R v Ale [2023] NZDC 23717 (27 October 2023)

Last Updated: 28 May 2024

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

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

CRI-2022-004-001803 CRI-2023-020-001826 CRI-2022-292-000070

[2023] NZDC 23717

THE KING

v

SITALING ALE

Hearing:	27 October 2023
Appearances:	A Bryant for the Crown E Forster for the Defendant
Judgment:	27 October 2023

NOTES OF JUDGE G MATENGA ON SENTENCING

[1] Mr Ale, I am going to sentence you now. You can just remain seated for now until I ask you to stand, all right.

[2] Mr Ale, you are for sentence today on a number of charges. These involve charges from South Auckland, Auckland and Napier. The South Auckland matters were charges of burglary, aggravated burglary, aggravated robbery and unlawfully getting into a motor vehicle. The Auckland matters are aggravated robbery and unlawfully getting into a motor vehicle. The Napier charges are charges of aggravated burglary, unlawful taking of a motor vehicle, theft, possession of a firearm and unlawfully getting into motor vehicles.

R v SITALING ALE [2023] NZDC 23717 [27 October 2023]

[3] I need to talk about the various offences and I am going to do it in the order that I started, that is firstly the Manukau charges and they will be in date order.

[4] On 18 July 2021, that is some time ago now, at about 10.40 pm, you and four associates arrived at the Mobil petrol station in Mercer in a stolen Toyota Mark X vehicle. [Victim 1] was working at the Mobil petrol station that evening. Given the time of night the store was locked. [Victim 1] observed the stolen vehicle arrive and one of the occupants get out of the vehicle and approach the entrance. This person then began to forcefully bang on the door. Fearful, [victim 1] retreated into the back office and locked the door. He then set off the alarm and called the police.

[5] While [victim 1] was in the back office you and two of your associates broke the front glass door to the petrol station and entered. All were wearing black clothing with heads covered and only the eyes visible. One of the offenders jumped over the counter, remained in the store for about seven to eight minutes before returning to the vehicle and leaving. You and your associates stole ice cream, baskets and other miscellaneous items from the store.

[6] In relation to an aggravated robbery, immediately following the Mobil Mercer burglary you and the same four associates then travelled to 62 Great South Road, Pokeno to the GAS petrol station, in that same vehicle. The GAS petrol station was closed at the time but the manager [victim 2] lived in a unit behind the petrol station.

[7] All five offenders then forcefully broke in through the front roller door of the petrol station. Some of you were carrying weapons such as hammers, screwdrivers and a tyre wrench. Upon entry, three of the offenders immediately darted towards the till area and uplifted one of the cash tills while another pulled out a tray of cash within it. Two of the other offenders raided the ice cream cabinet, potato chip stand, taking several items from both before leaving in the stolen Toyota Mark X.

[8] The cost of the stolen items was approximately $700. The cost of repairing the building was approximately $30,000. The complainant was insured. He had to pay the excess which was $1,000.

[9] At about 3.30 am on 29 July 2021, [victim 3] was working at [a supermarket] at [address deleted] in Clover Park. The store was open to the public at the time and [victim 3] was the only staff member working. [victim 3] began walking towards the rear of the store until he heard a loud screech from outside due to the arrival of a stolen Nissan. You and your associates were inside that vehicle.

[10] You and your associates entered the store, all with faces covered, one carrying a two foot iron rod, the other a cricket bat. You and your associates were in the store for about two minutes and stole a significant amount of cigarettes, the cash drawer from the till containing cash and other miscellaneous items totalling approximately

$10,796.

[11] In relation to further offending on 20 and 21 November 2021, [victim 4] was the registered owner of a Toyota Aqua. Sometime between 10 pm on 20 November 2021 and 6 am the following morning [victim 4]’s vehicle was stolen by persons unknown and later driven to Caltex in Karaka.

