R v Katu DC Hamilton CRI-2011-073-649 [2012] NZDC 380 (12 March 2012)

Last Updated: 11 January 2018

IN THE DISTRICT COURT AT HAMILTON

CRI-2011-073-000649
_{THREE STRIKE WARNING}

THE QUEEN

v

SOLOMON TAU KATU

Hearing: 12 March 2012

Appearances: R Annandale for the Crown

J Hamblett for the Defendant

Judgment: 12 March 2012

_{NOTES OF JUDGE D C CLARK ON SENTENCING}

[1] Mr Katu, you appear today for sentence, having pleaded guilty to a number of charges. Before the Court today are three burglary charges, one robbery, one receiving, being in possession of instruments for burglary, escaping custody and failing to stop. All of these offences have taken place between September of last year and January this year. You were on bail for all of that time.

[2] One of the things that I have seen from looking at your file, and hearing from Mr Annandale and Mr Hamblett, is that there have been some offences committed while you have been on bail. There have been times when you have breached conditions of your bail, and the last time that you breached your bail was last week. You did not make any further application for bail and you were remanded in custody

_{until today, which is your sentencing date.}

R V KATU DC HAM CRI-2011-073-000649 [12 March 2012]

[3] I want to talk a bit about offending that brings you to Court. I have had an opportunity to look through the summary of facts, and the three burglaries that you appear on today are significant burglaries.

[4] In September of last year you carried out a burglary, with a co-offender who was a little younger than you, at a local business in Te Kuiti. This business suffered huge inconvenience and loss as a result of your behaviour, and your co-offender’s. There were lots of items taken, toolkits, computer hard drives, monitors, cash, rugby world cup supporters’ clothing, spray paint and damage caused. I have a document which tells me about the damage caused, and the amounts that are asked from you and your co-offender for reparation, in respect of that and your half share comes to about $2700.

[5] There was a burglary a short time later, on 29 September. You and a co-offender went to the Te Kuiti High School. You went into several rooms in the school and tried to remove a projector. Damage was caused to different parts of the school, and there was also damage caused to some of the students’ work, and that has been referred to as tagging on photographs.

[6] You told the probation officer that you were not involved in that, and that your co-offender or co-offenders were. That is one of the downsides of being involved in a burglary. You are in effect responsible as they are for that whole behaviour. I have read a victim impact statement from some of the students who used one of those rooms, and they were really upset at the way in which someone from the community behaved towards their stuff and their school. The damage caused, I have had referred to me as well, and your half share is $600 and that is for the projector.

[7] The next incident in time is in fact the robbery, but the police did not find out that you were responsible until a little later. They had in fact gone around to your house and found a laptop that had been taken, and you had received that. You said that you were going to buy it from somebody else.

[8] The robbery is the most serious charge that you appear on for sentence today and that happened on 18 November. On that day at about half past 11 in the morning, so during the day when there would be a fair few people around and about in Te Kuiti, you went to the Te Kuiti Post Shop on your bicycle. The Post Shop, as lots of Post Shops do, is also the place where Kiwibank is situated. At that time there were three employees working in there. There were also customers in the shop and one of the customers had a little baby that she was holding.

[9] You parked your bicycle nearby. You went in. When went in you had a hooded jacket. You pulled that over your head and you had a bandanna across your face and you were wearing gloves. You approached the counter. You walked up to the counter, past a customer, told everyone that you were committing a hold up, that everybody should get on the floor. You then put your hand in your pocket and pulled out plastic bags, which was fortunate. You were given just over $2000 in cash. You left the shop and rode off on your bicycle.

[10] The police became involved. You eventually admitted that you were the person responsible for that. When the police spoke to you about it, you said that there had been some planning. You had thought about it the day before, and the reason for getting involved in this was because you had a drug debt that you had to pay. You went there because you thought it would be a place where there would be a lot of money.

[11] The last matter in time involved a burglary, being in possession of burglary instruments, and also riding away from the burglary on your bicycle. On this occasion you went with someone else into the Laundromat in Te Kuiti and you were able to use a jemmy bar to get the coin trays off the washing machines. People came in and you pretended that you were there using the facility. However, you then left, and returned, but when the police were advised you then took off on your bicycle and the police gave chase. You were not caught then, but you did then go back and hand yourself into the police.

