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High Court of New Zealand Decisions |
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
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].
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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