R v Ropitini [2012] NZHC 1927 (2 August 2012)

Last Updated: 5 September 2012

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2011-006-1309 [2012] NZHC 1927

THE QUEEN

v

TAN JUNIOR ROPITINI JAMES RAYMOND MARZOLA TAI HAPATA CAMERON GORRIE NIOULINI DAVID FOTU REBECCA ROSE FOSTER

Hearing: 2 August 2012

Counsel: M A O'Donoghue for Crown

JCS Sanston for Ropitini

M Hardy-Jones for Marzola

P J Butler for Gorrie

B Daniell-Smith for Fotu

R A Harrison for Foster

Sentencing: 2 August 2012

_{SENTENCING REMARKS OF MACKENZIE J}

[1] Mr Ropitini, you appear for sentence on two charges of aggravated robbery, two charges of assault with intent to rob, one charge of burglary and one charge of threatening to cause grievous bodily harm.

[2] Mr Marzola, you are for sentence on two charges of assault with intent to rob, two charges of offering to supply cannabis to a person under 18 years of age, and

_{two charges of offering the supply a class A drug, LSD.}

R V ROPITINI HC BLE CRI-2011-006-1309 [2 August 2012]

[3] Mr Gorrie, you appear for sentence on one charge of aggravated robbery and one charge of assault with intent to rob.

[4] Mr Fotu, you appear for sentence on two charges of aggravated robbery, one charge of assault with intent to rob and two charges of burglary.

[5] Ms Foster, you appear for sentence on one charge of assault with intent to rob.

[6] The nature of that offending is such that you are all subject to a first warning which must be given to all violent offenders. Mr Fotu you have already formally been given your warning. But I will give the warning now to all of you.

[7] Given your convictions for some of the offences I have just described you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice outlining those consequences which lists the serious violence offences.

[8] First, if you are convicted of any serious violence offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[9] Second, if you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[10] I now come to the charges themselves. It is necessary for me to describe the offending in some detail. I do so by first indicating briefly the overall events and then discussing the position of each of you and your roles in the offending.

[11] The charges relate to events in February and May 2011. There were two main incidents in each of these set of events. In February, four of you were involved in an assault with intent to rob a victim who you had taken by car to a remote area near Blenheim. The following day, three of you were involved in a further assault

with intent to rob, involving the same victims, in Kaikoura. In May, three of you were involved in an aggravated robbery at a house in Glover Crescent in Blenheim. Later the same day, two of you were involved in an aggravated robbery at a house in Lichfield Street in Blenheim.

[12] I will describe in more detail the roles of each of you in that offending. I will also describe, in dealing with you Mr Marzola the drug offending charges which you face alone.

[13] Mr Ropitini on 4 February 2011, you met with Mr Gordon, one of the victims and discussed the possibility of you supplying him with $6,000.00 worth of cannabis. Mr Gordon arranged to speak to Mr Morris, the other victim in this matter, about arranging finance for the purchase. Over the days following, arrangements were made for Mr Gordon and Mr Morris to drive to Blenheim to complete the deal.

[14] You had no intention of ever selling Mr Gordon and Mr Morris cannabis. You intended to steal their money. At the same time you were organising the deal, you were instructing the three other offenders involved to rob Mr Gordon and Mr Morris when the deal took place in Blenheim. The other three were to rob Mr Gordon and Mr Morris, and the proceeds of the robbery would be shared. Mr Marzola was your main point of contact.

[15] In the early hours of 9 February 2011, the other offenders met with Mr Gordon and Mr Morris and attempted to carry out the robbery in accordance with your instructions, but Mr Morris was able to escape. Throughout the entire series of events, you were in constant contact with Mr Marzola. You were also in contact with Mr Gordon. Even after Mr Morris had escaped, you were attempting to smooth things over with Mr Gordon with the intention of making another attempt to rob him and Mr Morris.

[16] Later on in the day, you began to communicate with Mr Marzola about making another attempt to rob Mr Gordon and Mr Morris. At the same time, you were communicating with Mr Gordon, who arranged with you for the deal to take place in Kaikoura. You and Mr Marzola began to plan your second attempt, and

searched for other associates to help. The intended plan involved at least four persons standing over the victim with firearms and baseball bats and stealing up to

$9,000. Although I saw immediately that that was the intended plan, and not what transpired.

