R v Tukiwaho [2017] NZDC 26791 (24 November 2017)

Last Updated: 3 September 2018

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

IN THE DISTRICT COURT AT ROTORUA

CRI-2016-063-004486

[2017] NZDC 26791

THE QUEEN

v

REGGIE TUKIWAHO

Hearing:	24 November 2017
Appearances:	S Casey for the Crown H Edward for the Defendant
Judgment:	24 November 2017

NOTES OF JUDGE P W COOPER ON SENTENCING

[1] Mr Tukiwaho, you have pleaded guilty to this charge of aggravated robbery.

[2] What the summary of facts says is that you and three others decided that you would rob [the dairy] in Rotorua. Each of you had a separate part to play. One was armed with a double barrel shotgun, one was armed with a hammer, one was armed with a machete. You were the driver of the car. You drove to the dairy and you told the others to wait in the car and you went and scoped out the inside of the dairy. You went in and you were at the ATM machine. You asked the complainant, who was a staff member, whether he was the only one working today, and then as you left the store, the other three, disguised with hoodies covering over their faces, ran in. Each was armed with a weapon. One pointed a shotgun at the complainant. The other was waving the hammer around threatening and demanding cash. The third person, Mr

R v REGGIE TUKIWAHO [2017] NZDC 26791 [24 November 2017]

Kerei, who I have seen in a trial, went to the cabinet behind the counter and took a large amount of tobacco products.

[3] You, in the meantime, having run out, brought the car around to the front of the store and was waiting outside with the engine running, and the other offenders ran to the vehicle and you drove off.

[4] You have previous convictions for violence that are relevant to sentencing; in 2010, assault with a weapon; 2012, possession of an offensive weapon; 2013, male assaults female; 2014, assault; 2015, assault and assault with intent to injure. You also have convictions for serious property offending, three convictions for burglary, the last in 2013.

[5] The pre-sentence report tells me that you are 26 years of age and it assesses you as being a high risk offender, but it does say that you show some insight into the impact of your offending on your victim and the submission of Mr Edward today is that you are remorseful for what has happened and that while in prison, you have taken steps to try and put yourself on a better path.

[6] Both the Crown and your counsel have provided the Court with helpful submissions as to what the starting point should be for sentence and what the Court should take into account in arriving at the end point.

[7] Cases of this sort are subject to the Court of Appeal’s guidance in the case of R v Mako.1 R v Mako sets out various examples of sentencing in cases like this. Paragraph [56] of that case talks about the robbery of a small retail premises, but actually, that is simply a sentencing example and what is required is an evaluative exercise looking at all the features of the case.

[8] In this case, I take into account the nature of the targeted premises; a small retail dairy with a single staff member on duty. There was premeditation involved. This was planned with each taking an assigned role, and that was really very clear from the CCTV footage which I have seen. The three who entered the store were

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

armed with weapons which were lethal weapons; a shotgun, a machete, a hammer. The three who entered the store were disguised with hoodies and their faces covered. I take into account that the weapons were not used beyond the making of threats, and I take into account that a relatively modest amount was actually stolen.

[9] I accept your counsel’s submission that you played a somewhat lesser role. I might say that in another case I heard that you were really more of an organiser in all of this, but I do not have the evidence before me that really justifies that assessment. Having looked at the CCTV footage, I take the view that you were fully participating in your assigned role which was more than being merely the driver, but included you getting out and scoping out the premises in advance of the others coming into the store and checking that the store was free of members of the public and that the victim was working alone.

[10] In relation to the credit that you are entitled to for your plea of guilty, I note the following. You first appeared in Court on this charge on 30 December 2016. On 2 February 2017, you entered a plea of not guilty and elected trial by jury. That plea was maintained at case review hearing and at a jury trial callover on 2 June 2017. You pleaded guilty on 19 October 2017, shortly before your trial.

[11] When a person pleads guilty at an early stage, the Court gives them a generous discount, a generous reduction in the sentence, but the longer one leaves it, the less that reduction is.

[12] Having regard to the nature of the offending, I take as the starting point five years imprisonment and in your case, I increase that by three months because of your previous convictions, but I reduce it by six months because of the lesser role you played. That takes the starting point down to four years and nine months imprisonment and from that point you are entitled to a reduction for your plea of guilty.

[13] The reduction that I am going to give you is around about 10 percent or six months imprisonment, a bit more than 10 percent, and that takes the end sentence down to four years and three months.

[14] Now I am not going to make a reduction for the work that you have done in prison, but that is something which is highly relevant when the Parole Board come to consider what your release date should be, because your response to programmes in prison, the family support you are going to have when you get out of prison, and any change in attitude will all be things that they will take into account in assessing when you should be released. So keep up that good work that you are doing in there.

P W Cooper District Court Judge