R v Doughty DC Wellington CRI-2011-091-3877 [2012] NZDC 490 (30 March 2012)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT WELLINGTON

CRI-2011-091-003877
CRI-2011-091-003878
CRI-2011-091-003592
_{CRI-2011-091-003621}

THE QUEEN

v

KACUWAQA JORDON DOUGHTY ROTULEVU LAITAIANULA CAMA WEST LAUVI

DAVID ARTHUR WILLIAMS

Hearing: 30 March 2012

Appearances: S Barr for the Crown

J Murdoch for the Prisoner Doughty

J Blathwayt for the Prisoner Cama

C Smith for the Prisoner Lauvi

L Brown for the Prisoner Williams

Judgment: 30 March 2012

_{NOTES OF JUDGE B DAVIDSON ON SENTENCING}

[1] In early October 2011, 2 fast food outlets in Porirua were robbed.

[2] All 4 of you were involved in the first, which occurred around 9.00 pm on 2

October 2011. Three disguised and armed men entered the premises and 2 wrestled the cash register free, stealing $300 and damaging the register itself. You, Mr Cuma, acted as a lookout, but you threatened the victim when he tried to become involved.

_{You, Mr Williams, drove them there and away. Afterwards the cash was shared.}

R V DOUGHTY & Ors DC WN CRI-2011-091-003877 [30 March 2012]

[3] The victim impact material indicates that the shop proprietor had been robbed before, but this was the first time with weapons. At the time he was very frightened. He has since attended a restorative justice meeting with 3 of you, has accepted apologies and asked the court to impose a sentence towards the lower end of the scale.

[4] Three of you were involved in the second robbery, which occurred 3 days later, around 1.00 am on 5 October 2011. On this occasion, you, Mr Lauvi, drove Mr Cama and Mr Doughty to the second premises. They both entered, again disguised and armed. Again, the cash register was wrestled free. Again, you, Mr Cama, threatened the proprietor, this time with a golf club. You all left in the vehicle driven by Mr Lauvi. The proceeds were largely recovered, although the cash register was unusable.

[5] The victim impact statement indicates the shop proprietor was completely taken by surprise and unable to gauge his feelings. Nevertheless, it must have been a frightening incident.

[6] So, in each case the shop proprietors were outnumbered, surprised and vulnerable.

[7] So, in summary you, Mr Cama, appear for sentence on 2 charges of aggravated robbery, one as a principal, one as a lookout. On both occasions you were carrying weapons which you used threateningly. You, Mr Doughty, also appear for sentence on 2 charges of aggravated robbery, both as a principal offender; on both occasions you were carrying a weapon. You, Mr Lauvi, appear for sentence on

2 charges of aggravated robbery, one as a principal where you were armed, the other as a party where you were the driver. You, Mr Williams, appear for sentence on 1 charge of aggravated robbery, as a party by driving.

[8] Both owners were also affected financially and inconvenienced in the running of their businesses. Reparation is sought for the unrecovered cash, the unusable cash registers and emotional harm.

[9] You, Mr Cama, have no previous convictions. Mr Doughty, you have a previous conviction for drink driving; Mr Lauvi, a previous conviction for driving while disqualified and driving with a sustained loss of traction. You, Mr Williams, have a fairly limited list of previous convictions, nevertheless, the most of any of you, they span a 6 year period from 2001 to 2007.

[10] Three of you are very young. You, Mr Williams, are significantly older and I

am told the uncle of 2 of the others. Mr Cama, you are the youngest, now aged 18,

17 at the time of the offending. You, Mr Doughty are aged 19. Mr Lauvi, 21. Mr Williams, you are aged 30.

[11] You, Mr Cama, live with your mother and a younger brother in accommodation suitable for home detention. Your other brother, the defendant Doughty, lives next door because of friction between you both. You accept responsibility for reparation and you are willing to undertake counselling for your undoubted cannabis addiction. You participated in a restorative justice meeting, you are remorseful, you are apologetic.

