R v Ward [2019] NZDC 21931 (1 November 2019)

Last Updated: 5 August 2020

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

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2019-085-001406

[2019] NZDC 21931

THE QUEEN

v

MATIU RICHMOND WARD

Hearing:	1 November 2019
Appearances:	D Moore for the Crown B Crowley for the Defendant
Judgment:	1 November 2019

NOTES OF JUDGE P A H HOBBS ON SENTENCING

[1] E ngā whānau, ngā mihi nui ki a koutou. Mr Ward you appear before me today for sentence on three charges of aggravated robbery and one charge of unlawfully taking a motor vehicle. You pleaded guilty to these charges after I gave you a sentence indication on 1 August of this year.

[2] The offending occurred on three different dates; the first occurred on 27 January of this year. At approximately 10.30 pm, you and three others were in central Wellington, you and two associates entered a dairy on [street deleted] with the third associate remaining in a motor vehicle.

R v MATIU RICHMOND WARD [2019] NZDC 21930 [1 November 2019]

[3] You produced a large kitchen knife, walked behind the counter and demanded that the shopkeeper give you money from the till; $350 in cash and over $2000 worth of cigarettes was taken.

[4] The second aggravated robbery charge arises out of an incident on the afternoon of 23 April of this year. You and an associate went to a residential address in [suburb deleted], you knocked on the door and asked the occupant if you could purchase cannabis. The occupant told you to go away and that she would call the police.

[5] Approximately two minutes later one of you kicked in the door, your associate threatened the occupant with a knife while demanding keys to her car, which she handed over. One of you grabbed the occupant’s satchel bag which contained her wallet and other personal items before leaving in the occupant’s car.

[6] The third aggravated robbery charge and the unlawfully taking a motor vehicle charge arise out of an incident that occurred on 7 June of this year. At around 5.40 pm you and an associate got into a taxi in Kilbirnie and asked the drive to take you to Lyall Bay. During the trip you and your associate lowered your beanies and raised the hoods on your jerseys. When the taxi stopped both you and the other person in the car, pulled out knives and placed them against the taxi driver while demanding money.

[7] The taxi driver managed to push his emergency alarm and escaped the taxi while you were searching the vehicle for money. The vehicle was still running at this time. You then got into the driver seat of the taxi and drove the taxi away. The taxi was located shortly after in a nearby alley. The driver of the taxi notes in his victim impact statement that the total loss from damage to the taxi and the personal items that were taken is over $1000.

[8] I have obviously read the taxi driver’s victim impact statement and I have read the other victim impact statement that has been provided to me. It is clear that this offending has understandably had a significant impact on the victims and they remain frightened and concerned by what has happened to them, understandably so.

[9] The leading appellant guideline judgment for the offence of aggravated robbery is R v Mako.1 Mr Crowley, in his earlier written submissions, sets out the relevant passages in that particular judgment, paragraphs [56], [57] and [58]:

• [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, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. 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 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, should be the starting point.
  
• [57] Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.
  
• [58] forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
  

[10] As I have previously indicated, what I intend to do, as the Crown did in their written submissions, is look at each of the offences in isolation to arrive at starting points for each and then I will obviously make a necessary adjustment to take into account the totality principle and the need to ensure that the ultimate sentence accurately reflects the overall gravity of the offending with that totality principle in mind.

[11] In terms of the January offending, the aggravating features are that there were three offenders that went into this small commercial business. A weapon was presented to the proprietor, property was stolen and inevitably there is a serious impact on the victim.

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

[12] It seems to me that your offending in that case is similar to that described at paragraph [56] in the R v Mako. It seems to me that if one looks at that offending in isolation and at the aggravating features I have referred to, coupled with the comments made by the Court of Appeal in R v Mako, that a four-year starting point would be appropriate.

[13] With respect to the April offending, which Mr Crowley submitted is the most serious or lead offence, the aggravating features are that there were two offenders, although one has to remember that to an extent that is implicit in the charge of aggravated robbery, there was an element of home invasion as you and the co-offender forced your way into the property and again there was the use of a weapon and property was taken from that address. Again, there is an inevitable impact on the victim and of course I have read her victim impact statement which I have referred to.

[14] The Crown says for that offence the appropriate starting point is seven years, Mr Crowley submits that the appropriate starting point is lower, namely four years.

