R v Borrell [2013] NZHC 558 (20 March 2013)

Last Updated: 28 March 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-011688 [2013] NZHC 558

REGINA

v

FRANCIS ALLAN CHARLES BORRELL

Hearing: 20 March 2013

Counsel: C E Butchard and N Robson for Crown

L L Heah for Prisoner

Judgment: 20 March 2013

_{SENTENCING REMARKS OF WHATA J}

[1] Mr Borrell you have pleaded guilty to six charges of aggravated robbery. The maximum penalty for each of the charges is 14 years imprisonment.

The facts

[2] The six charges relate to two episodes of offending. The first episode occurred in November 2006. You agreed with Dylan Tyson Amataga Tavai to commit a robbery to get some money. At about 12.05 am on Sunday, 19 November

2006 the Celtic Arms in Selwyn Street, Christchurch, was closing up for the night after trading. Just as the duty manager, Paul Matheson, was about to leave the bar, you and Mr Tavai, with your faces disguised, burst through the front door wielding knives. You then grabbed Mr Matheson and demanded money and the safe,

_{threatening to knife him. While Mr Matheson was opening the safe you demanded}

R V BORRELL HC CHCH CRI 2011-009-011688 [20 March 2013]

his car keys, wallet, cellphone and cigarettes. You then emptied the contents of the safe into a pillowcase. Mr Tavai went and shut Mr Matheson in the toilet. A total of

$6,476.86 was stolen. A taxi driver had at that time been despatched to the Celtic Arms to pick up a patron to be taken into town. The taxi driver had parked outside the Celtic Arms and was waiting for his fare. Once you had recovered all the money from the safe you left the bar and approached the taxi that was parked outside. You opened the taxi passenger door and while kneeling on the passenger seat held the knife up to the taxi driver’s left eye and demanded that he hand over his money. He did so, including a total of $70. You also took a small bag of coins. You then disabled the taxi radio and ran off around the corner to meet up with Mr Tavai where you drove off in Mr Matheson’s vehicle.

[3] The second episode of offending occurred in June 2009. At about 3 am on Saturday, 20 June 2009, the Bedrock Bar in Lincoln Road was closing up for the night after trading. The duty manager, a security doorman and one customer were present. As the security doorman left through the back kitchen door to go home he was confronted by three armed offenders, including you and Mr Tuhi. You pointed a pistol at the security doorman’s head and Mr Tuhi held a knife to his neck. The doorman was asked for money and gave you $40. You also took his Sanyo cellphone and Winfield cigarettes. Mr Tuhi took the cigarettes and handed them out to all those present.

[4] At about this point two further people arrived. You ran over to one of them as he got out of his car and confronted him with a pistol. You made him move to join the security guard. While they were there the duty manager walked out of the kitchen door and you confronted him with a pistol as did Mr Tuhi with a knife. All those present were then ordered into the bar and you instructed the bar manager to take you to the safe in the office and you forced him to use the security code to open the office door. You then searched them, and their cellphones and cash were taken from them. You ordered the bar manager to open the safe and you threatened him if he did not. One of those present tried to get his cellphone back and was punched in the mouth causing a small abrasion to the top of his lip. The bar manager took some time to open the safe and you threatened you would shoot him. After several unsuccessful attempts the bar manager was finally able to get the safe open. Money

was taken from the safe. You also took alcohol from behind the bar. In total you took $22,457.30 cash as well as alcohol, cigarettes and cellphones, to a total value of

$24,893.39.

Personal circumstances

[5] I now turn to your personal circumstances. I have had the benefit of a pre- sentence report together with two health assessors’ reports. You had, in short, a tough upbringing. Your education was shortened by you having to frequently move address as well as by your truancy and expulsion. It appears you basically had no secondary education and from an early age began displaying a pattern of anti-social behaviour which brought you into police attention. You spent much of your youth as a ward of the state, residing in Child Youth and Family secure facilities. One of the health reports records that your early developmental environment was categorised by neglect, diffuse boundaries and regular excessive drug and alcohol use. You have reported incidents of violence towards you of such intensity as to cause broken bones. The report also observes the influence of gang culture was apparent from your birth. It appears that you had a sense of camaraderie and acceptance from involvement with the Black Power from a young age.

[6] You also have a minor history of mental health issues: the main forms of these are anxiety, panic, social phobia and post traumatic stress. It also appears that you have suffered from depression previously. You have described yourself as an anxious person “on the outside” and that the “nerves are always there”. Over the last

15 years or so you have reported experiencing panic attacks and that these occur roughly twice a month. You have then developed a number of problematic behaviours including drug and alcohol abuse.

