R v Brooks [2017] NZDC 17628 (9 August 2017)

Last Updated: 19 February 2018

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

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-090-002526

[2017] NZDC 17628

THE QUEEN NEW ZEALAND POLICE

v

MIKE NGARIMU BROOKS

Hearing:	9 August 2017
Appearances:	L Brittain for the Crown S King for the Prosecutor New Zealand Police T Simmonds for the Defendant
Judgment:	9 August 2017

NOTES OF JUDGE K J GLUBB ON SENTENCING

ike Brooks, you appear before the Court today on a total of six charges. One of aggravated robbery, one of robbery, one of unlawfully in a building, one of theft, one of receiving and one of using a document. You have pleaded guilty to all charges and you are for sentence.

he facts are, in relation to the robbery, the victim in this matter is a [age deleted] woman and she runs [the victim business 1] on [details deleted] Road, Henderson. She does not know you but she has previously seen you as a customer in her shop. At about 2.00 pm on 18 May 2017 she was working alone in the shop. You entered the shop and confronted the victim as she stood behind the service counter. You jumped over the counter without warning, grabbed the victim by her left arm, pulled her towards the till, demanding that she open it.

he victim was compliant and was going to open the till and tried to free her arm from your grip. You then punched her once in the face on the left cheek. The victim fell to the ground and you then kicked her once in the upper body with your foot. You then managed to open the till and you took $50 prior to jumping back over the counter. You then ran off out the door leaving the victim on the ground struggling with pain. The victim got up, ran to the back of the shop and out the back to seek help. She did not find anyone there so then she ran back out of the front of the shop, seeking help as well. She went next door to the dairy and asked for help, the shopkeeper there called the ambulance. She suffered bruising to her face and ribs.

urning then to the aggravated robbery, the victims in this matter are [victim 2] and [victim 3], they own [the victim business 2] on [address deleted]. They do not know you or your three associates, but you have previously been in their [business] as a customer. At about 1.00 pm on 20 May 2017, the victims were in their shop, there were no customers present at that time. You walked into the shop armed with a large pruning knife, accompanied by your three associates. At that time [victim 3] was working behind the counter and her husband was working in the storeroom in the back of the store. You walked straight to the back of the store and there took a swing at [victim 2]. [Victim 2] tried to run to the back of the store and out to the back exit. [Victim 2] managed to protect himself from attack by sliding [a stand] between you and him and he ran to the rear exit, while your three associates walking closely behind went up to [victim 3] at the front of the counter.

Victim 3] attempted to leave the store for personal safety and she was prevented from running to the back of the store by you, and as she attempted to leave the store through the front door, your associates closed the front door preventing her from leaving. In the process preventing [victim 3] leaving the store, to protect herself, she was assaulted by you, she was pushed by you. [Victim 3] managed to escape from the four of you, when you were busy trying to get cigarettes and open the till. The victims managed to barricade themselves in the storeroom, leaving the four of you to loot the store as you chose. You and your associates took cigarettes from the cigarette cabinet behind the counter and one of your associates then picked up the cash register which contained a sum of cash. All of you then fled through the front door and you took the cash register and the cigarettes with you. What I note is that the reparation

sought in relation to that is $1700 all up and $150 in relation to [victim 1], although I only detailed $50.

n addition you have pleaded guilty to four other charges, dealing with those chronologically. At about 11.20 am on 3 April 2017 you went to WestCity Westfield. The victim was there and you snatched a $20 note from her hand and you ran away, you were later discovered on CCTV footage and identified. You hid the $20 note in your left sock, which was recovered during the police search of you and it was returned to the victim.

hen between 11 April and 2 May 2017, there was a burglary at an address in Ranui. In the course of the burglary, a Kiwibank Visa debit card was taken. At about

6.11 pm on 12 April 2017, you were in possession of that Kiwibank Visa debit card. You used that at an ANZ ATM attached to Fresh Choice Superette in Ranui. You checked the victim’s account balance and did not make a withdrawal. Then at about

10.23 on 19 April 2017, you used that Kiwibank Visa debit card at a Westpac ATM on Great North Road in Henderson, you removed $60 from that. Subsequently you used the debit card again at about 12.58 pm on 25 April 2017 and $60 was taken on that occasion.

inally, at about 5.20 on 12 April 2017, you went to an address in [address deleted]. That is the address of the victim in relation to the Visa debit card. You opened the front door and walked into the address. The victim confronted you about being in her home without permission; you spat on the ground and left the address. Your saliva was matched to your DNA. You denied being at the address. None of that does you any credit Mr Brooks.

