R v Ma'Anaiama [2014] NZHC 1913 (14 August 2014)

Last Updated: 18 September 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-012-188 [2014] NZHC 1913

THE QUEEN

v

_{TOLU MA'ANAIAMA}

Hearing:	14 August 2014
Appearances:	R D Smith for Crown A Stevens for Defendant
Sentence:	14 August 2014

_{SENTENCING REMARKS OF LANG J}

R v MA'ANAIAMA [2014] NZHC 1913 [14 August 2014]

[1] Mr Ma’anaiama, you appear for sentence today having pleaded guilty in the District Court to charges of aggravated robbery, escaping from lawful custody and shoplifting. The maximum sentence on the charge of aggravated robbery is 14 years imprisonment. The maximum sentence on the charge of escaping from lawful custody is five years imprisonment, and the maximum sentence on the charge of shoplifting is three months imprisonment.

[2] The District Court Judge declined jurisdiction to sentence you because material before him indicated that you were a candidate for the indeterminate sentence of preventive detention. He remanded you to this Court for sentence so that preventive detention could be considered. That was an entirely proper thing for the Judge to do, because your case falls at the margin. You are definitely a candidate for preventive detention given your past offending and the issues that you obviously face in your life.

Background

[3] I begin first by outlining the circumstances of your offending.

[4] At about 2 pm on 25 November 2013, you went to a shop in Quarry Road, Dunedin. You were disguised with cloth wrapped around your head so that only your eyes were showing. In addition, you were carrying a large butcher’s knife. You approached the female shopkeeper who was in a storage area at the rear of the store. You brandished the knife at her, and demanded she take you to the safe where the money was kept. She told you, however, that there was no money in the safe because her employer had removed it the previous night.

[5] You then made further demands as you stood in an aggressive manner holding the knife at waist height with the point of the blade aimed towards the victim. She then led you to the safe, where you required her to place a large number of Instant Kiwi tickets into a box. You then took the box and locked the victim in the safe.

[6] A short time later, you reopened the safe and asked the victim where the tills were. At this point, a customer has entered the store. You took the victim’s wallet from her, and gave her a piece of paper and required her to write down her home address on it. You told her that this was your way of making sure that she did not escape whilst she was serving the customer. You also took a quantity of cash from the victim’s wallet. Next, you took the driver’s licence from the victim’s wallet and studied it. You did so no doubt in an endeavour to bring home to her the fact that you would remember what her name was and what she looked like in the event that she was to make things difficult for you.

[7] The victim then served the customer, and then came back to the area of the store where you were hiding. At that point, you ordered her to lock the store and turn off the lights. You then went to the tills in the store and removed all the notes from both the service tills and the lotto till. You also grabbed numerous packets of tobacco and cigarettes and loaded these into your bag. You then told the victim to go back to the safe and you shut the door. She then locked the safe door from the inside to prevent you from gaining access to it.

[8] You then removed the CCTV recording device from the store, and you also took the victim’s cellphone before leaving the store. The victim remained in the locked safe for about 10 minutes before exiting and calling the police.

[9] In total, you stole about $650 in cash from the store, together with an undetermined amount of cigarettes and tobacco as well as the CCTV recorder. You stole $200 in cash from the victim, together with her cellphone valued at $49.

[10] The police ultimately arrested you for this offending on 4 December 2013. A short time after your arrest the police interviewed you. Whilst being returned to the cells from the interview room, you took the opportunity to escape through a rear door of the police station. The police gave chase but you were able to remain at large for approximately six hours. During this time, you went into the Farmer’s department store where you grabbed a shirt off the rack. You then put the shirt on and left the store. I view the shoplifting charge as forming part of the charge of escaping from lawful custody.

[11] You pleaded guilty in the District Court a short time after your first appearance.