[7] It is perhaps not surprising then that you have an extensive almost unbroken history of offending. In 1990 you were convicted for driving and burglary related charges. Soon after release on these charges you were convicted for further offending and then in 1993 you were found guilty of an aggravated robbery with a firearm and received a five year sentence of imprisonment. There was another conviction in March 1998, again soon after release and then further convictions for

mainly vehicle and drug related charges resulting in another term of imprisonment. In 2001 you committed a second aggravated robbery receiving six years’ imprisonment to be served concurrently with two year sentences for burglary and unlawfully taking vehicles. Following your release in 2006 and until mid 2011 you were in Court intermittently on minor charges as well as being in and out of prison. You received a further conviction for an aggravated robbery committed in December

2009. You received a five and a half year sentence for this which you are still serving.

[8] You have undergone a number of treatment programs but you have not been able to follow through with the treatment. It seems that you have responded positively to intervention based on traditional kawa, but unfortunately it appears you have been unable to see these courses through to a conclusion.

[9] One of the health reports noted that it is difficult to determine the likelihood of further offending by you in a similar manner. It says your violence is often instrumental and threatened rather than enacted, typically occurring in the context of a burglary. It is also said your violence does not appear to be indiscriminate and you did not appear to be overly aggressive or impulsive during assessment. Various risk factors are also identified. Based on those factors it is concluded by the report that you will remain a long term chronic risk of violence.

[10] Remarkably perhaps, against this background of criminal violence, you are also a father of two children and maintain a relationship with their mother when out of prison.

Approach to sentencing

[11] I now turn to my approach to sentencing.

[12] Your sentencing is unusual Mr Borrell as you seek preventive detention, as does the Crown. Preventive detention is not a sentence however I can impose simply because you consent to it. Rather I must be guided by the purpose and principles of

the Sentencing Act 2002 and the other factors deemed relevant by that Act before arriving at a final sentence.

[13] Particularly relevant to your case is the need to denounce your conduct, to deter similar conduct and to protect the community. I must also consider the gravity of the offending, your culpability and the desirability and consistency with other sentences. Finally, I must take into account your rehabilitation.

[14] In approaching your sentence I will identify what I consider to be an appropriate fixed term for sentence. I will then consider whether to impose a sentence of preventive detention.

Fixed term sentence

[15] Dealing first then with the fixed term sentence – setting such a sentence requires multiple steps:

(a) I must set a starting point that is comparable to similar starting points for other similar offending;

(b) I must apply an uplift to the sentence in light of any aggravating factors associated with the offending or personal to you;

(c) I will then apply any discounts available to you given your personal circumstances (if any);

(d) You are entitled to a further discount for your guilty plea;

(e) Once I have tallied all these matters I will set a fixed term sentence.

Starting point

[16] I agree with counsel for the Crown that several aggravating factors identified in the leading Court of Appeal decision of R v Mako1 are present in your case including:

(a) Your robberies were planned – though in an unsophisticated way.

This included a telephone call to the Celtic Arms Inn and then monitoring of the Bedrock Bar;

(b) The robberies involved several persons; (c) Disguises were worn;

(d) You were armed with a knife at the Celtic Arms and a gun at the Bedrock Bar. Even were I to accept that this was a BB gun, the threat of violence would have been palpable to the victims of the robbery;

(e) The premises targeted were public places, with a high likelihood that members of the public would be present – though I accept that you waited until closing in both instances before commencing the robberies;

(f) In relation to the Bedrock Bar, members of the public were affected by your actions raising the risk of injuries;

(g) Both robberies involved acts of physical violence resulting in one instance in physical injury – albeit minor;

(h) The value of the items stolen was substantial, over $6,000 and

$24,000 respectively;

(i) The impact on your victims was real and substantial, as illustrated by

the victim impact statements – significantly the major impacts are directly attributable to your actions. I do observe however that the recorded impacts are not at the top end of the scale;

(j) There was multiple offending.

[17] I also consider that your leadership in the offending is an additional aggravating factor.

[18] All of this commands a starting point, in light of the authorities,2 of nine years imprisonment for both episodes of offending, involving three robberies. This is to be compared with the starting points handed down for Mr Tavai of 7.5 years (for two robberies) and Mr Tuhi of 6.5 years (for one robbery). The gravity, culpability and impact of your offending was more significant than theirs. I have not elected to adopt a ten year starting point for the features of the offending because in my view of the authorities, a starting point of that scale requires a higher level of violence than yours.

[19] I consider I must also view your starting point in light of the sentence already handed down for a third episode of offending in December 2009, that is for your robbery of an elderly person. You were sentenced to a term of imprisonment of five years ten months. You have served four years already. I agree with Ms Heah that had you been charged with this offending at the same time as other 2009 offending, your combined sentence would not start at 14-15 years. That would be manifestly excessive. Rather a totality approach would have been merited a likely starting point of about 10-11 years. I cannot, however, turn back time, and I do not think it would be appropriate to reduce the starting point for the current charges to literally take into account the current sentence. Rather I propose to reduce the starting point by one year to eight years to secure a proportionate response to your current offending while recognising that on a genuine totality approach to the 2009 offending you should not be unduly penalised.

