R v Cecil aka Tuaeu
[2013] NZHC 1384
•11 June 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-9993 [2013] NZHC 1384
THE QUEEN
v
JUNIOR CECIL (aka Ngatuakana TUAEU) BOZAMAE CECIL
NGALAM FETULEAI
Hearing: 11 June 2013
Appearances: M Galler and N R Webby for Crown
T J Darby for J Cecil
W McNicol for B Cecil
T Spencer for N Fetuleai
Sentence: 11 June 2013
SENTENCING REMARKS OF LANG J
R v JUNIOR CECIL (aka Ngatuakana TUAEU) BOZAMAE CECIL NGALAM FETUEAI [2013] NZHC 1384 [11 June 2013]
[1] Mr Junior Cecil, you have pleaded guilty to one charge of participation in an organised criminal group, seven charges of burglary, two charges of converting motor vehicles and one charge of obstructing the course of justice.
[2] Mr Bozamae Cecil, you have pleaded guilty to one charge of participation in an organised criminal group, six charges of burglary, two charges of theft of a motor vehicle, one charge of arson and one charge of obstructing the course of justice.
[3] Mr Ngalam Fetuleai, you have pleaded guilty to one charge of participation in an organised criminal group, eight charges of burglary, three charges of theft of a motor vehicle, one charge of arson and one charge of obstructing the course of justice.
[4] The burglary charges and those relating to participation in an organised criminal group each carry a maximum sentence of ten years imprisonment. The charges of theft and conversion of motor vehicles each carry maximum sentences of seven years imprisonment, as does the charge of obstructing the course of justice. The arson charge, to which Mr Bozamae Ceil and Mr Fetuleai have pleaded guilty, carries a maximum charge of 14 years imprisonment.
Background
[5] The offending to which you have pleaded guilty arises in three separate ways. Most of the burglary charges and, indeed, all of the charges other than that of obstructing the course of justice, arise out of what I consider to be a series of interconnected events that took place between June and December 2011. During that period, as your pleas make clear, you were party to an organised criminal enterprise under which motor vehicles were stolen in anticipation of being used in burglaries of commercial premises. The motor vehicles were then used in the early hours of the morning to smash into commercial premises. You then removed, or endeavoured to remove, ATM machines from those premises or, in one case, a safe. In situations where you were able to, you removed the ATMs from the scene, opened them at your leisure and removed the contents.
[6] I do not propose to set out all of the individual incidents that gave rise to these charges. My sentencing remarks will contain a schedule1 setting out the individual charges and the events to which they relate. It suffices for present purposes for me to set out two events under this head.
[7] On 21 June 2011 at 2.30 am, you drove a truck to a credit union in Papatoetoe. The truck was parked adjacent to the premises by a side door. One of you then smashed open the roof of the side door that was made of plasterboard. One of you then entered the premises and let the other two in by the side door. You then ripped the ATM machine from its mounting and carried it outside to the truck. You then drove to a nearby address where the ATM was ripped open, and the sum of
$21,000 was taken. The truck and the ATM were later abandoned. You attempted a similar undertaking on 29 September 2011, when you broke into another branch of the same credit union in Otahuhu. On this occasion, however, you were unable to remove the ATM.
[8] After that, you appear to have modified your approach. You began stealing vehicles and smashing into commercial premises with them. An example of this method can be found in one of the latter burglaries, which occurred on 7 December
2011 at 3.45 am. On this occasion you reversed a stolen Nissan vehicle through the front window of a Mobil petrol station in Manurewa. This successfully dislodged the ATM in the front window of the store. You then loaded the ATM into the back of the stolen vehicle and removed it from the scene. The ATM was later found stripped of its contents. Your offending during burglaries that occurred after June 2011 generally used this method.
[9] This series of events has given rise to most of the burglary charges, and also to the charges of participating in a criminal group. It has also given rise to the arson charges, because on one occasion one of the stolen vehicles was set alight and destroyed. The charges of car conversion and theft of motor vehicles have arisen
when you stole motor vehicles in preparation for burglaries.
1 Schedule 1.
[10] Mr Fetuleai, you have also pleaded guilty to two other burglary charges in the District Court, and have been remanded to this Court for sentence on those charges. These related to incidents that occurred on 2 December 2011. On that date, you went to two addresses. You broke in and attempted to steal items at the first address, but were unsuccessful. You and your associates then kicked the door in at the second address, and walked away with a 50” television set.
