R v Rawiri DC Hamilton CRI-2010-019-3082 [2011] NZDC 116 (3 February 2011)

Last Updated: 28 September 2016

IN THE DISTRICT COURT AT HAMILTON

_{CRI-2010-019-003082}

THE QUEEN

v

GARRETT TE AO MARAMA RAWIRI

Hearing: 3 February 2011

Appearances: J O'Sullivan for the Crown

C Bean for the Prisoner

Judgment: 3 February 2011

_{NOTES OF JUDGE A I M TOMPKINS ON SENTENCING}

[1] Garrett Rawiri appears today for sentence in relation to three groups of charges. First in time are two counts in an indictment where guilty verdicts were returned after trial on 29 October 2010, on counts of aggravated robbery and assault whilst armed with a weapon, the offending having occurred on 12 April 2010 when Mr Rawiri robbed two persons of a small amount of money, whilst those two persons were having their car filled with petrol in a suburban service station in Hamilton.

[2] During that robbery Mr Rawiri pulled his sweatshirt to one side and showed one of the complainants a large knife that he was carrying, and being dissatisfied with a small amount of coins which had been given to him, then required the male complainant to accompany Mr Rawiri into the service station proper where Mr Rawiri in effect compelled the complainant, unsuccessfully as it turned out, to

_{attempt to obtain more money using an Eftpos card.}

R V RAWIRI DC HAM CRI-2010-019-003082 3 February 2011

[3] The second group of charges arose at the end of August 2010, when Mr Rawiri was on bail, in respect of the first group of charges, and they are charges of breach of release conditions. The pre-sentence report prepared for sentencing notes that after Mr Rawiri was released from an earlier term of imprisonment in January 2010, attempts by his supervising probation officer to refer Mr Rawiri for alcohol and drug counselling were unsuccessful, and the report notes that Mr Rawiri’s record of compliance was, “abysmal.”

[4] The report also notes that as Mr Bean, appearing as Mr Rawiri’s counsel today also submitted, alcohol abuse is a significant factor in Mr Rawiri’s offending, but the report goes on to note that methamphetamine abuse is also a likely contributing factor. The victim impact statement before the Court also records that when Mr Rawiri offended after breaching his release conditions in Auckland he was perceived as unpredictable, and to one victim Mr Rawiri, “seemed to either have some mental health issues or appeared to be on methamphetamine.”

[5] That victim impact statement was prepared in respect to the third group of offending, being robbery of two named complainants which occurred when Mr Rawiri again approached complainants seated in a parked vehicle with a seemingly innocuous request, but subsequently threatened those persons with possible stabbing. That charge is accompanied by a charge of escaping, which occurred after Mr Rawiri had been arrested and handcuffed, when he escaped not once but twice, first from a park bench where he had been placed, and secondly from inside a police patrol car.

[6] The pre-sentence report recommends imprisonment, and Mr Bean did not argue against that recommendation. The pre-sentence report notes a concerning lack of insight and as already noted, problematic substance abuse. The report notes that Mr Rawiri is assessed at being at high-risk of re-offending, although that risk may be reduced, “one he has received suitable interventions to address his criminogenic behaviour.” Mr Rawiri will now the opportunity to do that whilst in prison.

[7] Both Mr Bean, and Ms O’Sullivan as appearing for counsel for the Crown, accept that the lead offending the aggravated robbery and the assault with intend to

rob, being the two counts in the indictment, the latter earlier in these comments being mistakenly characterised as assault in possession of an offensive weapon, are governed by the Court of Appeal’s tariff decision in R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 although inevitably there is different emphasis placed on different aspects of that decision. Mr Bean advocated characterising this offending as street robbery and seeking a starting point of between 18 months to three years, submitting that the starting point should be at the lower end of that range.

[8] Ms O’Sullivan submitted a starting point by reference to paragraph 57 of Mako of three and a half years’ imprisonment. Ms O’Sullivan particularly noted the use of threats and the displaying of the knife, and submitted that in totality the Hamilton and Auckland offending is such that a combined starting point in the range of six and a half years’ imprisonment is appropriate, before taking into account the totality principle.

[9] In all of those circumstances Mr Rawiri is dealt with in the following way. Dealing first with the breaches of release conditions, as the report notes if Mr Rawiri had fully complied with his release conditions, then there is at least a chance that the offending that had preceded his breaches in August, that is the Hamilton robbery in April, and the offending which followed in September, might not have occurred. In those circumstances a relatively stern approach to breach of release conditions is called for.

[10] A starting point of nine months’ imprisonment, less three months for the entry of the guilty plea which occurred early after Mr Rawiri had been arrested and charged is in my view appropriate. No other reason for any further discount is evident on the material before the Court. Accordingly on those two charges Mr Rawiri is convicted and sentenced to six months’ imprisonment.

[11] In respect to the Hamilton offending, that is the two counts in the indictment where guilty verdicts were returned after trial, a starting point of two years’ imprisonment is in my view appropriate. This was street offending and a knife was both used and employed by Mr Rawiri to compel the complainants to act in the way he wished them to do. Obviously no discount is available for a guilty

plea, and no other mitigating factors would allow any change from that starting point. Accordingly on each of those two counts, there will be imposed a term of two years’ imprisonment.

[12] A similar starting point is in my view applicable to the Auckland offending of two years, but here there was a guilty plea entered relatively early after arrest and charge. A discount of six months is appropriate, so the effective sentence on that charge of robbery is 18 months’ prison. In relation to the escaping charge, there will be a concurrent term of two months’ prison, given that the escape was largely ineffectual.

[13] Having imposed those separate sentences, in my view the sentences for the three separate lots of offending should be served concurrently. Although Mr Rawiri is being sentenced for in effect two street robberies they were separated in time, place and circumstance, and the latter were committed whilst awaiting disposal of the former. Likewise the sentences imposed for breach of release condition should be cumulative.

[14] The end result therefore is that Mr Rawiri is sentenced to two years’ imprisonment for the Hamilton offending, 18 months’ imprisonment for the Auckland offending, and six months’ imprisonment for the breach of release conditions, so the total sentence imposed today is four years’ imprisonment. That length of sentence will allow Mr Rawiri, if he is so minded and if the opportunity is made available to him, to complete a drug and alcohol dependency treatment unit programme whilst in prison.

[15] In respect of the Auckland offending, convictions having been entered today when sentence was imposed, Mr Rawiri becomes subject to the three strikes law. What that means Mr Rawiri is this. I am now going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice outlining these consequences, which notice also lists the serious violent offences. The consequences are these. If you are convicted of any serious violent offence other than murder, committed after receiving this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole

or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment, and that will be served without parole unless it would be manifestly unjust. In that event the sentencing Judge will impose a minimum term of imprisonment.

A I M Tompkins

District Court Judge