R v Pomare [2017] NZDC 23246 (12 October 2017)

Last Updated: 23 May 2018

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

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-002643

[2017] NZDC 23246

THE QUEEN

v

SAMUEL LEE WAYNE POMARE PHILLIP HENRY EDWARDS

Hearing:	12 October 2017
Appearances:	S Gilbert for the Crown L Wilkins for the Defendant Pomare S Lawrey for the Defendant Edwards
Judgment:	12 October 2017

NOTES OF JUDGE R L B SPEAR ON SENTENCING

[1] Phillip Edwards and Samuel Pomare, you are for sentence on a number of charges of burglary. Additionally Mr Pomare you are for sentence on two charges of disqualified or suspended driving.

[2] You are convicted of the burglary charges as a trial that took place before me without a jury over 31 July to 1 August 2017. In a decision given by me on 9 August 2017 I found you, Mr Edwards, guilty on charges 3, 4, 6, 7 and 8 and not guilty on charges 1, 2, 5 and 12. I found you, Mr Pomare guilty on charges 3, 4, 5, 6, 7, 8 and 9 and not guilty on charges 1 and 2. It is unnecessary for me to go through the reasons for the verdicts as those are set out in the decision given by me on 9 August 2017.

R v SAMUEL LEE WAYNE POMARE [2017] NZDC 23246 [12 October 2017]

[3] So you, Mr Edwards, are for sentence on five charges of burglary and you, Mr Pomare are for sentence on those same five charges of burglary jointly with Mr Edwards as well as two further burglaries which you committed by yourself. The driving whilst disqualified charges, charges 10 and 11, were pleaded to by you, Mr Pomare at the commencement of the trial.

[4] Over a period from 9 January 2016 through to May 2016 the two of you undertook something of a business of robbing convenience stores, dairies, superettes late at night and with the target being cigarettes. This is referred to in the text messages by you and others as, “The Blue Market”. It is well understood now that because of the price of cigarettes this Blue Market is extremely lucrative. It is of course a product that cannot be identified by a bar graph or such like and once removed from the store there is little opportunity for the stolen product to be identified as stolen goods.

[5] This was a concerted exercise by the two of you obviously for the purposes of generating cash. The evidence was of course of significant sums of cash being credited to your bank accounts and that simply illustrates how lucrative these burglaries were.

[6] The premises targeted were in the main convenience stores of the type I have mentioned without connected accommodation and usually in a commercial block of shops or by themselves such that no one would be around to see what you were up to. In the main the stores were broken into through the back door using bolt cutters and crow bars or pinch bars and then the shops were ransacked as you sought to gather together all the tobacco products and any other item of particular value.

[7] The first burglary that I found you guilty of related to [dairy/shop 3] in Hamilton. The shopkeeper, having already suffered from having some $30,000 worth of tobacco products stolen previously, had removed those products from the shelves each night and so he contends that the loss to him was about $300 of cash that you found and about $400 of goods. Be that as it may, it is abundantly clear that you were hunting for cigarettes.

[8] Charge 4 relates to [dairy/shop 4] in Hamilton. That burglary occurred on 23 January 2016. That was a lucrative burglary for you, obtaining cash of some $250 and approximately $20,000 worth of cigarettes and tobacco products.

[9] Without going through all the burglaries I note that the total loss including damage to the rear door of the [dairy/shop 6], charge 6, for the five burglaries in respect of which the two of you have been found guilty comes to just over $48,000. For the two further burglaries charges 5 and 9 carried out alone by you Mr Pomare, a further $12,600. So over $59,000 worth of product.

[10] The evidence at the trial indicated that you were involved in selling the product for not more than half what it was worth on the shelves for retail purposes. Clearly, various members of your family and friends knew that you were actively involved in this trade and were seeking cigarettes and tobacco products from you.

[11] There has been a sharp rise in the number of offences of burglaries where convenience stores, dairies, superettes and such like have been targeted solely for tobacco products. This is a relatively recent arrival to the Courts for sentencing purposes. You clearly were at the top end of the market insofar as your activities were concerned and it is clear that you employed a degree of sophistication to ensure as best you could that you were not detected. You were disguised on every occasion. Obviously you had cased the shops out before you undertook the burglary. You wore gloves so that there were no fingerprints left. You planned the burglaries carefully, coordinating your activities through cellphone contact and then carried out these burglaries late at night with of course the use of those bolt cutters and crow bars as the security of the store required.

[12] This is offending for which you must be held fully accountable. The sentence that I impose upon you must mark the seriousness of the offending and what is abundantly clear to the Courts the increased targeting of shops of this nature for tobacco products because of the ease with which significant sums of money can be generated. The sentence must do its best to deter the two of you from committing this type of offending in the future and also send the general message out that it is simply not worth the risk. That is for those who might contemplate offending in this way.

[13] Insofar as you are concerned, Mr Edwards, you have some previous convictions. I note eight for dishonest offending of which three are for burglary. That requires some uplift which I will return to in a minute.

[14] Mr Pomare, you are 35 years of age, some six years younger than Mr Edwards and you have an appalling conviction history for dishonest offending. You now have 47 convictions for dishonest offending. 36 are for burglary. You are described by the probation officer as a career criminal. You have never had work that has stayed with you and it appears that the only type of activity you feel comfortable with is burglary. That requires me to look upon you significantly differently to that of Mr Edwards.

