R v Eru [2017] NZDC 19117 (24 August 2017)

Last Updated: 22 February 2018

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

IN THE DISTRICT COURT AT TAURANGA

CRI-2017-270-000025 [2017] NZDC 19117

THE QUEEN

v

_{TE KIRA ERU}

Hearing:	24 August 2017
Appearances:	A Shore for the Crown R Adams for the Defendant
Judgment:	24 August 2017

_{NOTES OF JUDGE I D R CAMERON ON SENTENCING}

[1] Te Kira Eru appears for sentence, having pleaded guilty to the charges of aggravated robbery, unlawfully taking a motor vehicle, shoplifting, theft and breach of prison release conditions.

[2] The facts are, in relation to the aggravated robbery, that at about 6.35 pm on Wednesday, 26 April 2017 the defendant was at Maungatapu Road, Tauranga with an associate. He went into [the service station] and purchased some bubble gum before crossing the road and entering a liquor store with his associate. They asked the price of cigarettes in the liquor store and left.

[3] They then entered the superette next to the liquor store. They made no attempt to hide their faces. The defendant pulled out a large, black pistol and jumped over the

R v TE KIRA ERU [2017] NZDC 19117 [24 August 2017]

counter. He pointed the pistol at the victim and said, “Open the till,” pulling the victim towards the till. As the defendant did that the pistol had struck the right cheek of the victim. Before the victim could open the till the defendant picked the till up, jumped back over the counter and tried to take the whole till from the shop. The power cord prevented him from taking it. The defendant’s associate followed him over the counter and started trying to break open a second till before searching through the cigarette shelves. He then left the store with several packets of cigarettes and tobacco. The defendant then jumped back over the counter and took several packets of cigarettes and tobacco as well.

[4] An attendant from the neighbouring liquor store had heard the sound of the till and other counter items falling to the floor and entered the store through a connecting door. On seeing the attendant the defendant raised the pistol pointing it at him before running from the store with the stolen cigarettes and tobacco. The value of the cigarettes and tobacco that was stolen and the cost of repairing the damage will be taken into account in terms of reparation.

[5] On slightly earlier dates in that month at about 9.00 am on Friday 14 April

2017 the victim of the unlawful taking of a motor vehicle had parked his Honda

Odyssey motor vehicle outside an address in Auckland. On 16 April 2017 at about

8.30 am the victim returned to find his vehicle no longer there. On 18 April 2017 police located that vehicle at the rear of a Salvation Army building in Mount Maunganui, Tauranga. The driver’s side window had been smashed and the ignition barrel had been pulled. A scene of crimes officer attended and conducted a scene examination on the vehicle, locating a blood-like smear on the steering wheel. A swab of the blood was taken and analysed by ESR and as a result on 8 May 2017 police received a DNA profile which matched the DNA sample of the defendant.

[6] In relation to the shoplifting and theft, at about 2.30 pm on Friday

21 April 2017 this defendant was at [the victim jewellery store] in Tauranga. He spoke with the owner of the business for some time looking at various items for sale. He then asked to see a silver sapphire and diamond ring, valued at $10,500. The owner removed the ring from the display cabinet and brought it above the case and into the

open and as he did that the defendant grabbed the ring and ran out of the store. The ring has not been located and reparation is sought.

[7] At about 7.30 am on Saturday 22 April 2017 the defendant drove a van into the [the victim service station] in Tauranga. He pumped $60 fuel into his van before going into the shop and claiming that he had forgotten his Eftpos card. He told the cashier that his boss would come back and pay for the diesel before walking out. He never returned and the $60 for the diesel is still outstanding.

[8] In terms of the breach of prison release conditions, on 15 April 2017 while on prison release conditions this defendant was not at the curfew address. In fact it

subsequently transpired that he had cut off his EM bracelet and gone on something of a spree of offending as just described.

[9] In terms of his criminal history he is only 17 years of age. He was 16 years of age at the time of this offending. He has amassed a large number of serious convictions from and since 2014 and has an unenviable criminal history in the Youth Court. In terms of his convictions his criminal history discloses he has two previous convictions for aggravated robbery for offences committed in 2014 and 2015 respectively and in respect of which he was imprisoned for a total of two years and nine months on 11

December 2015. He has one previous conviction for unlawfully getting into a motor vehicle for offending in 2015, one for aggravated burglary for offending in 2014, six for burglary for offending in 2014, three for shoplifting again for offending in 2014, one for theft for offending in 2014, two for theft ex car in 2014, one for unlawfully interfering with a motor vehicle in 2014, one for unlawfully taking a motorcycle again in 2014, and four trespass convictions for offending in 2014. So he has an appalling history for offending already.