[20] I also propose to set any uplift for your prior history of offending at nil. You have over 100 convictions including three for aggravated robbery. This would normally mean a further uplift is necessary. Without further context that would normally command an uplift of at least one year to reflect the Court’s ongoing concern at your obvious disregard for the law and the rights of others. But I consider that a starting point of eight years properly and fairly reflects the requisite sentencing principles.

[21] This results in a combined starting point of eight years.

[22] There are no mitigating factors to the offending or to you personally. You are not remorseful.

[23] As to the guilty plea, this occurred at the last possible moment and when the case against you was overwhelming. But the guilty plea nevertheless saved time and cost and must be taken into account. I therefore reduce the starting point by 5%.

[24] All factors considered, this would result in a fixed term sentence of seven years seven months.

Preventive detention

[25] Your offending is a qualifying offence under s 87(5) of the Sentencing Act. There are five factors I must take into account when considering whether or not a preventive detention sentence should be imposed on you. Firstly, I must consider whether there is any pattern of serious offending. Plainly in your case there is. Secondly, I must consider the seriousness of the harm caused to the community by the offending. It must be said that your offending both in the present case and previously presents a serious risk of harm to the community both in terms of probability and the scale of potential impact. Thirdly, I must consider the information indicating a tendency to commit further offences in the future. The information available to me suggests that you have a strong tendency to commit violent offending, including violent robberies.

[26] Fourthly, I must consider the absence of, or failure of efforts by you, to address the cause or causes of the offending. In this regard, the picture I have of you is complex. You have endeavoured in the past to seek treatment and you have, in part, been successful. But for whatever reason, probably a combination of drug and alcohol abuse, you have been unable to complete those treatments. I also think it apt to record the expert opinion of Mr Kris Wilson, a clinical psychologist:

... Finally, while Mr Borrell appears to have given up on chances to reform, and declined follow-up by the Forensic Community Team for his anxiety, it is hard to predict whether he will retain such opinions overtime. Despite the significant risk factors present in Mr Borrell’s case, there are also clear areas where treatment would possibly effect change and reduce risk. Whether the treatment and supports are offered, whether Mr Borrell accepts offered interventions, and whether he was able to adhere to treatment is a point of conjecture.

[27] Mr Wilson also concludes:

Mr Borrell’s expressed negative beliefs may be born from hopelessness and defensiveness rather than a true refusal to be treated, and therefore may change over time.

[28] Against this backdrop, I am not prepared to find that you are without hope and I am going to proceed on the basis that intervention might at some stage be successful.

[29] The final matter I must take into account is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[30] It is this last aspect that is most telling against you. Ms Zoe Wilton, also a registered psychologist, observed that based on the violence risk scale, 18 out of 20 factors were present, including violent lifestyle, limited empathy or remorse, reluctance to address violence and poor history of compliance with community supervision. It is also noted, however, by the same psychologist that the factors underlying your propensity for violent offending are considered potential treatment targets and would provide a baseline for change should you engage in treatment. Ultimately, however, Ms Wilton’s view is that the foreseeable likelihood of engaging in treatment appears low.

[31] In the final analysis, the primary consideration in this context must be the protection of the public. I must be satisfied that, in light of your offending and especially your violent offending, the requirement for protection mandates the penalty of preventive detention. Having considered all of above factors, and your clear propensity to commit violent crime, I consider that a sentence of preventive detention is required. I do not accept, however, that the minimum sentence needs to be two-thirds. While you have lost all hope Mr Borrell, the Court has not, and it seems to me when your background is carefully analysed you ought to be given the opportunity to be considered for treatment as soon as possible. In reaching that view, I have taken into account the fact that on all of the charges upon which you have been convicted only one involved a conviction for physical injury to another person. That was a simple common assault conviction in 1990 and indeed it may be that there was no injury at all. The risk I am dealing with therefore appears to be not so much a risk of physical injury to other persons but the risk of further violent offending in the form of aggravate robbery.

[32] A further complicating feature in this case is that you have served four years in prison since your last offending. It could be said to be unfair to you to now impose a further minimum period of five years. I am also inclined to the view that the real underlying issue here relates to treatable anti-social behaviour born of anxiety and a maladjusted view of the world – or the “outside” as you call it. I would prefer that you be given encouragement and the motivation to take up and respond to treatment. I cannot see how that is furthered by an extended period of mandatory imprisonment. Nevertheless, having formed the view that preventive detention is necessary the statutorily imposed minimum must be served.

[33] In those circumstances you shall be sentenced to preventive detention with a minimum period of five years.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

L L Heah, Christchurch, for Accused