Police v Holland [2017] NZDC 25110 (7 November 2017)

Last Updated: 17 July 2018

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

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2017-044-003623

[2017] NZDC 25110 THREE STRIKES WARNING

NEW ZEALAND POLICE

Prosecutor v

MICHAEL THOMAS HOLLAND Defendant

Hearing:	7 November 2017
Appearances:	G Qaisrani for the Prosecutor K-A Stoikoff for the Defendant
Judgment:	7 November 2017

NOTES OF JUDGE J C DOWN ON SENTENCING

[1] Michael Holland, you have pleaded guilty previously to a number of charges: aggravated robbery, commission of a crime with a firearm, unlawfully taking a motor vehicle, and then on an earlier occasion drink-driving third or subsequent and driving whilst prohibited, and I am to sentence you today. Of course, the lead offence is the aggravated robbery and that determines what the sentence will be and its length.

[2] Dealing with the first in time, on 3 August in the evening you were driving a motor vehicle in Henderson and you were stopped at a checkpoint. You gave a breath sample that contained 798 micrograms of alcohol in breath, which is basically twice the legal limit.

POLICE v HOLLAND [2017] NZDC 25110 [7 November 2017]

[3] You are 25 years old. At the time, you had been forbidden to drive because you only had a learner’s licence and you simply stated on that occasion that you were driving the car to take yourself and friends to a family home.

[4] Moving on to the most serious offending which occurred on 27 August this year, at 11.00 am together with a co-offender you robbed [the tavern] on [street name deleted] in Helensville. The two of you approached the tavern and entered via the front door. You attempted to conceal your appearance by pulling hoods up over your head and you were wearing gloves. You were armed with a firearm, notably a Mossberg 12 gauge shotgun, raised that shotgun, pointed it towards the bar manager[the victim] and demanded he opened the tills. Once the tills were opened, your co-offender emptied the cash into a bag that he was carrying.

[5] You then asked him where the safe was. He denied that there was a safe. You pointed it at his head and someone said the words, “If you don't tell me where the safe is then I’ll shoot you in the head.” You deny saying that. In fact, you say you did not say anything at all. It is possible that I suppose your co-offender said something to that effect or in the heat of the moment and in fear [the victim] has remembered something that did not happen. I do not think it makes an awful lot of difference to the gravity of the offending. He went and unlocked the safe and again your co- offender emptied more cash into the bag while you stood there with the firearm. One of you also demanded he hand over his watch and cellphone. The cellphone was later returned to him. You left in a Subaru Legacy vehicle which had previously been taken without the owner’s consent, hence the plea of guilty to taking the motor vehicle without consent. That was abandoned around two kilometres from the tavern and it apparently had been taken on 30 July.

[6] The total amount of money stolen was $31,589, a substantial amount of money, and the victim’s watch which was valued at about $350. You were very open right from the word “go” and admitted your guilt. I take that into consideration. Your counsel, whose submissions I have read and I am grateful for, has accepted that the appropriate purposes of sentencing here are to denounce the conduct; it is serious offending, and to deter both you and others from committing similar offences and that the appropriate principles of sentencing include the gravity of offending, this is serious

offending, as I say, its seriousness in comparison with other similar offences and the desirability of consistency with other sentencing authorities.

[7] She proposes that the appropriate start point for the robbery is six years. That arises out of a guideline decision in R v Mako1 which is the tariff case. In that case, a number of aggravating features are set out, some of which apply in this case including a degree of planning and preparation, that there were two participants, that there were efforts to conceal identity, that there was a weapon; namely in this case a firearm and that there was a risk that members of the public would be present at the time and also the value of the property stolen and much of that is still outstanding.

[8] The case of R v Mako is, on its facts, quite similar to your case and on appeal a start point of nine years was upheld. It was slightly more serious in certain respects including the locking up of members of the public in a room so that the robbery could be carried out. That sort of thing does not appear in your case. This type of offending characterises a robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums, with a lethal weapon, disguises or other indications of preparation should attract for an adult perpetrator a starting point of six or more years. Where the firearm is loaded or danger of harm is increased in other ways or actual violence used then eight years or more.

[9] I agree with your counsel that that category in R v Mako is appropriate. Six years as a starting point for the robbery on its own is probably right, but it seems to me that the use of a gun rather than some other weapon together with the amount of money stolen make the appropriate start point in this case seven years rather than six years and I take into account, in that seven years, the second charge, the one of using a firearm in the course of a crime.

[10] In addition to that, of course, you pleaded guilty to taking a motor vehicle without the owner’s consent. That carries a maximum penalty of up to seven years. An uplift of six months is justified in my judgment and an uplift for the third or subsequent excess breath alcohol of two months is also justified. That is a maximum penalty of two years.

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

[11] So, the overall start point for all of the offending is seven years and eight months. You have many previous convictions largely for burglaries and other dishonesty offences including motor vehicle crime, and that justifies a significant uplift of six months in my judgment. That also reflects the fact that at the time of this robbery you were on bail for other offending. Overall, that comes to eight years and two months or 98 months.

[12] There are no matters of personal mitigation other than the fact that you acknowledge your guilt. That does not in my judgment go sufficiently far to justify a discount for remorse. Your letter today, although I accept it as genuine, is too little too late. Having said that, of course you admitted your guilt right from the outset but in the pre-sentence report preparation you lacked empathy for those who were put at risk by your offending and were victims, and you seem to lack remorse. I think that in fact was a fair demonstration of where your mind has been at, even if you have been somewhat enlightened recently.

[13] I also take account of the possibility that your association, at least, with a gang has had some effect or some influence over you committing this offence. Twenty five percent of eight years and two months is 25 months’ discount for your guilty pleas which were very early, and I note that this matter is dealt with and resolved very quickly.

[14] That results in a final sentence of 73 months or six years and one month which I round down to six years.

[15] So, on the charge of aggravated robbery, Mr Holland, you are convicted and sentenced to six years’ imprisonment.

[16] By virtue of the fact that I am imprisoning you for a significant period of time, I am going to remit all of your fines. So, your fines of $4365 are remitted in full.

[17] On the charge of using a firearm to commit an imprisonable offence, you are convicted and sentenced to one year imprisonment. That is concurrent.

[18] For unlawfully taking a motor vehicle, again convicted and one year concurrent.

[19] For driving with excess breath alcohol third or subsequent, you are convicted and disqualified from holding or obtaining a licence indefinitely under s 65. You will also be subject to a zero alcohol licence when you do manage to get a licence back. That is for a period of three years.

[20] As for driving whilst forbidden, you are convicted and discharged.

[21] Now, given your conviction for aggravated robbery, you are now subject to the three strikes law and I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violence offences.

[22] If you are convicted of any serious violent offence other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[23] If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment. As I say, that notice will be given to you once I have signed it.

J C Down

District Court Judge