R v Peebles [2017] NZDC 5186 (9 March 2017)

Last Updated: 21 July 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT HASTINGS

CRI-2016-020-001057

CRI-2016-441-000012 [2017] NZDC 5186

THE QUEEN

v

TERESA MATAWAI PEEBLES JOSHUA RAYMOND WOOSTER

Hearing:	9 March 2017
Appearances:	M J M Mitchell for the Crown N M Graham for the Defendant Peebles R D Stone for the Defendant Wooster
Judgment:	9 March 2017

_{NOTES OF JUDGE M A COURTNEY ON SENTENCING}

[1] Joshua Wooster and Teresa Peebles are for sentence on two joint charges, namely aggravated burglary and demanding with menaces. Ms Peebles is for sentence on four additional charges being unlawful possession of a firearm and unlawful possession of ammunition, possession of cannabis and assault.

[2] All of the charges apart from the assault charge came about essentially as a result of actions of both defendants following a failed banking scam proposed by Ms Peebles cousin, [victim 1]. As a result of that fraud not succeeding the defendants then sought to recover from [victim 1] and his partner, [victim 2], money that they believed was due in place of what they had expected they would receive

_{from the bank fraud.}

R v TERESA MATAWAI PEEBLES [2017] NZDC 5186 [9 March 2017]

[3] Initial attempts to locate [victim 1] were unsuccessful. [Victim 1] and [victim

2] had been staying at various addresses around the time of the offending, including at [victim 2]’s parents home.

[4] The first charge relates to the morning of 13 April 2016. [victim 2] was staying at her parent’s home. [Victim 1] had stayed elsewhere the previous evening. Early on the morning of 13 April the defendants arrived without any prior arrangement at [victim 2]’s home. They entered the house and made their way to the bedroom in which [victim 2] had been sleeping. They wanted to know where [victim 1] was and [victim 2] advised them that she could not tell them where he was. The defendants, in particular Mr Wooster, did not believe her. A reference was then made to taking [victim 2]’s father’s truck if [victim 1] did not get in touch with them or sort out the payment of the money that was expected. Mr Wooster was said to have been getting angry by this stage and once again demanded to know where [victim 1] was. [Victim 2] was concerned and tried to telephone [victim 1] but the call went to his answer phone.

[5] As a result of [victim 2]’s inability to contact [victim 1], Mr Wooster unzipped his jacket and produced a sawn off .22 calibre rifle. He pointed that at [victim 2] and he demanded to know where [victim 1] was. Not surprisingly, [victim

2] was particularly concerned at this demand and threat. She once again tried to telephone [victim 1] but was unsuccessful.

[6] The defendants told [victim 2] she had until later that morning to get hold of [victim 1] and they trusted that by then he had the money to give to them. They told [victim 2] that if [victim 1] did not have the money they would then take [victim 2]’s father’s truck. Mr Wooster then placed the gun back inside his jacket and they both left the property.

[7] I found that both defendants had entered the property without authority and with the firearm to present at the occupant and accordingly the charge of aggravated burglary was established.

[8] The second joint charge, which is that of demanding with menaces, related to events over the course of the next three days. That involved both defendants texting both [victim 1] and [victim 2] demanding payment of money and threatening that if the money was not paid they would take [victim 2]’s father’s vehicle and other property of both [victim 2] and [victim 1].

[9] I did not accept the defence claim that they were only seeking to have returned to them money allegedly owed and they therefore had a claim of right. As a result the charges of demanding with menaces were also established.

[10] The remaining charges that Ms Peebles faces, as a result of these events, was as a result of the fact that on 15 April the police were informed of the actions of the defendants and a police officer met Ms Peebles at an address and advised her that he was looking for a firearm. Ms Peebles response was “I know what you are looking for”. She then took the officer inside the house and pointed out where the gun was in the house. Ammunition was found with the gun and cannabis was also found at the property. Ms Peebles acknowledged possession of the gun, the ammunition and cannabis.

