R v Roberts [2017] NZDC 6924 (31 March 2017)

Last Updated: 30 August 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT HAMILTON

CRI-2015-019-002909
CRI-2015-019-004490

CRI-2015-019-004887 [2017] NZDC 6924

THE QUEEN

NEW ZEALAND POLICE

v

_{CLIFFORD HUIATAHI ROBERTS}

Hearing:	31 March 2017
Appearances:	T Clark for the Crown Sergeant S Bell for New Zealand Police G Walsh for the Defendant
Judgment:	31 March 2017

_{NOTES OF JUDGE R L B SPEAR ON SENTENCING}

[1] Clifford Roberts you are for sentence on a number of matters.

[2] First you were found guilty at a trial last year on charges of kidnapping, aggravated robbery and injuring with intent to injure. That was a trial where you had two co-defendants. They were found guilty of various charges including the three that I have just mentioned for which you were found guilty. You absconded from your bail and you were not able to be found by the time that the trial started last November. The trial proceeded in your absence and you were found guilty of those

_{three charges.}

THE QUEEN v CLIFFORD HUIATAHI ROBERTS [2017] NZDC 6924 [31 March 2017]

[3] I note, however, that you were found not guilty of charges of common assault, assault with intent to injure and threatening to kill. I also discharged you on a further charge of assault with intent to injure.

[4] I should say that the trial in fact started in September 2016. I sentenced your co-defendants on 18 November 2016. Putere received a total sentence for her part in this matter of four years’ imprisonment and Tawera-Smith received three years’ imprisonment. I set out in some detail in that decision why I reached those particular sentencing levels but perhaps it is important that I go back now to explain briefly the circumstances of this offending. Before doing so I need to deal with a number of police charges to which you have pleaded guilty and on which you also for sentence. They relate to:

(a) Between October 2014 and August 2015, unlawful taking of a motor vehicle. You pleaded not guilty on 18 October 2014 and changed your plea to guilty on 6 December 2016 when you were apprehended on the outstanding warrants. I understand that you may have made a voluntary appearance but it was inevitable that you would have been apprehended at some stage.

(b) August 2015, driving with an excess breath alcohol of 841. Again, there was an initial plea of not guilty with a change of plea to guilty

25 November 2016. At the same time driving, while disqualified and theft of petrol, a drive away.

(c) Finally there is a breach of Court bail relating to 1 March last year.

[5] What I propose to do is to come up with an all-up sentence for all matters, given that the police charges predate the trial and it is going to be far simpler for everyone to understand this sentence if I reach a total sentence rather than trying to accumulate one sentence on top of another.

[6] The circumstances of the major charges (kidnapping, aggravated robbery and injuring with intent to injure) are that on 28 August 2014 you were with your co-

defendants and others at Steele Park in Hamilton East. The complainant was a man from a town in rural Waikato who had come to town for a bit of the high life. He started talking to your group. Eventually he was invited to join your group which included Ms Putere and Ms Tawera-Smith and go to a party. He was looking to find a young woman with whom to spend the night and he was encouraged to accompany your group because of the indication that he would have good prospects of success.

[7] You took the keys of his car because it was indicated that he was affected by alcohol and indeed you were the driver of his car throughout this night. You drove the car to a couple of supermarkets where your two female co-defendants stole some wine although there are no charges against you that relate to that. You then ended up at Tawera-Smith’s flat in Hamilton East. About that time, the complainant decided that he wanted to move away from your group but you refused to return the keys to his car to him. By this stage, I accept that Putere had taken a leading role and while the complainant was demanding the return of his car keys from you, Putere ended up attacking him, smashing his head down onto the boot of the car and then forcing him into the rear of the car. You went back into the driver’s seat. Tawera-Smith was in the front passenger seat and another man (who was not identified) got into the other side of the back seat squashing the complainant between himself and Putere.

[8] You then proceeded to drive out towards Matangi. During that drive, Tawera-Smith reacted to something the complainant said and punched him, all the while he was being held in a headlock by Ms Putere. You eventually ended up on Morrinsville Road up by the cemetery. The complainant was then dragged out of the car by Ms Putere and punched to the ground by her and Tawera-Smith. You then joined in with the other man and your involvement included kicks to the head, stomping on the head and kicks to the body. The complainant was left unconscious and badly injured on the side of the road as you drove off. Again, you were the driver of the car. The complainant was eventually found and taken by ambulance to the hospital.

[9] The clear evidence at the trial was that those kicks and the stomping were from you and the other man in the car and not from the two women.