[15] However, Mr Edwards, while your probation officer, the same probation officer prepared the report on both of you, said that Mr Pomare appeared the more sophisticated and intelligent of the two of you. That it appeared to the probation officer that you had been led on by your association with Mr Pomare. That was somewhat at odds with the evidence. At paragraph 35 of my decision I noted that in text messages sent by you, you advised some person that you were doing Blue Market and this was work that you had created all by yourself.

[16] The effect upon these small shopkeepers has been significant. I mentioned already [dairy/shop 3]. That shopkeeper had to sell his business having been burgled eight times in a few short months and he says that the last occasion was when he had numerous cigarettes taken totalling about $30,000. I mistakenly mentioned that he had been burgled before hand, before your time, for those cigarettes. He states that this destroyed his business and forced him to sell as he could not afford the insurance excess.

[17] That is the theme of the victim impact statements that have been filed. One of the shopkeepers says that he is happy you are guilty and are going to prison. It is clear that they are upset and that these hardworking shopkeepers, people who try to make an honest living, have been devastated in their business endeavours by rogues such as yourselves.

[18] Neither of you are in a position to pay reparation. Indeed, the offer I had for one of you was for $20 a week but of course you are going to be in prison for a significant period of time and particularly you, Mr Pomare, the prospect of you getting an honest job when you are released and being able to pay reparation is not borne out as being likely given your past history.

[19] Taking charge 4, [dairy/shop 4], as the lead charge in each respect I adopt a starting point of 18 months’ imprisonment. As counsel have explained what is required is the Tauekiapproach where I adopt a starting point, lift that with the other offending factors, consider the totality of the offending and what is an appropriate sentence in that respect and then consider personal mitigating circumstances.

[20] I have been referred to the decision of Sullivan v R1 where the offender received a sentence of five years, six months’ imprisonment for seven counts of burglary committed in Christchurch. Now these cases all turn on their own facts and the circumstances of that offending are different. Of some significance is that the sentencing Judge adopted a starting point of six months’ imprisonment for all the offences. A 50 percent minimum period of imprisonment was also imposed.

[21] As in this case, there were aggravating factors adopted and recognised by the Judge. The extent of the offending over a short period of time, the nature of the businesses targeted, the planning, the fact that there was more than one offender, targeting vulnerable businesses during the Christchurch rebuild to the scale of the loss and in that case the possession of firearms.

[22] For you, Mr Edwards, I consider that the totality for the offending involving the five burglaries requires me to adopt an offending end point of four years’ imprisonment or 48 months. You have previous convictions as I have mentioned and that requires an uplift which I fix at four months which brings you up to 52 months or four years, four months’ imprisonment.

[23] For you, Mr Pomare, you of course carried out two more burglaries than Mr Edwards and I consider that five years or 60 months’ imprisonment is the

1 [2016] NZCA 100

appropriate end offending point for you again taking into account the issue of totality. Insofar as your previous convictions are concerned, it is clear that you are a prolific burglar and that at this stage nothing has been able to shake you out of that particular approach to the way that you generate cash to live. You must understand that you are getting closer and closer to a very long term of imprisonment, much longer than I am imposing today.

[24] The Crown propose that I lift the sentence to reflect your previous convictions by 12 months and that is recognised as unimpeachable by Mr Wilkins on your behalf and I entirely agree. So the five year starting point or offending end point is lifted by a further 12 months to reflect your previous convictions which brings me up to a sentence of six years’ imprisonment.

[25] There are no personal mitigating circumstances that apply to either of you as of course you were found guilty at trial.

[26] Finally, I need to deal with the question of minimum period of imprisonment under s 86 Sentencing Act 2002. The Crown considers that it is appropriate that you, Mr Edwards, be directed to serve 50 percent of the sentence and you, Mr Pomare, two thirds of your sentence which is the maximum allowed. I consider that it is appropriate that a minimum period of imprisonment is imposed and that is because of the professional manner in which you carried out these burglaries. The fact that burglaries of this nature carried out by people employing such evasive skills are difficult to bring the offenders to account and indeed it is a credit to the police investigation here that you were held to account.

[27] It is important that you are fully held accountable for the harm done, that the conduct which you have committed here is denounced and in particular that you are deterred from committing this type of offence in the future and the community is protected from you. Those are of course all factors that are abundantly evident in this case and I consider justified an order that you serve a minimum period of 50 percent of the sentence that I impose upon you.

[28] So in respect of you, Mr Edwards, on charge 4 you are sentenced to four years, four months’ imprisonment and you will serve a minimum period of two years, two months’ imprisonment before being eligible for release. On all the other charges, 18 months’ imprisonment.

[29] For you, Mr Pomare, on charge 4 you will serve six years’ imprisonment and there will be a minimum period of imprisonment required to be served by you of three years before you are eligible for release. On all the other burglary charges, 18 months’ imprisonment. On the two disqualified driving charges, four months’ imprisonment concurrent. That is that will run at the same time with the other charges and 13 months’ disqualification from today.

Judge RLB Spear

District Court Judge

Date of authentication: 20/10/2017

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.