[11] Ms Peebles now also faces a further charge with regard to assault of her mother on 1 March. That was last week. That involves circumstances where apparently her mother indicated to the police that she did not wish Ms Peebles to remain in her home on electronically-monitored bail. That resulted in a rather unfortunate separation of Ms Peebles and her children and, in particular her new born baby.

[12] I accept the circumstances of that situation, whilst not warranting the result, would have been somewhat distressing for Ms Peebles and I take that into account when I sentence on that charge.

[13] As far as prior convictions are concerned Mr Wooster has a significant history of convictions in the District Court. Initially those were offences involving driving and dishonesty, but from 2011 the charges have certainly ramped up. They have included assault, assault of a child, assault with intent to injure, two charges of

injuring with intent to injure, male assault female, threatening to kill or do grievous bodily harm and wounding with intent to injure. In 2011 there was also a conviction for carrying a firearm. I note that on one of the charges of injuring with intent to injure the sentence was two years ten months’ imprisonment, It obviously involved a significant offence.

[14] I also note, as pointed out by Mr Stone who acts for Mr Wooster, that the pre- sentence report refers to Mr Wooster suffering death of a child around 2010 and that the offending has escalated since then. There are issues surrounding the loss of the child, which I have no doubt have impacted on Mr Wooster. Obviously that loss, as terrible as it would have been for him, does not justify the ongoing offending.

[15] Ms Peebles has a lengthy history since 2002 in the District Court. It is mostly for dishonesty and driving.

[16] The Court has been provided with pre-sentence reports for both of the defendants. It notes as far as Mr Wooster is concerned, that he says that he was enforcing a gang debt and he thought that he could get involved to perhaps prevent matters from escalating. He denies entering the house or possessing the firearm. I note that the gun generally described by [victim 2] as having been presented to her was similar to the one that was subsequently found. She says that Mr Wooster did have a gun in his possession and I certainly found that was the case on the evidence before me. I also note however that Ms Peebles in her pre-sentence report acknowledges that both she and Mr Wooster did have a firearm that day. She says that they travelled with a gun in the vehicle as standard due to safety issues with regard to her brother in the Mongrel Mob. I have no doubt whatsoever that Mr Wooster had a firearm that day as I have found with the charge having been proved.

[17] Since 2015 it appears that Mr Wooster has focused on distancing himself from gang associations, but focusing on family. It is unfortunate then that he has become involved in enforcing or dealing with a gang debt. That involvement has now led to these significant charges. The pre-sentence report recommended imprisonment which is the obvious outcome in this case.

[18] As far as Ms Peebles is concerned, as I say, she confirms that the parties did travel with the gun as a standard safety measure. The pre-sentence report notes that Ms Peebles expresses some remorse for the situation that she finds herself in. I imagine she no doubt does, but the report notes that it is hard to ascertain any personal remorse on her behalf with regard to the offending and it similarly recommends a sentence of imprisonment.

[19] I turn now to the charges and the determination of the sentences. Obviously the lead charge with regard to each defendant is that of aggravated burglary. Both the Crown and Mr Stone, for Mr Wooster, refer in their submissions to the decision of R v Mako1. Whilst that was a case concerned with sentencing for aggravated robbery it does of course provide guidance for a sentence on aggravated burglary.

[20] The aggravating features referred to in Mako which are present in this case are the following:

(a) First there was planning and premeditation. There had been prior attempts to contact [victim 1], which had been unsuccessful. Both defendants travelled from Napier to Flaxmere in the early hours of the morning with the sawn off rifle. That signifies significant planning on their part in terms of this event.

(b) The second aggravating factor referred to in Mako is the number of participants. In this case both parties entered the property. They were both there whilst the gun was presented. Whilst Ms Peebles was not the one who presented the weapon she was aware that it was in the vehicle when they went there and she is a party to the offending in that regard.

