R v Moore [2017] NZDC 12052 (7 June 2017)

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Hearing:	7 June 2017
Appearances:	P Norman for the Crown N Stratton for the Prosecutor New Zealand Police S Anderson for the Prosecutor Department of Corrections Defendant appears in Person
_Judgment:	_{7 June 2017}

[1] Mr Moore, you are for sentence on three charges. There is one charge of aggravated robbery, one charge of possession of an offensive weapon and one charge of breaching your release conditions.

[2] I gave you a sentence indication on 22 March and that was just in relation to the aggravated robbery charge. It was for an end sentence of four years and four months. You immediately accepted that and at that point I gave you what we know as a first strike warning.

[3] I record at the outset that you were represented by Ms Aickin at the sentence indication very fully and ably. Unfortunately she is currently engaged in a jury trial

which means that she is not able to be here right now. I have offered to you to defer the sentencing until a time when she is available. You, however, want to get on with the job and just be sentenced. I made it clear also that I have offered to defer the sentence and squeeze you in at some other point this week so that the delay would not be substantial. But you have told me in no uncertain terms that you really just want to be sentenced and get back to prison and serve your term. So with that recorded I am prepared to sentence you primarily really because I feel like I received fulsome submissions from Ms Aickin, which was the basis of my sentence indication, and I can see from your perspective that any further delay is not what you want.

[4] The facts are set out in a summary. Firstly, I will deal with the possession of the offensive weapon charge. You were located on 19 August in the afternoon on a street here in Christchurch with a knuckle-duster which you had no reasonable explanation for.

[5] In relation to the release condition charge you were released on 13 July having served a sentence for assaulting a female, common assault, burglary, receiving, possession for sale or supply of psycho-active products and non-payment of fines as well as driving whilst disqualified. You were required to report under your release conditions but on several occasions you failed to do so, so that accounts for the breach of release conditions charge.

[6] The main charge for today’s purpose is, of course, as you know, the aggravated robbery charge. On 5 September last year the victim was working at a dairy in Templeton, which he owns. At about quarter past 12 in the afternoon you, your brother and another person called Banks all walked past the dairy with hoods from your hooded jerseys pulled up. You waited nearby whilst a customer inside finished being served and as soon as that customer left you went into the dairy. You were all wearing balaclavas and bandanas. You and your brother walked to the back of the shop where the victim was sitting down. You pointed a pistol at him. Your co-offender Banks remained in the shop and pulled a metal pole from his jersey.

[7] You and your brother began punching the victim about the head and he was dragged to the cash register and it was demanded that he open it. Your two co- offenders opened the cigarette cabinet and began placing the contents into a pillowcase that you had brought. They also took some money out of the cash register and put it in the pillowcase. While they were loading the pillowcase you pressed a pistol up against the victim’s forehead who was kneeling on the ground. He was repeatedly punched by you in the head. He was then dragged away from the cash register and punched several more times before all of you left the shop. He was bruised as a result of what you did but, more than that he was very much emotionally impacted by your actions.

[8] I have your criminal history. It runs to about 10 pages including your Youth Court history. It is a very lengthy history for a person of your age and as I said to you before it is time to change because if you do not you are going to spend your life in prison. But that is a decision that only you can make.

[9] The pre-sentence report is pretty gloomy in many respects. It notes your association with the Killer Beez and you have confirmed to me today you are still involved in that gang. To the extent that there is remorse you managed to hide it pretty well and the prospects of rehabilitation are assessed as being limited, you having said that you are not that interested in participating in rehabilitation. You have told me today that you think that is an unfair account and that you are remorseful and that you do accept responsibility and that is why you are here today to, essentially, take your medicine and then get on with serving your sentence.

[10] In sentencing you I have borne in mind all of the purposes and principles of sentencing but I note particularly the need to hold you accountable, to deter you and others from this type of offending and to protect the community. Those are all important because at the moment nationally, and in Christchurch as well, there is a real spate of young people committing aggravated robberies of dairies. People like you need to realise that if you choose to do that you will inevitably end up facing lengthy terms of imprisonment. It is not some game.

[11] I have borne in mind the seriousness of what you have done, the need for consistency with other cases, as well as the impact your actions have had on the dairy owner. I have borne in mind the requirement to impose the least restrictive outcome but, as everybody recognised at the sentence indication, that is a term of imprisonment.

[12] The aggravating features are self-evident really. There was the possession of weapons and the holding of the pistol up to this victim’s head. You were subject to a sentence at the time of the offending, although I did not know that at the time of the sentence indication. If I had I would have provided a discrete uplift for that. There is the vulnerability of the victim. He, like all dairy owners, is in a vulnerable position. There was the premeditation involved. You had planned this and then carried it out, and then there are your previous convictions.

[13] In mitigation there is your age. You are still a young man, although the extent of any credit I can give you for youth is tempered by your long history of offending. There is also your guilty plea which I acknowledge is an acceptance of responsibility.

[14] When I gave you a sentence indication I adopted a starting point of five and half years' imprisonment which was broadly in accordance with the submissions that I had received from the lawyers. I then uplifted that by six months for your previous history. I then applied a discount of six months for your youth and preparedness to engage in restorative justice, along with what was, at that time, explained to me as remorse and the prospects of rehabilitation on account your young age. I then provided a 14 month discount for your guilty plea.

[15] All of that brought me back to a sentence of four years and four months on the aggravated robbery. I have thought carefully about that and I am tempted to increase that by a couple of months because I have not really seen any evidence of demonstrable remorse or prospects of rehabilitation. But I am going to stick to the sentence indication that I gave you and the end sentence on the aggravated robbery charge will be four years and four months' imprisonment.

[16] On top of that there will be a two month cumulative sentence for the charge of breaching release conditions and on top of that there will be one month cumulative on the possession of the offensive weapon.

[18] What that means, Mr Moore, is that there is a total effective sentence of four years and seven months. Because that is over two years the Parole Board will set your conditions of release which will be at some point in the future.

District Court of New Zealand

R v Moore [2017] NZDC 12052 (7 June 2017)