R v Fitikefu HC Auckland CRI-2010-004-017106
[2011] NZHC 760
•5 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-004-017106
THE QUEEN
v
WALTER NGONGO KILITOTO FITIKEFU
Hearing: 5 July 2011
Appearances: E Priest for Crown
J Scott for Prisoner
Judgment: 5 July 2011
Four years six months’ imprisonment,
minimum term two years eight months’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland [email protected]
Copy to: J Scott, Public Defence Service, Auckland [email protected]
R V FITIKEFU HC AK CRI-2010-004-017106 5 July 2011
[1] Mr Fitikefu you are for sentence today by this Court having pleaded guilty to one charge of aggravated robbery. You are also for sentence for breach of a post detention condition. You are for sentence in this Court because the District Court Judge declined jurisdiction. He did so because he considered preventive detention was a possible outcome.
[2] On 21 September last year you, together with two others, went to a Kiwibank post shop in Dominion Road, Mount Eden. You and one of your associates got out of the car. You were both wearing hooded sweatshirts. You stood by the entrance and acted as a guard while your co-offender went into the bank. He went straight to the teller area, jumped up over the counter, over the security wire and began to yell and abuse the two staff behind the counter. He demanded they open their tills and began removing cash. He took a total of $2,800.00. During this time you remained by the door yelling at the staff and threatening them and the other people in the bank. You then both ran back to the car where your other associate was waiting. You drove off, but was shortly after observed by a police patrol. You were chased. The car was abandoned and you and the driver were located a short time later.
[3] The pre-sentence report records that you are 30 years old. You recently re- located from Christchurch to Auckland. You have had a troubled background. You were born in New Zealand but you were abandoned by your mother. She went back to Tonga. You were brought up by your grandfather. You were sent to Australia because of your behaviour to live with your father when you were aged about 15. Unfortunately your behaviour deteriorated there. You began associating with criminals in Australia and over the next 14 years you offended in Australia on a regular basis. You were deported back to New Zealand because of your serious criminal convictions and offending in Australia.
[4] There you have a number of convictions for robbery, one of aggravated robbery, and a number for larceny ranging from 1996 through to 2003. Since returning to New Zealand you have convictions for theft, burglary and unlawfully taking motor vehicles.
[5] The probation officer notes that you presented with a greater awareness of your past and present attitudes which is reflected in your compliance with the later stages of your post detention conditions and I note you went on to complete those in December 2010. You successfully completed the Community, Alcohol and Drug Programme in Manukau during that time. The probation officer assessed you as at a medium risk of re-offending noting your harmful pattern of alcohol and drug use which you acknowledge. The key factors assessed as contributing to your offending by the probation officer were identified as your alcohol and drug use, criminal associates and a lack of structure and stability in your life. However, the report writer considers you to have insight into your offending behaviour and also motivation to change that behaviour.
[6] The Crown submits that a start point in the range of five to five and a half years’ imprisonment would be appropriate for the offending itself before taking account of your personal aggravating and mitigating factors, putting to one side the issue of the preventive detention sentence at the moment. The Crown also submits that in light of the risk of re-offending in particular preventive detention may provide the best framework within which you would be motivated to address the causes of your offending and that such a sentence would be open to the Court.
[7] Ms Scott has submitted that a start point of less than six years for the offending itself is appropriate in the present case and that it is not necessary to impose a sentence of preventive detention at this time. She submits a finite period of imprisonment would be sufficient to protect members of the public from you and to address the offending you have engaged in.
[8] I consider first the appropriate finite sentence for this offending. I take into account the purposes and principles of the Sentencing Act. In your case the
particularly relevant purposes are:
to hold you accountable for the harm done to the victims of your offending and the community at large by aggravated robberies of banks – on the people working in the banks and on the people going about their business in the banks. I have read the victim impact reports. Your counsel may have
discussed them with you and you have heard from one of the victims this afternoon just to the impact that your offending has on their lives.
[9] Other purposes of the sentence are:
to promote in you a sense of responsibility for that harm you have caused to
others;
to provide for the interests of the victims;
to denounce your conduct;
to deter you and others from committing similar offending; and to protect the community from you.
[10] The particularly relevant principles are:
the gravity of the offending, including your culpability and role in this
offending;
the seriousness of the type of offence you have engaged in as indicated by the
maximum penalty of 14 years; and
the general desirability of consistency with other sentences for similar
offending.
[11] The leading case for sentencing for aggravated robberies such as this is the Court of Appeal decision of R v Mako.[1] In that case the Court of Appeal discussed a number of instances of aggravated robbery and in relation to one example said that:
[1] R v Mako [2000] 2 NZLR 170 at [54].
The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation,
should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years.
[12] The summary to which you have pleaded does not refer to a weapon and I must sentence you on the basis there was no weapon. Apart from that however, that example the Court referred to has a lot of features in common with the offending you engaged in.
[13] The Court also confirmed there is no justification for treating those assigned roles other than that of confronting the victims as less culpable unless they were truly less than full participants. From the summary I am satisfied that you were an active and full participant in this robbery. You were a principal. I take as a start point for your offending five years four months.
