R v Drummond [2017] NZDC 12766 (14 June 2017)

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

Hearing:	14 June 2017
Appearances:	C Boshier for the Crown S Guy for the Prosecutor Department of Corrections K Paima for the Defendant Drummond T Fournier for the Defendant Tumata
_Judgment:	_{14 June 2017}

[1] Neihana Tumata and Sean Drummond, you are both aged 21 and appear for sentence today having pleaded guilty to charges of aggravated robbery. Very serious

[2] The facts are these and they are agreed: It seems that the victim and a co-offender of yours were known to each other before what happened on [date deleted] and then at about 9.00 pm on that [day deleted] night [your co-offender], received a text from the victim and that led to him collecting [your co-offender] from [your co- offender’s] home. They bought some things and then came back to [your co- offenders] place where you were there. You both were there with somebody else.

[3] What happened next was the victim then dropped your unknown friend to another address before driving to New Brighton and you two and [your co-offender] were in the car with you. Whilst in his vehicle outside this New Brighton address the victim was punched in the mouth by Mr Tumata who said that you need money and then the three of you were then demanding from him sums starting at $5000 then to

$2000 after he said he only had $100. He was told to drive to an ATM and before he got there he was told to stop by the Lyttelton tunnel. Whilst there he was punched repeatedly while being asked for his bank account and password. A member of the public walked by but you told him that if he shouted out you would kill him.

[4] He then continued to drive to the ATM in the Cashmere area and then once there, Mr Drummond, you took his hoodie, hat and ATM card and he withdrew $40. Mr Tumata, you punched him and said that was not enough and that you would kill him and his sister. He then was put in the back seat and Mr Tumata, you drove the vehicle. [Your co-offender] locked the victim’s window so he could not get out. The three of you then continued to demand money by way of his online number and password. He was taken back to your address, Mr Tumata, in New Brighton and whilst inside, his phone was taken off him and then you punched him again around the face with closed fists. Mr Drummond, you were asking him and demanding his bank details, punched him in the face when he said he did not know and then he was put in a chair in the corner of a room when Mr Tumata, you said to him, “My mother died there. Maybe the next person is you.”

[5] Mr Drummond, you then lifted him by the hair and punched him. He was punched several times by both of you, had his hair pulled out, he was begging for you to stop, he was punched again by you, Mr Drummond, when he was sitting in the chair.

[Your co-offender] was grabbing him by the hair and slapping him on the face. He was demanded to remove his jewellery and then the three of you were discussing how much money they had and what you could do and get for selling his phone and car. Mr Drummond, you threatened to kill him. [Your co-offender] then threw one of the jewellery pieces at him and cut him on the nose. [Your co-offender] was slapping him and swearing at him and demanding the money and kicking him.

[6] Then [your co-offender] got hold of his phone and then you were sending messages from that. He was told he would not be dropped home until he gave the car to you and he was to tell people that he had sold it to you. He was told that he needed to sign the paperwork in the morning and he was threatened that if he told the police, they would say he raped [co-offender’s details deleted] as they had his DNA and then sent messages from his phone to [your co-offender’s] phone to set him up. [Your co- offender] then took him by the hair and led him outside and punched him in the face and the three of you then drove from the address where you were stopped by the police. Before the police interacted with you he was basically threatened that if he did anything he would be killed.

[7] The upshot of all of that, as I have said, is that you are now facing charges of aggravating robbery, both of you.

[8] I have read the victim impact statement. He is a 23 year old Indian man. [Identifying details deleted]. He obviously had some connection to you two through [your co-offender] but he describes being beaten by you, his eyes being gouged, his [jewellery] being thrown at his face, it cut him on [the face], he was kicked in the chest and he was in pain for the next two days. But, of course, because [reasons deleted] his hair is sacred and what happened in and around his head and to his hair has had quite some effect on him.

[9] He suffered some loss of wages ([details deleted]) after tax and then spent about $200 at the emergency clinic and he found the whole thing incredibly stressful in the result.

[10] I have read the pre-sentence report for both of you. Mr Drummond, I note that you do have previous convictions. You were actually on release conditions for a 22 month sentence of imprisonment when these arose. In some respects in the report you have minimised your involvement somewhat but you had been drinking and you were very intoxicated and showed what the probation officer said in the report as a small degree of remorse. I think you would like to go to restorative justice and perhaps apologise to the victim and that may be something that can be done as part of the ultimate sentence process. I have also read your lawyer’s submissions and perhaps it was a case where you say that you did not set out to do it but became involved as the incident developed.

