R v Kiwara [2017] NZDC 16607 (28 July 2017)

Last Updated: 12 December 2017

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT KAITAIA

CRI-2017-029-000515 [2017] NZDC 16607

THE QUEEN

v

_{KELVIN KIWARA}

Hearing:	28 July 2017
Appearances:	K MacNeil for the Crown S Ellis for the Defendant
Judgment:	28 July 2017

_{NOTES OF JUDGE G L DAVIS ON SENTENCING}

[1] I have before me Kelvin Kiwara. Mr Kiwara has pleaded guilty to one charge of aggravated robbery, that occurred on 27 May of this year. The background to it is that Mr Kiwara and a Mr Matkovich entered the [Liquor store] in Kaitaia.

Mr Matkovich was armed with a hammer, jumped the counter near the entrance, opened the cigarette cabinet and removed 13 packets of cigarettes and began tapping on the screen to the till in an attempt to get the drawer open.

[2] Mr Kiwara was armed with a baseball bat, headed to the corner of the storeroom. There were two employees working in the store at the time, a female employee and a male employee. He was in the storeroom, the female employee was

_{in the bathroom. The male employee heard the commotion, came outside, Mr Kiwara}

R v KELVIN KIWARA [2017] NZDC 16607 [28 July 2017]

saw the male employee approach the shop floor and became aggressive towards him, swinging the baseball bat at the male employee.

[3] He was told to lay down on the floor, then when Mr Matkovich was struggling to open the till, Mr Kiwara told [victim 1] to go there and open the till. While he was opening it, Mr Kiwara stood near the front counter, facing the male employee, holding the baseball bat out in front of him with both hands in a manner described in the summary as ready to strike if there was anything stupid done.

[4] $446 was taken from the till, Mr Kiwara then told the male employee to get back on the shop floor, which he did. They removed a bottle of liqueur from the shelf and left, carrying the weapons, cigarettes and the liqueur. The robbery was captured on CCTV footage. Mr Kiwara initially denied being involved because he did not want to go to jail, but then admitted his involvement in the events.

[5] The Sentencing Act 2002, Mr Kiwara, requires me to arrive at a sentence that achieves certain principles and certain purposes and they are all described very much in legal phraseology. I am going to run through those but then explain what they mean.

[6] I have to arrive at a sentence that holds you accountable for what you have done. Secondly, I have to arrive at a sentence that what is called denounces and deters this sort of behaviour. I am not sure if you know what those words mean, I do not mean that disrespectfully, but it is sending a message out to you that you cannot go around robbing shops, taking weapons, using violence and that sort of stuff to rob people of money, food, cigarettes, petrol. It does not matter what it is.

[7] But that message has to not only go to you, but also out to the public at large. I also have to send a message deterring, which means the sentence has to be such that it will prevent people, people will have second thoughts about doing this sort of stuff. I also have to arrive at a sentence that protects the public from people who choose to go around using violence to rob them in general.

[8] I also have to arrive at a sentence that promotes in you a sense of responsibility for the harm that you have done to the victims of the offending and the community in general. I will come back to that point shortly.

[9] You would have heard Ms Ellis and I talking about a case, R v Mako1. It will not mean much to you, I accept, but there is a Court in Wellington, the Court of Appeal, which when it makes a decision, the Court in Kaitaia has to follow what it says and that R v Mako case dealt with aggravated robberies and what it said there was that not all aggravated robberies are the same.

[10] If a fellow goes and gets a mask and puts it on, gets a shotgun, goes and robs a bank, that is an aggravated robbery. At the other end of the scale, if a fellow is riding along on his skateboard and he gets pushed off the skateboard and another fellow pinches the skateboard, that is an aggravated robbery.

[11] When you look at those two, you think, “Well, you know, you can’t compare the two, they’re two totally different scenarios there.” So what the Court of Appeal did in that R v Mako case was it went through a whole lot of things that we have got to think about when we come to sentencing, and most of those things are set out at about paragraph 35 through to about 43 of the R v Mako decision and it is things like how much planning was involved in all of this, how many people were involved in it, were there disguises, were there weapons used, were the premises targeted, was it organised, looking at things like pinching payrolls, were members of the public present, those are all the sort of things that the Court has got to think about in deciding where this fits closer to the skateboard example or the bank example that I was talking about.