[12] You, Mr Doughty, had a promising future until a few years ago as an apprentice. Since then your life has been blighted by the misuse of drugs and associated mental health issues. You have undertaken some counselling and residential treatment, both before this offending and since. You live with your grandmother, but no consent is available for use of the premises for home detention. I have read the psychiatric report. You likewise attended the restorative justice meeting, are remorseful, apologetic, willing to pay reparation and engage in whatever rehabilitation programmes I should direct. On your behalf it is asked that you be given permission to apply for a sentence of home detention, if and when a suitable address became available.

[13] You, Mr Lauvi, are 21. You are single, you live with your grandmother and other relations, including a cousin who is currently on release conditions. The accommodation is suitable for either of the electronically monitored sentences of home or community detention. Home detention does not sit readily with your employment. Likewise, you have issues with alcohol and associations. Likewise,

you attended restorative justice. You are remorseful, apologetic, willing to pay reparation and engage in whatever rehabilitation programmes I should direct.

[14] You, Mr Williams, as I have mentioned, are the oldest. You are aged 30, separated with a partially dependant child. You have good employment as a stevedore. You live with your parents in accommodation which is suitable for either of the electronically monitored sentences of home or community detention, but again, home detention does not sit readily with the nature of your work. The probation officer believes that your involvement came about because of a lack of clear thinking. You accept, as the elder of the group, that you should have argued more forcefully against your own involvement and indeed, against the first robbery taking place. Initially you were reluctant to be involved: but became involved as the driver. Later when you learned the police had become involved you handed yourself in. You are said to be remorseful. You were unable, for perfectly understandable reasons, to participate in a restorative justice meeting.

[15] As I have mentioned, 3 of you participated in the restorative justice meeting, with a representative of the first victim. I have already mentioned that it was indicated that an apology would be accepted and that a lenient approach to sentencing should be adopted.

[16] The aggravating features are self-evident. On the first occasion, 4 of you acted together. On the second occasion, 3 of you acted together. On both occasions you were disguised and armed, weapons were displayed and brandished. There was an obvious degree of planning and premeditation. Although the property taken was of a relatively limited value, nevertheless, it would have bought about a significant disruption and an inconvenience to the shop proprietors. The offending has had a significant affect on the victims, who of course were alone and vulnerable at the time.

[17] By way of mitigation, all of you have pleaded guilty. Three of you are relatively young, particularly you Mr Cama. Three of you have good records. Three of you have participated in restorative justice. All of you are remorseful, apologetic,

willing to pay reparation, willing to engage in appropriate rehabilitation programmes.

[18] The Crown submit that any one of the aggravated robbery charges in itself would warrant a starting point of around 5 years’ imprisonment. The Crown submit that here there were 2 robberies of fast food outlets at night by a group who were disguised and armed. The Crown submit that for any fully involved in both, an overall starting point of 6 years’ imprisonment would be warranted. The Crown submit that no distinction at all should be drawn between different roles in the offending, each of you playing a vital role.

[19] As far as you are concerned Mr Williams, The Crown accept obviously you were involved in only one aggravated robbery, nevertheless, the Crown seek a starting point for you of 5 years’ imprisonment.

[20] As between the submissions put forward on behalf of Mr Doughty and

Mr Lauvi, there is common thread of an overall starting point of somewhere between

4 to 5 years. On your behalf, Mr Cama, a lesser starting point is suggested.

[21] On behalf of each of you, your pleas of guilty are emphasised. Your age, in respect of the 3 of you who are young, your remorse, your participation in restorative justice, your willingness to pay reparation. In each case, the nub of the submission is that the mitigating features, when set against a starting point of somewhere between

4 to 5 years, would be sufficient to reduce the end sentence to the range where home detention could be considered and imposed.

[22] As is well known, aggravated robberies of small commercial premises are epidemic. There has been a consistent deterrent approach in New Zealand. Where here, groups organise and plan a robbery, disguise and arm themselves, enter premises at night where a shopkeeper is alone, surprised and vulnerable, brandish and threaten with weapons, imprisonment with a starting point of around 4 years would be unremarkable. As well, any review of sentencing of such cases shows that little distinction is drawn between different roles within the offending. A driver or a lookout is as culpable as those who enter the premises.

