R v N [2014] NZHC 2236 (16 September 2014)

Last Updated: 6 November 2014

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-055-1321 [2014] NZHC 2236

THE QUEEN

v

_N

Hearing:	16 September 2014
Appearances:	S McColgan for the Crown E Te Whata and L Major for the Prisoner
Sentence:	16 September 2014

_{SENTENCING NOTES OF ELLIS J}

Counsel/Solicitors:

S McColgan, Meredith Connell, Auckland

E Te Whata, Public Defence Service, Manukau

L Major, Public Defence Service, Manukau

R v N [2014] NZHC 2236 [16 September 2014]

[1] N, you are for sentence today, having pleaded guilty to one charge of aggravated robbery. The maximum penalty for this offence is 14 years imprisonment.¹

Facts

[2] I need first to talk about the facts of what actually happened. On the afternoon of 25 May 2013, you and five associates met by arrangement at an address in Manurewa for the purposes of organising a robbery of the Whitehouse Tavern in Papakura. That evening, you and three of your associates went to Remuera to steal cars to use in the robbery. You and two others took a car valued at $2,000. Someone else stole another car.

[3] After returning to Manurewa, you and the others armed yourselves with various weapons, including a loaded sawn off pump action shotgun, a crow bar, large screwdrivers and a large bit drill. You put on face masks, hooded sweatshirts and caps. You also took plastic ties for the purpose of restraining your victims.

[4] You drove in the stolen cars to the car park of the tavern and waited there for about two hours. At 10.45pm the six of you entered the tavern, brandishing your weapons. You ordered the customers and staff to lie on the ground and then tied their wrists.

[5] You all abused and threatened the staff and patrons. One member of staff was threatened with a firearm and told she would have her head blown off if she did not comply with your demands. Another staff member was punched and kicked, suffering injuries that required hospitalisation.

[6] The six of you took the staff and customers’ cell phones and cash from the cash registers and two tills. The bar manager managed to slip out the back entrance of the bar and called the Police.

[7] You all fled from the tavern through the back entrance and threw stolen items over the fence, before climbing through properties to where one of the cars was

¹ Crimes Act 1961, s 235.

parked. As you approached the intersection of the road, you were seen by a Police car, which followed your car until you drove onto the Southern Motorway heading north. The pursuit was then abandoned.

[8] A short time later, your car crashed on O’Connell St in Manurewa. You and one of your associates, made your way to a nearby address, where you convinced the occupant to call a taxi. The taxi arrived and picked you up but shortly afterwards a Police patrol car stopped the taxi and you were arrested.

[9] At the time of your arrest, you and your associate were in possession of a sawn off pump action shotgun, loaded with a cartridge in the chamber and three more cartridges in the magazine. Items from the Whitehouse Tavern, including cash and cell phones were also found in the taxi. When spoken to by the Police, you admitted your involvement.

[10] As Mr McColgan said to me this morning there can be no doubt that your victims would have been severely traumatised by what occurred.

Personal circumstances

[11] In terms of your personal circumstances, however, I have read the probation

officer’s report and the psychological report that was prepared about you.

[12] You are 19 years old. You were 18, I think, at the time of the robbery. You are the middle child in a family of seven children. Family violence was a feature of your upbringing, and violence was also a feature of your wider community. You described yourself as being an angry child. You joined the Killer Beez for a few months when you were just 15.

[13] When you were 16 you graduated from Waipareira Trust’s Mentoring Youth in a New Direction programme and got a job with Waters Concreting Contractors. Ms Waters from that firm remembered you as being a reliable, keen worker and commented that there are not many people who are prepared to work so hard at that age. Your mother also describes you as a wonderful young man who has always acted older than your age.

[14] You have been in a relationship for three years and describe the birth of your daughter in July 2013, and I think she is up the back is she, as the happiest day of your life. While there is often conflict in your relationship, your partner calls you a kind and caring father and a kind and caring partner who is actively involved in bringing up your daughter.

[15] I have also seen the mind-map that you have drawn and I agree with Mr McColgan that it is a very positive sign in terms of your desire to rehabilitate yourself in the future.

[16] I also mention that on 31 March 2014, your grandmother died and on 2 April, you suffered a seizure during her tangi and were admitted to hospital. The seizure was said to be caused by your use of cannabis, although I think you might dispute this. You returned to work after your seizure but did not feel well enough to continue with your job.

[17] The robbery occurred a month after you lost your job. You were not eligible for a benefit and your partner was pregnant. You say that you were approached by one of your co-offenders about the proposed robbery. You were friends with one of your associate’s sons. According to you, a mixture of peer-pressure and intimidation coupled with the desire to get money and help your family led you to decide to join in the robbery. I accept that as I think does the Crown.

[18] You say you did not fully realise what you were getting until it was too late. You had understood your role was to be the driver and you say that you were the last one to enter the Tavern at the prompting of the others. You say you panicked when the victims were assaulted and felt sad for them and angry at your co-offenders. But you felt powerless to do anything because no one was listening to you. I am also prepared to accept that.

[19] The probation officer assesses the risk of your re-offending as medium until you complete treatment. The psychologist also considers you to be at moderate risk of re-offending. The biggest risk factors for you are the bad influence of your peers and the desire to be financially secure.