[11] The remaining charges to which you have all pleaded guilty are the charges of obstructing the course of justice. These charges are connected to the earlier burglary charges, but only in a peripheral way. They occurred on 14 and 15 January
2012, at a time when you knew the police were investigating your possible involvement in the burglaries. The police investigation involved the interviewing of a number of your associates. On 14 January 2012, one of your associates came to your address. All three of you were present. Mr Fetuleai approached this person, and threatened physical violence to him if the police should approach his mother’s house. Various threats were then made by Mr Fetuleai and Mr Cecil. These were directed towards persuading your associate that he should not say anything if and when he was interviewed by the police.
[12] A more serious incident occurred the next day. On that day you went back to the same address and threatened the occupants. Physical violence occurred when you, Mr Junior Cecil, told your brother to start punching one of the people who was the object of your threats. He was punched on numerous occasions, and was eventually pushed and knocked to the ground. All of this was done within the context of persuading those people that they should not talk to the police, and that further physical violence would be in store for them if they did so. You made it clear that you would be back, and that they would be at risk of physical harm if they spoke to the police.
Sentencing Act 2002
[13] In determining the sentence to be imposed on you, it is necessary to have regard to the purposes and principles of sentencing in the Sentencing Act 2002. In offending this serious, issues of denunciation, deterrence and the need to hold the
offender accountable are well and truly to the forefront. The Court needs to emphasise that people who offend at this level will receive significant sentences if they are caught. For that reason, I have concluded, as your counsel accept, that the only realistic sentence is a sentence of imprisonment.
[14] Having said that, it is necessary to select a sentence that is broadly consistent with those in other similar cases and to impose a sentence that provides, so far as possible, for your rehabilitation and reintegration into the community. The Court is also required to impose a sentence that is the least restrictive outcome possible having regard to your personal circumstances and that involved in your offending. In the present case that really means selecting a prison sentence that is as low as your offending and personal circumstances permit.
Approach
[15] Counsel have differed to a certain extent in the approach that I should in sentencing. The Crown submits that I should select a starting point on the burglary charges, and then apply an uplift to reflect your culpability in relation to the remaining charges. Your counsel consider that a series of concurrent sentences is appropriate, because all of the offending arose out of a single course of conduct. They accept, however, that a discrete uplift is required to reflect the offending inherent in the charges of obstructing the course of justice.
[16] I propose to select a sentence on the lead charges, which I take to be the burglary charges. That starting point will reflect your culpability in relation to all of those charges. This will include the charge of participating in a criminal group, because I do not consider that that charge adds anything of significance to your offending. As matters turned out, the burglaries that you carried out were the end product of the object of the criminal group. For that reason there is little point in adding an uplift to reflect the existence of the organised criminal group. Rather, that issue comes to be considered when considering the factors relevant to your offending.
Starting point
[17] In selecting a starting point, I need to have regard to other cases. Counsel have referred a wide range of cases to me.2 The difficulty with other authorities in this area is that the facts of individual cases vary widely. Many of the cases were also decided in an era where the Court selected a starting point that paid regard not only to the circumstances of the offending, but also to previous similar convictions that an offender may have received. For that reason they are of very limited
assistance in the modern era. I propose to select a starting point that reflects the culpability of your overall offending, but then to factor in matters that are personal to you.
[18] I consider the most relevant of the cases referred to me by counsel to be R v Baleitavuki.3 In that case an offender was sentenced on a wide variety of burglary and other dishonesty charges. Two of the burglary charges included what has been described as a “ram raid” style of offending similar to that in which you engaged. In that case damage of approximately $600,000 had been inflicted, as well as more than
$100,000 worth of consequential costs. The Judge in that case selected a starting point of seven years imprisonment. Your counsel submit that the starting point in your case should be below that selected in Baleitavuki. They say that a starting point of between five and six years imprisonment is appropriate.
[19] The Crown, on the other hand, says that a starting point of seven to eight years is appropriate. That must, however, be uplifted, the Crown says, to reflect the remainder of the charges in relation to the burglary offending, including the charge of participating in a criminal group.