(c) The third factor is the number and type of weapon involved. There is a firearm that was used in this matter and that of course is

_{aggravating. There is no evidence as to whether or not the firearm}

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

was loaded on the day. However, the fact that ammunition was subsequently found with the firearm does aggravate the situation suggesting that the gun could have been loaded at the time or at least could have easily been loaded if it was not so at the time. In that regard I note the submissions on behalf of the Crown where they referred to [36] of the decision in Mako where it stated:

It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded nor is there any less risk the victims might react in ways dangerous to themselves or others believing they are in mortal danger.

Clearly [victim 2] had no idea or no ability to assess whether or not this firearm was loaded. I would imagine from her point of view, she believed because the gun was being pointed at her, the intent of it was to use it as a threat, and the point of that would be to imply that the gun was loaded regardless of whether or not it was.

(d) The fourth matter referred to in Mako is that of associated threats. In this case there were explicit threats regarding property, in particular the property of [victim 2]’s father. It was in the words of the Crown submissions “a standover”.

(e) The fifth point from Mako is whether or not a premises or a person was targeted. In this particular case the defendants had gone to the property specifically to target both [victim 1] and [victim 2], probably more likely [victim 1], whilst they were sleeping in a private house. Whilst [victim 1] was not there, [victim 2]’s father and brother were also in the house. The fact that [victim 1] was not there does not detract from the fact that the defendants intended to target him at the house. Obviously they were unaware that he was not at the home but certainly their intention was to target the home.

[21] The Crown in their submissions refer to the decision in Mako at [58] which notes that forced entry to premises at night by a number of offenders seeking money,

drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[22] The submissions for the Crown acknowledge that this was not a forced entry. It did not occur in darkness but it was a private dwelling house and it is submitted it was intended to target the house when the victims would be at home asleep in bed.

[23] For those reasons a starting point of six years’ imprisonment is suggested as appropriate. That submission is supported by reference to three further cases. The first of those is R v Kaukau2. That involved a starting point of five years’ imprisonment and, which at that stage, was described as top of the range for an aggravated burglary. The appellent in that case had entered a house through a rear window. The occupant heard the noise, confronted the appellant and he ran away.

During the chase of the appellant, it was found that he had a knife with him. I see this case as being in a more elevated situation than R v Kaukau.

[24] The next case is that of the Morrison v Crown Law Office3. That involved an unforced entry into the dwelling house of a person associated with the defendant who then confronted the victim, holding a shotgun as she lay in her bed. The defendant threatened to kill the victim but eventually calmed down and she then drove him home. A starting point of five years nine months’ imprisonment was adopted in that case. For reasons I will come to shortly, I believe that case involved threats to kill, which were not made here, the holding of a shotgun and the impact on the victim in that case was significantly graver than that involved here. For that reason that starting point I believe is high.

[25] Reference is then made to the decision of the Court of Appeal in Hay v R4

where an offender had gone armed with a crowbar together with another person who had a gun to a private home at night for the purposes of collecting an apparent debt.

2 _{R v Kaukau [2007] NZCA 66.}

3 _{Morrison v Crown Law Office [2016] NZHC 534.}

4 Hay v R [2015] 329.

The victims were threatened and then the offenders took a car. A starting point of

seven years nine months’ imprisonment was approved by the Court of Appeal.

[26] It is submitted, having regard to those cases, that the start point of six years is appropriate.

[27] For Mr Wooster, Mr Stone submits, having regard to the factors that are identified from Mako. I have referred to, that a starting point of around three and a half to four and a half years is appropriate. He relies on the High Court decision of Melgren v R5. In that case the defendant and an associate went to where the victim lived after being refused a sale of cannabis. The defendant took a hunting knife with him and he disguised his face with a bandana. He slashed the tyres of the car and

was charged with wilful damage. He also stole items from a house and it turned he had entered the wrong house. He then went to the correct house, slashed tyres of another car, tapped on the window of a bedroom with the knife and then left. In that case a starting point of three and a half years was adopted. On appeal, which ended up with an end sentence of 29 months, that was upheld. The Court noted that three and a half years is not uncommon for aggravated burglary where there is no violence or no property taken.

