R v Lawrie [2016] NZDC 26262 (21 December 2016)

Last Updated: 3 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-008603 [2016] NZDC 26262

THE QUEEN

v

_{JAMES MCCULL LAWRIE}

Hearing:	21 December 2016
Appearances:	L Clancy for the Crown W McNicol for the Defendant
Judgment:	21 December 2016

_{NOTES OF JUDGE D J McNAUGHTON ON SENTENCING}

[1] James Lawrie, you appear for sentencing on 12 charges of aggravated robbery and three charges of assault with intent to rob. This was a spree of offending between 30 May and 28 July this year. Your modus operandi was to park a block away from the intended target. You would carry either a knife or a pistol. You would walk into the premises demanding cigarettes and cash. You would have with you a black carry bag which you would get the victims to load with cash or cigarettes. It was apparent to the police that the robber was wearing the same pair of black shoes with a white trim and orange sole, a distinctive glove on the left hand

_{and a particular sweatshirt.}

R v JAMES MCCULL LAWRIE [2016] NZDC 26262 [21 December 2016]

[2] These were robberies of dairies, petrol stations and one involved a Budget Travellers Inn in South Auckland. Two of those robberies involved a degree of violence. At the Othello Superette you were chased from the store by one of the employees carrying a broom. You turned around and lunged at him. He was cut on the hands superficially and in another robbery at the Poonam Dairy in Papatoetoe, after handing over the money and cigarettes, the shopkeeper tried to grab your bag. You tackled him to the ground, punched him a number of times about the head and body. He received bruising to the face and body and a chipped tooth. In the course of that struggle you lost your scarf which was later analysed and the DNA profile matched yours.

[3] The aggravating features relied on by the Crown in respect of the robberies were a degree of planning and premeditation, the use of these weapons, being a knife and an imitation pistol, actual violence involved in the two offences I have just mentioned, fourth, the quantity of property stolen which in total amounted to

$30,000 in cash, cigarettes and other property and finally the impact on the various victims and a very large number of victim impact statements have been filed by the Crown and one of the victims, I understand is present today with the officer in charge.

[4] I am not going to repeat the various submissions that were made to me during that indication hearing regarding the appropriate starting point by prosecution and defence counsel or the various cases that they took me through. I said that I agreed with the Crown’s assessment that, broadly speaking, the appropriate sentencing range for each of the individual charges was somewhere between three and a half and five and a half years’ imprisonment. I said combining 15 separate sentences for the 15 separate charges on a totality basis was a completely unscientific exercise and it would be open to the Court to choose a number somewhere between 10 and

20 years’ imprisonment but I said that on a combined basis the starting point would have to be higher than the starting point set out in two of the cases referred to me in

_{submissions, being R v Lisiate}1 _{or R v Davis}2_{, decision delivered 19 March 2001.}

1 _{R v Lisiate CA35/03, 4 December 2003}

2 R v Davis CA472/00, 20 March 2001

[5] The Crown was seeking a starting point in your case as high as 16 or even

18 years’ imprisonment. I said I preferred to approach the sentencing exercise on the basis of the minimum appropriate sentence because at a certain point the number of extra charges was not going to increase the otherwise appropriate sentence or starting point. At a certain point the curve on the graph would flatten out and seen in that way it seemed to me the minimum appropriate sentence was 12 years’ imprisonment. I said that sentences above that level are reserved for the most serious violent offending, usually committed by offenders with a significant track record of serious violence and terms of imprisonment, and usually involving severe trauma and injury to the victims and I said your offending was simply not in that league.

[6] I said I would discount the starting sentence of 12 years’ imprisonment by

25 percent to reflect early pleas of guilty if this indication were accepted and a further 25 percent to reflect your previous good character and your lack of previous convictions. That would result in an end sentence of six years’ imprisonment. I said I was not persuaded to impose a minimum term. So far as deterrence was concerned I said I seriously doubt we would ever see you back before the Court again. I said as to general deterrence of aggravated robberies in South Auckland, that is now at epidemic levels, at the rate of two a day. I said I seriously doubted that a severe sentence in your case was going to deter anyone out there already doing it from committing that type of offence. I said the only reason for imposing a minimum period of imprisonment now would be to denounce the offending and perhaps that is appropriate but I would require further argument before I did that. I said, equally, it could be left to the Parole Board at their discretion as to when you should be released. You accepted the indication and pleaded guilty.

[7] There was a referral for restorative justice. All of the victims have declined to participate in a conference, as is their right. I have a pre-sentence report. You have explained to the probation officer what led to this spree of offending. Your relationship had ended, your ex-partner had left and cut all contact with you, taking with her your two year old son with whom you had a very strong bond. You describe him as your life. You have told the probation officer that you spent some time looking for your son, including time off work. You were unable to find him. You became depressed. An acquaintance introduced you to methamphetamine and you

quickly became addicted and you were committing these robberies essentially to fund your drug addiction.

[8] You are in another relationship now. You have been with your current partner for two years. You describe her as a positive influence in your life. You are unemployed. You say in some ways you are relieved that you got caught and that the remand in custody has forced you to deal with your drug addiction. You have written an apology letter which Mr McNicol has given me this morning. You describe all of this as the biggest mistake in your life. You wish to apologise to the victims for the trauma you have cause them. You explain again how this all came about, losing your partner, your son and your employment. In addition your sister ripped you off. You say you hit rock bottom. You were given some methamphetamine and you quickly became addicted. You describe adapting to prison life as very difficult. You never ever want to go back to jail and if you were given the opportunity in the future you would like to work with at-risk youth so that they do not make the same mistakes that you have.

[9] If this offending were at a lower level, if the sentence were anywhere near two years’ imprisonment, I would seriously have considered perhaps bailing you into a drug treatment programme but, given that it is six years and home detention is really out of the question, treatment for your addiction is going to have to be dealt with in the course of your sentence in a drug treatment unit and that would happen towards the end of your sentence but, given what you are saying here in this letter and given your completion of a CADS course in prison and that you have a responsible position in the kitchen, all the signs look fairly good for your rehabilitation within the prison system and I would have thought if you can complete the drug treatment unit, convince the parole board that methamphetamine abuse is not an issue, you stand a reasonable prospect of early release.

[10] None of that is going to alter the sentence I indicated, though. It has been discounted to the absolute maximum, as much as I possibly could, and so the sentences imposed are as indicated, six years’ imprisonment on all charges. Those sentences run together so the effective sentence is six years’ imprisonment. [Mr Clancy: Sir, can I also ask for orders for destruction of two items seized

under the Search and Surveillance Act, the pistol and also a glass methamphetamine pipe?] Yes. [Mr McNicol: Sir, it’s a little unclear, I’m just wondering if the Judge’s notes, Sir, from 4 November indicate that a warning was given, Sir] Yes, by Judge Andrée Wiltens. Right, I have recorded the order for destruction as well so that is it, Mr Lawrie. Stand down, thank you.

D J McNaughton

District Court Judge