hen I look to the aggravating factors and I deal specifically with the aggravated robbery and the robbery, there is a degree of planning and premeditation. It may have been somewhat opportunistic in relation to [business 1], but there was a degree of planning and premeditation in relation to the aggravated robbery. There was actual violence meted out in relation at both scenes. In terms of the aggravated robbery, you had three associates with you so a total of four assailants. You confined the complainants and there was the presence of the pruning knife taken into the address

when the aggravated robbery occurred. There is the impact on the victims. I have the benefit of victim impact statements. [Victim 1] from [business 1]she says she has worked there with her husband for about 21 years and it is the first time something like this has happened:

It was a terrifying experience, I’m still struggling to cope with it, I was alone in the shop at the time. [details deleted] The way the man jumped over the counter and started punching me, I was scared for my life. It brought back the memories of what happened next door. Usually my husband works at the back doing all the cooking and baking while I serve the customers. I now feel very scared working in my shop. My husband used to go home for a rest, he now can’t go home for a rest, he has to stay with me.”

n relation to [the victim business 2], what is noted there is that:

At the time I was very scared. I have seen videos on the news about things like this happening to other people but this is the first time it’s happened to us in 12 years that we’ve owned [business 2]. I have seen and heard of people getting hurt, so I was terrified when I was chased by one of the guys holding a large knife. I thought I was going to get hurt really badly. I had to run out of the shop to protect myself from being attacked. I was really shaken at the time but I am feeling a little better now. My wife used to run the shop on her own, now she doesn’t want to work there alone. It has had a big impact on our lives, now that I have to work here with her most of the time as well as drop off and pick up the children at school.

also have victim impact statements in relation to [victim 4]. She says that:

It makes me feel uneasy that someone would be waiting for me to withdraw money from and ATM and then pounce when the opportunity to steal it came. I just hope the young chap who did this is dealt with appropriately and he learns what he has done.”

dditionally, I turn to the aspect of vulnerability of the victims, specifically [victim 1] and [victim 2 and victim 3]. They were working alone in their businesses and as such, in that role, they are vulnerable to attacks such as this and the Court takes cognisance of this. Particularly in relation to [victim 1], she is [age deleted] and she is known to the Court, she is a tiny woman and would have been no match for you whatsoever. I recognise her vulnerability in that situation.

t is a recognised aggravating factor in offending such as this, the type of shop, both the [businesses] are small businesses where they are operating often alone and I take cognisance of that as well. There is the threatened and actual violence used and

it is the amount of property stolen, as I have already detailed. There is repeat offending as well, in short order.

hen I look to matters which aggravate circumstances for you personally, you have no previous convictions as such. But what you do have is a Youth Court notation for aggravated robbery. That was finally disposed of on 28 March 2017, so a little over two months before this most recent spate of offending. That was offending that occurred on 13 September 2015 and you would have done considerable work moving through the Youth Court to deal with that matter. But effectively for no good whatsoever, you are back at it as soon as you are able to.

ou have to understand you cannot afford to come back before the Court on anything more like this, it makes sense? [Yes] I see no mitigation in this offending. Your mother is here in support of you and I thank her for being here in Court, we all need our mother’s in our corner at times of need, she is here for you.

have the benefit of a pre-sentence report; you are 18 years of age. It is observed in there that you have engaged well and provided considerable insight into your offending. You have taken full responsibility for your role in this offending and you have presented as genuine in seeking assistance to change your life. I recognise that you have done a large number of sessions in dealing with alcohol and drugs and doing the Altered High Youth Service programme and I encourage you to keep doing that. Hopefully it will stand you in good stead when you are eventually released from custody. You have acknowledged that cannabis was a factor in your life and you were stealing cigarettes and money for cannabis and you are sorry and acknowledge the harm you have done to the victims, the community and also your family. You are assessed as being a medium risk of re-offending and a medium risk of harm.

n terms of the matters which contributed to your offending, they include your lifestyle, your attitudes towards offending, your substance use and your violence. What is also observed in there is that you are someone who is easily influenced by others and that seems to be a feature. There is a concern by the report writer that you do not need to be mixing with others more experienced and criminally inclined, that will not do you any good. The hope is that some form of electronically monitored

sentence might be an outcome for you. However, regrettably the reality is that this offending is simply too serious in the circumstances.

