R v Grennell-Ngatai DC Invercargill CRI-2010-025-4363 [2011] NZDC 1780 (28 October 2011)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT INVERCARGILL

CRI-2010-025-004363

THE QUEEN

v

ISRAEL JAMES GRENNELL-NGATAI

Hearing: 28 October 2011

Appearances: M J Thomas for the Crown P Redpath for the Prisoner

Judgment: 28 October 2011

NOTES OF JUDGE K J PHILLIPS ON SENTENCING

[1] Mr Grennell-Ngatai, you are 23 years of age and you are at the crossroads of your life. I think Mr Redpath has put forward for you everything possible that could be put forward, and a bit on top. He has certainly changed my way of thinking about where the starting point of your sentence should be this morning in what he has told me about your activities in relation to this aggravated burglary.

[2] Aggravated burglary is becoming a major problem in this city, in my view. There have been a number of them over the past years and sentences have been imposed on young people younger than you of considerable severity and it does not stop people becoming involved in tooling up with firearms and weapons and going into vulnerable shops at night, after cigarettes and cash. Cigarettes of course just being another means of currency in the world to people who do this, the perpetrators of these types of crimes.

R V GRENNELL-NGATAI DC INV CRI-2010-025-004363 28 October 2011

[3] Here, on 13 December at the Night ‘n’ Day in Elles Road the shop assistant was attending to his duties when all of a sudden he is confronted by two men. One has a sawn-off shotgun, the other has a bag. Both are heavily disguised. I have not heard from Mr Redpath where your disguises came from. It seems that even the shoes were provided to you, but I take all of that with a bit of a grain of salt and note here that you were happy to fully disguise yourself, and I take from that that you knew what was going down in that shop as you got out of the car. That was that there was going to be a robbery and that your mate with you was tooled with a sawn- off shotgun. The shop assistant was directed by your mate to put his hands on his head and get on the ground. The gun was pointed clearly at him. You then began to ransack the cigarette drawers, putting them into the bag that you had.

[4] As I understand what the shop assistant thought and heard as he lay on the floor with this gun there, he considered you and your mate went out the back into the storeroom area. You got a bag full of cigarettes. That is self-evident upon what I understand to be the position. I do not see that a shop would have that amount of cigarettes on display. It would have backup supplies in the storeroom.

[5] Anyway, what occurred is that you departed, and I accept what Mr Redpath says because he has watched security footage and so forth that has not been made available to me, but that you only went to the cigarette area, you filled the bag and left. You left in the stolen car that your mate had taken.

[6] A search warrant at your partner’s home found tobacco and cigarettes taken from the burglary and you admitted your role. You told the police that you had been there; that you had the bag and filled it with cigarettes and tobacco; that the contact had come through phone, the co-offender wanting you to help in this matter. In the end the proceeds of the robbery cannot be described as minimal, it was only $100 in cash, but $3572 in cigarettes taken.

[7] The impact upon your victims; the shop assistant and the owner of the shop; has been major. The assistant had been 10 years in his job and all of a sudden he had a gun against the side of his head. He was shocked, he was really scared, and one can appreciate the feelings of wondering whether all of a sudden his brains were

going to be smashed all across the walls of the shop that he worked in. He said that it was clear to him that the two of you knew exactly what you wanted as you went about it as he lay on the floor really scared. The manager of the shop spends sleepless nights concerned about staff being in his shop and there have been significant costs and losses incurred as a direct result of this offending.

[8] I note that you have a lengthy list, in my view, of prior convictions for a young man, principally relating to dishonesty and driving. You have committed burglaries for drugs. You have committed assaults. You have obtained by deception, you have breached Court release conditions and so forth. The pre-sentence report describes a man who has two children, young, and your sentence today is going to remove their father from the home. You have a good employment record, leaving school immediately when you could, but managing to stay in work on a continuous basis. I think that this offending is probably going to cost you that relationship with your children and with your partner. You say that you have drug debts, you were offered a chance to pay them back, and you got involved on that basis.

[9] Your counsel has discussed at length with me that you did not know or were not aware of the gun until you went into the store. That is the way it was put originally in the submissions. Now it is that when you got out of the car you became aware of the firearm. By that time, as I see it here, you had to be heavily disguised. You must have known at that time that this was an aggravated robbery, otherwise why be disguised. I am quite sure, and I can draw an inference from all the facts of the situation, that you knew prior to that car stopping that there was a gun, and that by that time you were only too willing to be a participant in this robbery.

[10] The pre-sentence report describes you as a high risk of re-offending and a moderate risk to others. I think they have got that right.