[12] [Victim 5] is an employee at Caltex situated on State Highway 22 in Karaka. At about 6 am on 21 November 2021 [victim 5] was working alone. There were no customers in the store. [Victim 5] went to the back of the store briefly. About 10 minutes later while [victim 5] was at the back you and four other young persons arrived at the forecourt of the Caltex in the stolen Toyota motor vehicle. You then exited the vehicle and entered the Caltex.

[13] One of your associates remained in the Toyota. You and another of your associates were holding tyre irons. You and one other jumped the front counter. You then darted towards the till while another targeted the cigarette cabinet.

[14] Upon hearing the commotion [victim 5] returned to the customer facing part of the store and was confronted by an unknown young person wearing a black hoodie, face mask and a red bandanna while holding a tyre iron. This young person raised the tyre iron above the head and advanced upon [victim 5]. [Victim 5] was fearful and pleaded with the assailant. While that was happening another jumped the front counter

to assist you take property from behind the counter, including numerous trays from the cigarette cabinet.

[15] [Victim 5] managed to retreat to the back area of the store and hid in the staff toilet area and he could hear things going on in the shop area. The person that remained in the vehicle opened the boot before running inside the store, made several trips from the shop back and forth loading goods into the vehicle. The event lasted approximately two minutes before all of you then drove off.

[16] [Victim 5] then called the police. [Victim 4]’s vehicle was later recovered with a smashed left window, scrapes on the front left wheel, a scrape on the back left corner and broken window wipers. The ignition barrel was missing and the area around it was badly damaged. A car seat was missing.

[17] Turning then to the Auckland charges. At around 7.50 pm a stolen Mazda was parked outside [a superette] in Mount Eden. Inside the vehicle was yourself with three other associates. At the time [victim 6] was working at the superette and preparing to close for the evening.

[18] You and your associates got out of the stolen Mazda and entered the superette. Each had the hoods of your jackets up and you had masks on. You were carrying a broom. Another of your associates holding a tyre iron, ran to the front counter where [victim 6] was standing. He then raised the tyre iron above his shoulder before swinging it at [victim 6]’s head and neck area striking him twice to the left side of his head. [Victim 6] was then kicked by another associate in the torso before this associate also swung at [victim 6]’s head with pliers.

[19] You and your associates then went behind the counter, took the cash register as well as cigarettes, property worth somewhere between $7,000 and $10,000. Another staff member saw what was happening on CCTV screens, activated the fog canon. You and your associates then drove off in the stolen Mazda. The Mazda was followed to an address in Mangere. Police arrived and located you and your associates as well as property from the superette. So that is the Auckland offending.

[20] In relation to the Napier matters, between 11.30 pm on 4 July and 7 am on 5 July a blue Nissan Bluebird was stolen from outside [address deleted] in Frankton, Hamilton. On 5 July 2023, you and three others were in Kauri Street in Hastings sometime before 3 pm. You left Hastings in the stolen Nissan Bluebird and drove to Napier. The ignition barrel had been pulled and you were using a piece of metal to start the car.

[21] Sometime prior to 3 pm on the same day you located a black Ford ute parked on the side of an unknown road. You broke into the rear window of the ute, climbed inside. You located in the vehicle a .22 rifle and ammunition lying on the back seat. Realising it was a firearm you have taken the rifle and left the vehicle on the side of the road.

[22] You and your associates have then driven to [street name deleted], Napier, have located an orange Mitsubishi Colt which was parked outside [number 38]. You smashed the rear quarterlight window, started the vehicle and then all four of you have left [the street] in the stolen vehicle, travelled into the CBD. The four of you have driven along Hastings Street in Napier.

[23] At about 4.55 pm, just as the shopkeepers were about to close-up at Pascoes Jewellery you have stopped the stolen Mitsubishi Colt on the footpath right outside the store. Each of you have then hidden your faces with masks and balaclavas and run into the store brandishing various types of weapons, including tyre irons and hammers. The four of you have smashed numerous cabinets within the store and taken a very large amount of watches, rings and medallions stuffing them into bags that you have brought with you. You were in the store for approximately 45 seconds, then fled the store in the stolen Mitsubishi Colt. Staff within the store were frightened, so frightened that they hid in a back office and locked the door.

