R v Armstrong
[2018] NZHC 1351
•8 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-003403
[2018] NZHC 1351
THE QUEEN v
JOHN ROBERT JUNIOR ARMSTRONG
Hearing: 8 June 2018 Appearances:
B R Smith and Y Olsen for the Crown A Ives for the Defendant
Sentence:
8 June 2018
SENTENCING NOTES OF WYLIE J
Solicitors/counsel:
Kayes Fletcher Walker Ltd, Manukau A Ives, Auckland
R v ARMSTRONG [2018] NZHC 1351 [8 June 2018]
Introduction
[1]Mr Armstrong, you may remain seated until I ask you to stand.
[2] You appear for sentence today having been convicted following trial before a jury of one charge of aggravated robbery1 and one charge of being in possession of an offensive weapon.2 The charge of aggravated robbery carries a maximum penalty of 14 years’ imprisonment.3 The charge of being in possession of an offensive weapon carries a maximum penalty of three years’ imprisonment.4
[3] The offending was committed with two others, Mr Vagaia and Mr Naseri. They pleaded guilty. On 29 May 2018, Venning J sentenced Mr Vagaia to nine years and nine months’ imprisonment,5 and Mr Naseri to four years and eight months’ imprisonment.6
Relevant facts
[4] In early January 2017, you and Mr Vagaia sent various text messages to each other. There were references in the text messages exchanged between you to going “out collecting”.
[5] It was not entirely clear from the evidence presented at trial when the offending in respect of which you have been convicted took place. It seems likely that it was sometime between 3pm and 6pm on 4 January 2017.
[6] You went to the victims’ property. Mr Vagaia was armed with a .22 firearm. You were armed with an army-style knife.
[7] When you arrived at the property, one of the victims, Mr Tupou, was watching television in his lounge. The other victim, his wife, was catching up on some sleep in their bedroom, because their children were out at church with Mr Tupou’s mother.
1 Crimes Act 1961, s 235(c).
2 Section 202A(4)(b).
3 Section 235.
4 Section 202A(4).
5 R v Vagaia [2018] NZHC 1225 at [23].
6 At [29].
[8] Either you, or one of your co-offenders, knocked on the front door. Mr Tupou ignored you, because he thought that you were fundraisers. He got up and went to the bathroom.
[9] When Mr Tupou came out of the bathroom, you were inside the house, standing in a corridor. Mr Tupou noticed the knife that you were carrying. You told him that he should go into the lounge and speak to the person who was there. You used the knife to indicate to Mr Tupou where he should go.
[10] Mr Tupou went into the lounge. Mr Vagaia was in the lounge. Mr Vagaia was holding the firearm. It had a clear plastic banana-shaped magazine and the .22 calibre bullets were clearly visible. Mr Vagaia told Mr Tupou that he was there to collect
$5,000 from him. Mr Tupou had been involved in the purchase of a BMW car for another person and it seems that the amount demanded related to that purchase. Mr Tupou told Mr Vagaia that he did not have $5,000 to give him, but that he could take the television instead. The television belonged to Mr Tupou’s sister. Mr Tupou also said that if he was given time, he would try and find the $5,000 demanded.
[11] Mrs Tupou came into the lounge. She did not initially realise what was happening.
[12] You and Mr Naseri uplifted the television and took it out of the house. A short time later, you came back into the house.
[13] At Mr Vagaia’s direction, you and Mr Naseri searched the house. You took various items of value in the course of your search. At one stage, Mrs Tupou went into the master bedroom to try and find a remote for the television set. You accompanied her, to make sure that she did not try and contact the police. At another stage, Mr Vagaia went into the Tupou’s bedroom. You kept watch on the Tupou’s in the lounge. You still had your knife with you at this point and you tapped it repeatedly on the sofa in front of the Tupou’s. Before you and your co-offenders left the house, Mr Vagaia told the Tupou’s to go to the back bedroom. You handed Mr Tupou a bullet or a cartridge, told him to make sure he came through with the money, and told them both to stay in the back bedroom for five minutes while you and your co-offenders fled.
[14] The Crown did not allege that you were the principal offender. It accepted that the principal offender was Mr Vagaia. You were tried on the basis that you were a party to his offending.