[11] Mr Redpath’s written submissions detail the fact that this is robbery of a small retail shop. There was clearly confinement of the shop attendant, the two offenders were disguised, a small amount of money taken, but he stresses to me that it was at a time (2.30, 3 o’clock in the morning) when it was less likely that members of the public would be in the shop – and as I made the point to him when

he made that submission to me this morning, that is the whole point of Night ‘n’ Day shops; that they are open at these hours so that they can facilitate service to people who are out and about at that time of the morning. But the fact of the matter here is that there were no members of the public in the shop when you and your mate entered it.

[12] Factors that Mr Redpath emphasised in his written submissions are that you were not part of the original selection of this premise or the original planning, you did not case the joint out as your co-offender did. You were not the person who stole the motor vehicle. That you had no interaction with the attendant; that a modest amount was taken; and you admitted your involvement when challenged on the matter. Your co-offender of course committed a prior robbery the week or so before, again, as I recall the matter, being tooled up. He received for the two robberies a term of imprisonment of six years and seven months. But Mr Redpath stresses that his position is a much worse position than yours, and quite obviously and correctly that submission has a great deal of force.

[13] He points out that your record does not show any particular footprint into violence and that your guilty plea, although late, should allow for a discount of 10 to 15 percent. He says you are remorseful and motivated, and submits that the starting point should be a position of approximately five years. Today he has detailed to me orally background matters in relation to your actual part and participation in this matter.

[14] I note what the Crown says in that regard and I note also what the Court of Appeal in R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 has said about that situation. But I am prepared to accept this morning that you did not know exactly what was going to happen until you got into the car. Once you got into the car you did know, and I am accepting, because there was no evidence to the contrary, that you did not know that your co-offender had already committed an aggravated robbery earlier in the same week or that he had a pre-disposition to this type of offending.

[15] Mr Redpath is correct that here I am caught in an exercise of judgement differing between two offenders who were involved in the same offence, but I have

to have regard to you, taking into account that I am also required to assess issues of parity in regards to your sentencing and I think Mr Redpath’s position there is appropriate and correct.

[16] The Crown, however, points to the aggravating factors, Mr Grennell-Ngatai. Let us go through them. Here, there was a sawn-off weapon. Secondly, at the time you were subject to a community work sentence when you committed this serious crime. Thirdly, the impact upon the victim as I have discussed from the victim impact statement, all for some cigarettes and $1600 worth of damage done to the till as well. There is no opportunity to gain payment on that basis from you. There were two offenders. The store manager and the attendant at the store were vulnerable at

2.50 am. This was pre-meditated. Look at the time, says the Crown. The disguises and the axe, and you have prior convictions.

[17] Ms Thomas, for the Crown, says well if you balance those factors, as one has to in the R v Mako story, you tick most of the boxes and in regards to the matter, after discussing some other authorities with me, the Crown says I should assess a starting point for your sentence of six to seven years’ imprisonment.

[18] I have had regard to everything that has been put to me; the pre-sentence report, I have had regard to the submissions by Mr Redpath both in writing and orally, and what the Crown’s position is. In the end you will be held accountable. These types of actions have to be strongly denounced and deterred by the Court when people who have volunteered themselves into this situation are apprehended and are before the Court for sentence. I have to have regard to the interests of the victim of your offending and protect the community from you and others of your ilk. This is serious offending and I have to be consistent, both in relation to your mate who is already serving a sentence, and in relation to other people who commit this type of offending.

[19] The aggravating factors are numerous. There was actual violence, in my view, by the use of the weapon. You were in this shop in a criminal sense unlawfully. You were subject to a Court sentence at the time of your offending. There has been harm done both in a financial way and emotionally to the attendant.

He was vulnerable and the shop was vulnerable to this form of attack. It was pre-meditated and you have prior convictions. You can only really bring your guilty plea to your credit.

[20] In the end I treat you on the basis that it was a planned robbery, particularly involving you from the time you got into the car and you started donning the disguise. It was done to obtain money to pay a drug deal, and although I found it difficult that you are not aware of the prior offending by your co-offender, I put that to one side and treat it as though you did not know. You had the opportunity, however, to stop your involvement by walking away. You did not do so, and in fact you fully participated in the actions that then took place.

[21] In my view, therefore, when I have regard to all of those matters, a term of imprisonment is inevitable. In my view, the starting point, after having heard from Mr Redpath, after having reconsidered the position and taking into account what Ms Thomas said, the starting point for your sentence should be, as he suggested, a term of imprisonment for five years. As I said to him, taking into account all matters here, I do not intend to uplift that for your prior convictions. I intend to be merciful and allow you for your guilty plea and the other matters that are indicative of remorse built into that type of discount, a discount of 15 percent.

[22] In the end, Mr Grennell-Ngatai, stand up please, on this matter, you having pleaded guilty to the second count in the indictment, the first and third counts you having been discharged on by the Crown offering no evidence, on the second count you are sent to prison for four years and three months. Stand down, thank you. The sentence of community work will be well and truly cancelled. I do not make any order for reparation.

K J Phillips

District Court Judge