R v Te Kahu [2017] NZDC 20315 (8 September 2017)

Last Updated: 24 March 2018

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

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-090-001642

[2017] NZDC 20315

THE QUEEN

v

TAME TE KAHU

Hearing:	8 September 2017
Appearances:	H Taufalele for the Crown C Farquhar for the Defendant
Judgment:	8 September 2017

NOTES OF JUDGE A E KIERNAN ON SENTENCING

[1] Tame Te Kahu, you are here for sentence, aged 20.

[2] The offences were committed when you were 18 and 19. The most serious is an aggravated robbery which occurred on 12 March this year at the [victim petrol station] . There is also an assault with intent to injure. The aggravated robbery carries a maximum of 14 years’ imprisonment and the assault, three years. There was then a further offensive robbery committed while you were on bail on 17 May and that was at a liquor store in Grey Lynn.

[3] You have pleaded guilty at an early stage to all of these offences, so I am sentencing you now, in September, less than six months after the offences occurred. I need to refer to the summaries and then various other things before I get to the sentence.

R v TAME TE KAHU [2017] NZDC 20315 [8 September 2017]

[4] Early morning on 12 March this year you were in a Subaru car, which had been stolen earlier, with two men and one female. When the car got to the [victim petrol station], you and the two men got out and ran into the shop. The female remained in the car. The attendant was just opening up and setting up things. One of the people you were with had a screwdriver, ran behind the counter and pushed the attendant into the corner brandishing the screwdriver at him. You and the others were yelling for him to give you everything. He was made to open the till drawer. One of the others took the cash from the till drawer and you and the third person took cigarettes from the cabinet and trays and put them in the car outside.

[5] Once the cigarettes and the money were in the car, one of the others returned inside and punched that attendant nine times in the head. While he was cowering behind the counter, you then went up to him and punched him a further five times in the head. While that was happening, one of the others climbed over and kicked the victim in the face. You then went on and punched him twice more in the head. There were threats then made by another person of your group with the screwdriver and the attendant was told to go to the storeroom. As he was going to the storeroom, you went up to him and punched him three more times in his head and arms.

[6] You then went out and the victim began to walk towards the exit. The screwdriver was then held at him by one of the others and he was forced into the storeroom, followed by you and the third person. He was told to open the safe but he did not know how to do that and then you all left in the car.

[7] He offered no resistance while he was being beaten and the fourth person of your group, the female, remained outside but she helped picking up the cigarettes from the forecourt. All together, there was over $17,000 worth of cigarettes, cash and so on taken. That victim suffered bruising and swelling to his head. He had to be taken to hospital and was treated.

[8] When you were spoken to by police at the time, you chose not to make any comment but you said, I think, you did not know the owner of the stolen car.

[9] So, those are the offences in March and the most serious aspect of that, Mr Te Kahu, apart from the actual robbery and the taking of the property with others, was also, as is separately charged, the assault on that person.

[10] The robbery, then, occurred when you were on bail on 17 May in the evening at a liquor store in Grey Lynn. You, it seems, were with perhaps three people and drove up to the store. One person went in, made an enquiry and then left. A short time later, you drove back. There were three of you in the car. You went into the shop, followed by the other person who had been in there before and walked around looking at things. The person who had been in before was slowly moving towards the till area. You put a box of beer on the counter and appeared to have forgotten your wallet so you went outside. The other person you were with, Mr Solomon, then walked behind the counter and stood in front of the till. The attendant tried to stop him doing that and there were threats uttered by Mr Solomon. He reached into his pocket as if reaching for a gun. The attendant was told to open the till. Another attendant came to assist and, again, asked him to move around the other side. He was ignored and, again, both of them were now threatened. The till was opened and Mr Solomon put cash from that till into his pocket.

[11] You then, the summary says, returned to the store having been away for just over a minute. You saw that Mr Solomon was behind the till and was getting packets of cigarettes which he was putting on the counter. You took those cigarettes and the box of beer and then left the store together. The summary notes that Mr Solomon, when he was asked, said it was his idea to rob the store. You just said you had had too much to drink. There is reparation there of over $1200.

[12] You have got one previous conviction, Mr Te Kahu, which is for a matter of theft. You were on an order to come up for sentence if called upon. That was imposed in August last year for 12 months, so you were subject to that order at the time of all of these offences.

[13] I have seen two victim impact statements from the two people who were working in the liquor store in Grey Lynn. They were not physically hurt but, of course, they were nervous about being at work after this had happened.

[14] Restorative justice was assessed as not being suitable, though I note that you would have participated in that if it was available to you.

[15] I have read the probation report. The probation officer did not have summaries of facts at the time you were spoken to. You told the probation officer that you regretted your actions and Ms Farquhar has given me a letter of apology, really addressed to the victims, at Court today and I will pass that to the prosecution.

[16] You were hoping the Court might consider an electronic sentence and, indeed, an appendix was ordered but has not, in fact, been completed for today. The address in Massey would be where you would hope to go if the Court could impose a monitored sentence.

[17] I know that you have a partner, there are two young children, and I acknowledge your partner and your sister are supporting you at Court today. I read about your background and I also read that you had been working as a mechanic for two and a half years before being remanded in custody. Well, Mr Te Kahu, as the probation officer notes in the report, if that was the case, it is a pity that you have been involved in this offending because you obviously had a skill and a job that you could rely on. Anyway, that is recorded in the report.

