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R v Tuku-Inamata [2014] NZHC 2654 (29 October 2014)

Last Updated: 17 December 2014


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY



CRI-2013-055-1321 [2014] NZHC 2654

THE QUEEN



v



ROBERT TUKU-INAMATA


Appearances:
M R Walker for the Crown
B Sellars and C Frederic for the Prisoner
Sentence:
29 October 2014




SENTENCING NOTES OF ELLIS J

























Counsel/Solicitors:

S McColgan, Meredith Connell, Auckland

B Sellars, Barrister, Auckland

C Frederic, Barrister, Auckland









R v TUKU-INAMATA [2014] NZHC 2654 [29 October 2014]

[1] Mr Tuku-Inamata, you have pleaded guilty to one charge of aggravated robbery and it is for that offence that I must sentence you today. The maximum penalty is 14 years imprisonment.1

Facts

[2] I need first to talk about 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, two of your associates went to Remuera to steal a car to use in the robbery. The car they took was valued at $2,000, and someone else stole another car.

[3] Back in 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. You say you did not know about the gun when you all started out but you certainly realised it was being used a bit later on, I think.

[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 customers. One member of staff was threatened with the gun and told that 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.




1 Crimes Act 1961, s 235.

[7] You all ran away 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 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 abandoned then for safety reasons.

[8] A short time later, the 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 tavern, including cash and cell phones, were also found in the taxi.

[10] There can be no doubt that the people in the tavern were severely traumatised by what happened. The two victim impact statements that have been given to me make it clear that what you did had effects that go far beyond the terror that those people felt that night. Mr Hayes (who I think is the owner of the tavern) talks about the significant financial losses he has suffered because a lot of people have stopped going to the tavern after the robbery. Carole Kikkert, the employee who was tied up and threatened with the gun, says that all her confidence has been destroyed and that for a long time afterwards she has been too afraid to do normal things, like the grocery shopping, or just being alone. It has affected her life with her children and her husband. She has had to take anti-anxiety medication and has had to bear other medical costs. And the financial effects on her have also been huge. Ms Kikkert has been unable to return her work and says she will never be able to go back to work as a bar manager and so will have to retrain – so she is not only not getting her salary from her job but she has also lost all the money she spent getting her manager’s qualifications as well.

[11] I am sure you did not think about any of these things, of all the terrible impacts you would have on the lives of a group of complete strangers, on the night

of 25 May 2013, but I want you to think about them now and I want you to remember them in the future.

Personal circumstances

[12] In terms of your personal circumstances, I have read the restorative justice report and the probation officer’s report that was prepared about you.

[13] You are 19 years old. You were only 18 at the time of the robbery. You are

Cook Island Maori by descent.

[14] Your father died seven years ago, when you were still a boy. You said that you have not had any contact with your mother for some time so it is very pleasing to see her here to support you today. You say you are close to your four older siblings and I know that you have only recently met your two sisters again and that they have been visiting you in prison.

[15] You say that after your father died, when you were 12, you started drinking a lot and you now describe yourself as an alcoholic. Since you were 13 or 14 you have used methamphetamine on a more or less daily basis and you are also a gambling addict. You say that you had been smoking methamphetamine continuously for three days at the time of the robbery. It is obvious, and you accept, that all of your addictions contributed to your offending and they are certainly things that you need to help with.

[16] You left school at 15 without any qualifications because you thought it was “a cool thing to do”. Although you completed a welding course you found it hard to find work. You have a son from a previous relationship and you have said that you would like to “clean up” so you can be a positive role model for him.

[17] You have previous convictions which include convictions for common assault, stealing a car and burglary. You were sentenced to 10 months’ imprisonment on the burglary charge but this was not until after you committed the robbery. Since then you have participated in the restorative justice process in relation to the burglary as well as in relation to the offending for which you are being sentenced today.

[18] The probation officer assesses the risk of your re-offending as high unless and until you get help with your addictions. The risk that you present of harming others is also assessed as high. Inexplicably it seems that your age may mean that you do not qualify to participate in the intensive programme offered by the Drug Treatment Unit, which the probation officer has said would be extremely helpful for you. I record my hope that some exception can be made for you in this respect and there are also some other programmes I know that are available to you in prison, which I hope you will be able to be enrolled in and which will help you.