Pre-sentence report
[15] You are 33 years old. You were born in Samoa, but you moved to New Zealand at a relatively young age. You were raised by your stepfather, who was a Pākehā. You have said that you experienced something of an identity struggle when you were growing up.
[16] You told the officer who prepared the report that you became involved in the offending because you were doing a favour for your friend, Mr Vagaia. You said that Mr Vagaia picked you up and took you straight to the Tupou’s address. You said that the knife was already in the vehicle when Mr Vagaia arrived. You accepted that you had the knife on your person at the time of the robbery, and that you now understand that that is against the law. You maintain that you did not wave the knife around.
[17] The report writer identified that you have anti-social attitudes and that drug use is a contributing factor to your offending. You have a history of alcohol abuse, and cannabis and methamphetamine use.
[18] You have a relatively lengthy list of criminal convictions. Most of your convictions relate to breaches of Court imposed conditions, low level violence, property offending and driving related charges. You do, however, have one previous conviction for aggravated robbery. This was dealt with relatively leniently and I suspect that it was low level offending of its kind.
[19] The report writer rather unrealistically recommended a sentence of community detention, together with a rehabilitative sentence of intensive supervision, to give you time to attend alcohol and drug treatment programmes.
[20] You told the report writer that you have a strong desire to have a pro-social future. You have a partner and a four-year-old son.
Letters
[21] I received two letters from you. The first is addressed to me. You advise that you have had a lot of time to think and reflect on your life, and you accept that you now have to take charge and make the right decisions to better yourself. You say that you wish to complete the various programmes recommended by the probation officer, and to continue to further your education, so that you can obtain employment on your release. You say that you will attend parenting courses and that you will move away from your previous lifestyle.
[22] I have also received a copy of a letter that you have written to Mr and Mrs Tupou, expressing your sorrow and regret for your involvement in the offending. You acknowledge that it was disrespectful and wrong for you to have gone into their home and take their possessions. You also extended your apologies to Mr Tupou’s mother and sister, who you accept have been affected by your actions.
[23] I have also received letters from your mother and your brother. Both express their apologies to the victims for your actions. Both emphasise that you have good qualities and ask me to impose a lenient sentence.
[24]It is clear to me that you have a supportive family.
Victim Impact Statement
[25] I have received a victim impact statement from Mr Tupou. He has explained that following the offending, he and his family had to move out of their house. They had to stay off social media and they had to stay closed off from the outside world. He says that he wishes that you had thought about what you were doing to him and his family, and he wants you to think about that and what your offending has done to other people.
Submissions
[26] I have received helpful submissions from Mr Smith on behalf of the Crown. The Crown submits that I should adopt a starting point of eight years and nine months’ imprisonment on the charge of aggravated robbery. It accepts that no uplift is required for the charge of being in possession of the knife. However, it seeks an uplift of six
months given your previous convictions. It also acknowledges that a minor discount may be appropriate to recognise the rehabilitative steps you have taken while you have been in custody on remand.
[27] Ms Ives, on your behalf, submits that the appropriate starting point is in the vicinity of seven years’ imprisonment. She notes that your previous conviction for aggravated robbery is reasonably historic and that it involved much less serious offending. She submits that an uplift for previous convictions is unnecessary and that, in any event, it should be no more than an additional three months’ imprisonment. She accepts that the pre-sentence report writer was unrealistic when it was suggested that a sentence of imprisonment should not be imposed, but she does note that the report itself is positive, and that you have expressed a motivation to change your ways and lead a pro-social life upon your release. She also notes that you have support from your family, and submits that I should apply a meaningful discount to reflect your motivation to rehabilitate and to acknowledge the courses you have undertaken while in custody on remand.
The purposes and principles of sentencing
[28] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and importantly in this case the need to denounce the conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels, not only with your co- offenders, but also with similar offenders committing similar offences. I have also been mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.
Analysis
[29] Both the Crown and Ms Ives on your behalf have treated the conviction for aggravated robbery as being the lead offence. I agree.
[30] The decision of the Court of Appeal in R v Mako7 is the guideline judgment for aggravated robbery offending. The Court there noted that the seriousness of aggravated robbery offending falls to be considered by reference to the various types of conduct that can constitute aggravated robbery, and that, in every case, there will be features which contribute to or detract from the seriousness of the conduct and the criminality involved.
