R v Tatana [2017] NZDC 6199 (22 March 2017)

Last Updated: 1 August 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT GISBORNE

CRI-2016-016-002365

THREE STRIKES WARNING [2017] NZDC 6199

THE QUEEN

v

_{AROHA TATANA}

Hearing:	22 March 2017
Appearances:	C Stuart for the Crown A M Simperingham for the Defendant
Judgment:	22 March 2017

_{NOTES OF JUDGE W P CATHCART ON SENTENCING}

[1] Ms Tatana, given your conviction for the aggravated robbery charge you are now subject to the three strikes law. I am now 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 violent offences.

[2] First, if you are convicted of any serious violent offences 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. Second, 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.}

R v AROHA TATANA [2017] NZDC 6199 [22 March 2017]

[3] The offending for which you appear for sentence can be divided into three categories. The first category deals with the most serious offences. That is the aggravated robbery and the associated aggravated assault matter. The second category of offending deals with the threat to kill and common assault, which occurred on 29 November. The third category deals with your other offending, including the other common assault, the failure to answer police bail, breach of supervision and breach of community work.

[4] It is accepted by the parties that the aggravated robbery matter is the lead charge. Within that lead charge, I will incorporate the aggravated assault. Also, I am going to impose a cumulative sentence in relation to other offending represented by the second and third category of charges.

[5] The aggravated robbery occurred on 1 December 2016. You went to Willy’s Dairy in Ormond Road, Gisborne. You entered the store and asked for cigarettes, which came to $126. You advised the two staff members that you did not have enough money to pay and would need to go outside and get some more money. You then left the store. While outside, you armed yourself with an axe, pulled a bandana up over your face and then you returned inside a short time later.

[6] Two factors arise from those facts. Clearly, you were scoping the dairy. Also, you armed yourself and disguised yourself. Those factors demonstrated some planning was involved in the robbery, albeit at a low level.

[7] You then entered the store with the axe. You held it at shoulder height and demanded cigarettes from both the victims, who were the shop owner’s children, aged 28 and 30 years respectively. You then threatened to kill them. You said, “I will kill you if you don’t. I’ve killed someone before”. Your use of the weapon to threaten in that way is an aggravating feature. You held it at shoulder height when you made those threats. You wanted that threat to be taken seriously. The notion that you may have killed someone before was to instil fear in the victims whether it was true or not.

[8] However, one of the victims armed himself with a hockey–stick. You then grabbed two bags of lollies from the shop counter, a can of Red Bull, and ran.

[9] The owner of the shop, who had seen what had been happening, came from the rear of the shop. He and his son chased you down the road. When he got close behind you, you stopped and turned around, holding the axe out towards him. He was standing approximately three metres away from you. You then told him that you would hit him with the axe if he called the police. The victim believed you were about to hit him because of your demeanour at the time. He then spoke to you. After a short time, you agreed to put the axe on the ground and you were then taken back to the shop. The police arrived a short time later.

[10] I accept that the Crown is correct that there has been a degree of planning and preparation. There was the use of the bandana as a disguise. You armed yourself with the axe. That was associated with a threat to kill the shopkeepers during the robbery. However, I accept Mr Simperingham’s submission that, when one looks at all of those aggravating features in the round, whilst very serious, your conduct was unsophisticated.

[11] Then, of course, there is the associated aggravated assault offending. In fixing a starting-point for both offences, I take into account the need to deter and denounce your conduct, and to hold you accountable for the harm that you caused to these victims, as reflected in the victim impact statements.

[12] The Crown relies on the R v Mako1 to guide the Court. Mako instructs the Courts that the particular facts of each are the most important. At [54] and [56] of Mako, the Court said:

[54] ... The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of 6, or perhaps more, years ... if actual violence is used, the starting point would be 8 years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of 8 years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least 9 years for the overall offending.

_...

1 R v Mako [2000] NZCA 407; 2 NZLR 170, (2000) 17 CRNZ 272.

[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present ... The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.

[13] Mr Simperingham submits that the appropriate starting-point here is three and a half to four years’ imprisonment for the aggravated robbery offending in combination with the aggravated assault matter. He stresses that: there was a demand for cigarettes and not money; you made off with items of minimum value; your offending was unsophisticated; and you had no accomplices.

[14] The Crown submits that the appropriate starting-point is four and a half to

five years’ imprisonment for the aggravated robbery and aggravated assault matter.

[15] I adopt a starting-point of four years eight months’ imprisonment for the aggravated robbery offending in combination with the aggravated assault offending.

[16] This offending occurred whilst on bail. I thus increase that starting-point by a further period of four months to reflect that serious aggravating feature.

