R v Deed [2018] NZDC 6109 (27 March 2018)

Last Updated: 23 May 2019

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

IN THE DISTRICT COURT AT MANUKAU

CRI-2015-092-008364

[2018] NZDC 6109

THE QUEEN

v

ADAM MATHEW DEED

Hearing:	27 March 2018
Appearances:	R Warren for the Crown H Cherrington for the Defendant
Judgment:	27 March 2018

NOTES OF JUDGE D J McNAUGHTON ON SENTENCING

[1] Adam Deed, you appear for sentencing on one charge of aggravated robbery, five charges of burglary, 27 charges of using a document, one charge of escaping custody, one charge of unlawfully in a building, one charge of theft and charges of failing to answer bail. You pleaded guilty following a sentence indication hearing before me on 16 January.

[2] In respect of the aggravated robbery there were two other co-offenders and the three of you robbed a store at Manukau called [deleted]. The owner of the store was a person known to you and, reading between the lines, it was you who initially targeted these premises and organised the robbery with your co-offenders playing the leading role in terms of carrying it out on 21 May 2016, wearing face masks and gloves.

[3] You were initially unmasked when you entered the store but then attempted to disguise your face with items of clothing. Your role was to remain at the front door

R v ADAM MATHEW DEED [2018] NZDC 6109 [27 March 2018]

and act as a lookout. One of the other two was armed with a cut-down double-barrelled shotgun which he presented at the complainant, demanding money and asking about the safe. She took him to the safe in a back office which was already unlocked because she was cashing up for the evening.

[4] Your co-offender took the cash tin from inside the safe and at that point he was joined by a second co-offender and both of them were demanding money. One of them said to the complainant, “There should be more money here. There should be 17 grand.” She handed over more cash in envelopes which were bank deposits from the store totalling $1985. After that the complainant was told to get on the ground. She was kneeling. She was searched and patted down. Her phone was taken. She pleaded with these two co-offenders for them not to hurt her. One of them kicked her in the hip. Her hands were tied behind her back using plastic cable ties. Her feet were tied with an extension cord and her jacket was put over her head.

[5] While this was occurring the store and the drawers behind the counter were being searched. At one point you briefly approached the front counter before going back to the door. You were briefly searching through the drawers and then all three of you left the store. The complainant was able to untie herself and call the police. This incident was recorded on CCTV cameras. Your co-offenders admitted their part in the robbery. You made no statement.

[6] You have a substantial history of criminal convictions which dates back to 1996. You were convicted of demanding with menaces and assault that year. You have numerous convictions for burglary, 18 by my count, and five assault related convictions. Sentences of imprisonment have been imposed on you from the year 2000 onwards. In 2004 you were sentenced to imprisonment for two years, two months for a number of burglaries, sentenced to imprisonment again for burglary in 2005, two and a half years, nine months’ imprisonment in 2006, sentenced again for burglary, receiving and fraud, 2008, six months. In more recent times you have been sentenced to home detention, 11 months’ imprisonment in 2014 for burglary and eight months’ imprisonment in 2016 is the last recorded sentence.

[7] The Crown’s submissions emphasise the aggravating features of the robbery, starting with a degree of preparation and planning, and it seemed to me pretty clear from the comment regarding the 17 grand that the offenders had some expectation of the amount of money that would be there and in the Crown’s submission that showed clear planning. The three of you had arrived at closing time. You were targeting the safe. You believed a substantial amount of money would be present. You brought with you a shotgun and cable ties.

[8] The number of participants involved is another aggravating feature, so too the use of disguises, targeting of the premises and actual violence carried out during the course of the robbery, kicking the victim while she was on the ground, and the quantity of property taken. Needless to say, there has been a significant impact on the victim, causing her considerable anxiety and exacerbating previous existing medical conditions including asthma and eczema, sleep difficulties, and she had to arrange additional security at work.

[9] The Crown referred to the leading case of R v Mako1 which sets out starting points for sentence for robberies such as this of a small retail shop. Should the shopkeeper be confronted by one person with face covered and no actual violence and a small sum of money taken, the starting point would be around four years. Should the shopkeeper be confined or assaulted or confronted by multiple offenders or if more money and other property is taken, five years and in bad cases six years was said to be the starting point.