Sentencing Act 2002

[12] In any case involving offending of this type, the Court needs to take into account several sentencing principles. To the forefront in offending this serious is the need to hold the offender responsible for his or her actions and to denounce this type of offending. The sentence must contain an element of deterrence, both for the offender and for persons minded to act in a like manner in the future.

[13] The Court must also take into account the effect the offending has had on the victim. I have had the benefit of reading a thoughtful and restrained victim impact statement from your victim. This demonstrates that she has suffered greatly as a result of your offending. Not surprisingly, the victim says she was terrified throughout this incident, and she feared not only for her own safety but that of students attending a nearby school and kindergarten. Her own daughter was in one of those institutions. She was concerned that innocent children might be harmed as a result of your presence in the area.

[14] You took her rent money, and her parents were obliged to meet that obligation for her. More importantly, she could not face the prospect of working in the store where the offending occurred. She has therefore lost her job and source of income as a result of your offending.

[15] The victim describes how she is now fearful at night. She does not trust strangers any more, and she will obviously have to deal with the long-term effects of this offending. She told me this morning, however, that she benefited from attending a restorative justice conference with you. She also told me that she feels you are genuinely remorseful for the anguish that you have caused her and her family.

Finite sentence

[16] Before considering whether or not a sentence of preventive detention is appropriate, it is necessary for me to consider the finite sentence that would be imposed on you if that was the sentencing option selected by the Court.

Aggravated robbery

Starting point

[17] The starting point on the aggravated robbery charge is governed by a guideline judgment of the Court of Appeal in R v Mako.¹ In that case the Court of Appeal identified different kinds of aggravated robbery and the starting points for sentences to be imposed in relation to them.

[18] Your offending falls within a category identified by the Court of Appeal as involving the robbery of small businesses where a weapon is used and the offender is usually disguised. In such cases, the starting point to be selected is one of around four years imprisonment. The Court of Appeal also noted, however, if there are other aggravating factors such as detention of the shopkeeper, they may serve to raise the starting point to one of five years imprisonment.

[19] I take your offending to fall within the latter category because you detained the victim for 30 to 40 minutes, and you also went to the extent of shutting her in the safe. For that reason, I would take a starting point of five years imprisonment on the charge of aggravated robbery.

Aggravating factors

[20] You have previous convictions for aggravated robbery in 2005 and 2009. You also have a large number of convictions in the Youth Court for offences involving dishonesty, although none as serious as those for which you were sentenced in 2005 and 2009. I will deal with that offending in greater detail shortly, but for present purposes it is sufficient to say that the offending attracted sentences in

_{the vicinity of four years imprisonment.}

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

[21] The present offending also occurred at a time when you were still on parole in relation to the 2009 offending. Those factors mean that an uplift in sentence is required. This is not to sentence you again in relation to earlier offending. Rather, it is to reflect the fact that your present offending is made that much more serious by the fact that you have not learned from sentences that have previously been imposed on you in the past for similar offending. I would apply an uplift of 12 months, or 20 per cent, to reflect those factors.

Mitigating factors

[22] It is now necessary to consider the extent to which I should reduce the end starting point of six years imprisonment to reflect mitigating factors personal to you.

[23] Your counsel submits that the most obvious of these is the fact that you pleaded guilty to all charges at a very early stage. In addition, however, your counsel submits that I should provide a further discount in relation to remorse and the fact that you attended a restorative justice conference with your victim. She points out that this has produced beneficial results for both you and for her.

[24] I have to, I think, treat remorse with a degree of scepticism bearing in mind your previous history. I note that when you were sentenced in 2009 you also expressed remorse and, for that reason, I am not going to give you a discrete discount for remorse on this occasion. I am, however, going to give you a discount of four months to reflect the fact that you attended the restorative justice conference with your victim.

[25] From that resulting sentence of five years eight months imprisonment, I also need to apply a discount to reflect your guilty pleas. The Crown accepts they were entered at a very early stage, and that you would be entitled to a full discount of 25 per cent in relation to them. This would produce a discount of one year five months imprisonment, and would result in an end sentence on the charge of aggravated robbery of four years three months imprisonment.