[20] In assessing the starting point, I take several factors into consideration. The first is that these were burglaries of commercial premises adopting a particular method. The method that you adopted produced several consequences. First, it meant that vehicles were stolen in order to facilitate the offending. Secondly, those
vehicles were extensively damaged, or written off, during the course of the
2 Connell v Police HC Auckland CRI-2011-404-249, 20 February 2012; R v Baleitavuki HC Auckland CRI-2005-004-22544, 15 September 2006; Borrell v Police HC Tauranga AP6/01, 9
August 2001.
3 R v Baleitavuki, above n 2.
offending. Thirdly, the offending caused very significant damage to the premises in question, and the destruction of the ATMs from which you stole money. Finally, the offending produced the losses occasioned by the money that you took from the ATM machines.
[21] The Crown has produced a schedule4 with which none of you take any exception. This will be attached to my sentencing remarks but, in short, demonstrates that you caused damage to buildings and ATM machines totalling
$356,965. You stole property in the form of cash and goods from commercial premises and the credit union totalling $111,375. In short, you either stole or caused damage to a total value of just under $500,000. That is a very large sum by any standard.
[22] Counsel for you, Mr Junior Cecil, has submitted that your offending should be regarded less seriously than offending involving the burglary of private premises. I agree that the burglary of a private dwellinghouse is a serious matter, because it involves, at the very least, upset and potential physical risk to the occupants. Nevertheless, offending of the scale that occurred here, in my view, is a very serious matter indeed.
[23] I bear in mind also the fact that this offending occurred on several occasions. It occurred on six occasions, so far as two of you were concerned, and seven so far as Mr Junior Cecil was concerned. This shows a significant degree of premeditation. You decided how you could carry out these burglaries for your own financial gain, and then you set about in a determined fashion over a significant period carrying them out. I consider that any one of the burglaries in which there was significant damage to the building and significant loss of property, would justify a starting point of around three to three and a half years.
[24] The real issue is how I assess your culpability in the round. I have concluded that an appropriate starting point for you, Mr Junior Cecil, in respect of seven burglaries and associated offending is eight years six months imprisonment. So far
as you, Mr Bozamae Cecil is concerned, I take a starting point of eight years
4 Schedule 2.
imprisonment because you pleaded guilty to six charges and not seven. I take a starting point for Mr Fetuleai of eight years imprisonment on the so-called ram raid charges, and add to that an uplift of three months imprisonment to reflect the two burglaries of residential premises.
Aggravating and mitigating factors
[25] Having reached that point it is necessary to consider the extent to which, if at all, the starting points should be increased and reduced to reflect factors personal to you.
Junior Cecil
[26] I begin with you, Mr Junior Cecil. The Crown submits that an aggravating factor in your case is the fact that you have previous convictions for this type of offending. You have convictions since 1996 on nine charges of burglary, two charges of aggravated robbery and some 20 charges of unlawful interference, theft and car conversion. You also have charges for violent offending, but I put that to one side for present purposes.
[27] What this tells me is that previous sentences that have been imposed on you for this type of offending have not worked. You have decided that, notwithstanding the manner in which you know the courts view this type of offending, you believe it is appropriate for you to make your living in this way. For that reason, I consider your previous convictions to be an aggravating factor that warrants an uplift to the starting point I have selected. This is not to punish you again for previous offending, but to reflect the fact that your present offending is made more serious by your failure to learn from past mistakes. I propose to adopt a modest uplift of six months imprisonment to reflect that fact.
[28] This leads me to an end starting point on the burglary and associated charges of nine years imprisonment. From that end starting point, I need to make an allowance for your guilty pleas. You pleaded guilty on the eve of your trial and, in those circumstances, would not usually be entitled to a discount of more than approximately ten per cent. Your counsel makes the point, however, that disclosure
came in until the eleventh hour, and you have accepted full responsibility for your offending. This is reflected in the fact that you have never sought bail. I propose to make an allowance of 15 per cent, or one year five months imprisonment, to reflect your guilty pleas. This leads to an end sentence of seven years seven months imprisonment on the burglary and associated charges.
[29] I will return later in these remarks to the issue of minimum term of imprisonment, and to the cumulative sentence to be imposed in respect of the obstruction charge.