[10] The police had also filed submissions in relation to 36 charges which you pleaded to at case review; five charges of burglary, 27 charges of using a document, escaping custody, theft and failing to answer bail. The police submissions noted that the total value of property there obtained was $41,000 and many of those offences were committed jointly with your co-offender and partner Ms Hira, who had pleaded guilty in March the previous year, and she was sentenced to imprisonment for two years and one month. Those charges covered offending between January and July 2015 and broadly speaking involved the two of you going into offices at hospitals and

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

schools in Hamilton and Auckland, stealing credit cards from handbags and wallets and then using those credit cards to purchase goods to a total value exceeding $41,000.

[11] The additional charges of escaping custody and unlawfully in a building were you leaving the Court after being remanded in custody and the theft related to cutting off an electronically-monitored bracelet which could not be recovered. The police had submitted that the five burglaries should be treated as the lead offences and there was said to be a level of premeditation involved in targeting hospitals and schools. The police emphasised the total value of property taken, the significant inconvenience to victims and the invasion of their privacy.

[12] I am not going to repeat all of the submissions made to support an appropriate starting point or the authorities relied on by the Crown and defence but I concluded at para 20 of the sentence indication notes that a starting sentence in terms of the aggravated robbery should be five and a half years on a parity basis with a sentence indication already given by Judge Moala for your co-offenders. I said I thought this robbery was fully deserving of a starting point of six years’ imprisonment given the degree of planning and premeditation and the way the complainant was tied up and assaulted and the amount of money that was stolen but five and a half years would still be within range and I was content with that.

[13] As far as the burglary and credit card charges were concerned it seemed to me entirely artificial to look at those separately. I said I would see these as burglaries which led directly to losses incurred on the credit cards exceeding $40,000. The two sets of offending were directly linked and I would see the losses incurred in the credit card offending as an aggravating feature of the burglaries. I said, standing back and looking at this overall, I would have thought the starting point in relation to the five burglaries should be four years’ imprisonment and it could easily be five.

[14] As to the rest, that was relatively minor and unrelated and I said there would be no uplift for that. I said that meant stand-alone sentences of five and a half years in relation to the aggravated robbery and four years for the burglary and using a document charges and I said, standing back again and looking at a totality adjustment, I would arrive at a total sentence of eight years’ imprisonment. From that starting

point there would be an uplift of nine months to take into account your extensive history of burglary, which I said was directly relevant to your present burglary charges, and to a lesser extent also the aggravated robbery. I said I would uplift the sentence again by three months to take into account your offending whilst on bail which was gross and flagrant and that meant a sentence of nine years’ imprisonment.

[15] Turning to the discounts, I said your time spent at Odyssey House was a mitigating factor. You were there for nine months in all and you were three months away from graduation and I said you probably would have graduated but for the intervention of the New Zealand Herald who, of course, are not here today to report the sentencing because they are not interested in the sentencing. The reporter who was at Court assured me that no story was in contemplation at that point. I declined her application to take your photograph in Court but the summary of facts was released and the New Zealand Herald then within a day or two published the story and your photograph as you were leaving the Court which I said was fairly close to contempt of Court and had the very unfortunate result of you failing to complete the programme, breaching your bail and then going on to commit these serious offences. I said that was a direct consequence of the intervention of the media.

[16] I said I would discount your sentence by a full nine months to take into account the time spent in treatment and a further three months for time spent on electronically-monitored bail and recognising courses you completed in custody. I said that meant a sentence of eight years before any discount for guilty pleas. Pleas on the police charges were not entered at the earliest opportunity. It took some months to negotiate the pleas and a plea after eight months, I said, was by no stretch an early guilty plea so overall the sentence should be discounted 20 percent which would mean an end sentence of six years and four months and you accepted that indication and pleaded guilty.