[12] Now what the decision did was it also talked about a whole lot of different examples of robberies. Banks were one, robberies of taxi drivers was another one, street robberies was another one, and at paragraph 56 of the R v Mako decision it said 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

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

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 face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years.

[13] And that is where Ms Ellis was taking the four years from.

Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.

[14] And that is where I was coming from, the five and six from, and when I looked at this I thought this was more at the five year end that that case was talking about and that is because there was two of you, the shopkeeper was confronted, there were weapons, there was the swinging of the bat. I accept he was not hit, but I imagine he would have been pretty worried, pretty scared about what was going on.

[15] He was made to get on the ground, made to get up, taken down to the till, still under threat, told to get on the ground again. That is why I say this is the five year one, not the four year one, but I also accept it is not the six year example that they were talking about either. Had he been hit, well you are probably looking at higher ends again, but he was not.

[16] That is where I see the starting point. What I then have to do is look at you personally in the second stage of the sentencing exercise and look to see whether the sentence should go up or should come down, as the case may be. Things that might mean the sentence goes up includes whether you have got a criminal history.

[17] In your case, you have got a criminal history and there is about three pages of that history. There is a burglary back in 2015 and then most of your other stuff, the reasons why you have come before the Court are because you have not really complied with the sentences that have been imposed by the Court or have not turned up to Court when required to do so.

[18] You have got three breaches of bail, six breaches of sentences that have been imposed by the Court in the past. I am not sure why the sentences were breached, I am just signalling that is what your record tells me. When I take a close look at that

record though I do not think there is anything in it that is relevant to this offending that would warrant the sentence going up, so in my mind it is staying on the five years for the moment.

[19] But there are a whole lot of things that I think mean the sentence should be taken down or reduced from that five years. The first one of those is the debate about youth and I read out in our discussion that paragraphs 55 and 56 from that R v Mako decision.

[20] The Court of Appeal said when we have got young, first time offenders and there are prospects of rehabilitation, there should be a discount given for the youth, but on the other hand if the young person is a bit of an experienced offender, perhaps there should not be a discount for youth.

[21] What impresses me is your letter of remorse here. I will come back to that shortly because what it says is that there are prospects of rehabilitation for you still. We should not give up all hope, in other words.

[22] So from that five years I am going to knock six months off the sentence to take into account your youth. I am also going to take another four months off for the remorse that I accept is in that letter. So from a starting point of five years’ imprisonment, I have taken off 10 months to take all those two factors into account.

[23] The other factor in my view that I need to take into account is your guilty plea. It came at the earliest, in my view, opportunity, the earliest possible opportunity. It was the second appearance which was two days after the first, it could not in my view have been sooner. In fact I do not think, because your first appearance was in front of a Justice of the Peace, that the JP could have taken the guilty plea, so in my view it was the earliest possible opportunity that a plea could be entered.

[24] You are entitled to the maximum credit that I can give you off the sentence of a further 25 percent off that 50 months in prison, which with rounding favourable to you that is 13 months being taken off the sentence, which would leave an end sentence

of 37 months in jail which would be, by my calculation, three years and one month in jail and that is the sentence that I have to impose today.

[25] You have some fines and fees outstanding, $1054, those are going to be wiped and included into that term of imprisonment. There is also reparation of $336 being sought today. I am not going to order that reparation because you are going to be in custody for a while, it will not in my view be realistic for that to be paid any time soon, and despite it being sought, I am not going to order that reparation here today.

[26] The end sentence will be three years and one month then, Mr Kiwara, and that is the sentence that will be imposed today. Thank you, you will be taken into custody. I will ensure that your certificate of employment in the kitchen is returned to you, I will invite the Crown to forward the letter on to the two victims.

G L Davis

District Court Judge