R V SMITH HC ROT CRI-2007-063-4888 [2009] NZHC 45 (3 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                        CRI-2007-063-4888



 
                                         QUEEN



                                               v



                          
  GLORIA MARJORIE SMITH



Hearing:        3 February 2009

Appearances: S Walsh for Crown
             H Edward for Offender

Judgment:
      3 February 2009

Charge:         Accessory after the fact

Sentence:       Six months' home detention
                Conditions
imposed.



                         SENTENCING NOTES OF ASHER J




Solicitors:
Gordon Pilditch, Crown Solicitor, PO Box 740, Rotorua
H Edward, PO Box 738, Rotorua




R V SMITH HC ROT CRI-2007-063-4888 3 February 2009

[1]    Gloria Marjorie Smith you have pleaded
guilty to one charge of being an
accessory after the fact to an aggravated robbery by assisting Hareopa Katene by
driving him away
from Rotorua to enable him to avoid arrest.


[2]    That statement in the indictment neatly summarises what happened. At the
relevant
time you were in a relationship with Hareopa Katene, one of the two
persons who invaded the Ruck & Maul Bar in Rotorua armed with
sawn-off rifles.
Mr Katene has since pleaded guilty and been sentenced on charges of aggravated
robbery, aggravated wounding, and
conversion relating to that offending.


[3]    On the day in question you had been brought into his plans and it was agreed
that
you would pick up Mr Katene after he had committed the planned robbery and
take him out of Rotorua. It seems however, that you had
no direct role in the
robbery preparation, and that your involvement was as a consequence of being in a
relationship with Mr Katene.
The aggravated robbery proceeded. It was a serious
aggravated robbery involving threatening behaviour with firearms and serious
violence
being inflicted on two members of the public who happened to be in the
bar. Cash of just under $8,000 was stolen, together with two
cellphones. You did
not collect Mr Katene from the site of the robbery but at another place in Rotorua,
and then you drove him away
as planned.


[4]    There is not a great deal of difference between your counsel, Mr Edward, and
Mr Walsh for the Crown as to the
correct approach in assessing the gravity of your
offending. You were not one of the planners of the robbery and did nothing to
actively
assist it when it occurred. What you were to do was limited to the driving of
Mr Katene after the offence.


[5]    In deciding on
the appropriate starting point I take into account the fact that
the maximum sentence is four years' imprisonment. I have been referred
to two
decisions: R v Ovalau HC AK CRI 2006-092-10484 13 March 2007, Randerson J,
where the accessories after the fact each transported
one of the principal offenders
away from the scene and each concealed a firearm. In that case a starting point of
18 months was fixed.
       In R v McKenzie HC CHCH CRI 2005-009-6159

10 March 2006, Fogarty J, the defendant's brother had stabbed a victim in a fight
seven or more times. After initially refusing to help, Mr McKenzie drove his brother
on a reasonably lengthy car journey and left
him on the side of the road. A starting
point of 10 months' imprisonment was fixed.


[6]    Your offending is not as serious as
that of R v Ovalau. You did not take any
active steps to conceal anything. I have little doubt that the offending would have
taken
place whether you were involved or not. In assessing your willingness to
assist I take into account the fact that you were in a close
relationship that I perceive
had a submissive element to it. The actual act of offending which was the driving of
Mr Katene for a
limited distance and not directly after the offending, puts it into a
category that is slightly more serious than that of R v McKenzie
but less serious than
that of R v Ovalau. However, I cannot ignore the seriousness of the main offending.
I assess the appropriate
starting point as 12 months' imprisonment.


[7]    I now turn to factors relating to you personally. I have the benefit of a
detailed pre-sentence
report. It is clearly sympathetic to you. Your background is
set out. There is reference to threats and intimidation arising from
your relationship
with Mr Katene, and threats of harm to your family. While I am unable on the
evidence to conclude that you proceeded
on the basis of threats, I am able to
conclude, as I have already indicated, that you were in a submissive relationship and
that
this was a major factor in you agreeing to help Mr Katene.


[8]    I do accept that you are remorseful. The pre-sentence report
records that you
were visibly upset during the reading of the summary of facts and you were entirely
co-operative with the police
when you were initially approached by them. The
probation officer's assessment of your risk of reoffending as being low is justified
in
the circumstances. You have some minor convictions but nothing that could be
regarded as an aggravating factor.


[9]    Thus,
you are entitled to credit for remorse in the sentencing process, and I
proceed on the basis that it was out of character. You are
also entitled to credit for a
guilty plea. I have concluded that you are entitled to more or less a full credit for the
guilty plea.
Although it was late in the piece it was a consequence of other far more

serious charges being withdrawn. Your co-operation with
the police at the outset
and indeed what has been said by your counsel Mr Edward, persuade me that if you
had only been charged with
being an accessory after the fact at the outset that you
would have pleaded guilty at that point. Taking into account these factors
I consider
that the appropriate sentence if I were to sentence you to imprisonment would be
eight months.


[10]     Mr Edward seeks
a sentence of home detention.          The Crown offers no
submissions on this point. I have a discretion as to whether to order
a sentence of
home detention under s 80A of the Sentencing Act 2002. In this case I consider it
relevant that your actions were out
of character and in the context of a relationship in
which you were dominated.        I take into account your genuine remorse. 
      Your
acknowledgement that what happened over two years ago was very wrong indicates
that you will respond properly to a sentence
involving an element of trust. A
sentence of home detention will keep you in the community where there is every
chance you can establish
yourself as a useful and law-abiding citizen. There is an
available suitable address.


[11]     In assessing the appropriate period
of home detention I do not propose to
halve the duration of the sentence of imprisonment that I have indicated I would
have otherwise
given. Home detention involves considerably less restrictions of
liberty than imprisonment, and although there can be no discount
of home detention
sentence after sentence, as there can for sentences of imprisonment by the giving of
parole, I do not consider
that in your circumstances a sentence half of eight months
(four months) would fairly equate with a sentence of imprisonment of eight
months.
I take the view that the appropriate sentence of home detention is six months.


[12]     I sentence you on the sole charge
that you face, being an accessory after the
fact, to a sentence of six months' home detention. The following conditions will
apply:


         a)     You are to travel directly to 44B Wharenui Road, Whata, Rotorua,
                upon release from the Court.


       b)      You are to reside at 44B Wharenui Road, Whata, Rotorua, and not to
               move from that address without
the prior written approval of a
               probation officer.


       c)      You are not to possess or consume alcohol or non-prescription
drugs
               for the duration of home detention.


You must understand that failure to observe those conditions could lead
to you being
sentenced to a period of imprisonment.


[13]   I think it important that you have a fresh start and I am therefore prepared to
accede to Mr Edward's request
that the fines that you presently owe be remitted and
I so order.


[14]   To conclude, Ms Smith, you were on the fringes of very
serious offending.
Clearly your life had taken a very bad turn two-and-a-half years ago. It seems to
have taken a better turn now,
and for all the reasons I have outlined you have been
treated leniently. You have every chance now to have a fresh start and a very
good
life. Please take that opportunity and avoid all further actions that might lead you to
a situation where you come back before
the Court. Given your potential, that would
be a very sad thing.




                                                          ..................................
                                                                                  Asher J