[17] The second category of offending that relates to the threat to kill and common assault matter on 29 November. On that day, you were at an address in Pātūtahi with your sister, your brother–in–law, and her baby child. During the morning you were having trouble with your baby. She was nine months old at the time and would not stop crying. The victim’s partner picked up the child and took her outside. You told the victim to “f–up” and “you aren’t her mother”. She said that you were not looking after the baby properly. You started yelling at the victim, telling her that you will “f–ing drop her” and you’ll “smash her”.

[18] You got up into her face and pushed her. She pushed you back. You then punched her three times to the head and face. In self–defence, she punched you back. She had you on the ground and told you to calm down. You got up, picked up a pair of crutches and held them. You walked off and said, “I’ll get a knife and stab

you and put you in the ground”. You walked into the kitchen. As the victim went to walk outside, she heard you open a drawer in the kitchen. She closed the front door so that you could not get outside. You started booting the door and broke the bottom of it, so the victim let go of the door. The door opened and she saw you standing in the doorway with a large knife in your hand. It was about 40 centimetres long.

[19] That victim’s male partner intervened. You attempted to push past him in an attempt to get to the female victim. He, however, gave the baby to the female victim and managed to push you down the hallway. He took the knife from you and returned it to the kitchen drawer.

[20] The victim received a bloody nose. She did not require medical attention. You admitted you got the knife and told the victim you were going to kill her. You made the remark that she was lucky her boyfriend was there or you would have killed her. You made the further remark, whether true or not, that you have stabbed your mother before.

[21] Looking at that second category of offending, the Crown directs me to recent cases dealing with threats to kill, Allan v Police,2 Bonfert v R,3 and Nicholas v R.4 In Allan, the Court set out various factors that must be weighed to assess the seriousness of the threat to kill. Those factors include whether the threat involved the use of a weapon, the level of harm, distress or fear caused to the victim, the impact on their life, whether the threat was made directly to the victim, whether the

threat was a reaction of excessive or unreasonable self–defence, and whether the threat is made directly to the victim in person or by some means of communication.

[22] Here, the Crown submits that the appropriate starting-point is in the range of

18 months to two years’ imprisonment when one combines the threat to kill and the common assault matter. The Crown points out that you reacted aggressively to the criticism of your parenting skills. You entered a physical altercation with the victim. You said you would get a knife. You obtained the knife from the kitchen, pursued

_{that person and you threatened to kill the victim. You said to the police you would}

2 Allan v Police HC Dunedin, 1/12/2011, CRI–2011–412–37, White J.

3 _{Bonfert v R [2012] NZCA 313.}

4 Nicholson v R [2016] NZHC 300.

have done so but for her boyfriend being present. This occurred while the victim’s

partner was holding your nine–month old child. This is serious offending.

[23] In my view, the appropriate starting-point here for the second category of offending, incorporating both the threat to kill and common assault, is one of

20 months’ imprisonment.

[24] The third category of offending involves the unrelated assault matter as well as all other offending. The appropriate starting-point there for that overall offending is four months’ imprisonment.

[25] In mitigation, Mr Simperingham refers me to the fact that you are 22 years of age. You have one child aged 13 months and she is in the care of your own mother. Your conviction history is relatively short and it relates mainly to dishonesty offending. You have been in custody since 2 December 2016. You left school at the age of 14.

[26] The pre–sentence report states that you have a mental health history and that you may be experiencing problems with depression, drug abuse and other private matters.

[27] Looking at all of those circumstances, you are entitled to credit for those personal circumstances.

[28] With respect to your guilty pleas, I accept that you are entitled to a 25 percent discount in relation to all offences. I have therefore arrived at the following sentences.

[29] With respect to the aggravated robbery matter, you are sentenced to three

years three months’ imprisonment.

[30] With respect to the aggravated assault matter, you are sentenced to one year’s imprisonment. That is concurrent.

[31] With respect to the threatening to kill which is in the second category of offending, I impose a sentence of 15 months’ imprisonment. I impose three months’ imprisonment on the common assault matter. Both those sentences are concurrent within themselves but they are cumulative on the sentence for the aggravated robbery matter.

[32] With respect to the unrelated common assault matter and the failure to answer bail charge, breach of supervision and breach of community detention, the end result is as follows. In relation to the assault, three months’ imprisonment. On the failure to answer bail, one month’s imprisonment. On the breach of supervision, one month’s imprisonment. On the breach of community detention one month’s imprisonment. All that offending, which is in the third category, is concurrent within itself. It is also concurrent with the second category of offending.

[33] The sentence of supervision is cancelled.

W P Cathcart

District Court Judge