[17] I have a pre-sentence report in which you emphasise that the offending was the result of your methamphetamine addiction. You refer to your completion of nine months at Odyssey House and explain that the publication of that article in the New Zealand Herald, which detailed your offending, caused people at Odyssey House

to treat you unfairly. You were unable to cope with the added pressure. You left and began using drugs again and re-offending.

[18] You explain that you were involved in the robbery initially due to drug debts. You say you were living with the victim when you came to know about the money and staff movements at the premises where she worked. You had known your co-offenders for a couple of months, who were gang members. You owed them money for methamphetamine. You supplied them with the information and then the three of you acted together. You said you never thought of the consequences because you were in the grip of a drug psychosis, on the run, moving from house to house, not sleeping.

[19] The probation officer points out that the burglary and credit card offending is similar to offending you were sentenced for back in 2011, stealing from a bag belonging to a teacher where your children were going to school, taking credit cards and using those to purchase cigarettes and mobile phone vouchers, and the probation officer suggests this is a similar pattern and your risk of re-offending is assessed as high.

[20] You suggest that you did not receive the full reduction that you were entitled to in respect of the sentence indication. I have stood the matter down today for your lawyer to take further instructions. It seems you believe you are entitled to a 25 percent reduction but, as I said before, pleading guilty after eight months certainly was not an early guilty plea. The other issue was whether or not there was any duress in terms of your involvement in this aggravated robbery. Counsel has taken instructions in relation to that as well and that is not pursued. If it was going to be there would need to be a separate disputed facts hearing at which evidence was given.

[21] Your father is Ngāti Porou. You have never met him. Very early on you were diagnosed with ADHD and you say you were the first person in New Zealand to be prescribed Ritalin. You describe behavioural problems ever since childhood including stealing, running away from home and lighting fires at school. You were sent away to boarding school at one stage. You have been in a relationship with Ms Hira for about 17 years. You describe her as a good mother who has managed to distance herself from her family who are associated with Black Power. You have four children

together, aged between four and 15. She also has a criminal history and from time to time you have offended together.

[22] You hope to work one day full-time in the future on boats or farms. You are interested in doing a business course whilst in custody. You are not currently associated with any gang. You say you have learnt strategies to overcome your addiction but have not yet had an opportunity to put those into practice. You are currently in a segregated unit because your co-offenders had put out a hit on you and you say your partner and children have relocated due to threats from the gang as well.

[23] I note your remorse letter apologising to the victims of your crimes and also the letter addressed to the complainant in respect of the aggravated robbery which the crown will pass on to her. You say you make no excuses, you have only yourself to blame and you accept the sentence which has been indicated. You emphasise you were high on methamphetamine. You now realise the impact on your victims. You have been undertaking as many programmes as you can whilst in custody, four days a week, including intensive literacy and numeracy, a secure online computer programme and in your own time you are doing a business correspondence course. You say you are focused 100 percent on changing your life.

[24] I have a letter from your mother as well, who is here today to support you at the sentencing, who appreciates the opportunity that you were given to attend the programme at Odyssey House. She says she observed a great change in you while she was there. She visited you regularly in the weekends with your children and she also confirms that it was the publication of this story in the Sunday Herald which caused you to leave, and I have a certificate of achievement presented to you last month from the Correspondence School.

[25] It is difficult to assess your prospects for rehabilitation and the Parole Board are going to have to do that at some point during your sentence. I hope they do take into account the time you spent at Odyssey House, despite your relapse and further offending, and I hope they take into account also courses you have done whilst on remand and courses you do after this. On the information before me there would appear to be a reasonably sustained effort towards rehabilitation which started at

Odyssey House and which is continuing on now and I am going to discount the sentence I indicated a further 15 percent to recognise that which means a sentence on the aggravated robbery charge of five years and four months.

[26] All the other sentences are going to be concurrent. In relation to the five charges of burglary it will be four years’ imprisonment on each of the burglary charges. On the 27 charges of using a document, 18 months in respect of each. Eighteen months’ imprisonment for the theft of the EM bracelet charge and on the remaining four charges, two of failing to answer bail, found without reasonable excuse in a building and escaping custody, you are convicted and discharged so the effective sentence is five years, four months. Good luck.

D J McNaughton District Court Judge