R v Tinirau [2019] NZDC 1761 (1 February 2019)

Last Updated: 20 July 2019

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

IN THE DISTRICT COURT AT MANUKAU I TE KŌTI-Ā-ROHE KI MANUKAU

CRI-2017-092-008794

[2019] NZDC 1761

THE QUEEN

v

PAULO TINIRAU

Hearing:	1 February 2019
Appearances:	J Xulue for the Crown A Holland for the Defendant
Judgment:	1 February 2019

NOTES OF JUDGE A M WHAREPOURI ON SENTENCING

[1] Mr Tinirau, you appear before me for sentence, having been found guilty following a jury trial on two charges. They are one charge of aggravated robbery and one of unlawfully getting into a motor vehicle. Aggravated robbery being the most serious charge which you face, carries a maximum penalty of 14 years’ imprisonment.

[2] One of your co-offenders, Ms Harrison, has already been sentenced for her role in the offending. I will refer to her sentencing in more detail when discussing the appropriate starting point for the lead charge of your offending, which is the aggravated robbery charge.

[3] By way of background on [date deleted] July 2017 you, Ms Harrison and another, drove to the [location deleted] Service Station in the early hours of that

R v PAULO TINIRAU [2019] NZDC 1761 [1 February 2019]

morning. The car which you were using had been stolen from an address in Mangere, approximately five days earlier. After the car was driven onto the forecourt, you and the others exited the vehicle. You all wore hoodies over your heads, gloves and balaclavas or similar, designed to conceal your identities and reduce the chance of leaving forensic evidence behind. One of you then used a large rock to smash the glass night pay window which facilitated your joint entry into the store. The two service station attendants who were inside, fled to different parts of the premises, locking themselves inside secure areas.

[4] The first person who entered the service station wearing an orange high- visibility jacket was you. The other person who went inside wearing a black hoodie, black California sweatpants and a beanie pulled down was Ms Harrison. The two of you went immediately to the cigarette cabinets and till area to steal a large quantity of cigarettes, tobacco, as well as cash from the till. At one point during the robbery, you tried to force your way into an internal office, which was being used by one of the employees. You failed to gain access to the office and instead went back to the till.

[5] After leaving the service station in the stolen vehicle you all abandoned the car on a rural street a short distance away from the service station. That car was later located by an off-duty police officer who happened to be out for a morning run. He recalled receiving an earlier incident report about the aggravated robbery, and realising the importance of the car, contacted uniformed police to attend the scene.

[6] In addition to the stolen vehicle, the police located some of the clothing used during the robbery. That clothing was either left in the vehicle, on the ground immediately next to the car or a short distance away. One of those items was an orange high-visibility vest. The clothing was secured by police and samples from the same, as well as the vehicle, were later submitted for forensic analysis by ESR scientists. The testing revealed DNA from a bloodstain located on the front of the orange jacket. The DNA profile from the sample was matched to your own DNA with a degree of probability said to be one hundred thousand million times, as opposed to the same DNA profile belonging to someone randomly sampled from the general population.

[7] The Crown closed its case on the basis that your DNA was found on the orange jacket because you were the offender who wore that same garment during the robbery.

[8] A DNA profile was also obtained from a bloodstain located on the driver’s seat of the stolen vehicle. That profile was matched to your own profile with the same degree of probability.

[9] During the trial, there was considerable cross-examination directed, that the poor handling by police of some of the exhibits pointing to the possibility of inadvertent cross-contamination, the mixed nature of some of the DNS profiles pointing to the involvement of others, and a number of innocent explanations that might account for your DNA being found on the orange jacket and inside the car on the driver’s seat. But in the end the jury was satisfied that the DNA located belonged to you, and its presence was only credibly and reliably explained by you having been the offender wearing the orange jacket and being in contact with the vehicle.

[10] Your offending is aggravated by several facts or features. First, the use of clothing to disguise your appearance points to a level of planning and premeditation. The fact that you all used the stolen vehicle to assist in the robbery, again, suggests that there had been some prior discussions about using the vehicle in this way. Secondly, the offending involved multiple offenders. Thirdly, the robbery involved the use of actual violence by throwing the rock through the glass night pay window and then kicking the office door, although I accept that none of that violence was directly aimed at the two employees inside. Finally, a significant but unquantified amount of cash and cigarettes were stolen in the robbery and extensive damage was done to the service station frontage.

[11] I have seen victim impact statements from one of the [service station] employees, and the owner of the vehicle that was used during the robbery. One of your victims, [name deleted], worked at the [station], had only been employed there for approximately two weeks prior to the robbery. He was left so traumatised by the experience, when he tried to return to work, he was not able to complete his duties. In the end, he took up different employment.

[12] In sentencing you it is important to have regard for the purposes of denunciation and deterrence. It is also important that the least restrictive sentence be imposed, as well as the need to impose a similar sentence in line with other cases involving similar offending.

