter to that effect. The letter is not in evidence and there is no other evidence to support this contention. As noted, the information we have overall is to the contrary. Even if such a letter were available, it is appropriate for a court to adopt a very conservative approach when faced with what appears to be a change in position by family violence victims. We note further it is not possible for Mr Mau€™s partner to €œwaive€ a protection order made for the protection of her children, or for that matter for her own protection. Only a court can discharge such an order. As a consequence, we do not consider Mr Mau should receive any discount for hardship to his family. We accept that he has been providing some support for the children given he was at home looking after his daughter on the day of the offending (albeit that he took her with him) but have insufficient basis to conclude that Mr Mau€™s imprisonment is unduly depriving his family of a reliable source of support.Remorse Finally, we address the submission that a further discount was required in respect of remorse. Ms Taylor-Cyphers says Mr Mau had a letter of remorse for the Judge. Again, this letter was not handed up at sentencing, nor has it materialised on appeal. As Miss Fuhr notes, a discrete discount for remorse requires something more than the acknowledgement inherent in a plea. The author of the pre-sentence report, on which Ms Taylor-Cyphers otherwise places great stock, says that Mr Mau has in fact €œfailed to take responsibility for his actions€ and failed to €œrecognise the potential harm to the wider community€ that the offending represents. In these circumstances, there is no basis for any discount for remorse in addition to the guilty plea discount.Conclusion For the above reasons, we are satisfied that there are errors in the sentencing under appeal: the starting point adopted being too high and the discounts for personal mitigating circumstances too low. We adopt a lower starting point of five years and six months€™ imprisonment, and allow discounts of seven and a half per cent (five months) for personal and cultural deprivation in addition to the existing discounts of 20 per cent (13 months) for Mr Mau€™s guilty plea and four months for the time spent on EM bail. That leads to an end sentence of three years and eight months€™ imprisonment. On that basis we consider the sentence imposed was manifestly excessive.Result The application for leave to appeal out of time is granted. The appeal is allowed. The sentence of five years and four months€™ imprisonment imposed in the District
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Court is quashed and a sentence of three years and eight months€™ imprisonment is substituted.-------------------------------------------------------------------------------------------------- Crimes Act 1961, s 235(c). Maximum penalty 14 years€™ imprisonment. R v Mau  NZDC 10197. The agreed summary of facts records that both co-offenders were half-brothers of Mr Mau, and we note the co-offenders share a last name. For whatever reason, in the District Court and on this appeal, the relationship between Mr Mau and the third offender was not described in those terms. Not being certain as to their relationship, we refer to the third offender as an €œassociate€. Mako v R  NZCA 407;  2 NZLR 170 (CA). Mau, above n 2, at  and . At . At €“. At . At €“. Zhang v R  NZCA 507,  3 NZLR 648. Counsel referring to the Victorian Sentencing Advisory Council€™s publication: Does Imprisonment Deter? A Review of the Evidence (Sentencing Advisory Council, Melbourne, 2011) at 2 and 11. Mako, above n 4. It is apparent from the procedure adopted by this Court under s 51 of the Senior Courts Act 2016 that an appeal in which the establishment or revision of sentencing guidelines is proposed may warrant hearing before a Full Court, given the significance of such appeals. See, for example, Parata v R  NZCA 48 at . Mako, above n 4, at . Mau, above n 2, at  and . Mako, above n 4, at . See . See, for example, Edwards v R  NZCA 349; and R v Royal  NZCA 65. R v Tuhiwai  NZDC 22345 at . See for example Campbell v R  NZCA 356 at €“ where a five per cent discount was allowed to a €œdevoted€ mother of five children. See, for example, in the sentencing context, R v Toru  NZHC 1598 at , applying R v Taueki  NZCA 174;  3 NZLR 372 (CA) at . Moses v R  NZCA 296, (2020) 29 CRNZ 381 at .