[24] Numerous members of the public witnessed the incident taking place. This was in the centre of Napier city. The total amount of jewellery stolen is believed to be in the vicinity of $140,000.

[25] The four of you have then returned to Nelson Crescent where you have dumped the Mitsubishi Colt leaving it running on the side of the road. You then returned to the stolen Nissan Bluebird, driven back to Hastings with the stolen jewellery on board.

[26] On 7 July 2023, police executed a search warrant at your home address. During the search warrant police located some of the stolen watches and rings in bedrooms. These were items that were taken from the Pascoes Jewellery store. Items of clothing worn by all of you were also located during the warrant execution. Police also located the .22 rifle and a box of ammunition which was under your bed. There was a hole in the bed base and the rifle and ammunition had been hidden inside the bed base.

[27] By way of explanation to police in relation to the Napier offending you admitted the facts as I have just outlined them.

[28] Well, those are the facts of the various offences that you have been involved with Mr Ale. My task today is to sentence you. In doing so I am required to take account of the purposes and principles of sentencing as set out in the Sentencing Act 2002. These include holding you accountable and responsible for your offending behaviour, to impose a sentence which is consistent with laws as established in this country both by Parliament and by the higher courts. The sentence needs to deter you and denounce your conduct, but also be a message of deterrence to others. I am required to take into account your circumstances.

[29] At the time of the offending in South Auckland you were only 17 years of age. I also need to acknowledge that the offending was initially charged within the Youth Court jurisdiction and then matters were moved into the District Court. That affects how I sentence you to a degree in relation to the burglary and unlawfully getting into motor vehicle charges.

[30] Now, I intend to sentence you on the basis that the Auckland and Manukau matters first need to be considered reaching a totality adjusted end point and then as suggested by Ms Bryant, consider the Napier offending fixing a start point, any aggravating adjustments, consider totality and the mitigating factors. That is in my view, the proper approach given the quite separate offending both in time, geography

and jurisdiction. That is the recognition of the movement from the Youth Court to the District Court.

[31] The Napier offending was committed while you were an adult and I note also that it was committed while you were on electronically monitored bail, so that is a factor which needs to be taken into account at the appropriate point.

[32] One other thing I need to say about the sentencing approach is that I am required to impose a sentence which is the least restrictive that is appropriate in the circumstances. So the circumstances being circumstances of the offending and of you the offender. So this is quite a difficult exercise.

[33] I start then by looking at the Auckland offending. I have been greatly assisted by counsel for the Crown both in Auckland and here in Napier who have filed fulsome submissions and I have also been assisted by Mr Forster who has also provided written submissions which he has spoken to today. I have also received a pre-sentence report and a cultural report. I am telling you this because I want you to know that I have read all of this information. It has all been included in, factored into in some way, my comments in formulating my decision as to how you should be sentenced.

[34] So coming back to then the start point for the Auckland charges, the Crown solicitor in Auckland and Mr Forster agree that the appropriate start point here is to consider the [superette in Mt Eden] because it is the most serious of the offences.

[35] Now, I am required to consider also the cases that have been decided by the Court of Appeal and other higher courts. They have, through cases such as R v Mako, set out the factors that I am required to consider.1

[36] So in relation to the [superette in Mt Eden] I have had regard to these factors in setting a start point. Firstly, there were multiple offenders. I note that there were four of you. Weapons were brought to the superette and used. The tyre iron, for example. The victim was struck on the head with the tyre iron and was kicked. That is the extent of the violence which was employed on that day.

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

[37] The offending was premeditated, it was planned and there was a moderate degree of sophistication. I say that because you thought about things like firstly, how you would get there. You went there in stolen vehicles. You covered your faces, hiding your identity clearly aware that most shops would have video surveillance. You thought through those things so there was some clear planning involved. The superette was targeted during business hours. It is a smaller business and so the owners or the operators were vulnerable to an attack by a group of assailants.