[28] Here threats were made and I believe that if [victim 1] had been present and did have the money available, then property would have been taken. That was the whole point of the exercise of visiting him to achieve that outcome.

[29] Whilst Mr Stone notes that the use of a firearm in this case aggravates the offending he points out that no violence was inflicted. That is correct, but as I say, I believe property would have been taken had that been available at the time. He refers also to the decision of Morrison v Crown Law Office. In that case there was the threat and that extreme anxiety and distress to the victim, and Mr Stone notes that the starting point in that case was five years nine months. He submits the threats in this case were less than in Morrison. I accept that they were. Mr Stone also notes that in that case a pump action shotgun was involved. Whilst that clearly could be

_{seen as a more serious weapon, the fact is from a victims point of view, I would}

5 Melgren v R [2016] NZHC 2482.

imagine there would be little difference between being confronted with a shotgun being pointed at you or a .22 rifle.

[30] Mr Stone submits that, having regard to Melgren, there can be a modest uplift on the three and a half years start in that case.

[31] Ms Graham also refers to the decision in Morrison v Crown Law Office. She submits that in the present case there were no threats. Clearly there were threats, and that distinguishes this from that case. She also refers to Tribble v NZ Police6 where a starting point of five years imprisonment was considered appropriate for offending involving a firearm, entering into a house, use of disguise and theft of property under the threat of the firearm. That is similar to this case, although in this case there are the associated threats with regard to other property to be obtained.

[32] The Crown also refers to R v Schuster7. That was a more serious case which involved a firearm being discharged within the home on two occasions, actual threats and detainment of victims with a starting point of six years’ imprisonment. I accept that this case is not in the same league as that.

[33] It is not easy from those various decisions to discern a clear pattern, given the seven year nine months start point approved by the Court of Appeal in Hay - it was similar to this case except it involved a theft - and the five year nine month sentence referred to Morrison, which involved threats to kill and serious consequences for the victim.

[34] Taking all matters in the round and having regard to that various range of cases I believe an appropriate start point for sentence in this matter, is a sentence of five years and three months’ imprisonment.

[35] There are then the additional charges. The Crown say there were persistent threats over three days with the demanding with menaces which were given credence by the use of the firearm on the first occasion. The Crown accordingly submits there

_{should be an uplift of between nine and 12 months. Neither of the submissions for}

6 _{Tribble v NZ Police [2016] NZHC 187.}

7 R v Schuster [2015] NZHC 2833.

the defendant make mention of this issue. I see those ongoing threats, whilst serious charges in themselves, in a sense a continuation of the original offence which demanded the money and accordingly I do not propose to include an uplift with regard to those additional charges.

[36] I turn to the personal circumstances of each of the defendants and deal first with Mr Wooster. The Crown notes that he has a significant previous history which I have referred to. They submit that there should be an uplift to recognise that previous violent offending. Mr Stone in his submissions acknowledges there has been previous violent offending but notes there has been no burglary offending since Mr Wooster appeared in the Youth Court. To me the concerning aspect of this offending is not so much the burglary, but the violence involved with the aggravating factor of the gun. I believe the previous serious offending does need to be taken into account. I believe that it would be recognised by an uplift of six months. That would bring the sentence for Mr Wooster to five years nine months.

[37] As far as Ms Peebles is concerned the Crown notes that her offending has been primarily low level and does not suggest any uplift should take place. I agree that is the case and I do not impose any uplift.

[38] Ms Peebles has been on electronically-monitored bail for just over nine months. That has been a 24 hour curfew virtually throughout that time. Section

9(2)(h) Sentencing Act 2002 provides that an adjustment should be made for the time spent on electronically-monitored bail. The Crown submits that there have been variations to bail and that it has not been so restrictive. I note obviously also that to some degree that has been beneficial for Ms Peebles in that it allowed her to be with her children. However, I agree there has been a restricted bail condition for a significant period of time and I allow a reduction with regard to that in the sum of five months. Accordingly that brings her sentence down to four years ten months.