[12] All of these matters have now come to Court to be resolved. I have read all of the victim impact statements. I have talked to you about some already. I have

read all the victim impact statements from the people who were in the Post Shop. Some of those are people who were working there. Some of those are the customers.

[13] The people who were working there, as well as being pretty shocked themselves I am sure, said that they had received some training with what to do, but you can never really work out what is going to happen. They felt really concerned because there were other people in the shop who would not have had the training they had. But, having said that, this victim was stunned and took a few minutes to register what was going on. When you put your hand into your pocket there were people there who thought you were going to pull out a weapon, so at that point in time they were particularly fearful. Fortunately there was no weapon.

[14] I have also read the victim impact statement from the young mum who was in there with her baby. She said that she was not overly frightened because she could not see any weapons, but this is what she says. She, “Didn't know that for sure. It happened so fast it did not really sink in until you had left,” and she was more scared for her son than anything thinking about what could have happened. What she also said is, “You don’t expect this kind of thing to happen in Te Kuiti.” There were other people who were in the store as well, one of them in particular had to go back into the Post Shop later and could not get out of there quick enough because of the memories that that brought back.

[15] After all of that you were involved in a further burglary. The person who owned the Laundromat said that he has had to do a whole lot of things since. He had to get new equipment. He has had to increase security patrols. What he said was, “The Laundromat was there ready to benefit the community. It wasn't a really big business venture. It was there to help the community out in a sense.”

[16] Those victim impact statements should give you an idea of how much your behaviour, not just yours because you were with other people from time to time, has affected others. It is something that you really need to think about, if in the future you are considering doing something which you know to be wrong. You told me a little while ago that you do know how to be a productive member of the community, and that it is all peer influence. There might be mates or associates who suggest or

influence you do to things, but you have to make your own decisions and your own choices.

[17] I have also read your probation report. It is not the most positive report in the world. I suspect that when you were speaking with the probation officer you were showing a bit of bravado. It is clear to me that there are things that you need to make choices about in the future. It is clear that you have had some reasonably negative influences around you. You have talked about that, but you have got to make choices and good choices. You do have family who have been trying to support you, but not with a great deal of success so far, but you are fortunate that there are those people who are trying to get you on the right path.

[18] You are a young man. You have had work in the past, and it looks like it has been quite good work. One of the issues today is reparation. There is about $7,000 that is asked for as reparation. That is a lot of money. Mr Hamblett said that you have the potential to get work when you are released back into the community and that a reparation order could be made.

[19] What I would like to know from you is, are you willing to pay back in money terms the losses that you have caused to all of those victims. Reparation is an important part of sentence, and I do not often make reparation orders if there is absolutely no prospect of it being paid. But, but it seems that with the kind of work you have been able to get so far, even for being so young, that you should be able to pay some of the reparation at least.

[20] I need to talk to you about how sentence is to be imposed. You have been involved and accepted responsibility for robbery, which is the most serious charge. I say that that is the most serious charge, and I agree with Mr Annandale and Mr Hamblett, because while it has the same penalty as the burglary, it has with it something extra. You have taken property, but there was the suggestion of violence. Everyone in the Post Shop did what you asked them to do, because they were fearful. They saw the hand in the pocket. They wondered whether you had a weapon. It was the power of that suggestion that you talked about, so that is the most serious charge.

[21] I have heard from Mr Annandale, and he has talked about a Court decision, R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, which is a decision that looks at how sentences for aggravated robbery might be imposed. This is not aggravated robbery, but by looking at that case he has made a submission that your behaviour is similar to cases where there have been robberies of commercial premises, where you can expect people to be there, where there is the threat of weapons, where there are groups of people involved. It acknowledges that this is not an aggravated robbery, so taking back from a starting point of about, five years nine months to six years, he thinks that the starting point for your robbery should be about four years’ imprisonment.

[22] He also makes a submission that the burglaries which are significant should have an added sentence, and has made a suggestion that that might be around

18 months, given a decision R v Columbus (CA608/07, 27 June 2009) which he has referred to, and says also that there should be a recognition for the fact that you have offended while on bail, and you have breached your bail conditions, which shows an absence, a lack of responsibility.