[10] I have read the victim impact statement from the shop attendant. Naturally, he was very scared and frightened by the incident and has had trouble sleeping since that time. I have also read a statement from the owner of the store, which makes it clear that the total loss suffered by the store for the cigarettes and tobacco taken and the damage this defendant and his associate caused amounted to $7371.25.

[11] In terms of a pre-sentence report this defendant refused to be interviewed for that report. Not surprisingly he has been assessed as being a very high risk of offending in the future. The report has been prepared based on previous information on various files in relation to this defendant and in particular a psychiatric report relating to the defendant, dated 23 September 2016, has been referred to. That report makes it clear that this defendant has been exposed to substances, such as cannabis and alcohol, from a young age. Indeed he has consumed alcohol and other illicit drugs from a young age, that he is a person who has a lack of empathy towards other people, that he does respond well to structured environments and only intensive professional intervention would result in prosocial changes. In other words it is going to be difficult to set this defendant back on the right path.

[12] In terms of sentencing principles he needs to be held accountable for his actions, I need to denounce them, deter him from future offending to the extent that is possible, protect the community from his marauding behaviour and, of course, the Court needs to impose the least restrictive outcome available in the circumstances. In terms of the sentencing itself the lead offence of course is the aggravated robbery. The aggravating features in terms of R v Mako1 the tariff decision for aggravated robberies are that there was some premeditation in that there was planning evident to a moderate extent; there was actual and threatened violence in that this defendant pointed a pistol at two store attendants separately and struck one across the cheek with the barrel and of course it would not have been known to either shop attendant whether the gun was loaded at the time and the shop attendants may well have assumed that it was. Whether or not it was loaded is not known to the Court.

[13] In terms of the extent of the loss or harm it has caused serious emotional harm to the shop attendant who was confronted and, of course, substantial damage was incurred, including the loss of the cigarettes and tobacco, amounting to $7371.25. The next aggravating factor is the use of a weapon, that is the pistol, and the possibility of the presence of the public given that this is a centrally located store in a residential area. It was 6.30 pm on a Wednesday night and members of the public could well

_{have been present.}

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

[14] I have been helped by extensive submissions filed both by the Crown and the defence. A decision referred to by the Crown, R v Lawson2 is helpful. Here, of course, there was an actual assault on the shopkeeper and there were two offenders.

[15] I adopt a starting point for the aggravated robbery of five years’ imprisonment. In terms of the other offending, on a stand-alone basis the unlawful taking of a motor vehicle would attract a starting point of some 18 months. The shoplifting, which was the theft of a ring valued at over $10,000 and which was never recovered, would attract a starting point on a stand-alone basis of two years, six months. The theft of petrol perhaps one month’s imprisonment and the breach of prison release conditions another month.

[16] I am of course very conscious of the totality principle and anxious not to impose what would be a crushing sentence on a person who is only 17 years of age and I uplift the five years by one further year to six years for the other offending.

[17] In terms of the aggravating features relating to the offender he has that appalling criminal history amassed in a very short period of time, which attracts an uplift from the six years of two months and then at the time of his offending he was on prison release conditions, which applied from the date of his release on

29 December 2016. That is a serious aggravating factor and of course in

mid-April 2017 he then cut off his electronically monitored bracelet and commenced this offending. Because he was on sentence at the time of this offending a further two months’ uplift is warranted taking the total to six years, four months.

[18] In terms of mitigating factors relating to the defendant there is, of course, his youth. I agree with Ms Shore that there is certainly an argument that because of his prolific past offending, especially for similar offences, one could take the view that no discount for youth is appropriate. His attitude seems to be reflected in his actions in, for example, refusing to be interviewed for the purposes of a pre-sentence report.

[19] Against that I of course have to be mindful that he was only 16 years at the time of this latest offending. I have decided to apply a 15 percent discount, which

2 R v Lawson [2017] NZHC 1843

reduces an overall level to 64 months. Then I apply a full 25 percent discount for his guilty plea, which reduces the level to 48 months, that is four years’ imprisonment.

[20] Accordingly, in respect of the aggravated robbery charge he is convicted and sentenced to three and a half years’ imprisonment. In relation to the shoplifting, that is the theft of the ring and the unlawful taking of a motor vehicle on each he is convicted and sentenced to six months’ imprisonment, concurrent with each other, but cumulative on the three and a half years, taking the total to four years’ imprisonment. On the theft charge, he is convicted and sentenced to one month’s imprisonment concurrent and on the breach of prison release conditions because this is reflected in an uplift he will be convicted and discharged.

[21] I also make orders for reparation as follows. In relation to the aggravated robbery I order reparation to the shop owner in the sum of $1000, which represents the excess paid by the owner in relation to his insurance claim. In relation to the shoplifting, that is the theft of the ring, once again the insurance excess will be subject to a reparation order and that is for the sum of $2500. Finally, in relation to the theft of petrol I order reparation in the sum of $60.

I D R Cameron

District Court Judge