R v Aplin DC Porirua CRI-2011-035-1558 [2012] NZDC 1797 (31 October 2012)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT PORIRUA

CRI-2011-035-001558
_{THREE STRIKES WARNING}

THE QUEEN

v

_{SHEA APLIN}

Hearing: 31 October 2012

Appearances: B Tompkins for the Crown

J Blathwayt for the Prisoner

Judgment: 31 October 2012

_{NOTES OF JUDGE J M KELLY ON SENTENCING}

[1] Mr Shea Aplin, you appear for sentencing today.

[2] On 8 May 2012 you pleaded guilty to one charge of aggravated robbery, pursuant to ss 235(b) and 66(1) Crimes Act 1961 which carries a maximum penalty of 14 years’ imprisonment.

[3] By way of background, following your guilty plea sentencing submissions were filed on behalf of the Crown and on your behalf. Sentencing however could not proceed because there was a dispute as to the role played by you in the aggravated robbery. The Crown submitted that your role was more akin to that of your co-offender Mr Regan Cross, while it was submitted, on your behalf, that your

_{role was more akin to that of your co-offender Ms Jasmine Benny.}

R V APLIN DC POR CRI-2011-035-001558 [31 October 2012]

[4] Mr Cross pleaded guilty to one charge of aggravated robbery. He was sentenced on 25 October 2011 to a term of imprisonment for two years and one month from a starting point of four and a half years’ imprisonment.

[5] Ms Benny pleaded guilty to one charge of aggravated robbery. She was sentenced on 22 December 2011 to home detention for a period of 10 months and

200 hours’ community work from a starting point of three and a half years’

imprisonment.

[6] For the purposes of sentencing all co-offenders, it is accepted that the facts of this case fall within the basic scenario set out by the Court of Appeal at [56] in R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA). That is because the robbery was of a small business whereby money and tobacco was demanded under threat by a disguised person, Mr Cross, with the use of a weapon after ensuring that no customers were present. Assistance was provided by Ms Benny, acting as a look out and a getaway driver. The shopkeepers were assaulted, one having been punched to the head.

[7] What was in dispute, for the purposes of your sentencing, was that the Crown submitted that while you were not present at the robbery itself, you were the organiser and instigator of the alleged offending rendering your culpability at least as high, if not higher, than that of your co-offender Mr Cross.

[8] The Crown submitted that this approach was supported by the decision of the Court of Appeal in R v Mahaki & Te Moni (CA 309-97, CA 287-97) where the Court of Appeal rejected a submission that due to the fact that the appellant was not present his culpability was at the lower end of the scale. The Court noted at [3]:

We do not propose to give the slightest encouragement to any view that those who mastermind serious crimes of this kind can lessen their culpability by remaining at a safe distance from the action.

[9] Mr Blathwayt, on your behalf, noted that the summary of facts referred to you as being the person who proposed to Mr Cross that the dairy should be robbed and threatened to hurt Mr Cross’ family and burn down their house if Mr Cross did not do as he was told. Mr Blathwayt accepted that if this was correct, it would give support to the Crown submission, in reliance on R v Mahaki & Te Moni that you

were the leader in the crime and should be sentenced accordingly. However, this was disputed by you. Mr Blathwayt submitted your involvement was only the making available of the hoodie and any sentence imposed on you should not differ significantly from that imposed on Ms Benny.

[10] After considering the evidence given by Ms Benny, Mr Cross and you at the disputed facts hearing, I found in my decision dated 13 August 2012 that it had not been proved, beyond reasonable doubt, that you were the sole instigator of the robbery or that you threatened Mr Cross if he did not do the robbery.

[11] On the other hand, I found that it had been proved beyond reasonable doubt that the idea to do the robbery arose in discussions between you and Mr Cross. Also, that you were the organiser of the robbery and you were in control of dividing the proceeds of the robbery with you receiving a greater share to repay the drug debt assumed by Mr Cross.

[12] In other words, I was of the view that your culpability was somewhat less than Mr Cross but somewhat more than Ms Benny.

[13] I have now considered the written and oral submissions Mr Blathwayt has made on your behalf.

[14] I have also considered the report from Te Hauora Runanga o Wairarapa Incorporated, dated 19 December 2011, which sets out your personal circumstances in a very helpful way. In particular the very difficult circumstances of your childhood and upbringing and the progress you have made in the past year while subject to a sentence of intensive supervision and on bail for this offending.

[15] I have read the pre-sentence report dated 23 October 2012 and the memorandum from Corrections dated 31 October 2012.

[16] I have also read the submissions filed on behalf of the Crown.

[17] I have considered the victim impact statements from the two victims.

[18] The 33 year old male shopkeeper says that as a result of the robbery he has been greatly affected. He talks about the physical injuries he suffered and the financial cost of the robbery, in respect of the tobacco that was stolen which cost about $790. The victim said it was impossible to claim insurance because of the amount of the excess. Reparation is sought. The male victim also talks about the psychological effect on him of the offending.

[19] The female victim talks about the robbery affecting her in a profound manner. She talks about the emotional effects of having a screwdriver pointed at her. She also talks about the effects of seeing her husband being assaulted. She says she does not know how long it is going to take for her to recover. Neither her, nor her husband, have been able to sleep and they have felt nervous every time a customer comes through the door.