[17] This time you participated in the event. You arranged to meet Mr Gordon a short distance from his home. You met with him and travelled to his home. You went into the house where you met with Mr Morris. You tried to get Mr Morris to show you the money, but he refused, and said he wasn’t interested in dealing with you. You went outside with Mr Gordon tried to persuade him to participate in the scheme but he refused. At this point, Mr Marzola began to attack Mr Gordon. You also joined in the attack, punching and kicking Mr Gordon. You only stopped attacking and left the area when you thought the police were coming.

[18] From those events, you Mr Ropitini face two charges of assault with intent to rob.

[19] As to the May offending, on the morning of 2 May 2011, you and the other offenders hatched a plan to rob the occupants of a house in Glover Crescent of drugs, money and property. The plan was to take two vehicles to the address and you and Mr Fotu were to go into the house and complete the robbery while Mr Gorrie and an associate kept a look out. At about 9am, you and Mr Fotu drove a vehicle around to the house and got out of the car and went to the door. There you were met by the victim, Mr Blackmore. You gained entry to the house by pushing him. While Mr Fotu removed property, you threatened the victim, saying you would smash him and that you and Mr Fotu were patched Mongrel Mob members. You demanded the victim tell his flatmate that you required $2,500 from him or you would be back. You also told the victim that if he involved the police, the Mongrel Mob would smash him. You and Mr Fotu then drove to the corner where Mr Gorrie was waiting and gave him and his associate the property stolen from the house. You travelled back to Mr Gorrie’s home, where the group decided that you and Mr Fotu would return to the house to try and find drugs.

[20] On returning there was no one home. You gained entry by kicking in the rear door. You ransacked the house and Mr Fotu the garage. You did not find any drugs, but you stole games and a console and left. You found out that the person you were looking for may have been at a house in Litchfied Street so you went there. You were met by a 16 year old youth at the front door. You threatened him, telling him you would smash him if he didn’t tell you where the person was. You pushed him into the doorway and onto a seat. Mr Fotu was with you. He went and took a chainsaw. You both went back to the vehicle with that and you further threatened the victim, telling him not to go to police.

[21] At about 5pm on the same day, the 16 year old victim and his female flatmate were driving when you followed them for about 300 metres and indicated them to pull over. When they did, you demanded to know where the person you were looking for was and questioned the 16 year old. When the other victim intervened and told you to leave him alone you became agitated and threatened her. You went back to your car and told your victims you were going to ram the car. You drove your vehicle at the car, but stopped short of ramming them, and then drove off.

[22] From those events, you face two charges of aggravated robbery, one charge of burglary and one charge of threatening to cause grievous bodily harm.

[23] Mr Marzola I now turn to your role in the offending. In the February offending, you were one of the group that met with Mr Gordon and Mr Morris ostensibly to complete the cannabis deal, but with the intention of robbing them. You were Mr Ropitini’s main point of contact involved in arranging arranged the plan. You were a leader in that group and the leader of the group that met with Mr Gordon and Mr Morris in Blenheim. You took them to a lay-by just north of Blenheim but then required one of the victims to get into your car and travel to another location. When you got there the victim, Mr Morris, got in the vehicle fearful for his safety. You grabbed a tyre iron and held it in the air threatening the victim. He feared he was going to be serious injured and ran. You checked him with the tyre iron until he jumped off the side of the road into some bush. He escaped in that way.

[24] You were also part of the group involved in the second attempt to rob Mr Gordon and Mr Morris, in Kaikoura. You attempted to locate a firearm for the robbery but were unable to do so. You continued with that plan with the use of baseball bats and a tomahawk was also involved. Although I accept that the weapons were not used. Your part in the events were that you attacked Mr Gordon as I have briefly described. You dragged him out of the car and started to punch and kick him to the ground.

[25] From those events, you face two charges of assault with intent to rob.

[26] You were not involved in the May 2011 offending. You are also being sentenced on drug offending which is unrelated to the February offending. Between January and July 2011, police analysed text messages sent and received by you, which showed you were heavily involved in the sourcing and selling of drugs. The text messages involving the proposed sale or supply of LSD and also texts over cannabis including one text offering a sale to an associate.

[27] For that you face two charges of offering to supply LSD and two charges of offering to supply cannabis to a person under the age of 18.

[28] Mr Gorrie, you played a lesser role in the February offending than Mr Ropitini and Mr Marzola. You were one of the group that met with Mr Gordon and Mr Morris and were present throughout the first attempt to rob them.

[29] For that you face a charge of assault with intent to rob.