[39] As far as her personal circumstances are concerned, she has five children, the youngest of whom is a very young baby who has been born whilst these proceedings have been before the Court. It is said that a sentence of imprisonment will have a profound effect on her children and I have no doubt that it will. It could be said that

Ms Peebles should think of that when she decides whether or not she gets involved in offending, but that of course is to look at her rather than the children. I will allow a modest reduction for her personal circumstances recognising the ages of her children. I will allow four months reduction in that regard and that brings her sentence to four years six months.

[40] Ms Graham raised at the commencement of sentencing today a further factor which had not been included in submissions. That is the factor set out in s 9(2)(fa) Sentencing Act which can allow the Court to treat as a mitigating factor the fact that the offender has taken steps during the proceedings, other than to comply with procedure requirements, to shorten the proceedings or to reduce their cost. I have not before had that submission put to me to deal with. I was not provided with any authorities. However Ms Graham says that in this case the defendants both elected Judge alone trial which would have expedited the hearing considerably and significantly reduced costs to the state. It is also pointed out that a hearing of the matter took place late last year on short notice and once again that is a factor that should be accepted under s 9(2)(fa).

[41] Ms Mitchell says that the defendants could have in fact pleaded guilty and thereby expedited matters, but if that were to be applied then I imagine s 9(2)(fa) could have no application in future. It must recognise steps taken in the course of a proceeding including a defended hearing. Ms Mitchell says that there is little out of the ordinary in this case.

[42] Mr Stone points out that his client had to deal with preparing for hearing at short notice. He accepted that and did so. Mr Stone points out that Parliament obviously wants to acknowledge co-operation in getting matters dealt with more promptly and that is the point of this section. As I say have had no prior involvement with that section nor have I had any authority referred to me. However, it appears the fact the defendants have chosen a Judge alone trial, and did accept a short notice hearing, is a factor that should be taken into account.

[43] Accordingly for each of the defendants I therefore allow a reduction of four

months to reflect that. That then brings Mr Wooster’s sentence to one of five years

five months’ imprisonment and Ms Peebles’ to one of four years and two

months’ imprisonment.

[44] Having regard to all those matters I now deal with each of the charges as follows:

(a) On the charge of aggravated burglary Mr Wooster is sentenced to imprisonment for five years and five months.

(b) On the charge of aggravated burglary Ms Peebles is sentenced to imprisonment for four years and two months.

(c) The charge of possession of the firearm faced by Ms Peebles is sentenced for imprisonment for 12 months and similarly for possession of the ammunition.

(d) On the charge of possession of the cannabis she is convicted and sentenced to imprisonment for one month.

(e) The remaining charge for Ms Peebles is that of assault on her mother having regard to the circumstances in which that occurred, whilst not justified it was obviously a distressing situation for her and accordingly on that charge she is convicted and discharged.

The aggravated burglary charges are strike offences. At the conclusion of the defended hearing I gave strike warnings to each of the defendants. For Mr Wooster that was his second strike warning. For Ms Peebles it was her first. Those sentences of imprisonment all run concurrently so that the sentence imposed on the aggravated burglary charges is the total sentence to be served by each of them.

ADDENDUM:

[45] When it came to imposing sentence on each of the charges I recorded those on the charging documents on file. When the Crown took responsibility for the file, the Crown charge notice filed included the additional joint charge of demanding with

menaces. As there was no separate charging document for this charge I overlooked imposing sentence on the charge in Court.

[46] This was pointed out to me when I was back in chambers later in the day. I asked the court taker to advise counsel that I had intended to sentence each defendant to 12 months’ imprisonment on the charge, to be served concurrently with the other sentences imposed. I enquired as to whether counsel required me to have the matter recalled in order to sentence the defendants. I was advised neither counsel required that and I therefore recorded such sentence for each defendant on the Crown charge notice.

M A Courtney

District Court Judge