Remaining charges

[26] It is now necessary to determine the extent to which that sentence should be increased to reflect your other offending. The Crown had initially submitted that this should attract a cumulative sentence of between 12 and 18 months imprisonment. The Crown now accepts that such a sentence would be too high, and I agree. In addition, it is necessary to take into account totality principles. These require the Court to ensure that it does not impose an overall end sentence that is out of all proportion to the overall gravity of the offending.

[27] I consider that an appropriate uplift on the other charges is one of eight months imprisonment. That would properly reflect the fact that, although your escape from custody was brazen, it was nevertheless of short duration and did not involve any premeditation. Rather, it was opportunistic. As I have already recorded, the shoplifting charge really forms part and parcel of the escaping charge.

[28] From that starting point I would apply a discount of two months to reflect your guilty pleas. This would produce a cumulative end sentence on the other charges of six months imprisonment, and an overall end sentence of four years nine months imprisonment.

Minimum term of imprisonment

[29] In any case where the Court imposes a sentence of more than two years imprisonment, it has the ability to require the offender to serve a minimum term of imprisonment.² This can be done when the normal parole provisions would be insufficient to reflect issues of deterrence, denunciation and the requirement to hold the offender responsible for his or her actions. In this context the protection of the community is also important.³

[30] I consider all four factors are engaged in the present case. In the ordinary course of events, you would be eligible for parole after serving approximately 18 of your sentence. I consider that would be manifestly insufficient to reflect the

_{sentencing principles to which I have referred. For that reason any finite sentence}

² _{Sentencing Act 2002, s 86(1).}

³ Section 86(2).

would involve the imposition of a minimum term of imprisonment of two years eight months.

Should a sentence of preventive detention be imposed?

[31] I now turn to the real issue that is at the heart of today’s hearing, namely whether I should impose the indeterminate sentence of preventive detention. That sentence is reserved for cases where the Court considers that there is a need to protect the community from future offending by the offender.⁴ It must take into account the fact that the offender may be subject to release conditions, or even an extended supervision order that would be designed to impose a degree of control over the offender even after his or her release from prison.

[32] The decision whether or not to impose a sentence of preventive detention is a discretionary decision. In exercising that discretion, however, the Court is required by s 87(4) of the Sentencing Act 2002 to take into account several factors.

Section 87(4)(a): Any pattern of serious offending disclose by the offender’s history

[33] Your criminal history shows that you have a general pattern of offending, and in particular offending involving dishonesty. More importantly, the offending that occurred in 2005 and 2009 shows that you have established a pattern of committing aggravated robberies of small businesses.

[34] The offending in 2005 occurred after you and two associates stole a vehicle and drove to a dairy. You went into the dairy wearing a bandanna tied across your lower face to disguise your appearance. You were carrying a black plastic imitation pistol and a machete. You went into the shop and pointed the pistol at the proprietor. You demanded money from the till, and waved the machete around whilst you did so. When the proprietor opened the till, you put the knife on the counter and reached across to take cash out of the till. You took approximately $400 on that occasion. You then picked up the machete and smashed it onto the glass counter, causing the

_{glass counter to break. You then drove away with your associates.}

⁴ Section 87(1)

[35] A short time later, you and your associates went to another dairy nearby. Again, you walked into the dairy carrying the imitation pistol and machete. You were disguised on this occasion in the same way as on the previous occasion. You confronted the female shopkeepers and demanded that they open the till. You then took a total of $500 from the till before leaving the store and departing from the scene with your associates. Fortunately, you were discovered a short time later. When the police spoke to you, you denied being involved in the robberies and endeavoured to place the blame for them on one of your associates. You received a sentence of four years imprisonment for that offending.