[23] In my view, for any offender involved in both aggravated robberies, the starting point must increase. To my mind, the starting point for involvement in 2 aggravated robberies must sit at 5½ years’ imprisonment. Anything less, in my view, would be plainly inadequate.

Mr Cama

[24] Mr Cama, the starting point that I adopt for you is imprisonment of 5½ years. You are entitled to a credit for your age, for your remorse, for your participation in the restorative justice programme, your apology, your willingness to make amends. All of those mitigating features, I would fix at 21 months’ imprisonment. You are then entitled to a credit for your plea of guilty. That credit would be such that the end sentence exceeds the end sentence available for consideration of home detention. In your case you will be sentenced to imprisonment for 2 years and 4 months.

[25] Mr Cama, on each of the 2 charges of aggravated robbery, you will be sentenced to imprisonment for 2 years and 4 months. On the first aggravated robbery charge, you will be ordered to reparation of $380. On the second, you will be ordered to pay reparation of $600.

Mr Doughty

[26] The starting point which I adopt for you Mr Doughty is exactly the same. The various credits are exactly the same. Although you are older than the defendant Cama, you are still relatively young. You, likewise will be sentenced to imprisonment for 2 years and 4 months.

[27] On each of the 2 charges that you face Mr Doughty, you will be sentenced to imprisonment for 2 years and 4 months.

[28] In relation to the first aggravated robbery, you will be ordered to pay reparation of $380. In relation to the second, reparation of $600.

Mr Lauvi

[29] Mr Lauvi, the starting point which I adopt for you is exactly the same. The credits which I extend to you are exactly the same. The end sentence to be imposed upon you is imprisonment likewise for 2 years and 4 months.

[30] Mr Lauvi, on each of the charges of aggravated robbery, you are sentenced to imprisonment for 2 years and 4 months.

[31] In relation to the first, you are ordered to pay reparation of $380. In relation to the second, reparation of $600.

Mr Williams

[32] Mr Williams, you of course appear for sentence only in relation to one aggravated robbery. There is mixed evidence before me about whether you may have been more of a driving force behind these robberies than is apparent at first blush. However, the evidence is mixed and not of sufficient cogency for me to come to that conclusion. Nevertheless, I have to say I am left with that suspicion deep in my mind.

[33] The starting point I adopt for you is imprisonment of 4 years. You are entitled to a small adjustment for your degree of lesser involvement. Although you were a driver to and from the premises and in normal circumstances a person who would be regarded as having full participation you only became involved, on the material before me, very much at the last moment. I give you a credit for your remorse, your willingness to attend the restorative justice process and your apology. You are also entitled to a full credit for your plea of guilty. All of that would lead to an end sentence of 2 years’ imprisonment.

[34] The crucial issue is whether it can and should be commuted to home detention.

[35] In the end, that decision is one of exercise of a judicial discretion. It must be based on reasons. I openly acknowledge that a part of me is tugged not to give you

home detention because I think you are more deeply involved than you have let on, but they are personal thoughts that I simply cannot support in a reasoned basis, as far as sentencing is concerned. There is nothing to contraindicate home detention, other than, of course, the nasty taste it leaves that you serve home detention while your 2 nephews and friend go to prison. Nevertheless, you will be sentenced to home detention.

[36] Mr Williams, you will be sentenced to home detention for 9 months. There is no parole or early release from such a sentence, so 9 months’ home detention is the equivalent of a significantly longer sentence of imprisonment. The home detention residence is at 1 Komata Grove, Waitangirua. You are to travel directly to that address upon leaving Court today and co-operate in the installation of the electronic monitoring equipment.

[37] There are no post-detention conditions.

[38] You are also sentenced to complete 220 hours’ community work.

[39] You are ordered to pay reparation of $380.

Reparation

[40] I make it clear that the reparation orders are made up on the following basis. As far as the first victim is concerned, total reparation of $1,500, including an emotional harm component of $400. As far as the second victim is concerned, total reparation of $1,780, which includes an emotional harm reparation component likewise of $400.

B Davidson

District Court Judge