[31] The Crown ran its case on the basis that the robbery that you were a part of, was aggravated because Mr Vagaia was carrying a firearm at the time. It did not allege that you were a principal offender in your own right because you were armed with a knife.
[32] There are a number of aggravating features to the aggravated robbery. I list these as follows:
(a) Premeditation. The text message exchange between you and Mr Vagaia shows a degree of premeditation. There was, however, no evidence of any agreement by you that Mr Vagaia would be armed with the firearm. The words “strapped up” were used in one text, but this text was sent at 10.31pm on 4 January 2017, well after the offending had been committed. It was not suggested at trial that the words meant that you knew that Mr Vagaia would be armed with a firearm. I accept that you had no prior knowledge that a firearm would be involved.
(b) The number of participants and the nature of their deployment. There were three of you involved in the robbery. That in itself must have been intimidating for the Tupou’s. Mr Vagaia was in charge. Mr Naseri had a lesser role. Your role was much more extensive than Mr Naseri’s role, but you acted throughout at Mr Vagaia’s direction.
(c) The number, type and use of weapons. Mr Vagaia was armed with a loaded firearm. You were holding an army-style knife. These are aggravating features pursuant to s 9(1)(a) of the Sentencing Act. I have accepted that you did not know in advance that Mr Vagaia was going
7 R v Mako [2000] 2 NZLR 170 (CA).
to be armed with a firearm. You must, however, have become aware at a very early stage that he was in possession of the firearm, at the latest when you went into the house with him. You did not withdraw or disassociate yourself from what occurred thereafter. The presence of a firearm is a significant aggravating feature. Moreover, the firearm was discharged, albeit it seems accidentally. The bullet went through a floorboard in the Tupou’s lounge.
(d) The value of property taken. Various items of property were taken, including a television, a laptop computer, a mobile phone, Mr Tupou’s wallet and Mrs Tupou’s passport. There was no evidence as to the value of the property taken presented at trial – but clearly it must have been of more than nominal value. I accept that the evidence at trial was that the laptop was ultimately recovered. I do not know whether it was damaged or not.
(e) Threats of violence. There was no actual violence used in the robbery. There were, however, distinct threats of violence, both direct and indirect, and you participated in the threatening behaviour. First, you used the knife to indicate to Mr Tupou that he should go into the lounge to see Mr Vagaia. Secondly, you repeatedly tapped the knife on the sofa when you were keeping guard on Mr and Mrs Tupou in Mr Vagaia’s absence. Thirdly, you handed either the bullet casing or a bullet to Mr Tupou when he and his wife were escorted to the back bedroom. On the evidence, you told Mr Tupou to make sure that he “came through with it” – a reference to the money he had said he would try and get together. It was Mr Tupou’s evidence that it was definitely “the guy with the knife” who handed him the bullet.
(f) The home invasion. You and your co-offenders entered the Tupou’s home without their permission, with the intention of intimidating and robbing them. It was a family home. Mr Tupou’s mother and children lived at the property. They were out at church during the course of the robbery. Mr Tupou was concerned throughout they might return to the
home. The fact of a home invasion is an aggravating feature pursuant to s 9(1)(b) of the Sentencing Act.
[33] In my judgment, you played a significant, albeit not the lead, role in a serious aggravated robbery. The criminality involved was high, as was your culpability.
[34] Both counsel have referred me to a number of cases. They assist in setting the appropriate starting point,8 but each turns on its own facts. Your case is broadly comparable to a number of them.9 In some, less serious weapons were used, but the degree of planning was more significant. In others, some similar aggravating features were present, but others were not. Some of the cases referred to by counsel were, in my view, more serious.10
[35] I have considered the sentences imposed by Venning J on Mr Vagaia and Mr Naseri.
(a)The Judge adopted a starting point for Mr Vagaia of eight years and nine months’ imprisonment for the same aggravated robbery that you have been found guilty of committing as a party.11 In doing so, he took into account a threat to kill made by Mr Vagaia in the course of the aggravated robbery.