[15] Again, the comments made by the Court of Appeal at paragraph 58 seem to be relevant but I have to acknowledge, in this case, that there was no actual violence and therefore no injuries sustained by the occupant of the home and therefore the starting point of seven years, suggested by the Crown, is in my view too high, in my view a starting point of six years would be appropriate.

[16] In relation to the June offending, again there were two offenders involved, to some extent you attempted to disguise your appearance. There was again the use of a weapon, a demand for money and some money was taken. Again, there is the obvious impact on the victim of your offending.

[17] Again, this seems to fall within the description of offending set out at paragraph

[57] of R v Mako and I am satisfied that a starting point of four years would be appropriate for that offending, looked at in isolation.

[18] If one were to add all of those starting points together, on a cumulative basis, it gives a nominal prison sentence of 14 years. As I have already acknowledged, that

is obviously excessive and needs to be adjusted for the totality principle that I have referred to.

[19] Mr Crowley previously submitted to me that somewhere between six and seven years should be the appropriate global starting point, Mr Moore for the Crown submitted eight to nine years is the appropriate global starting point in relation to all of the offending.

[20] Making adjustments for totality is a difficult exercise. It is not an exact science and it does involve some intuition and estimation of what is appropriate. In my view the appropriate starting point for all of this offending, taken together, is nothing less than seven and a half years’ imprisonment.

[21] You are still a very young man. You were only 17 at the time of the first aggravated robbery, 18 at that time of the other two aggravated robberies. It is apparent and inevitable that you should be given credit for your youth, that has been recognised by Appellate Courts and you should also be given credit for the fact that you have a very limited history of previous convictions, only one unrelated driving matter.

[22] In my view 30 percent is appropriate. Those features of your youth and effectively no previous convictions reduce that nominal sentence by over two years, some 27 months, which brings a nominal sentence of five years and three months.

[23] There are a number of other factors that have now been brought to my attention, that of course I was not aware of at the time of the sentence indication. Mr Crowley asked me to take into the account the time you have spent on electronically monitored bail. Mr Moore submits to me that I need to approach that with some caution, bearing in mind you were placed on electronically monitored bail as a result of a further aggravated robbery charge.

[24] You are however entitled to credit for some time spent on electronically monitored bail. Again, Appellate Courts have made that clear and it is not a month for month credit but nonetheless credit is due to you for that. As I understand it you have

been entirely compliant with the electronically monitored bail regime of some four or five months. I am going to reduce the nominal sentence of five years and three months, by three months to take into account that period of time spent on electronically monitored bail.

[25] I now have the benefit of a pre-sentence report. In my view it is a largely positive report. You have engaged well with the report writer. You expressed some insight into your offending and remorse for it. You also acknowledge the impact your offending has had on the victims of your offending and indeed your own whānau. I acknowledge the presence of your wider whānau here in Court today, supporting you, you obviously have considerable whānau support.

[26] Before being on EM bail you would regularly visit your local marae and visit with your whānau. You have obtained a scaffolding ticket while on bail, and you have expressed the desire to work on motor vehicles as a mechanic in the future.

[27] The report writer says you have expressed high levels of motivation to address your offending related factors. You have also shown a particular interest in a parenting course and you are expecting your first child in the near future.

[28] Those positive aspects in the pre-sentence report and your good prospects of rehabilitation as a still very young man, in my view, deserve further recognition. I intend to give you a further nine-month credit for that positive report and your prospects of rehabilitation, which reduces the sentence to 51 months. You are of course entitled to full credit, as I have previously indicated, for your guilty pleas to each of the charges of 25 percent, which reduces the sentence by a further 13 months, leaving an end sentence, on all of the charges, of three years and two months.

[29] You will of course be subject to oversight from the Parole Board, who will decide on your release date after you have qualified for parole. One imagines at your young age and with the whānau support that you have, and the positive aspects contained in the pre-sentence report that careful consideration will be given to parole, subject to those imperatives that the Parole Board must take into account and no doubt dependent on the positive aspects that have been referred to continuing.

[30] It seems to me that in your circumstance, reparation is an unrealistic and unlikely prospect, bearing in mind that you are going to be incarcerated for a period of time and currently do not have any source of income and I am not going to, in the circumstances, order reparation.

[31] On each of the three charges, Mr Ward, of aggravated robbery you are sentenced to three years and two months’ imprisonment. On the charge of unlawfully taking a motor vehicle 12 months’ imprisonment; they will all be served concurrently, the effective sentence is three years and two months’ imprisonment.

P A H Hobbs District Court Judge