R v Moore [2017] NZDC 7980 (13 April 2017)

Last Updated: 8 September 2017

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

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2016-054-001986 [2017] NZDC 7980

THE QUEEN

v

_{JONATHON EDWARD MOORE}

Hearing:	13 April 2017
Appearances:	M J R Blaschke for the Crown T C Thackery for the Defendant
Judgment:	13 April 2017

_{NOTES OF JUDGE L C ROWE ON SENTENCING}

[1] Jonathon Moore, you appear for sentence having pleaded guilty to a charge of aggravated robbery which carries a maximum penalty of 14 years’ imprisonment, a charge of unlawfully getting into a motor vehicle which carries a maximum penalty of two years’ imprisonment, a charge of driving while disqualified which carries a maximum penalty of three months’ imprisonment and a charge of theft of petrol which carries a maximum penalty of three months’ imprisonment.

[2] Clearly, the lead offence is the aggravated robbery.

[3] You were the getaway driver for the robbery of a tobacco shop. On 28 July

2016 you went with a male associate in the vehicle you were driving, parked outside, your associate went into the shop and confronted the 21 year old female shop assistant with a knife while wearing a balaclava and gloves. Your associate obtained

_{$482.30 in cash from the till and also tobacco products with a value of $42.91.}

R v JONATHON EDWARD MOORE [2017] NZDC 7980 [13 April 2017]

[4] The unlawful taking of the motor vehicle relates to the vehicle you were driving. So you drove to the shop in a stolen vehicle, waited for your associate and then drove away once your associate had robbed the shop.

[5] The vehicle was stolen shortly before this, so in the evening of 27 July or the morning of 28 July. At the time you were a disqualified driver and on your way to the robbery you stopped at [the victim petrol station] and put $97.20 of petrol into the vehicle and drove off without paying.

[6] I have a victim impact statement from the shop assistant. The business that was robbed was a family business. Understandably she describes herself as being terrified. She has a young [child] and all she could think of was that she wanted to make it home alive to her [child].

[7] She is now frightened when people enter the shop looking a bit scruffy or wearing a hat, she is instantly suspicious of them. She has suffered mood swings since this and has had difficulty sleeping.

[8] So while on the one hand there is a financial loss for this business, the real cost is also measured in terms of the effect that it had on this 21 year old woman.

[9] You have heard submissions today from the lawyer’s one for the Crown and your own defence lawyer about how I should approach sentencing. They have referred to a case called Mako1. In Mako the Court said that for a robbery of this kind, a starting point would be about four years’ imprisonment. There is a submission on your behalf that I should start at a lower point for you for the robbery. Having regard to what is described as your lesser role but also what is said by you to be some compulsion by others to be involved.

[10] What I can say to you is that if this was simply a case of you being a getaway driver for a pre-meditated robbery – as this plainly was – then as part of that plan,

_{and waiting for the robber, and driving away with them, you are equally culpable and}

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

I would not see that as playing a lesser role in this robbery. I would not regard that as a basis to depart from the starting point of four years.

[11] As for the question of whether you were compelled to be involved in this, that is difficult for me to assess as you can appreciate. But you took steps after this that I think are consistent with that position.

[12] I then have to weigh up that this was a premeditated planned act, involving the presentation of a weapon by someone with a disguise, to a vulnerable 21 year old woman in a shop by herself, against the proposition that you were compelled. I think it is appropriate to recognise that by starting at three years six months, rather than four years. I think that properly reflects, as best I can balance, that factor, and giving you some allowance for that and reflecting what I assess to be your culpability for what was involved.

[13] Both counsel agree that there should be some uplift for the other offences. In this instance I think that is correct. The uplift I consider appropriate is three months, particularly having regard to the fact that you were unlawfully driving a vehicle that had only recently been stolen. I also have regard to your previous convictions.

[14] Sadly you have quite a history of offending from a very young age. It includes burglaries, multiple offences of possession of weapons, other offences of dishonesty, some offences of violence including male assaults female in 2015, earlier threatening to kill and of course there is the charge of assault with a blunt instrument for which you were on bail at the time of the robbery.

[15] The fact this occurred while you were on bail for a serious offence, like assault with a weapon, is something that is aggravating in this case, and I am required by law to take that into account and I am required to take your previous convictions into account.

[16] The cases say though that I need to give this some perspective, in other words, not act in a knee-jerk way and just impose an unreasonably large increase in the sentence for those factors, but they do need to be taken into account.

[17] So here I uplift the three years nine months that I got to, by six months to take those factors into account. It takes me to a starting point overall of four years three months’ imprisonment.

[18] The next thing I have to consider is whether there are factors which should discount that sentence that are personal to you.

[19] I have a very positive pre-sentence report, I have your letter which I think properly expresses the remorse you feel and the change you believe you are capable of making in your life. The report writer says that you appear genuinely remorseful and embarrassed by this offending and they have seen a notable change in your attitude. You are still a relatively young man. You are not eligible, I think, for a discount for your age but I think I can take into account there is at least, I think, a renewed commitment by you to try and change your life and I think that the remorse you have expressed is genuine, the steps you are taking while in custody are genuine and that you do want to make a better go of things.

[20] In saying this I acknowledge the presence of your father and mother in Court today. Their support says to me that they are here, listening to this, and that they of all people will want to support you in changing your life so you do not come back here.

[21] I give you a discount of five months for those factors. That brings me back to three years 10 months’ imprisonment from which I give you a discount for your pleas, slightly more than 25 percent, of 12 months. That takes me back to a sentence of 34 months’ imprisonment.

[22] There is then the factor that I have raised with the Crown and with your lawyer about the fact that you received a sentence of almost 16 months’ imprisonment for assault with a blunt instrument on 29 November 2016. You have now served that sentence but I think I am required to stand back and ask myself what, if any, effect that ought to have on the overall sentence to be imposed. It is what we call totality. In other words, whether it is just and proper to simply impose

34 months when you have already been subject to a sentence that has caused you to be confined for eight months on that short term sentence.

[23] If sentenced all at the same time – while it is difficult because I do not know all of the facts relating to the assault with a blunt instrument – it was clearly a serious offence given the 16 months that was imposed. However, I certainly accept that if sentenced all at once, you would have been subject to a sentence overall of at least an additional 10 months for that offence.

[24] The way to give effect to that, I think, is to reduce the 34 months that I got to by six months to take into account totality. That therefore leads me to an end point sentence overall of 28 months – that is two years four months’ imprisonment. I impose that sentence, two years four months, on the aggravated robbery. I order you to pay reparation of $925.21.

[25] On the charge of driving while disqualified you are convicted and simply disqualified further for six months, starting today – it is probably academic.

[26] On the charge of unlawfully getting into a motor vehicle you are sentenced to

three months’ imprisonment concurrently.

[27] On the charge of theft, you are sentenced to two months’ imprisonment

concurrently.

[28] I finish by saying that there are matters in your pre-sentence report and your letter and the steps you have been taking that give me cause for optimism that you can find a way out of what, for you, has been a pattern of destructive behaviour and offending. I can assure you the last place I want to see you is in a prison. I can assure you the last place I want to see you is where you are now. Whether that comes to pass again in the future is entirely up to you. You will be given opportunities to rehabilitate and I hope you take them.

L C Rowe

District Court Judge