[36] The offending in 2009 occurred after you went to a service station, taking with you a large knife that was normally used for chopping wood. You went into the service station and brandished the knife at the persons behind the counter. You then demanded that they place all the money from the tills into your shoulder bag. You left the scene taking with you approximately $300 in cash. Again, you were found a short time later, after one of the shopkeepers was able to record the registration number of the vehicle in which you left the scene. That offending resulted in you being sentenced to four years three months imprisonment.

[37] The earlier offending mirrors your present offending, save for one feature. The earlier offending did not involve you detaining the shopkeepers whom you robbed for any period of time. Rather, you simply brandished your weapon at them, stole money and then departed from the scene. The present offending is obviously more serious because of the length of time during which you detained your victim. This can be seen as an escalation in your behaviour, which is obviously a factor which might point in favour of a sentence of preventive detention.

Section 84(b): The seriousness of the harm to the community caused by the offending

[38] Any offending of this type causes serious harm within the community. It causes harm not only to the persons who are actually robbed, but to all other proprietors of similar business. When a dairy owner or service station proprietor hears of another dairy or service station being robbed, he or she is naturally fearful that the same thing might happen to his or her business. Employees working in such

businesses are now constantly on their guard because of the prevalence of offending like this. It therefore causes significant harm to the community.

Section 87(4)(c): Information indicating a tendency to commit serious offences in the future

[39] On this score I have the benefit of reports from a clinical psychologist and a psychiatrist. They have provided me with extremely helpful information about your background, and about the prospect that you might offend again in a similar way in the future.

[40] The reports tell me that you are part of a large family. Physical discipline was a feature of life in your family, and this may now have some impact on the way in which you are likely to act. From about the age of 13 years, you were taken into care by the authorities. This, too, was problematic for you. You allege that you suffered physical abuse during your time in State care. This has caused you to become a plaintiff in a class action against the Government alleging neglect and ill- treatment whilst in the care of the authorities.

[41] This has had a further impact recently, because between March and November 2013 you were involved in discussions with a lawyer who was handling your case. You say that this caused you to relive the traumatic experiences you suffered whilst in State care. This may have had some impact on the reasons why you undertook the present offending.

[42] The psychologist’s report, in particular, confirms that you are at serious risk of further violent offending in the future. The psychologist has examined your background in order to determine your psychological makeup and the way in which this might assist in a prediction of your future actions. The psychologist has also administered a number of actuarial instruments, or tools, designed to assess risk of future offending. In conclusion, the psychologist says that you are estimated to be at high risk of further violent offending.

[43] She says that should this occur it is likely to be in the nature of a versatile pattern of offending, but increasingly inclusive of serious violent offending with the

use of weapons for intimidation purposes. This is likely to be associated with substance abuse and may involve associates. She says that victims are likely to be strangers, and the offending is likely to be precipitated by social stresses, emotional disregulation and/or a desire for material gain. She recommends that whilst you are in prison you attend a number of programmes designed to treat the underlying causes of this offending.

[44] The report from the psychiatrist is to similar effect, although the instrument the psychiatrist used is not a tool designed to predict future risk. Rather, it is predominantly used to investigate how an individual’s risk can be changed over time using treatment. The psychiatrist observes, however, that you present as positive for a number of historical items indicating ongoing potential risk. These highlight your underlying vulnerabilities associated with your poly-substance abuse and psychological vulnerabilities.

[45] Both reports tell me that there are serious issues underlying your offending that need to be addressed by therapeutic treatment. Without such treatment, you will remain at risk in the future of committing violent offences.

Section 87(4)(d): The absence of, or failure, of efforts by the offender to address the cause or causes of the offending

[46] Next, I am required to consider the absence of, or failure, of efforts by the offender to address the cause or causes of the offending. This factor is relevant in the present case because, between January 2012 and March 2013, you were resident at Moana House, a training institute designed to provide persons such as yourselves with a structured means of reintegrating into the community.