Starting point

[19] Coming to the sentencing process itself, I need first to set the appropriate starting point for your sentence. The starting point is the sentence that would be given to you having regard to all the things that are relevant to what you did, but without taking into account the things that are personal to you, which I will come back to later.

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

[21] 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. Some of 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.

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

[23] 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 I think you have said that you used a screwdriver in this way. 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. As Mr

Hayes said, it was really a matter of luck that no-one was killed.

[24] It is not clear which of your group punched and kicked the staff member and I doubt that it was you. I am also prepared to accept that at first you did not realise that someone had brought along the gun and also that you were not carrying it. But when you did realise about the gun you did not stop what you were doing or back down. So although I acknowledge that you were not the leader or the instigator of what happened, the reality is that you were involved in an aggravated robbery that included violence and included a gun.

[25] There is also the fact that you chose to rob a busy tavern where you knew members of the public would be.5 Small businesses like this tavern are particularly vulnerable and are unfortunately often targeted.6 I have already talked about the effect that the robbery has had on the tavern’s business. And then there was also the dangerous car chase.

[26] Lastly, what you stole and how much was recovered is also relevant.7 The cars that were taken were worth about $2,000 and $1,500 respectively. At the tavern, 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.

[27] 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 eight years




4 At [39].

5 At [40] and [42].

6 At [42].

7 At [44] and Sentencing Act 2002, s 9(1)(d).

imprisonment.8 The lawyer for the Crown, Mr Walker, and your lawyer, Ms Sellars, agree about that and indeed that was the starting point I adopted when I recently sentenced one of your co-offenders. So that is going to be my starting point today.

[28] In terms of the things that are personal to you, you have the previous convictions I mentioned earlier but the Crown has not said that the starting point should be increased for those. I agree that no increase is appropriate.

[29] You are entitled to a discount for your guilty plea, although this is limited by the fact that it was entered the week before your trial was due to begin.9 Ms Sellars explained some of the reasons for that today and I accept what she said. The Crown also accepts the fact that you were only 18 at the time of the robbery is relevant, although Mr Walker said this must be balanced against your criminal history.10 But for the reasons Ms Sellars also explained it is quite difficult to take that into account because, of course, at the time of the robbery you did not have some of those convictions which Mr Walker now asks me to take into account.

[30] But as the cases referred to by Ms Sellars show, the courts have recognised that youth may be relevant to sentencing for multiple reasons.11 There are age- related neurological differences, which mean that young people, and especially young men, tend to be more impulsive and more susceptible to negative influences and peer pressure. It appears that all those were factors in your offending. As well, the effect of imprisonment on a young person can be relatively more severe. And

perhaps most importantly, young people tend to have a greater chance of rehabilitation.12

[31] In your case, then, it is encouraging that you have recently participated in a restorative justice process with some of the victims. The restorative justice report


  1. 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.

9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

10 Churchward v R [2011] NZCA 531 at [77]- [87].

11 See Churchward v R [2011] NZCA 531 at [77]- [87].

  1. Although a discount may not be given for youth if there is no corresponding higher prospect of rehabilitation: Koroheke v R [2012] NZCA 368.

also records that you want to use your time in prison to do courses to better yourself, and to participate in anger management and anti-violence programmes. You want to keep and develop a good relationship with your sisters, and I think they are supportive of you. And, as I said before, I see that your mother is here today supporting you and that is encouraging as well. Above all you say you want to change for your life for your son. I think you know that he deserves a better life than you have had so far and I believe that you really want to try and help him achieve that when you are released from prison.

[32] So, Mr Tuku-Inamata, I am hopeful that you may be able to get your life back in order if you are given, and accept, the help that you need while you are in jail. I do not underestimate how difficult it is to deal with addictions such as yours and you are going to need to use all your strength and courage to overcome them. But you are young, there are drug and alcohol programmes available to you and I believe that you are motivated to change. You understand, I think, that you owe it to yourself and you owe it to your boy to give it your very best shot.

[33] In the end, and in light of all the personal things I have just talked about, I consider that a discount of two and a half years is appropriate. That gives an end sentence of five and a half years imprisonment.

[34] So Mr Tuku-Inamata, if you could stand now.

[35] On the single charge of aggravated robbery I sentence you to five and a half years imprisonment.

[36] Please stand down.










Rebecca Ellis J


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