[14] I then have regard to your previous history. You are a recidivist offender as your record shows. Your past history of offending, both in Australia and New Zealand, shows a propensity for offending of this nature. Also this offending occurred whilst you were subject to post detention conditions. An uplift of one year is required to address those factors. It is not a matter of punishing you twice for your past offending but simply a recognition of your propensity to offend in this way.
[15] I turn then to mitigating factors. Ms Scott in her written submissions argued for a reduction to take account of your early guilty plea and the remorse you have expressed, that you have repeated in the letter you have written to the Court. You say also in the pre-sentence report and that letter that you bitterly regret your decision-making on the day of the offending. Frankly Mr Fitikefu I have to say that because you have involved yourself in this sort of offending on so many occasions in the past you must know and must have known full well the effect your offending would have on people. I take the expressions of remorse by you with a grain of salt. However, I do accept your guilty plea was entered at a relatively early stage and at a
time when the Court of Appeal judgment in Hessell v R[2] was applicable. In the
circumstances I accept a discount of just under 30 per cent is appropriate.
[2] Hessell v R [2011] 1 NZLR 607.
[16] That leads to an end sentence of four years six months.
[17] I then turn to the Crown’s argument that a minimum non-parole period should apply if a finite sentence is to be imposed. I agree with that. Your personal circumstances and the offending are such that the purposes of holding you accountable, denouncing your conduct, deterring you and protecting the community require the imposition of a minimum non-parole period. Your past history speaks for itself. The only mitigating factor properly of any significance is your guilty plea. You are yet to show a change in behaviour. A minimum non-parole period of approximately 60 per cent is appropriate which would equate to two years eight months.
[18] However as I have said the Crown argue for preventive detention in this case. You qualify for a sentence of preventive detention. You have a conviction for a qualifying violent offence. The offending was committed when you were over the age of 18. I am also satisfied that you are likely to commit another qualifying offence if released at sentence expiry date. Again your past history speaks for itself. However, that is not an end of the matter. The Court is still required to take into account the pattern of offending, the seriousness of harm that such offending has caused, information indicating a tendency to commit serious offences in the future, particularly in light of the reports by the psychiatrist and psychologist that have been obtained, the absence of or failure of efforts by you to address the causes of your offending and importantly the principle that a lengthy determinate finite sentence is preferable if it provides adequate protection for the community.
[19] Your past pattern of serious offending and the seriousness of harm to the community from such offending are not seriously in issue. As is required reports have been obtained from a psychiatrist and a psychologist to address the issue of your tendency to commit serious offences in the future. Dr Sakdalan, a consultant clinical psychologist, recognises that you carry a moderate risk of re-offending but also that as it does not appear you have a propensity to use violence that would cause serious physical and emotional harm it does not appear you would warrant an indeterminate sentence based on your level of risk for violent offending. He has expressed that opinion without access to the summary of facts from your previous offending in Australia. That has now been provided and in relation to that most of
the offending, at least in relation to the robberies, did not include the use of weapons and I think there was only one instance of the use of a firearm.
[20] Dr Goodwin, a consultant psychiatrist, is of the opinion that you are at moderate to high risk of violent re-offending but that is again largely based on historical features of your previous offending. He does note, however, that you have made some efforts to address the substance abuse which is a factor in your offending, but is of the view you would benefit from more intensive treatment. Dr Goodwin notes the principle that a lengthy determinate sentence may be preferable.
[21] Ms Priest realistically conceded the reports from the specialists are to a degree equivocal.
[22] The consensus is however that your history of drug and alcohol use has contributed in a significant way to your offending. Dr Sakdalan, like the pre-sentence writer, says that you appear motivated to address those issues. While you will have had the opportunity to attend programmes in the past, I do note that you have recently successfully completed a community alcohol dependency programme after this offending and I also note that the probation officer says you have insight into your offending behaviour and the motivation to implement changes through intervention. I have to say that the letter you have written to the Court, whilst in a way seeking to explain your offending, is an articulate letter and it does show some insight on your part into your offending, and I acknowledge that. There is, it seems to the Court, still the chance that if you take the opportunities provided to you in the prison service to address the issues that underlie your offending, the pattern of your offending, even at this stage, could be halted. I am also conscious of the principle that a significant finite term may be a preferable outcome.
[23] Mr Fitikefu, standing back and balancing all the relevant factors in this case, by the narrowest of margins I consider that preventive detention is not required at this time. You are not quite at the stage where the Court must impose such a sentence. You are, however, I make it clear, not far from that.
[24] Please stand. On the charge of aggravated robbery you are convicted and sentenced to imprisonment for four years six months. You are to serve a minimum term of imprisonment of two years eight months. On the charge of breach of release conditions you are convicted and discharged.
[25] Mr Fitikefu, given your conviction for aggravated robbery you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violent conviction. You will also be given a written warning. If you are convicted of any one or more serious violent offences, other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that imprisonment without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so and in that case the Judge must sentence you to a minimum term of
imprisonment. Stand down.
Venning J
0
0
0