[11] Mr Tumata, you were on a sentence of community work, community detention and supervision when this happened. You maintain that you were not a planner but accept that you did play an active role. I note that your counsel accepts that these breach charges need to be addressed. You seem to be a young man who has run off the rails and there are expressions of remorse from you but you really need some sort of rehabilitative programme. I think both of you lack maturity but it does seem from your counsel anyway that you did not appreciate the seriousness of your offending. I suppose when we listen to the summary of facts read out today it is difficult to understand why because it was bullying, violent and quite dangerous behaviour. However, having said that, your counsel says that you were not without redemption and with the right programmes and being in the right place you do have good prospects.

[12] Sentencing ultimately involves a balancing of the aggravating and mitigating features relating to the offending itself and to your situations. I have to bear in mind the purposes and principles of sentencing, particularly of course to deter and denounce this kind of behaviour, impose the least restrictive outcome in the circumstances and bear in mind such things as rehabilitation and also the fact that you are still relatively young.

[13] There has been some discussion about what we call the starting point today. The way to assess the starting point is to look at sort of similar cases and see what

other Judges have done in other cases, have a look at the tariff case which is R v Mako1 in relation to aggravated robbery although this particular set of facts is not specifically addressed in R v Mako. I have had a number of submissions in relation to all of that but the first thing I need to do is look at the aggravating features.

[14] As far as the offending itself is concerned, it looks like the victim was essentially kept in a period of detention by the three of you for up to four hours and was detained in a number of places. There was actual violence repeatedly used; it was not just a one-off; threatened violence including threats to kill. It has had a significant effect on the victim. There seems to have been some degree of luring to the address although what your involvement in that is, I am not sure, so I cannot put too much store on premeditation other than once the situation developed you were both brought into it and were very much involved. It is also aggravating of course that there three of you. It is a numbers game.

[15] I have been given a number of authorities by the Crown in relation to the starting point. I think most of them really are more serious than your situation here today. The most relevant one probably is R v Mason2 and in that case there was a four and a half year starting point taken in a situation not too dissimilar to yours but did not involve the number of detentions and the ongoing violence. But the ultimate injuries suffered by that victim were more serious.

[16] This has other elements to it of course in terms of their effect on the victim and, as I say, the repeated nature of the physical assaults and threats that were being made. But in the round I think it probably broadly sits somewhere in and around that starting point and I assess the starting point for this offending as four years and nine months’ imprisonment.

[17] As far as aggravating features relating to both of you yourselves, I have to look at those. Mr Tumata, of course, you have three previous convictions now for violence

community detention and supervision so because of your previous matters and because you were subject to that sentence I intend to uplift by six months.

[18] Mr Drummond, of course you have got a lengthy history of dishonesty: burglary, theft. You were on release conditions as well so I intend also to uplift you by six months so that gets us to five years three months starting point.

[19] You both seem to now today express remorse and wish to go to restorative justice. That is possibly down the track. However, that has not been done and I do not know even if that is a possibility insofar as the victim is concerned but for those reasons I intend to reduce the starting point back to five years’ imprisonment. From that you would be entitled to 25 percent discount for your plea so that gets us back to three years and nine months’ imprisonment.

[20] I note just for the record that there are to be no minimum non-parole periods imposed. You are both young and I do not think we have reached the point where that is necessary but I would have to say, if there is any further violent offending then the Court may well look at that.

[21] Mr Tumata, I just did want to acknowledge that you have written a letter of remorse and so has your father and I have read those and I have carefully considered those and the letter also from your aunt and your great-grandmother in terms of your own personal circumstances, your own family environment and I am hopeful that on release these good people in your family will be able to work with you to make sure that this situation does not happen again.

[22] As far as the fines are concerned, Mr Drummond, you will need just to make application in prison to have those remitted and that can be done I am sure and I cancel any existing sentences that are in existence at this point in time in relation to both of you by way of other release conditions and also other community-based sentences.

District Court of New Zealand

R v Drummond [2017] NZDC 12766 (14 June 2017)