R v Smith [2016] NZDC 4264 (3 March 2016)

Last Updated: 10 August 2016

IN THE DISTRICT COURT AT AUCKLAND

CRI-2015-004-006571 [2016] NZDC 4264

THE QUEEN

v

_{ROMEO SMITH}

Hearing:	3 March 2016
Appearances:	M Hardy for the Crown P Dean for the Defendant
Judgment:	3 March 2016

_{NOTES OF JUDGE D J SHARP ON SENTENCING}

R v ROMEO SMITH [2016] NZDC 4264 [3 March 2016]

[1] Mr Smith, today you are for sentence in relation to matters which I gave you a sentence indication on, together with three previous matters which you are for re-sentence on in respect of the matters in that you were originally sentenced to home detention, but that there was a breach of that sentence and it comes back to be looked at again.

[2] You are now 18 years old and your offending has involved most serious types of offence. The robbery matters which you were originally sentenced on were serious. The reason that you received the sentence of home detention related to the fact that you were, at the time of the offending, very young. Had you not been entitled to a variety of discounts, a sentence like that would not have been imposed.

[3] The earlier offending was pursuant to s 234 Crimes Act 1961, maximum penalty being 10 years imprisonment and your part, in relation to offences in respect to robbery, was as a principal player and as such, you were primarily responsible for that offending. The fact that that sentence has been ineffective because you have breached it is also coupled with other offending. There is offending in relation to driving while disqualified, there is dishonestly taking a motor vehicle, there is the breach itself of the home detention, there is dishonest use of documents, there is burglary. There is also, together with another person, a charge of aggravated robbery. There are charges in relation to failing to stop for red and blue flashing lights, dangerous driving and a further charge of dishonestly taking a motor vehicle.

[4] I gave a sentence indication which you accepted, with a starting sentence of four years and seven months. There were reductions in relation to guilty pleas entered, there were reductions in respect of your youth and reductions in respect of the potential and at your age, I must have serious regard for your potential for rehabilitation.

[5] The submissions which I have received from your counsel point to the fact that you have spent a significant period of time in custody on remand. The way that the law is means that if I impose the sentences on matters that are subsequent offending, such as the aggravated robbery matters and other matters, then because

you were already sentenced in respect of the previous robbery matters, the time spent in custody will not be deducted from the total period of your sentence.

[6] I have to consider resentencing you on the robbery matters which, as I have already said, you played a principal part and I have to assess what the lead offending is. I also have given you the indication as to an overall starting point and an indication as to the discounts that would be available to you.

[7] The Provision of Advice to Courts report which has been obtained relates to your personal circumstances. It points out that you have serious addiction problems, you have anti-social associates, an unhealthy lifestyle, entitlement issues and your risk profile is such that it is regarded as important for you to be engaged with case workers and people from the department, to try and get underneath your offending behaviour.

[8] You are described, at 18 years, as a recidivist offender and the prospects for you are bleak if you continue the way that you have been going. Methamphetamine has played an important part in your life for a significant period and you have told Community Corrections that you commenced offending at a very early age. You also acknowledge membership of a criminal gang and that goes along with other unhealthy associations with the future likelihood of you getting into more trouble on your release.

[9] The ultimate focus of the submissions that have been made on your behalf are that you should be provided with a sentence that takes into account the fact that you have already spent a significant period in custody waiting for this matter to be dealt with. It acknowledges that you have no address where you could live outside of custody in the meantime and I am urged either to provide a discount to balance the situation that has resulted from s 91 of the Parole Act 2002 and the way that time spent in custody is considered, or to sentence you on the earlier matter that awaits re- sentence and to impose concurrent, lesser sentences for the subsequent offending.

[10] Section 91 Parole Act 2002 works against your position and I reminded by the Crown that the scope for discounts in respect of s 91 is limited. I have had it

pointed out to me by the Crown that the original robbery charges, when run alongside the tariffs proposed in R v Mako, have you as more primarily involved and more culpable. That is a basis upon which I could take the earlier robbery matter as the most significant among a considerable array of serious offending on your behalf.

[11] When I look at that offending, the indication that I give you holds good. It is, of course, subject to the requirement of totality, which means other offending has to be taken into account, offending while in breach of sentence and the danger that you pose to other people and yourself by the manner of the driving.

[12] The sentence that I got to, imposing the discounts that I advised you of at the sentencing indication, was a sentence of approximately two years and six months. Looking at the submissions that are filed now, taking into account all those credits that you have previously been given, the most outstanding issue to me is shown in the various programmes that you have attended at.

[13] I have read the letter that you have provided to the Court in regard to your own position. As I said earlier, there is no address for you outside prison at present. Notwithstanding that, on the basis of remorse and rehabilitative factors that have been increased by your attendance of courses in custody, I take the sentence to one of

24 months’ imprisonment. That is within the jurisdiction for electronically monitored sentences that can provide deterrence and denunciation in your case, but rehabilitation is such an important factor, at least to give you a chance to try to deal with the problems that have ruled your life.

[14] For that reason, there will be an order pursuant to s 80(I) Sentencing Act

2002 that if an address (and in particular I mean a placement at Odyssey House) becomes available, then the sentence may be commuted from 24 months’ imprisonment to a sentence of home detention. The sentence, being a short term of imprisonment, effectively as total sentence would mean you got 50 percent remission; that would mean the sentence of home detention would be one of 12 months. It would have added to it a period of 12 months post-detention conditions. The purpose of the lengthy period for post-detention conditions, with the added condition s 93 available to extend the period, is to try and provide long enough for

you to have enough rehabilitation and enough courses so that you can deal with the addiction and other problems that you face.

[15] In relation to the dangerous driving, there will be disqualification from driving for a period of six months. In relation to the failing to stop for red and blue flashing lights, there will be a cumulative sentence of three months’ disqualification. The structure of the sentence will be the 24 months’ imprisonment, that relates to the robbery charge. There will be concurrent sentences, 23 months’ imprisonment, on the aggravated robbery matter, so it is a lesser, concurrent term and there will be lesser sentences of imprisonment on the other matters, all graduated with a greater sentence being imposed on the robbery matter.

[16] So, I will not go through and identify in each case what the period of imprisonment will be, but in the cases where the maximum penalty is three months or less, it will be a penalty of two months’ imprisonment. In cases where the maximum penalty is seven years, it will be 12 months. In relation to the 10 year matter, it will be 14 months’ imprisonment and that should effectively deal with each of the matters.

ADDENDUM:

[17] The three months cumulative disqualification is disqualification on the red and blue flashing lights. The disqualification is cumulative, it is not a cumulative sentence of imprisonment; it is a cumulative period of disqualification. If I said imprisonment then that was entirely incorrect, it is just the disqualification which is cumulative. There are no cumulative sentences of imprisonment. All right, that is all for today, thank you.

D J Sharp

District Court Judge