[47] I have read a significant amount of information about the manner in which you presented at Moana House. Some of this gives me cause for concern, because it suggests that you did not fully engage with the programmes that were offered to you whilst you were there. You eventually withdrew from the system and left in March

2013 without really having achieved the goals that your time at the institution was designed to achieve.

[48] You then began living with your partner, and this in itself was problematic because of various issues that arose at that time. You reverted to both substance abuse and the use of alcohol. You say that this partly explains your present offending, because during the two weeks leading up to the offending you were living rough. You were consuming drugs and alcohol on a regular basis. You say that you are disturbed yourself by this offending because you do not understand why you did it. You did not have any particular need for money at this time. You therefore remain confused as to why you elected to carry out this latest robbery. You say you accept, however, that your use of both substances and alcohol must have been a contributing factor.

[49] The concerning aspect, obviously, about all of this is that to date you do not appear to have engaged fully with the programmes offered to you. Your counsel tells me today that you have now realised that you are now on the cusp of receiving a sentence of preventive detention. She tells me that you now acknowledge you cannot drink alcohol or take drugs, and that you accept that any future deviation from that aspiration is likely to result in your reoffending.

[50] In this context, I am assisted greatly by a letter I have received from Moana House dated 6 August 2014. This tells me that since you have been in prison you have engaged with Moana House again, and the staff of Moana House believe you are now committed to a rehabilitative path. In addition, I have a letter from a registered psychotherapist who indicates that you have had six counselling sessions with him whilst in custody. The psychotherapist tells me that you used the sessions well and were an earnest and eager participant. The Crown accepts that this material is a significant factor that the Court should take into account when making its decision.

Section 87(4)(e): The principle that a length determinate sentence is preferable if this provides adequate protection for society

[51] This factor really speaks for itself. It reflects Parliament’s view that, where possible, the Court should impose a finite sentence rather than preventive detention. Parliament recognises, however, that this can only be done in circumstances where

the community can be adequately protected from future offending at the hands of the offender.

Conclusion

[52] Having taken those factors into account, the Court is required to stand back and determine how it should exercise its discretion. I have come to the conclusion that I should exercise my discretion against imposing a sentence of preventive detention on this occasion. I do so because the material I have received indicates that you now realise you present as a high risk of future offending without substantial therapeutic intervention. I also accept that you are now committed to undertaking whatever treatment may be necessary to address the causes underlying your offending.

[53] You need to engage as soon as you can with such therapy as you may be given in prison during the remainder of your sentence. You will also no doubt be aware that you can expect to have strict release conditions imposed when you are subsequently released. The Chief Executive of the Department of Corrections may also, if jurisdiction exists, apply for an extended supervision order so that your affairs can be closely monitored beyond the expiry of your prison release conditions.

[54] Mr Ma’anaiama, you need to understand that you are indeed sitting on a threshold. Your history now paints you as a recidivist offender who commits aggravated robberies. Any future conduct like that will leave a sentencing court with very little in the way of options. Any Judge who sentences you in the future will know that past efforts to rehabilitate you have not worked. In that event, you can confidently expect to receive a sentence of preventive detention. Should that occur, you will only be released when the prison and parole authorities are satisfied that you no longer present any risk to the community.

Sentence

[55] On the charge of aggravated robbery, you are sentenced to four years three months imprisonment, and you are ordered to serve a minimum term of imprisonment on that charge of two years eight months. On the charge of escaping

from lawful custody, you are sentenced to a cumulative sentence of six months imprisonment. On the charge of shoplifting, you are sentenced to one month’s imprisonment. That sentence is to be served concurrently with all other sentences.

[56] Finally, I express the view that it is imperative that you continue with therapeutic intervention as soon as possible after you begin serving your sentence. I direct that copies of the psychologist’s report and psychiatrist’s report be sent to the prison and parole authorities together with a copy of my sentencing remarks, so that they are aware of the issues that need to be addressed before and after you are released.

_{[57] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Dunedin

Counsel:

A Stevens, Dunedin