(b)The Judge adopted a lower starting point – one of six years and nine months’ imprisonment – for Mr Naseri, given his lesser role.12
[36] I do not accept the Crown’s submissions that, in the interests of parity, I should adopt the same starting point for you as Venning J adopted for Mr Vagaia. While you
8 R v Mako, above n 7; Tiori v R [2011] NZCA 355 – starting point of 8 years’ imprisonment; Carpenter v R [2013] NZCA 395 – starting point of 10 years’ imprisonment; Apiata v R [2013] NZCA 227 – starting point of 10 years’ imprisonment; Pani v R [2011] NZCA 45 – starting point of 7 years’ imprisonment. I have also located the following helpful cases: Namana v R [2013] NZCA 640 – starting point of 8 and 9 years’ imprisonment for co-offenders who played different roles; Currie v R [2010] NZCA 449 – starting point of 8 years’ imprisonment; Watene v R [2014] NZCA 357 – starting point of 9 years’ imprisonment; Frank v R [2013] NZCA 447 – starting point of 8 years’ imprisonment; Wakefield v Police HC Christchurch CRI-2008-409-169, 18 December 2008 – starting point of between 7 and 8 years’ imprisonment.
9 Tiori v R, above n 8; Pani v R, above n 8; Namana v R, above n 8; Currie v R, above n 8; Frank v R, above n 8.
10 Carpenter v R, above n 8; Apiata v R, above n 8.
11 R v Vagaia, above n 5, at [14].
12 At [24].
took an active role in the aggravated robbery, your involvement was less than that of Mr Vagaia. On the evidence at trial, Mr Vagaia took the lead role in the aggravated robbery and you acted at his direction.
[37] I adopt a starting point for you of seven years and nine months’ imprisonment for the offence of aggravated robbery.
[38] I agree with counsel that it is not necessary to impose an uplift for the charge of being in possession of an offensive weapon. While the aggravated robbery charge focused on the firearm, I have already given weight to the presence of both the firearm and the knife as an aggravating feature when adopting my starting point for that charge. Were I to uplift the starting point, I would be double counting the possession of the knife.
[39]I now turn to consider your personal circumstances.
Personal circumstances
[40] You have a number of previous convictions, including a conviction in 2011 for an aggravated robbery that took place in 2009. You also have a conviction for wounding with intent to cause grievous bodily harm in 2002.
[41] It appears that the aggravated robbery was not particularly serious – the sentence imposed was one of eight months’ home detention and disqualification from driving for a year. I am told by counsel that it was a relatively low-key street robbery. I accept the point made by Ms Ives that that offending occurred some eight to nine years ago. The 2002 conviction was also some years ago. Much of your more recent offending has been relatively minor – receiving stolen property, possession of cannabis, various convictions for breach of community work orders, convictions for breach of community detention and convictions for breach of conditions of supervision. There was a conviction for wilful damage in a family violence context in 2014, and a conviction for common assault at the same time.
[42] It is clear that you have shown scant regard for Court imposed orders. Except for the relatively aged conviction for aggravated robbery, your convictions, however, do not seem to me to be particularly relevant to your present offending. Rather, the
offending in respect of which I am sentencing you marks a significant escalation in your criminal history. I decline to impose an uplift for your previous convictions.
[43] Ms Ives argues that you have demonstrated a motivation to lead a pro-social life on release, that you have a supportive family and that you are motivated to rehabilitate in order to provide a positive role model for your four-year-old son.
[44] You have received a relatively positive pre-sentence report. The writer of that report records that you have undertaken various training incentive programmes while you have been in custody. You have apparently obtained various certificates in relation to a number of those programmes.
[45] I also take into account the letters which you have written, in particular the letter to the Tupou’s.
[46] I have given these matters as much weight as I can in the circumstances. I accept that you are genuine in your desire to turn your life around. The steps you have already taken in this regard are to your credit. I allow you a discount of six months from the sentence I would otherwise impose.
[47] There are no other personal mitigating factors which have been brought to my attention.
Sentence
[48]Mr Armstrong, will you please stand.
[49] In respect of the charge of aggravated robbery, I sentence you to a term of imprisonment of seven years and three months.
[50] In respect of the charge of being in possession of an offensive weapon, I sentence you to a term of imprisonment of one year.
[51]Both sentences are to be served concurrently.
[52] Mr Armstrong, you have expressed a desire to improve yourself and to lead a pro-social life on your release. You have a partner and a young son. You have
indicated that you wish to be a role model to your son, and to bring him up in the Samoan way. I hope that you will make good on these intentions, and that you will turn your life around, not only in your own interests, but in the interests of your family, your partner, and perhaps most importantly of all, your son.
[53]You may stand down.
Wylie J
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