[18] The Crown submissions suggest a starting point of five and a half years’ imprisonment for the March offending, so that is the aggravated robbery. They also suggest an uplift of 12 months for the later robbery and further uplift for the fact that was offending on bail. The Crown accept 25 percent discount, obviously, for your guilty pleas and also some allowance for youth.

[19] Both the Crown and Ms Farquhar on your behalf have referred to a well known decision, R v Mako1, which gives the Court some guidance about sentencing in this area, particularly for aggravated robberies, and what the Court of Appeal says is that, at paragraph 56, a small retail shop, for example, by demanding money, with or without assistance from a lookout or an accomplice, if there is one person confronted by one person with a face covered, no actual violence, a small sum of money, the

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

starting point should be around four years. What it further says is should a shopkeeper be confined or assaulted or confronted by multiple offenders or if money and other property is taken, five years, and in bad cases, six years should be the starting point. So here, the Crown says five and a half years because of all those factors that are present in your case.

[20] Ms Farquhar, on your behalf, accepts overall a starting point five to five and a half years on the authorities but disputes the 12 month uplift for the robbery which she says you were really a secondary party to. She suggests six months and accepts a three month uplift for offending on bail. She seeks a 25 percent discount for plea and suggests 20 percent further for youth and remorse. She has spoken in Court to that effect also. She says that your role in the aggravated robbery, though clearly participating, perhaps was not particularly sophisticated because you left fingerprints, I am told, and DNA, and there was also text message data which I imagine, ultimately, led to your arrest and charge. Nobody else has been charged with that offence.

[21] The robbery, as she emphasises, was really committed by someone else. You just came in at the end of it but it is clear, obviously Mr Te Kahu, that you took beer and, indeed, cigarettes and there were threats, albeit from Mr Solomon, to the staff in that shop.

[22] As to the contents of the probation report, Ms Farquhar suggests that because you did not have the opportunity, perhaps, to discuss in detail with the probation officer the facts of the offending, perhaps it does not emphasis as it should that this was, for you, spur of the moment offending. You were not thinking clearly. Indeed, you told the probation officer you were intoxicated; it was not pre-mediated she says, really, in that sense. She emphasises the apology letter that you have written. She says you do have some insight or understanding of your offending and you would have participated in restorative justice. She stresses your family responsibilities and you are keen to return to your role with your partner and children. You do want to rehabilitate and she has told me that you are doing an intensive literacy and numeracy course at the moment and you are keen to engage in any other courses that will be

available to you in custody. She stresses your youth and, as I have said, of course, you were 18 and 19 at the time.

[23] I have read those submissions and, in particular, the comments that are made about your youth. Also, as has been stressed, you are not someone, as so often happens, who comes before the Court for aggravated robbery with a string of previous violent convictions; this is the first time you come before the Court for serious offending.

[24] Ms Farquhar asks for an end sentence in the region of no higher than three years’ imprisonment.

[25] The aggravating features that I identify, Mr Te Kahu, in relation to the [victim petrol station] aggravated robbery are that there was a degree of planning in the sense that there was a stolen car, there were disguises and, clearly, each of you had jobs to do or roles to play. One person stayed outside with the car while the three of you went in. There was violence and I know that is reflected in a separate charge but there were a number of punches to the head to the victim. There were four offenders all together. A weapon was used and I am talking about the screwdriver there. The type of premises, the [victim petrol station], is also an aggravating feature. It is a premise where there was one attendant early in the morning, just when he was opening up, and that is significant as the victim was obviously particularly vulnerable. A large amount of property was taken, over $17,000 worth. I have to take into account all of these factors.

[26] In mitigation for all of the offences, there were your guilty pleas, obviously, and I will give you an allowance for your youth.

[27] The principles and purposes of sentencing are punishment, deterrence, holding you accountable, protecting the community, and I must impose a sentence that is consistent with other sentences for similar offending and, overall, the least restrictive outcome.

[28] For the March offending, the aggravated robbery, I have to take a starting point of five years’ imprisonment. With regards to the associated offending, I am not going to increase that starting point so, looking at it all together, I am going to uplift the starting point by eight months for the robbery and I am incorporating in that the fact that you were on bail at the time of the offending, resulting in a total starting point of five years and eight months’ imprisonment. I am giving you 25 percent discount for your pleas and, in my view, a 15 percent discount is available for youth. That comes all together to 40 percent discount. Working that out, that would attract a final sentence in the region of three years and six months’ imprisonment.

[29] I am going to reduce that a little further, Mr Te Kahu. You have clearly engaged, insofar as you can at the moment, in rehabilitation. I am going to reduce that to a final term of three years and three months’ imprisonment. I appreciate that is a significant term of imprisonment. It will be up to you, of course, whether you can present a proposal to the Parole Board before the end of that sentence and it will be in your favour if you do engage in courses whilst in custody.

[30] In summary, the sentence is three years three months’ imprisonment on the aggravated robbery, two years on the assault with intent to injure and eight months on the robbery but the total is three years three months.

A E Kiernan District Court Judge