[23] That all comes to a point before you would consider a guilty plea, and any other credits that are available to you, to just under six years’ imprisonment, so that is how serious your behaviour is.

[24] Mr Hamblett has asked that your robbery be treated a little differently. He acknowledges the circumstances that Mr Annandale has referred to, but he points out that in this case there was limited planning, you had no weapons and he thinks that your circumstances are more similar to robberies of small businesses or small shops, and suggests that I might start around two to two and a half years.

[25] He is suggesting that all of your offending should be dealt with concurrently, so he is saying all the sentences should be all imposed together, and with a guilty plea that you entered early, you should be entitled to full credit for that, also some credit of remorse and some credit for youth.

[26] His submission is that you would then be entitled to have home detention considered, and he asks that you be given leave to apply in the future for your prison

sentence to be cancelled if you are able to find an home detention address. So there is a bit of a difference between the Crown and Mr Hamblett.

[27] This is where I think things are at for you. The sentence today is to hold you accountable for your behaviour, and let you know that it is not okay to behave like this. It needs to take into account that the victims were, I think, quite significantly affected by your behaviour.

[28] These are the things that I think are important. On the robbery charge, which is the most serious charge, while I understand where the Crown say the starting point should be in my view, given the guidelines that R v Mako talks about, I think that the starting point is more properly around five years’ imprisonment.

[29] I do think that there needs to be a distinction, and because this is robbery and not aggravated robbery, and I consider that an appropriate starting point is two and a half years’ imprisonment. There are burglaries which are significant burglaries. I think that your circumstances are different to R v Columbus, but they justify your sentence being increased because they are significant burglaries. I think that on a two and a half year starting point there should be 12 months’ uplift for the burglary, so that takes us to three and a half years.

[30] I then think that there needs to be a small uplift, to acknowledge that you offended while on bail. You have breached conditions of bail, so I am going to uplift that again by three months, so that takes us to three years and nine months. You did plead guilty early. You are entitled to a full credit for that.

[31] I had a chance to read, not only the pre-sentence report but also an interview that you undertook, and that suggests that you really did not think too much about any of the victims. Having said that, I am prepared to accept that you have reflected a little, and you do feel some remorse. I am prepared to acknowledge that as well as your youth in a small way, so along with the guilty plea and the small signs of remorse and youth, I am going to deduct that by one-third in total.

[32] I then am going to step back and see whether this sentence offends totality in any way, because I have to take that into account. I am going to then decrease that by a term of three months. That should, if my maths is accurate, get me to an end point where I consider that the robbery justifies a sentence of two years and three months’ imprisonment.

[33] I will impose concurrent sentences on the burglary. That means they will start at the same time. On the burglary charges I impose sentences of nine months’ imprisonment. On the charge of escaping custody I impose a concurrent sentence of four months’ imprisonment. On the burglary instruments, two months and on the failing to stop I impose a conviction but no further penalty, given that is a fine only matter.

[34] I need to deal with the issue of reparation. Mr Katu, this is a lot of money,

$7,400. You are right, you could not pay that in one lump sum, but you could over a period of time. This will be a test really to see how responsible you can be. You have been able to get jobs. I am going to make a reparation order for that amount. It is a big amount for a young person, but it reflects the serious nature of this behaviour.

[35] What I am going to do is to make an order that you pay reparation at not less than $20 per week. That will not start however until you have been back in the community for eight weeks. That will give you an opportunity to get yourself back hopefully where you can be in receipt of work, so you can get a job. Failing that, you will have had to probably apply for a benefit, but I am hopeful that you will be able to get back into work.

[36] That reparation would need to be paid in regularly to the Court, and if you had work then it could be deducted directly from your pay, so you would not have to worry about that, but it is important that it be regular and you keep the payment arrangement up.

[37] Mr Katu there is one other thing I must do. Mr Katu I have to give you what is called a strike one warning, and that is because you have now been convicted for

robbery. You are, because of that conviction, subject to the three strikes law and I am 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 and on that written warning it will have a list of what are called the serious violent offences.

[38] This is this warning. If you are convicted of any serious violent offences 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. 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.

[39] My hope is that you will choose to do things differently on your release and not get yourself into the predicament where you made choices to commit offences like these.

D C Clark

District Court Judge