R v Elliott [2016] NZDC 15086 (5 August 2016)

Last Updated: 1 December 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT HAMILTON

CRI-2015-019-003516 [2016] NZDC 15086

THE QUEEN

v

DONNA LEIGH ELLIOTT AROKA RAWIRI

Hearing:	5 August 2016
Appearances:	D McWilliam for the Crown G Walsh for the Defendant Elliot G Boot for the Defendant Rawiri
Judgment:	5 August 2016

_{NOTES OF JUDGE K B F SAUNDERS ON SENTENCING}

[1] Donna Elliott and Aroka Rawiri are for sentence today on 27 charges, a charge of burglary and 26 charges of using or attempting to use a document. Ms Elliott also faces a charge of possession of utensils. I can indicate now on that charge, Ms Elliott, you are convicted and discharged.

[2] The circumstances surrounding your offending are that at about 2.30 am on

7 June 2015 you both went to the Desire Gentlemen’s Club in Victoria Street. You disguised yourselves with face masks and you confronted a female member of staff. She felt threatened by your presence. You went through the premises. You stole property, including a laptop, handbag and its contents and you then left. Within

15 minutes you began using four credit cards that were in a wallet that was stolen or attempted to use each one of those cards at various stores throughout the region.

[3] There are aggravating factors to the offending I find as follows. It was premeditated. You did target the premises. You entered at night and there of

R v DONNA LEIGH ELLIOTT [2016] NZDC 15086 [5 August 2016]

course were two of you making multiple offenders. You did confront the occupant as I have said. The person who was there felt threatened and you did wear disguises.

[4] As to an appropriate starting point, the Crown takes the position that given those aggravating factors a starting point of around 18 to 20 months is appropriate and likens this offending to confronting someone in a domestic burglary and by reference to R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) it is akin to robbery of a small retail shop and menacing conduct involving a street robbery.

[5] From that the Crown submits an uplift of six to nine months for the dishonesty offending and six months for both of you in terms of your previous convictions which for you Ms Rawiri include receiving, two charges of burglary in

2008 and numerous shoplifting. For you Ms Elliott it is acknowledged that your previous involves more breaching of Court orders but nevertheless you also have dishonesty offending. The Crown, however, does accept that approaches had been made to resolve this matter earlier so as to warrant a credit for a guilty plea in the region of 20 to 25 percent and there are other matters that the Crown also acknowledges in terms of mitigation.

[6] I will deal with you first, Ms Elliott, and the issue really for me is whether I can accept as genuine the submission put forward by Mr Walsh that you now say enough is enough and that you are genuinely motivated to turn your life around to have your children back and the move to Whanganui is the reason for your motivation to in fact succeed.

[7] Mr Walsh submits that you are lucky to have the support of your brother and you are motivated to make the very real changes that have led the writer of the pre-sentence report to recommend intensive supervision with judicial monitoring and a period of community work. He puts a starting point at the low end of the Crown range of 18 months’ imprisonment with the various uplifts he acknowledges, but in terms of mitigation he refers to the seven months you have spent on electronically monitored bail, a period of time in custody and with the other appropriate discounts submits that essentially you have in fact served any appropriate sentence so that the least restrictive sentence is one of intensive supervision with judicial monitoring.

[8] Ms Rawiri, you are not in the same position as Ms Elliott so there is reason for disparity of sentence between the two of you. Mr Boot on your behalf acknowledges that the only appropriate sentence for you today is a sentence of imprisonment given you are currently in custody on other matters. He gets to an end sentence of around 14 months’ imprisonment having regard to all of the relevant factors including, he submits, an end starting point of 18 months’ imprisonment.

[9] This offending was serious in nature and the victim did rightly feel threatened confronted in the early hours of the morning by the pair of you with disguises, leather masks on your face. There was a degree of planning to this offending. There is no doubt about that. It was not impulsive or spontaneous offending. You likely knew that members of the public would be present there. The Crown does not seek reparation for your subsequent spending spree which was about $985 in total.

[10] There is no tariff for burglary, there is no guideline judgment, but I do accept what the Crown has identified as being an appropriate starting point of 20 months and I adopt that starting point for both of you.

[11] I do consider that the use of the credit cards and the spending spree thereafter warrants a discrete uplift of six months’ imprisonment. The previous history for the pair of you in terms of personal aggravating factors warrants a two month uplift.

[12] From there I do give you both a significant discount for your guilty plea and for other matters that have been drawn to my attention.

[13] The end result, Ms Rawiri, for you is a sentence of imprisonment for 16 months. The standard release conditions apply until six months after the sentence expires together with the special release conditions which are set out in the pre-sentence report and that is to attend and complete a departmental programme or counselling as may be directed and any other programme, counselling or relapse prevention programme as directed. I should add that in coming to that end sentence I have considered totality and whether an adjustment was warranted for totality, but I have come to the conclusion that 16 months’ imprisonment for the totality of this offending is within the appropriate range. That is the sentence in respect of all charges.

[14] For you, Ms Elliott, sentencing gives me more cause for concern because I really am at the point where I have to acknowledge that you do appear motivated but is the culpability of your offending and the purposes of sentencing which must be to deter and to denounce, can all of that be met by a least restrictive sentence of intensive supervision with judicial monitoring?

[15] I have come to the conclusion, Ms Elliott, that I will give you the benefit of the doubt and I will sentence you on that basis, but you know yourself any further offending and you will not be dealt with in any similar fashion at all. You will be in custody and no ifs, buts about it, so I am giving you the benefit of the doubt, Ms Elliott. It is entirely up to you whether you choose to accept that or not. I sincerely hope you do.

[16] Your brother is present in Court and I am sure that he will do all he can to ensure that you do remain motivated and on track, so in respect of the sentence I impose for you on all matters you are sentenced to 12 months’ intensive supervision with judicial monitoring. Now that means I will get reports as to your progress. Any report that is unfavourable, Ms Elliott, can see you brought back before me to be dealt with and the recommended special conditions are set out in the pre-sentence report. That is addressing your alcohol and drug abuse so complete any assessment and programme, any other departmental rehabilitative programme that is appropriate and any other counselling to address your offending behaviour.

[17] You are not to associate with your co-defendants at all, that is all three of them and you are not to possess and/or consume alcohol or other drugs.

[18] You are also sentenced to community work for 160 hours on the charge of burglary.

K B F Saunders

District Court Judge