[30] In the May offending, once again, you played a lesser role than your co- accused. You and an associate kept a lookout. You received the stolen property from the robbery for the first house and your house was used as the meeting.

[31] For these events, you face a charge of aggravated robbery.

[32] Mr Fotu you were involved in the later stages of the February offending. You were not involved in the Blenheim attack. You were enlisted to help with the second attempt at robbing the two victims.

[33] When Mr Ropitini and Mr Marzola started to attack Mr Gordon, Mr Gordon was able to break free. You then tackled him with a baseball bat and knocked him to the ground. I accept that you did not use the baseball bat in the assault. You went inside the house and stole a Playstation 3 game and you intervened when Mr Gordon’s friends came to his aid.

[34] For those events, you face one charge of assault with intent to rob and one charge of burglary.

[35] You played a much larger role in the May offending. You were involved in the plan. You went into the house, and you removed several items of property including electronic equipment. You then returned with Mr Ropitini at a later stage as I have described and you searched in the garage at that address while Mr Ropitini searched the house.

[36] You both went to Lichfield Street house and you were involved in the events there threatening the victim. At one point, you made the victim remove his belt and pants, and wrapped the belt around his knuckles, threatening to smash him with it. You found a chainsaw which you took and you made further threats to the victim.

[37] For these events, you face two charges of aggravated robbery and one charge of burglary.

[38] Ms Foster you played a much lesser role in the February offending than your co-accused. You were one of the group that met with the two victims and you were the driver of the car. You denied knowing the exact details of the plan.

[39] I turn now to the impact on the victim of this offending. The effect on the victims has been significant. The victims all speak of being scared for their safety as a result of the offending. Two have stated that the offending contributed to their decisions to leave New Zealand, because of concern for their safety. A common thread running through their statements are the threats made by offenders about the Mongrel Mob links which caused the victims to live in fear of retribution. They have all, to some degree, suffered forms of emotional and psychological stress and

disruption to their daily lives caused by the offending. Some of them, but I stress only some of them not all, were people who may themselves have been involved with drug dealing. It may have accounted for why they had become your victims but did not give you a licence to attack them.

[40] I have described the circumstances in some detail and the aggravating features of it appear from that. The Crown submits that there is premeditation and planning for both the February and May offending in that it was highly organised and premeditated. There were multiple offenders involved in each incident. Various weapons were deployed in both incidents. These included the threatened use of a tyre iron, the threatened use of a baseball bat. Actual violence and physical force was used in both incidents, as I have described.

[41] I come now to the basis of sentencing. In sentencing each of you, I propose to adopt a concurrent approach to the charges arising from the two incidents in the February offending, and a concurrent approach to the charges arising from essentially two incidents in the May offending. The February offences were of a similar kind and were connected in time. So were the May offences. However, I treat the February and May offending cumulatively. The February offending was unconnected in time to the May offending. The two sets of offending were distinct in that it occurred in quite different circumstances. Further, I consider that because each of you had different involvements in the two series of events, adopting a cumulative approach will achieve a more appropriate relativity between you in assessing your overall culpability.

[42] Mr Marzola, your drug offending is different in kind and must also be dealt with cumulatively.

[43] I turn now to deal with each of you individually. I do so by first fixing a starting point for the totality of your offending as I have described it, in the way I have just discussed. I then discuss your personal circumstances and make adjustments to reflect those personal circumstances. In fixing the starting point, I have had regard to R v Mako,1 which can in accordance with R v Whata,2 be applied

to the charge of assault with intent to rob, with an adjustment to reflect the different level of criminality in that charge. I have had regard to a number of cases.3 I do not intend to lengthen these remarks by discussing them.

[44] Mr Ropitini, I first fix a starting point for you. You played a major role in February offending and setting up and planning both incidents, in Blenheim and Kaikoura. You participated directly in the Kaikoura offending. I consider that the appropriate starting point for your role in the February offending is eight years.

[45] In the May offending, you again played a key role. You actively participated and you threatened and intimidated the victims. The starting point must reflect the four charges you face from the May offending. An appropriate starting point for that offending, on a standalone basis, would be seven years.

[46] That would give a total cumulative starting point of 15 years. That needs to be adjusted downwards to properly reflect the totality principle. I reduce the total starting point by four years, to give a total cumulative starting point of 11 years.

[47] Turning to your personal circumstances. You are 23 years of age and have two children. The relationship with the mother of your children appears to now be at an end. You have not had any consistent form of employment. It has consisted of short-term work.