[13] I turn to your personal circumstances as recorded in the pre-sentence report. That report tells me that you continue to deny being involved in the robbery. You told the report-writer that a friend bought the stolen car to your address days before the aggravated robbery. It was then that you sat inside the car and must have left your DNA behind. Given that position, it is difficult to see what, if any, remorse you might have for the offending. The report also tells me that you are 28 years old and that you moved to New Zealand from Rarotonga when you were a young child. You told the report-writer that your parents, in effect, disowned you and you were instead raised by another relative. Around the time of the offending you were using methamphetamine and cannabis. You started using cannabis at a young age because you claim that it calms you. Some of your other comments to the report-writer indicate that you have other rehabilitative needs. Your gang affiliations were explored and you initially denied having any gang connections, but then you later admitted to the report-writer to be a founding member of a street gang and being active in that between the ages of 16 and 21. The recommendation in the pre-sentence report is imprisonment.

[14] I note that you have a long list of previous convictions. They span the period from 2007 through to 2017. You have multiple convictions for dishonesty offending, driving matters, unlawfully taking, interfering with or getting into a motor vehicle and one for robbery. You were sentenced to 20 months’ imprisonment on the robbery charge, together with other serious violence, although I accept that this specific offending was some time ago from 2008.

[15] Your lawyer, Mr Holland, submits that you should be dealt with on a similar footing as Ms Harrison. He submits that the starting point for you on the lead charge of aggravated robbery, should be around four years’ imprisonment, and he also acknowledges that an uplift of three months to reflect the other charge in which you are being dealt with today, is also appropriate. Mr Holland also points to your personal circumstances and asks the court for some leniency, based on your difficult

upbringing. He urges me to avoid a crushing sentence being imposed. The Crown submits that you should also be treated in a similar fashion to Ms Harrison in terms of starting point and associated uplifts. The Crown urges the court not to apply any unprincipled discounting.

[16] I treat the aggravated robbery charge as the lead charge for sentencing purposes. The tariff case for aggravated robbery is a decision called Mako. 1 In that case the Court of Appeal identified a number of starting points based on the description of the offending and the presence of aggravating features. In Mako the court referred to the aggravated robbery of small retail shops where a shopkeeper is confronted by masked offenders. In cases such as these where no actual violence is used and a small sum of money is taken, the starting point should be around four years’ imprisonment. Where a shopkeeper is confined or assaulted or confronted by multiple offenders, or more money and other property is taken, five years should be the starting point, and in bad cases a starting point of even six years’ imprisonment might be warranted.

[17] In sentencing you I choose to give effect to the parity principle. In other words, I am going to deal with you in a concordant fashion, as I dealt with Ms Harrison. This is because in my view the two of you performed very similar roles during the aggravated robbery. In Ms Harrison’s case, I adopted a starting point of four years’ imprisonment. I then uplifted that by three months for the second charge of unlawfully getting into a motor vehicle, and then by a further four months for her previous convictions. I propose to adopt the same approach for you save for one minor difference. The starting point for you will be four years’ imprisonment on the lead charge, uplifted by three months for the second charge. Your previous convictions however are more serious than that for Ms Harrison. I refer to your multiple convictions for unlawfully taking, using and getting into a motor vehicle, as well as that for robbery. Therefore, it follows that the uplift for your previous convictions should be five months.

[18] I turn now to whether some adjustment should be made for your personal circumstances. Mr Holland submits that there should. He points to your difficult

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

upbringing, the fact that you were abandoned by your parents, and that you left school at an early age. That latter feature, in part, explains why today, he submits that you are illiterate. Mr Holland also submits that based on your list of previous convictions and the time that have spent in custody up to this point, as well as his own interactions with you, lead him to conclude that you may well have some psychiatric or forensic issues. A forensic report was called for, but unfortunately, when the report-writer went to the prison to interview you, you could not be located at the prison. Mr Holland advises that you are wishing to complete sentencing today and do not seek an adjournment for a forensic report to be prepared.

[19] I note that at the conclusion of the trial, your lawyer also asked for the court to consider a s 27 cultural report. Unfortunately, no report has been prepared and I am confined therefore to considering only that information included in the pre-sentence report.

[20] While I accept that you have had a difficult upbringing, based on the information in the pre-sentence report, I cannot discern any principled reason why I should make some further adjustment. Unlike Ms Harrison, who had taken steps to rehabilitate herself in custody, you have not done that. Nor can I detect any remorse on your part. And while your background indicates a troubled upbringing, many people who come before the court experience the same or similar. Something more would be needed than the bare information that I have read in the pre-sentence report, if I was going to make some reduction for your personal circumstances. Accordingly, I do not consider that there any mitigating circumstances personal to you which I can properly take account of.

[21] Mr Tinirau, can you please stand. In light of the above, you are convicted and sentenced on the aggravated robbery charge to four years eight months’ imprisonment. On the charge of unlawfully getting into a motor vehicle, you are convicted and sentenced to three months’ imprisonment. Both sentences are concurrent.

Judge AM Wharepouri

District Court Judge

Date of authentication: 04/02/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.