R v Matangi [2016] NZDC 17731 (9 September 2016)

Last Updated: 1 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT ROTORUA

CRI-2016-063-001889 [2016] NZDC 17731

THE QUEEN

v

_{TANYA WIKITORIA MATANGI}

Hearing:	9 September 2016
Appearances:	M Jenkins for the Crown M Simpkins for the Defendant
Judgment:	9 September 2016

_{NOTES OF JUDGE A J S SNELL ON SENTENCING}

[1] Ms Matangi, you are for sentence on one charge of aggravated robbery. The maximum penalty for that is 14 years imprisonment.

[2] The offending occurred on 13 May this year when a local superette or dairy in Tokoroa was the subject of the aggravated robbery. The victim involved was a

52 year old female who worked as a part-time assistant in the superette. At about

4.50 pm, you and two associates entered the superette. You had your faces covered and were wearing hoods to conceal your identities. At the time the victim was in the private staff area at the rear of the shop when she heard the sensor sound, alerting her that a person had entered the shop. She walked from the back of the shop towards the counter and was confronted by one of the offenders and was immediately punched to the face. The force of that punch caused the victim’s nose to explode with blood and for her to fall backwards onto the floor. She offered no resistance

_{whatsoever, but whilst lying on the floor as the robbery took place, received a kick to}

R v TANYA WIKITORIA MATANGI [2016] NZDC 17731 [9 September 2016]

the head from one of the other offenders. The offenders have then proceeded to remove tobacco and cigarettes from the cabinet behind the shop counter. Scared for her safety, the victim managed to escape out of the rear of the shop to avoid any further attack. The offenders have run from the shop and have been seen to drop items and then pick them up. They were last seen on Pohutukawa Drive, running in a southerly direction. The victim suffered from a broken nose, a cut to the bridge of her nose, a bruised and swollen left eye, a small cut to the crown of her head, and abrasions to other parts of her body. When you were apprehended on this matter, you declined to comment to the police.

[3] You come before this Court with no previous adult convictions. At the time of this offending, you were just 17 years old. I am aware, and your counsel has provided some very helpful information, that you have had quite a lengthy history within the Youth Court and within the system for various matters, but today, you are treated as you come before this Court, which is with no previous convictions at all in the adult Court.

[4] I have a victim impact statement and I think that it is important to refer to that because the offending has had a profound effect on this victim. The first thing that she says is that she had only worked in the shop since January 2016 and she only worked part-time. She indicates that she would never have put up a fight to anybody who wanted to steal anything from the shop. She would just simply let them take it. She knew it was not worth the risk, but on this occasion, she was not even given the chance to do that, she was simply assaulted immediately. She was not given the opportunity to defend herself or to remove herself from the situation. And even while she was still not resisting, lying on the floor with a broken nose and bleeding, she was then further assaulted by the kick in the head. She struggles with that a lot and believes that that was somehow personal, or targeting her, because at that time, it could not have even been considered that she could have raised the alarm. She was not resisting, was not doing a thing.

[5] She talks about the fact that when she was punched initially in the face, that her nose exploded, there was blood everywhere, and the force of that blow knocked her back onto the floor, so she was actually knocked down. Her nose was broken

and she has had to have specialist appointments to deal with that and they are going to need to operate to get her breathing back to normal because she cannot breathe through it at the moment, given the severity of the break.

[6] Since the attack, her whole life has changed because she was someone that suffered with depression and this event has caused that depression to resurface and has made it much worse. She did not feel safe enough to leave the house that she shared with her husband, she was frightened. She was frightened to venture out to the shops and would only go if accompanied by someone else and she found herself looking at the ground all the time. All of this put extra stress on the relationship and that relationship has now ended and she has felt the need to leave Tokoroa and has now moved to an address in the South Island, simply because she could not bear the thought of walking around in Tokoroa and that the offenders may see her and do something else to her. I think that even now, she expresses that she has some difficult days fearing that she get attacked or assaulted and she comments that she applied for a job, got a job, but was not able to start because she was simply so fearful of being attacked again serving in a shop.

[7] So, what I need to emphasis to you is that these actions do not just affect yourself and your co-offenders, they affect other people and in this case, the affect is a very profound one and it has had quite a debilitating and life-long affect on this victim.

[8] I have a pre-sentence report. This is dated 9 September and it simply starts by saying that you have no previous history in the adult Court. You acknowledge having made several previous appearances in the Youth Court and that you have been a resident in a range of youth justice institutions as a result. The present offence is a continuation of your self-reported criminality as a juvenile.

[9] The pre-sentence report identifies your offending factors as your attitude of entitlement. That attitude enables you to predate on society. You have criminally supportive associates with whom you offended on this occasion and there is a concern about your abuse of methamphetamine and glue. The report describes you as highly institutionalised through your experience of juvenile institutions and either

not willing or unable to comply with most of the sanctions that have been imposed upon you and that was a point that your own counsel brought out today, saying that it was unrealistic to look at home detention today.