have heard submissions from your lawyer Mr Simmonds, and he has spoken well of you. He has pointed out all the good things that he can. He puts before the Court your youth, the co-operation that you have had with the police, your level of co- operation and the fact that you are genuinely remorseful. You have written letters and I have read those and I take those into account as well. He also makes the point that you are willing to engage in restorative justice. That has not been facilitated and I am not entirely sure why, it seems that the victims were contacted and your name could be forwarded to them. But it is something that could be dealt with whilst in custody and if you are still willing to do that then that is something that could be done as well. I take that into account. I have already mentioned the letters of apology and I take those as well-meaning and well-intentioned and they can be provided to the victims by Mr King in due course.

r Simmonds asked the Court to take a starting point in the four to four and a half year range. He acknowledges that I could take a higher starting point but asks that I do not do so. He recognises an uplift for totality on the basis of second offence, well in fact it is the first in time, the robbery, and that further offending. Also an uplift for the previous convictions or the previous notation in the Youth Court. He says I would get to somewhere in the order of 63 months and thereafter with discounts, 15 percent for mitigating factors and 25 percent would be down towards three years nine months and he asked me to round that down to three years.

s Brittain for the Crown makes submissions that I adopt a starting point of five years on the authorities. She placed reliance on Mako.1 The factors she says are present are the fact of confinement, the fact there were four offenders, the actual violence and the weapon present. She submits that five years is the appropriate start point. She also submits an uplift of something in the order of eight months for the police related charged in the other robbery. In terms of the authorities I thank Mr Simmonds for putting the decision of Tribble v Police.2 before the Court and

MMM

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

2 Tribble v Police [2016] NZHC 187

specifically paragraph [37]. Some very useful comparative analysis done by Thomas J, in my assessment.

he lead authority in this area is R v Mako.3 at paragraph [56]. This offending in relation to both instances, falls squarely within that and the starting points identified there are four years, where there is no violence and up where there are more aggravating factors specifically. I am satisfied it falls squarely within paragraph [56] where a starting point should be around four years:

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

he starting point I adopt for you today Mr Brooks is one of four years and six months. In terms of the first offence, that is the robbery of [victim 1], if that was on its own, it could attract a starting point of at least 30 months, two and a half years, noting it is a robbery and has a lower maximum penalty. But it had violence associated with it and although a small amount was taken, left her very seriously affected.

owever, noting totality and the close timeframe, the way I propose to deal with that is on the four years six months, I apply an uplift of 12 months. So that gets me to 66 months. In my uplift of 12 months, I have taken into account the other offences before the Court as well. I am not going to uplift for the Youth Court notations. I recognise that they are there and they indicate a certain approach on your behalf. I hope this is the last time we see you back here, you need to have a more positive outlook and not offend in this way.

recognise that you are a young man, 18 years on the first rung of the ladder of your adult life. I recognise your remorse, I recognise your prospects, I think you have prospects, if you turn to address those you can be a positive member of our community, I am sure of that. But I do not give you any discount for a lack of previous, because you do have those notations in the Youth Court and they are highly relevant.

III

3 R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA); 17 CRNZ 272

he discount I give for all of those matters is slightly more than Mr Simmonds advocated, I give you 20 percent, 20 percent on 66 months is 13.2 months, brings me down to 52.8.

inally, I turn to your pleas, they came at the earlier opportunity, it was not the first occasion but I give you full credit for that, it is to your credit and 25 percent for that. Twenty five percent on 52.8 brings me down by 13.2 brings me down to 39.6, which I round down in your favour to 39 months, that is three years and three months.

o if you could stand please Mr Brooks:

n the charge of aggravated robbery I convict you and sentence you to imprisonment for a term of 39 months or three years and three months.

n the charge of robbery, I convict you and sentence you to imprisonment for a term of 18 months. It is concurrent, so it is not additional. What I can tell you is the way I have got there is I took a starting point of 30 months for that offending and then applied the same 20 percent and 25 percent, that is how I get to that point.

n the other charges, the two charges of receiving the Kiwibank card and the use of it, on each of those I convict and sentence you to imprisonment for a term of one month.

nd on the two remaining charges, unlawfully in a building and theft of $20, I convict you and sentence you to imprisonment for a term of two weeks on each.

ll sentences of imprisonment are to be served concurrent, so it is three years and three months.

ou have already had the first strike warning, that was given on the earlier occasion, so I am just confirming that. Mr Brooks, do your best, continue to do good work while you are in custody, let us see if you cannot turn your back on crime and never come back here again.

ne of the warnings that was given by Judge Cunningham on the last occasion was not signed and served on the defendant. I will get that reprinted and I will sign it and it will be served on the defendant.

K J Glubb

District Court Judge
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