[48] According to the pre-sentence report writer, you acknowledged that you have developed a high degree of dependence upon marijuana and you also have abused alcohol. You expressed a willingness to participate in rehabilitation of which the report writer was somewhat sceptical. Your counsel has made submissions about that and produced a very positive letter from a corrections officer who has dealt with you in prison. And you have taken a positive step towards rehabilitation by applying

_{for a place at Moana House in Dunedin when return to the community.}

2 _{R v Whata [2008] NZCA 204.}

3 R v Jago HC Wanganui CRI-2010-083-1238, 24 May 2011; Matthews v Police HC Napier

CRI-2004-441-14, 22 April 2004; R v Karaitiana CA401/05, 15 June 2006; R v Kretzschmann

& Carroll CA113/00, 1 June 2000; Tiori v R [2011] NZCA 355; Delaney v Police HC Auckland

CRI-2008-404-46, 20 May 2008.

[49] You are assessed at being at a significant risk of re-offending of a serious kind, if you fail to adequately address your dependence on alcohol and drugs.

[50] You have 43 previous convictions. Particularly relevant are your four convictions for burglary and one for aggravated robbery. In addition your offending was committed while you were on bail. I consider that an uplift of nine months is appropriate to take account of these aggravating features.

[51] From that you are entitled to a discount for your guilty plea. The offending was committed in February and May 2011 but you did not plead guilty until 30

March. There has been in the meantime, for all of you, some discussions and negotiations over plea and the charges that you had faced. I have taken that into account in fixing the level of the discount. I say now that I intend to adopt the same level discount for plea in percentage terms for all of you. In accordance with the guidance provided in the Supreme Court decision in Hessell v R,4 I consider that a discount of 15 per cent is appropriate in each of your case.

[52] In your case that is a discount of one year and nine months. That gives a total end sentence of ten years.

[53] I need to consider whether to impose a minimum period of imprisonment. I must do so if the usual non-parole period would not be sufficient to achieve, in particular, the purposes of denunciation and deterrence. This is serious offending, and your part in it was a major one. I consider that a minimum period of imprisonment is required to reflect that. A minimum period of one half is appropriate. That will apply to both sentences.

[54] Mr Marzola, I must fix a starting point for your involvement in the February offending. You were not involved in the May offending. You were, with Mr Ropitini, a ringleader in both of the February incidents. You actively participated in the Blenheim incident. I consider that a starting point of eight is appropriate in your case also.

[55] I must fix a cumulative starting point for the drug offending. The lead charges are two counts of offering to supply LSD. The exact quantity is not clear, and I proceed on the basis that this was low level offending. The cannabis offending needs also to be reflected. Viewing the drug offending on its own, I would adopt a starting point of two years.

[56] That would give a total starting point of ten years. That needs to be adjusted to reflect the totality principle. In applying that principle, I must take into account the sentence you are currently serving. That is also for drug offending and I sentenced you on that occasion. I would adjust the total starting point downwards by three years to give a total cumulative starting point of seven years.

[57] At to your personal circumstances. You refused to meet with the pre- sentence report writer, so the report was prepared on the basis of other material.

[58] You are 28 years of age. You come from a large family. You had left high school with no qualifications. You have had a variety of employment positions since then.

[59] You have 41 previous convictions, mainly for drug offending, violence and dishonesty. This drug offending includes 23 convictions for cannabis offending last year, for which, as I have indicated, I sentenced you, and three convictions for common assault. You were on bail and subject to sentences at the time when some of the current offending was committed.

[60] You have a level of cannabis use considered to be harmful. You are considered to be at high risk of re-offending.

[61] In all your personal circumstances, particularly your previous record and the fact that some of the offending was on bail, requires and uplift. I consider that an uplift of nine months is required to reflect that aggravating factor.

[62] You too are entitled to a discount for your guilty plea as I have indicated. I take 15 per cent as appropriate, which in your case is one year and three month. That give a total end sentence of six years and six months.

[63] I consider that a minimum non-parole period is also required on the conviction for the violent offending in this case, but not on the offending for drugs. That minimum period will be 50 per cent on that count.

Gorrie

[64] Mr Gorrie you were in both the February and the May offending, but played a relatively minor role in each. I would adopt a starting point of four years for your role in each of the February offending and three years for your role in the May offending, giving a total cumulative starting point of seven years. Adjusting that for totality, I would reduce the total starting point by one year and six month, to give a total starting point of five years and six months.