[10] They assess you as a medium risk of re-offending and a medium risk of causing harm to others. It describes you as being a woman who appears to have become alienated from society as a result of your experiences during your formative years, and it describes a number of very personal issues to you which have affected you deeply and it says that there are clearly some unresolved grief issues. The final recommendation in the report is one of imprisonment and, if appropriate, sentencing conditions to assist you in your rehabilitation.

[11] I have received very detailed submissions from your counsel. They have been expansive and covered off many areas of your background, where sentencing should go, and I have been supplied by your counsel with a number of sentencing decisions to support different submissions that he makes on your behalf. I have also been provided with helpful submissions from the Crown and I have been provided with a report from the Te Ara Kaupare Midland Youth Forensic Service that was prepared in relation to you on 4 April, which has provided significant, insightful background as to your history, your upbringing and some of the things that have occurred to you. All of that has been helpful and all of that provides me with additional information which I take into account.

[12] In terms of sentencing you today, I need to take into account both ss 7 and 8

Sentencing Act 2002. In particular, in terms of the purposes of sentencing, I need to hold you accountable for your offending, promote in you a sense of responsibility for that offending, uphold the interests of the victim of the offence and sentence you in a way that denounces this type of offending and behaviour, and deters others from offending in this way.

[13] In relation to the principles, I need to sentence you consistently with appropriate sentencing levels for similar offending and take into account the effect of the offending on the victim. I remind myself I need to impose the least restrictive outcome that is appropriate in all of the circumstances, and in accordance with the

hierarchy of sentences that I have available to me. I also need to take note of any particular circumstances of you that mean that an otherwise appropriate sentence would be disproportionately severe.

[14] Aggravated robbery has a tariff case and that is called R v Mako1 and I would imagine that your counsel has been through that case with you and that sets out the

_{various tariffs that apply to the various types of aggravated robberies.}

[15] In your particular case, there are a number of features that apply. The first of those is that there were multiple offenders. There were three in total. The second is that there was actual violence meted out and that was also an attack to the head; the punch and the kick. There is the victim vulnerability. The woman offered no resistance, was never going to stand in the way of this robbery, and was simply attacked and then quite gratuitously further attacked once she was defenceless and lying on the ground. There is the impact upon the victim. She received a broken nose. She is going to need corrective surgery and I am sure that your counsel would have shown you the photographs of her injuries, or he will show you them afterwards if he has not, but they show the damage that was done to this woman. There is the fact that you wore disguises and that leads to the final factor that I take into account and that is that there is at least, at some level, premeditation. While the robbery here was relatively unsophisticated, it was premeditated to a degree because you had the forethought, or foresight, to wear the disguises and to have them on

_{when you entered the premises.}

[16] This fits in with the small retail shop as identified in Mako. That is contained in paragraph [56] of that judgment and that simply says this:

“A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other

1 R v Mako [2000] NZCA 407; [2000] 2 NZLR 170

property is taken five years, and in bad cases six years, should be the starting point.”

[17] In this particular case, taking into account all of the aggravating features that I have raised and identified, I take a view that the appropriate starting point is one of four and a half years imprisonment. I do that, and make that starting point, which is less than what your own counsel submits, because there were no weapons taken into the premises that have been identified. If there had been weapons, the starting point would have been five years.

[18] I then turn from that starting point and I look to see whether there are any aggravating features personal to you that would uplift that starting point of four and a half years. My understanding from the papers that I have in front of me is that the offending was committed whilst you were on bail for a separate unrelated aggravated robbery and this factor requires an uplift for that of six months to the five year point. That is the only aggravating feature that I have identified.

[19] I turn then to mitigating matters for you personally and there are considerable mitigating matters that require a substantial discount for you. The first is your youth. It is absolutely accepted that you were 17 years old. This is your first episode in the adult Court. There are a host of other matters that your counsel has identified that come out of the forensic services report and the pre-sentence report relating to your background. These include the fact that you had a family history of transience across caregivers in your early childhood years, that you grew up around severe chronic family violence, including potential sexual abuse and drug and alcohol abuse, and that you were taken into Child, Youth and Family care at 12 years old and that you have attended 10 different schools between the ages of nine and 12, that you have a history of polydrug and substance abuse, that there are matters of sexual experience that you have had at a very young age, that you have some history of post-natal depression and that you possibly suffer from a depressive disorder.

[20] You also have given some assistance to the authorities which Mr Jenkins confirmed today and I assess all of those matters as being relevant as personal aspects that you are entitled to a substantial discount from your sentence.

[21] For all of those matters, I calculate the discount as being one of 40 per cent. That reduces the five year starting point by two years down to three years. From there, you are fully entitled to the full discount for your early guilty plea. That is a discount of 25 percent. That equals nine months further from the three years that we had reached and that leaves a final sentence for you on this aggravated robbery charge of two years and three months imprisonment.

A J S Snell

District Court Judge