[38] I am required to consider the loss of property, which I do. There was an amount of stock and cash which was taken and indeed, the impact on the store owner. They no doubt would have been fearful at a number of people who had hidden their identities carrying weapons and then employing those weapons. Imagine how they must have felt.

[39] My view is that having regard to the Mako v R factors and then also considering the cases of Inamata and King that the appropriate start point here is one of five years.2

[40] In relation to the remainder of the Auckland offending and here, now I am considering the two aggravated burglary charges and aggravated robbery. I note that the Crown says that up to five years could be justified but that considering totality, something in the region of two to three years would be more appropriate.

[41] All of this Auckland offending was very serious. There were some common factors in that multiple offenders were involved, the offending was planned by the group, small businesses were targeted, service stations, superettes, that sort of thing, armed yourselves with weapons and with numbers. It was a get in and out quick type of situation. There was taking of vehicles just prior to hitting the targeted premises.

[42] Now, this type of offending requires a sentence which denounces and deters so that a clear message is sent that this type of antisocial behaviour will just not be tolerated. Therefore, I adjust the five years start point by three years and three months to an adjusted start point of eight years and three years imprisonment. I note

2 R v Inamata [2015] NZHC 284; and King v R [2019] NZCA 413.

specifically that I have made no uplift in relation to the charge of burglary or the charges of unlawfully getting into a motor vehicle.

[43] Turning now to the Napier charges, the lead charge here is the aggravated burglary of the Pascoes Jewellers. The aggravating features here are those of the multiple offenders again. You all disguised yourselves. You had your hoodies up with masks on. You used weapons, a tyre iron, hammers. You went into the premises smashing it up, smashing display cabinets and causing mayhem. Those actions in and of themselves would have caused fear to those working at the shop.

[44] You targeted this small business during business hours. It was a jewellers so clearly targeting easily attainable high value items. It was clearly planned. There were stolen vehicles to get from Hastings to Napier and a different vehicle was stolen in Napier to use at the scene of the burglary which was then dumped and you got back in the other stolen vehicle to go back to Hastings, so that is clearly part of what was decided beforehand. Included in the planning I note the numbers, the weapons, the disguises, the fact that carry bags were brought to the shop. So as I have mentioned for the Auckland offending, there was a moderate degree of planning and of course I need to take into account the value of the loss.

[45] Now, I have been provided with victim impact statements from those that were involved in that offending. The shop manager, who at the time was on holiday in Australia, was upset that she could not be present to assist the staff and then of course there were those that were working there that day that just no longer feel safe. That is the fear that was caused by you and your associates.

[46] Now, Ms Bryant suggested that a start point of five years six months but says that there should be a totality adjustment.

[47] Mr Forster’s submission of his alternate approach reached a point of 10 years to this stage and so the submissions are reasonably close even though the approach is slightly different. Having considered the appropriate start point I have reached the view that an uplift for this offending is appropriate and I consider that the adjusted start point, taking this Napier offending in mind, should be 10 years three months.

[48] Now, I am required to consider aggravating factors of you the offender. There was offending while you were on bail. I was initially minded to consider trading that off against any discount you might receive for being on restrictive electronically monitored bail terms, but I have decided to make an acknowledgement under both heads, so there will be an uplift for the offending while on bail, but a modest upliftment of three months which brings then the adjusted start point to 10 years six months.

[49] So now I turn to consider mitigating features and there are a number. Firstly, there is your guilty plea and I allow 25 per cent for guilty plea.