[65] As to your personal circumstances, you are 28 years of age and have a one year old daughter. You have had a difficult upbringing. You have never been employed.

[66] You have 81 previous convictions, mainly for dishonesty, driving and violence offending. These include nine previous convictions for burglary.

[67] You have expressed remorse in relation to the victim of the offending. You are assessed at being at a high risk of reoffending.

[68] I consider that your previous convictions, which I have briefly described, require an uplift. It is compounded by the fact that you were on bail when the offending occurred. I consider than an uplift of six months is warranted to reflect these aggravating factors.

[69] You too are entitled to a reduction for your guilty plea. In your case that is a discount of one year. That gives a total end sentence of five years.

[70] In your case I have concluded that the circumstances do not require the imposition of a minimum period of imprisonment.

[71] Mr Fotu, you were involved in the February events in Kaikoura. You played a lesser role in planning this. I have described your role. I consider that the appropriate starting point is five years.

[72] For the May offending, you were significantly involved. I consider that a standalone basis starting point would be seven years. That would give a total cumulative starting point of 12 years. That needs to be adjusted to reflect the totality principle. I reduce the total starting point by three years and six months to give a total cumulative starting point of eight years and six months.

[73] As to your personal circumstances, you are 27 years of age. You have two daughters but your wife had left you because of your chronic alcohol, abuse and offending. You had been in a rehabilitation programme.

[74] You have showed remorse for the shame that your offending has brought upon your family, but you, in the opinion of the pre-sentence report writer showed little empathy for the victims of the offending. You are regarded as at a high risk of re-offending. You have expressed, however, a desire to change. You have

52 previous convictions. The most relevant of those for burglary.

[75] I consider that an uplift of six months is appropriate to reflect your personal aggravating factors.

[76] You too are entitled to a discount for your guilty plea. In your case the discount is one year and four months. That gives a total end sentence of seven years and eight months.

[77] In your case too, I think that the seriousness of your involvement in this offending is such that a minimum period is required. Which I will fix at 50 per cent.

[78] Ms Foster, you face only one count, arising from the February offending at Blenheim. I consider that an appropriate starting point to reflect your role is three years.

[79] You are 23 years of age and have a four year old daughter. You left school at

17 with a good standard of literacy and numeracy. You have nine previous convictions, all of which are drug-related. You have a harmful pattern of drug use which you have agreed with and acknowledged. It has blighted your life considerably. Your efforts at rehabilitation have so far been unsuccessful. You have shown a willingness to participate in further rehabilitation attempts although the pre- sentence report writer doubted the genuineness of your motivation.

[80] You are considered to be at medium risk of re-offending.

[81] While you have previous convictions for drug offending, I do not think these are such as to require an uplift and there will be uplift to reflect aggravating personal circumstances.

[82] You too are entitled to the credit for the guilty plea, which in your case is six months. That gives a total end sentence of two years and six months.

[83] In your case too, I do not consider that a minimum period is required. [84] Will you all stand please while I impose the sentences.

[85] Mr Ropitini, on counts 2 and 3, you are sentenced to a term of five years and six months imprisonment. Those two terms to be concurrent with each other. You will serve a minimum period of 50 per cent of that sentence.

[86] On counts 5, 6, 7 and 8, you are sentenced to four years and six months. Each of those terms is concurrent within themselves, but cumulative on the sentence on counts 2 and 3.

[88] Mr Marzola, on counts 2 and 3 you are sentenced to five years and six months. Those sentences are concurrent with each other.

[89] You will serve a minimum period of 50 per cent of that sentence.

[90] On counts 9 and 10 you are sentenced to one years imprisonment on each count, and on counts 11 and 12 to six months on each count. Those sentences on all of those counts are concurrent with each other, but they are cumulative on the sentence on counts 2 and 3.

[91] All sentences are cumulative on the sentence which you are currently serving. [92] Mr Gorrie, on count 2 you are sentenced to three years imprisonment.

[93] On count 5, you are sentenced to two years imprisonment, cumulative on the sentence on count 2.

[94] Mr Fotu, on counts 3 and 4 you are sentenced to three years and six months imprisonment, in each case concurrent with each other.

[95] You will serve a minimum period of 50 per cent of that sentence.

[96] On counts 5, 6 and 7 you are sentenced to four years and two months on each count. Concurrent with each other but cumulative with the sentence on counts 3 and 4.

[97] You will serve a minimum period of 50 per cent of that sentence.

_{[99] Stand down.}

“A D MacKenzie J”