[20] The probation officer also identifies your abuse of cannabis as a factor in your offending. You accept that this has been a problem and you have a goal to remain drug free in the future.

Starting point

[21] Coming to the sentencing process itself, I am required first to set the appropriate starting point for your sentence. The starting point is the sentence that would be imposed upon you having regard to all factors relevant to your offending, but excluding factors that are personal to you, which I will come to later.

[22] The Court of Appeal has set out sentencing guidelines for aggravated robbery.²

[23] Unfortunately, in your case, there are quite a few things that make what you did worse than it might otherwise be. The first is that the robbery involved quite a lot of planning.³ As I have said, you all met together to plan the robbery in advance. You travelled to Remuera with the purpose of stealing the cars to use in the robbery. Then you armed yourselves and put on clothes to hide your identities. You took the plastic ties with you. It seems that you also waited for two hours outside the tavern

until it was less crowded.

[24] Then there is the fact that there were six of you and the use of masks and hoods, which would also have increased the fear that you caused your victims.

[25] Next, there is the number and variety of weapons that you took with you and the way you waved them around in a threatening manner.⁴ Your group also made violent threats to use the weapons and one of your victims was, as I have said, kicked and punched to quite a serious extent. As well, the shotgun was loaded, with a further three cartridges in the magazine. This obviously increased the risk of

_{serious harm to your victims.}

² _{R v Mako [2002] 2 NZLR 170 (CA).}

³ _{Sentencing Act 2002, s 9(1)(i) and R v Mako at [36].}

⁴ At [39].

[26] Ms Te Whata said that you were not the perpetrator of the violence and were not holding the gun. But from the summary of facts to which you have pleaded guilty, it is not entirely clear which of you was carrying the gun, nor which of you punched and kicked the staff member. So all that can really be said is that you were involved in an aggravated robbery that included these events.⁵ But, as I said before, I do accept that you were not the leader or the instigator of what happened.

[27] There is also the fact that you chose to rob a busy tavern where you knew members of the public would be.⁶ Small businesses like this tavern are particularly vulnerable and are unfortunately often targeted.⁷ Mr McColgan also referred to the dangerous car chase.

[28] Lastly, what you stole and how much was recovered is also relevant.⁸ You stole a car worth $2,000. The other car was worth about $1,500. At the tavern, the victims’ cell phones and cash were stolen, and you also took cash from the tills. It is not clear how much of this property was recovered.

[29] The Court of Appeal decision I referred to before, and the other decisions I have looked at, suggest that a robbery involving the kinds of things that I have just talked about means that the starting point for your sentence should be 8 years imprisonment.⁹ The lawyer for the Crown and your lawyer, Ms Te Whata, were broadly agreed about that, and that is what I adopt.

[30] In terms of the things that are personal to you, you have two recent previous convictions but the Crown has not said that the starting point should be increased for those. The convictions did not involve violence and I agree that no increase is

_necessary.

⁵ See R v Tuhi at [41] where Wylie J noted that it was unclear which of the three offenders committed the violence. He stated “While this detail is not contained in the summary of facts, it is clear that you were involved in an aggravated robbery where physical violence was used.”

⁶ _{At [40] and [42].}

⁷ _{At [42].}

⁸ _{At [44] and Sentencing Act 2002, s 9(1)(d).}

⁹ At [54]. R v Campbell [2007] NZCA 121; Anderson v R [2014] NZCA 410; Tukaki v R [2013] NZCA 411; R v Marsters [2013] NZHC 1434; R v Katene HC Rotorua CRI-2007-063-4888, 3

February 2009; R v Tuhi [2012] NZHC 2955; R v Moke [2007] NZCA 110; and R v Campbell

HC Napier CRI-2009-069-2003, 15 December 2010.

[31] The Crown and defence also agree that you are entitled to a 25 percent discount for your early guilty plea.¹⁰ I consider that the fact that you were 18 at the time of the robbery is also relevant.¹¹ You are not only still young, but I have already talked about your motivation to change and to have positive goals for the future. And the fact that you have not yet gone too far down the road in terms of criminal activity and that you have some insight into what you have done, and that

you have something to live for outside prison all mean that there are real hopes for your future, provided, I think, that you can get help with your cannabis addiction.¹²

[32] Ms Te Whata also says, and the Crown I think accepts, that you are genuinely remorseful and that you are willing to participate in restorative justice to make amends to the victims in the hope that it will help them come to terms with what happened. The probation officer notes that you have written a letter of apology to the victims.¹³

[33] In the end and in light of all the mitigating factors in your case and the Crown’s position I consider a discount of 5 years is appropriate. That gives an end sentence 3 years imprisonment.

[34] So N if you could stand now, that is it. On the single charge of aggravated robbery I sentence you to 3 years imprisonment. Please stand down.

_{Rebecca Ellis J}

¹⁰ _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.}

¹¹ _{Churchward v R [2011] NZCA 531 at [77]- [87].}

¹² _{See Koroheke v R [2012] NZCA 368.}

¹³ Hessell v R [2010] NZSC 135 at [64].