the Sentence of Benjamin Tuitama for
SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 7th day of October 2002
RIGHT HONOURABLE HELEN CLARK PRESIDING IN COUNCIL
Her Excellency the Governor-General, acting under section 406 (a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers the question
of the sentence of Benjamin Tuitama for the offence of aggravated robbery to the High Court for reconsideration. The background to, and the reason for, the reference appear in the Schedule.
1. Interpretation-In this Schedule:
"the applicant" means Benjamin Tuitama.
2. Conviction and sentence-(1) On 30 March 2000,
the applicant was convicted in the District Court at Otahuhu on one count of aggravated robbery, contrary to section 235 (1) (c) of the Crimes Act 1961.
(2) On 18 May 2000, the applicant was sentenced by the District Court at Otahuhu to four years and nine months' imprisonment.
3. Circumstances surrounding the applicant's sentencing-(1) The applicant and two other persons robbed a Shell service station in Otahuhu on the morning
of 27 February 2000. On 5 March 2000, the applicant voluntarily attended at the police station when advised by one of his co-accused that the police wished to speak with him about the incident. At the police station, the applicant made a confession. The applicant indicated to police that he intended to admit the offending once he was brought before the court.
(2) The applicant appeared in the District Court at Otahuhu the following day and was assigned counsel. The applicant advised counsel of his wish to plead guilty immediately, but was persuaded to defer entering that plea until 30 March 2000.
(3) The applicant informed his counsel that his two
co-accused intended to enter the Odyssey House programme before entering a plea so that the co-accused could deal with alcohol and drug abuse issues, which were allegedly contributing factors to their offending. The applicant's counsel advised the applicant that his attendance at the Odyssey House programme might be regarded by the Court as prevarication and that delaying the Court process for this purpose might also be seen as a failure by the applicant to promptly and fully accept responsibility for his actions.
(4) On the basis of that advice, the applicant entered a plea of guilty to the charge of aggravated robbery when he reappeared before the Court on 30 March 2000. The applicant was convicted on that date and sentenced on
18 May 2000 to four years and nine months' imprisonment.
(5) An appeal to the High Court against his sentence, on
26 September 2000, was dismissed, and an application
for special leave to appeal to the Court of Appeal was also dismissed.
(6) Subsequently, on 20 December 2000, the applicant's
two co-offenders were sentenced to terms of three years' imprisonment respectively. The Judge sentencing the applicant's two co-offenders concluded that there were
no significant differences between the level of culpability of the two co-offenders and the applicant. The sentencing Judge also indicated that there were no personal factors significant enough to justify a disparity in sentence between the applicant and his co-offenders. The difference that appears to have most influenced the Judge's decision to impose lesser sentences on the applicant's two co-offenders was the steps that the co-offenders had taken towards rehabilitation through attendance at the Odyssey House programme.
(7) On learning of the sentences imposed on his
co-offenders, the applicant filed a further application for special leave to appeal to the Court of Appeal on the basis of the disparity of treatment between him and his co-offenders. That application was dismissed on 20 June 2001 because the Court of Appeal has jurisdiction to grant such leave only in relation to questions of law.
4. Applicant's application for exercise of mercy of the Crown-(1) The applicant's application for the exercise of the mercy of the Crown in respect of his sentence for his conviction for aggravated robbery was made on 16 July 2001.
(2) The ground of this application is that the only material difference between the applicant's circumstances and those of his two co-offenders is that he chose to accept his counsel's advice to promptly plead guilty, rather than attend the treatment programme that was proffered. The applicant contends that, in the circumstance of the case, the marked disparity between the sentence imposed on the applicant and the sentences imposed on his two co-offenders gives an impression of injustice. The applicant also contends that the disparity may bring the administration of justice into disrepute.
5. Documents-The following documentary material was considered in determining the application:
(a) The petition;
(b) R v. Tuitama (CA44/O1, 20 June 2001, Gault,
Robertson, Hammond JJ);
(c) notice of the applicant's appeal to the Court of Appeal and supporting material;
(d) Tuitama v. Police (High Court, Auckland, A131/00, 26 September 2000, Fisher J);
(e) information, summary of facts, police statement, victim impact statement, pre-sentence report, references, reparation report, and sentencing notes relating to the applicant's trial; and
(f) pre-sentence reports on the applicant's co-offenders.
6. Reason-The reason for the reference is that
the documents described in clause 5 indicate that, in the circumstances of the case, the marked disparity between
the sentence imposed on the applicant and the sentences imposed on his co-offenders may be seen as unfair and could tend to undermine the administration of justice.
MARIE SHROFF, Clerk of the Executive Council.