[20] The purposes of sentencing you today are to denounce your conduct, to deter you and others from committing the same or similar offences, to protect the community from you and to assist in your rehabilitation and reintegration.

[21] In sentencing you I remind myself that I must take into account the gravity of the offending and the degree of culpability that I have identified. I must also take into account the seriousness of the offence of aggravated robbery which is reflected in the maximum penalty of 14 years’ imprisonment. I must also take into account the general desirability of consistency with appropriate sentencing levels. Finally I must impose the least restrictive outcome that is appropriate in the circumstances having regard to the hierarchy of sentences.

[22] I now need to assess an appropriate starting point to reflect the nature and seriousness of your offending and your culpability. The aggravating factors relating to your offending are as follows:

(a) There was clearly a degree of planning and preparation to this offending, evidenced by the disguise and the fact that it was conducted with a weapon, a getaway driver and a look out.

(b) The robbery involved three people. You remained behind while Mr Cross robbed the dairy and Ms Benny acted as a look out and drove the getaway car.

(c) Your co-accused Mr Cross concealed his identity by wearing a black hoodie top with a skeleton mask sewn into the hood. Mesh was used over the eyes allowing Mr Cross to see.

(d) Mr Cross used a weapon, namely a 30 centimetre Phillips screwdriver.

(e) The target was a small dairy owned and operated by a husband and wife who were alone in the store when the offending occurred.

(f) Your co-accused Mr Cross punched the male complainant to the mouth with his fist and pushed the female complainant to the side as he ran out of the store.

(g) The property stolen included approximately 26 packets of tobacco.

You took the packets and gave your co-accused five of them keeping the rest for yourself and Ms Benny.

[23] Taking into account all the factors I have discussed I consider a starting point

of four years’ imprisonment to be appropriate in this case.

[24] I now need to consider whether your offending was aggravated or mitigated by your personal circumstances.

[25] There are no aggravating factors relating to you.

[26] The mitigating factors relating to you are first your age because at the time of this offending you were aged 19. The second mitigating factor relating to you is your previous good character. At the time of this offending you had no previous convictions.

[27] For those mitigating factors you are to be given a discount of

18 months’ imprisonment. That leaves a sentence of 30 months’ imprisonment.

[28] I now need to consider the appropriate reduction of sentence for your guilty plea. Your guilty plea was not entered at the earliest opportunity, and a disputed facts hearing was required. However, given the outcome of the disputed facts hearing and the fact that your guilty plea saved the victims from having to give evidence, I am of the view that a deduction in the region of 20 percent is appropriate. That equates to six months’ imprisonment.

[29] That leaves an end point sentence of 24 months’ imprisonment.

[30] That is the effective sentence that I consider appropriate to reflect the aggravating factors of the offending and the aggravating and mitigating factors personal to you.

[31] However, I am of the view that a further deduction is warranted for the fact that you have been on a curfew in relation to this offending since May 2011. Also to reflect the fact that you have successfully completed a sentence of intensive supervision imposed on 4 August 2011 for receiving tobacco and supplying cannabis which were offences arising out of the same offending for which you appear for sentencing today.

[32] I am of the view that a deduction of two months is appropriate to reflect those

factors. That leaves an end point sentence of 22 months’ imprisonment.

[33] Because that is a short sentence of imprisonment you are eligible for a sentence of home detention. I am satisfied that a suitable address is available for you to serve a sentence of home detention. The occupant, Mr Michael Murray, who is present in Court and has spoken to me today, has consented to you serving a sentence of home detention at his address.

[34] The equivalent sentence of home detention is one of 11 months.

[35] That is a lengthy sentence of home detention. Normally I would impose community work as well as home detention to enable you to make a contribution to the community during the period of home detention.

[36] However, as I have discussed with Mr Blathwayt and Mr Tompkins, on behalf of the Crown, I am not going to impose community work because I am concerned about issues of contamination. Mr Murray has told me that he will have work available for you to do at his property. It may be that Probation can also make arrangements within your sentence of home detention for you to continue with the care of your grandfather. I note you have been doing that and your grandfather is in Court in support of you today. However, as I have said to you those are matters for Probation.

[37] For the reasons given you are therefore convicted and sentenced to home detention for 11 months. The home detention residence is 1 Haswell Street, Eketahuna. The special conditions are as set out in the pre-sentence report as follows:

(a) You are to travel directly to the address of

1 Haswell Street, Eketahuna following sentencing and await the arrival of the probation officer and monitoring company.

(b) You are to reside at 1 Haswell Street, Eketahuna for the duration of home detention and not move address without the prior approval of the probation officer.

(c) You are to attend and complete any counselling or programmes or treatment to the satisfaction of the probation officer and programme provider.

(d) You are not to consume or be in possession of any alcohol and/or illicit drugs for the duration of the sentence of home detention.

[38] There are no standard or special post-detention conditions.

[39] You are also convicted and sentenced to pay reparation of $250 to be paid by way of instalments of $10 per week. The first payment is to be made by

14 November 2012.

[40] Finally, I need to give you a warning. Given your conviction for aggravated robbery you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violence offences.

(a) If you are convicted of any serious violent offence other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b) If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

J M Kelly

District Court Judge