Bozamae Cecil
[30] Mr Bozamae Cecil, as I have already observed, I adopt a starting point of eight years imprisonment on the burglary and associated charges to reflect the fact that you have only pleaded guilty to six charges and not seven. The Crown accepts that you are entitled to a greater allowance for your guilty pleas to reflect the fact that your counsel made it clear from a much earlier stage that you would be pleading guilty. I accept that an allowance of 20 per cent is appropriate to reflect your guilty pleas, and reduce your sentence by one year eight months to reflect that issue.
Mr Fetuleai
[31] Mr Fetuleai, I adopt, as I have said, a starting point of eight years three months imprisonment to reflect all matters relating to the burglary and associated charges to which you pleaded guilty. Like Mr Junior Cecil, I make an allowance of
15 per cent, or 15 months, to reflect that fact.
Minimum term of imprisonment
[32] In any case where the Court sentences an offender to two years imprisonment or more, it may require that person to serve a minimum term of imprisonment before being permitted to apply for parole.5 It may only do that when the normal parole provisions, which effectively permit an offender to apply for parole after serving
one-third of his or her sentence, are insufficient to reflect several specified factors.
5 Sentencing Act 2002, s 86(1).
These are the need to deter the offender and others from engaging in such offending, the need to hold the offender accountable for the consequences of the offending, the need to denounce the offending and the need to protect the community.6
[33] Your counsel have all argued strenuously that it would be inappropriate in the present case to make an order under s 86. They submit that all of the factors referred to under that section are adequately reflected in the sentence that the Court will impose. They say it should be left to the Parole Board to determine when you should be released on parole.
[34] I agree with the latter comment, but I consider your offending is of such seriousness that all four factors under s 86 are engaged in the case of Mr Junior Cecil. The normal parole provisions would not, in my view, be sufficient to reflect the factors listed in sub-sections (a) to (c) in s 86 so far as he is concerned. His previous convictions mean that in addition to issues of denunciation, deterrence and accountability, there is a need to protect the public. For that reason, I make an order that Mr Junior Cecil will serve a minimum term of three years nine months imprisonment on the burglary charges before being eligible to apply for parole.
[35] I consider the same factors are engaged in relation to Mr Bozamae Cecil and Mr Fetuleai, but with the exception of the need to protect the public. Their lack of previous convictions in this area means that that factor is not engaged so far as they are concerned. Nevertheless, the seriousness of the offending is such that the other three factors are engaged. So far as Mr Bozamae Cecil is concerned, I direct that he serve a minimum term of three years imprisonment on the burglary charges. I direct that Mr Fetuleai similarly serve a minimum term of imprisonment of three years on
the burglary charges.7
The charges of obstructing the course of justice
[36] This brings me to the charges of obstructing the course of justice. Your counsel have accepted that a discrete sentence should be imposed in respect of that
charge, but say that a minimal uplift is required. They put the offending at a low
6 Ibid, s 86(2).
7 Other than those relating to the burglary of the two residential properties.
level. I disagree with that assessment. This is a case in which the three of you made a determined effort to dissuade your associates from speaking to the police. Your efforts were accompanied not only by threats of violence, but also by actual violence on the second occasion. This was persuasion in the strongest possible terms.
[37] I consider that, on its own, conduct of this type would warrant a starting point of around two years imprisonment. Your guilty plea would reduce that by about four months, thereby leaving an end sentence of one year eight months imprisonment. I am satisfied, however, that having regard to totality principles, it would be wrong to impose a sentence of that length. Instead, I accept the Crown submission that a cumulative sentence of one year imprisonment is appropriate in the case of Mr Bozamae Cecil and Mr Junior Cecil. I do not distinguish between them. Although their roles in the affair were different, Mr Junior Cecil was the instigator of the offending, and the person who primarily directed the threats. Mr Bozamae Cecil was the person who actually inflicted violence on the second occasion.
[38] I place you, Mr Fetuleai, in a somewhat different position because, although he made threats on the first occasion, he did not do anything other than be physically present on the second occasion when the violence occurred. I direct that he is to serve a cumulative sentence of nine months imprisonment on that charge.