[10] The complainant received bruising and grazing to his face and forehead. There was even a clear shoe imprint visible on his face. He had a swollen and bloody nose and mouth. His wallet and cellphone had been taken.

[11] This attack had a severe impact upon him that was beyond the physical injuries he received. It has had a continuing emotional affect upon him. That is explained in paragraph 16 of the sentencing decision in respect of your two co- defendants. He missed a lot of work because of the fear that he had about going out at night and it also cost him quite a bit of money.

[12] This was a savage attack on a person who was relatively vulnerable because he was one as against three or four. He was affected by alcohol which was appreciated by you and he was taken advantage of by you and the others on this occasion as you realised that he was a stranger to town. Where and when the decision was made to attack him and take his car is not entirely clear, but it was certainly by the time that he was dragged into the car at Peachgrove Road and driven off.

[13] Your co-defendants were convicted of other charges as well as the three for which you were convicted. You may feel aggrieved that you were not at the trial to present your case but that was your choice because you absconded from bail. You cannot be given any credit or leniency for that reason, nor can there be any allowance for the Court not having the opportunity to hear your side of the story; if you had one.

[14] You are to be sentenced on the basis of the evidence as I understand it relating to each of the charges and which I have now related.

[15] This was, as I have said, a savage attack and one that requires a clear and condign sentence to be passed upon you. That is to express society’s outrage that young people, relatively young people, can be set upon by a group of hoodlums because that is all you were in this way. It could easily have seen this young man killed in which case you would be looking at life in prison.

[16] As I explained at the time of the other sentencing hearing, the lead charge here is that of aggravated robbery and that needs to be considered alongside the kidnapping charge which took place from the time that you took the complainant and his car away from the Peachgrove Road property. For that aggravated robbery, I take a starting point (as I did with the others) of 12 months’ imprisonment and lift it by six months for the kidnapping.

[17] For the injuring with intent to injure, the starting point there is three years’

imprisonment.

[18] That brings me to a point of 54 months’ imprisonment.

[19] You have previous convictions for violent offending. They go back a few years but there are convictions for assault and assault with intent to injure going back to 2010 and that requires a further lift by three months.

[20] However, it is not a question just of adding up all these starting points or assessments but what is important is that I look at the totality of the offending and strike a fair sentence that is required for your part in this sorry affair. Having regard to the assessment that I made in this respect with the co-defendants, I assess the appropriate sentence for you at four years’ imprisonment. That is slightly above Tawera-Smith and she was convicted of other offences including the punching in the car. But you were the driver throughout this night. You played a far more central role than Tawera-Smith and you were also one of the two that introduced the kicking and stomping to the head of the complainant out on Morrinsville Road. I consider that the offending end point here, without taking account of the police charges, to be four years’ imprisonment.

[21] I now look at the police charges, and of course you have previous convictions for this type of offending as well. You have three previous convictions for drink-driving. This was a relatively high reading at 841. You have two previous convictions for disqualified driving and three for theft including one for unlawfully taking a motor vehicle.

[22] The fact that it has taken so long for those charges coming from 2014 and

2015 to be resolved of course is not a matter that weighs in the balance here. That offending requires a further uplift of 12 months against the sentence that would otherwise be imposed upon you. What I am left with then before considering remorse and your pleas of guilty to the police charges is five years’ imprisonment.

[23] I will give you credit for what Ms Clark acknowledges for the Crown as your genuine remorse, which apparently saw you make a voluntary appearance on this matter. That brings me to an end sentence for you of four years three months’ imprisonment.

Sentence

[24] Taking the aggravated robbery as the lead charge covering all the charges you

are sentenced to four years three months’ imprisonment. On the other charges: (a) For the kidnapping, six months’ imprisonment.

(b) For injuring with intent to injure, three years’ imprisonment.

(c) Unlawful taking of the motor vehicle, six months’ imprisonment.

(d) Excess breath alcohol, six months’ imprisonment. The period of disqualification is an indefinite disqualification. The law requires me to impose that sentence rather than a fixed term. That means that you are indefinitely disqualified until you get an order from the Director of Land Transport Safety permitting you to re-sit your licence. You cannot do that for a year. You will have to go through an alcohol assessment centre at the same time. Additionally, if or when you get your licence back it will have to be a zero-alcohol licence which means you cannot have any alcohol in your system at all

(e) Disqualified driving, six months’ imprisonment and disqualified from

holding or obtaining a driver’s licence for 18 months from today

(f) Theft, one month’s imprisonment.

(g) Breach of Court bail, one month’s imprisonment.

[25] The all up sentence is one of four years three months’ imprisonment.

Judge RLB Spear

Authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012