[50] The next issue is your youth, your age. You are only 19 years old and it is hard to believe that you now at 19 years of age have a number of convictions for such serious offending. The thought behind giving credit or making a discount for youth comes from cases such as Churchward v R.3 It is an acknowledgement that young people are vulnerable, they are susceptible to negative influences and outside pressures, they have greater difficulty in regulating their behaviour and impulses, but also young people have greater capacity for rehabilitation giving rise to hope that criminal behaviour has not become so entrenched that they will not respond to rehabilitation. So it has long been understood that credit should be given for matters of youth and I allow 20 per cent discount for this factor.

[51] The next issue to consider is the cultural report. I am not going to rehash everything that was said in the cultural report. There are a lot of issues that were raised there that are quite personal to you. I need to say a couple of things though and with the cultural report I also read a psychologist’s report, a s 333 report, that was from your Youth Court file.

[52] Now, the s 333 report suggests that there was some reluctance by you to speak about some of your background and upbringing. You raised some things, but in relation to parenting issues there was some reluctance by you to speak openly and candidly about those. But I have certainly taken into account those matters, the matters set out in your cultural report. I have regard to the loss that you suffered as a young

3 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

child when your father was deported home to Tonga and then his subsequent death. There was some socio-economic deprivation. You seemed attracted to drugs, to gangs, to all that that entails.

[53] Around the time of the South Auckland offending one of your close friends died. That affected you at the time and then of course those background issues, your upbringing, parenting issues, violence, all of those matters I accept, including the head injury, have had a part to play and when coupled with the instability of youth, immaturity of youth - these factors had an effect which should be acknowledged. Accordingly I allow a further 20 per cent as a discount.

[54] So this gives a total discount of 65 per cent which I have rounded to 82 months. So the adjusted start point we got to was 10 years six months is 126 months. A discount of 82 months which leaves an end sentence of 44 months which is three years eight months.

[55] So if you would stand now please Mr Ale. Mr Ale, on the charges from Manukau of burglary, a charge of burglary, you will be sentenced to six months imprisonment. 4

[56] On the charges of aggravated burglary from Manukau, you will be sentenced to three years eight months imprisonment.

[57] On the charge of aggravated burglary from Manukau, the sentence is three years eight months imprisonment.

[58] On the charge of aggravated robbery in Auckland, that is the [superette in Mt Eden], you are sentenced to three years eight months’ imprisonment.

[59] Subject to what the lawyers will tell me shortly, on the two unlawful getting into motor vehicles, the sentence will be one month’s imprisonment on each.5

4 Subsequently corrected to convicted and discharged to reflect s 18 Sentencing Act 2002.

5 Also corrected to convicted and discharged to reflect s 18 Sentencing Act 2002.

[60] On the Napier charges, the aggravated burglary, the sentence will be three years eight months’ imprisonment.

[61] On the charge of unlawfully taking a motor vehicle, it is one month’s imprisonment.

[62] On the charge of theft, you will be convicted and discharged.

[63] On the charge of possessing a firearm, you will be sentenced to three months imprisonment and there will be an order for destruction of the firearm and ammunition.

[64] On the charge of unlawfully gets into a motor vehicle, you will be sentenced to one month’s imprisonment. All sentences are to be served concurrently.

[65] So what all of this means is that you will be sentenced to three years eight months’ imprisonment and parole will be set by the Parole Board.

[66] There will be orders for destruction of the firearm.

[67] Now, I am not going to make any orders for reparation. You clearly are not in any position to be able to pay reparation.

[68] So I know that has been quite a lengthy sentencing but that is just how it is. There was quite a bit of offending here.

[69] You have got your whole life ahead of you, Mr Ale. I hope that the pre-sentence report is not speaking prophetically because it suggests that you are probably going to offend again and that you may have even said that to the report writer. You have got a lot of time ahead of you to think and there will be programmes provided to you while you are in custody to help you.

[70] I just implore you to try and think and maybe some of what you might have learnt at Sunday School may have rubbed off somewhere, that there is another better way. I do not believe, Mr Ale, that this is all you are meant to be. I believe there is

more in you and you can change from this. Please do your best over the next few years.

Judge G Matenga

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 01/11/2023