Sentence
[39] Mr Junior Cecil, the sentence on each of the burglary charges is one of seven years seven months imprisonment. On the charge of participating in a criminal group, the sentence is three years imprisonment. On the two charges of car conversion, the sentence is 12 months imprisonment. All of those sentences are to be served concurrently with each other. Mr Junior Cecil is to serve a cumulative sentence of one year’s imprisonment on the charge of obstruction of the course of justice. That sentence is to be served cumulatively on the sentences imposed on the burglary charges.
[40] So far as Mr Bozamae Cecil is concerned, I direct that he is to serve six years four months imprisonment on the burglary charges. On the charge of participating in a criminal group he is sentenced to three years imprisonment. On the two charges of
theft of a motor vehicle he is sentenced to 12 months imprisonment. On the arson charge he is sentenced to 18 months imprisonment. All those sentences are to be served concurrently. He is to serve a cumulative sentence of one year’s imprisonment on the charge of obstruction of the course of justice. He is to serve that sentence cumulatively on the sentences imposed in the burglary charges.
[41] Mr Fetuleai is sentenced to seven years imprisonment on the burglary charges. He is sentenced to three years imprisonment on the charges of participating in a criminal group, 12 months imprisonment on the three charges of theft of a motor vehicle, and 18 months imprisonment on the charge of arson. All of those sentences are to be served concurrently. On the obstruction charge, Mr Fetuleai is sentenced to a cumulative term of nine months imprisonment. That is to be served cumulatively
on the sentences imposed on the burglary charges.8
[42] I have also already made orders as to the minimum terms of imprisonment to be served in relation to the burglary charges.
[43] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:T J Darby, Auckland
W McNicol, Auckland
T Spencer, Auckland
8 Other than those imposed in respect of the charges relating to the burglary of residential properties.
SCHEDULE 1
Schedule of facts
BurglaryOn 21 June 2011 at 2.30 am, the three prisoners drove a truck to Aotearoa Credit Union at 9 St George St, Papatoetoe. The truck was parked adjacent to the store, by a side door. One of the prisoners smashed open the roof of the side-door, which was made of plasterboard. After entering by the newly created hole, the prisoner then let in the other two prisoners by the side-door. Located inside the store was a Automatic Teller Machine (ATM).
The ATM was ripped from its mounting and carried outside to the truck. The prisoners then drove to a nearby address where the ATM was ripped open. $21,000 was taken. The truck and ATM were later abandoned.
TheftOn 17 September 2011, a silver Toyota Cecilia was stolen from a street in St Heliers by Mr Fetuleai. The keys had been left in the ignition, and the car left unlocked.
BurglaryOn 26 September 2011, Mr Bozamae Cecil (with other offenders not before the Court) drove to the same Aotearoa Credit Union in Papatoetoe in a white Toyota Hiace. They attempted entry via the same method, but security improvements denied their attempts. Instead, they proceeded to drive to the front of the premises and park. They then smashed open the store’s glass doors and attempted to remove the ATM machine. They were unsuccessful, and fled.
BurglaryOn 29 September 2011 at 2.18 am, a stolen silver Toyota Cecil was reversed through the front window of Aotearoa Credit Union at 407 Great South Rd, Otahuhu. Another car, a stolen white Toyota van, then drove up with the three prisoners inside. The store was fitted with an external, window-mounted ATM, at that time containing $81,000.
After an initial unsuccessful attempt, the prisoners managed to free the ATM from its position and loaded it into the Toyota van. They then drove off, abandoning the silver car. The van and ATM were later found abandoned in Otahuhu. The money was gone.
BurglaryOn 4 December 2011, Kerry Drainage at 21 Diversey Lane, Wiri, was broken into by the prisoners. The premises were enclosed by a wire perimeter fence, and stored a number of cars. The three prisoners cut through the perimeter fence of the yard and entered.
TheftOnce inside, the three prisoners stole a Nissan Condor truck. The vehicle had its lock and ignition forced, and was then driven through the same hole created by the prisoners on entry.
Car
Conversion
Mr Junior Cecil also stole a Mitsubishi Fighter dump truck while inside the yard.
BurglaryOn 5 December 2011 at 2.30 am, the three prisoners took both vehicles to the Aotearoa Credit Union found in the Mangere town centre. The Nissan truck was reversed repeatedly through the wall of the building, which consisted of an external steel roller door
and glass shop front. The building and truck were damaged severely.
The store had an internal ATM. Due to the amount of rubble that had fallen onto the ATM, the prisoners were unable to detach it from the wall. After eventually giving up, the prisoners drove off in the Mitsubishi truck.
TheftOn 6 December 2011 between 6.30 pm and 3.30 am, Mr Junior Cecil stole a Nissan Mistral SUV from 630 Great South Road, Manukau.
TheftOn the same night, Mr Fetuleai stole a Toyota Hiace van from an address at Pilkington Road, Panmure.
BurglaryOn 7 December 2011 at 3.45 am, the prisoners reversed the stolen Nissan Mistral through the front window of a Mobil petrol station at 2 Orams Road, Manurewa. This was done to dislodge an ATM in the front window of the store. The plan was a success. The ATM was loaded into the back of the Toyota Hiace van stolen the night before. The ATM contained $1,200 at the time, and was
later found empty.
ArsonBetween 7 and 9 December 2011, the Toyota van was driven to Dominion Road, Papakura, and set alight by Messrs Cecil and Fetuleai. It was completely destroyed.
BurglaryOn 28 December 2011 at 2.45 am, Messrs Cecil and Fetuleai broke into Kentucky Fried Chicken at Great South Road, Manukau. The prisoners arrived in a stolen van. They gained entry by using a metal bar to somehow break a hole in the side of the building. One of the prisoners entered the store and searched
for the safe. This set off an alarm.
The van was then driven into an area of the building containing the safe. Extensive damage was caused to both building and vehicle. The safe could not be removed. The prisoners decided to steal an amplifier and a Sky decoder.
Car
Conversion
Between 30 December 2011 at 4 pm and 1 January 2012 at 4 am, a white Toyota truck was stolen from Transdiesel Ltd at Bolderwood Avenue, Manukau.
BurglaryOn 1 January 2012, Mr Junior Cecil drove to Gasoline Alley Services at Atkinson Avenue, Otahuhu. He was accompanied by co-offenders not appearing before the Court. The offenders drove two vehicles to the store: the stolen Toyota truck, and another vehicle, a silver Mazda Demio hatchback.
The truck was reversed through the southern side of the building, causing extensive damage to the building and truck. The offenders then entered with the intent to find the store’s safe. The offenders were spotted by neighbours, who called the police. Police arrived with the offenders still inside. However, the offenders managed to escape in the Madza hatchback, and the pursuit was soon abandoned.
SCHEDULE 2
OFFENCE DATE PROPERTY STOLEN
DAMAGE PERSONS CHARGED
ACU Papatoetoe
21/06/2011 ATM containing
$21,000
Building damage
- $5,000
ATM - $16,000
J Cecil
B Cecil
N Fetuleai
Vehicle FKA981 (Toyota Celica)
17/09/2011 Insurance write off $9000
N Fetuleai
ACU Papatoetoe
ACU Otahuhu
26/09/2011 NIL Building damage
- $10,000
-
29/09/2011 $82,000 Building damage
- $20,000
- ATM-$27,000
B Cecil
J Cecil
B Cecil
N Fetuleai
Kerry Drainage 05/12/2011 Vehicles
ZD6454 (Nissan
Condor Truck)
and YB5926 (Mitsubishi
Fighter Truck)
Total losses
$11,500.00
J Cecil
B Cecil
N Fetuleai
ACU Mangere 05/12/2011 NIL Building damage
-$60,000
ATM-$18,000
Associated
Losses $139,000
J Cecil
B Cecil
N Fetuleai
Vehicle
DQL409
(Nissan Mistral)
06/12/2011 Insurance write off $9,000
B Cecil
Vehicle
FTW737
06.12.2011 Burnt Out
$10,000
N Fetuleai
Mobil Oram’s
Road
07/12/2011 ATM containing
$1,200
Building damage
-$7,500
Stock loss - $550
J Cecil
B Cecil
N Fetuleai
KFC Manukau 28/12/2011 Sky Decoder and
Amplifier est $1,000
Building damage
-$8,000
J Cecil
N Fetuleai
Gasoline Alley Services Otahuhu
01/01/2012 $3,175.00 plus
$3,000 cigarettes
est.
Building damage
-$6,415
J Cecil
TOTALS $111,375 $356,965
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