R v H HC Napier CRI 2009-069-2003
[2010] NZHC 1325
•3 August 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2009-069-2003
THE QUEEN
v
H
Hearing: 3 August 2010
Counsel: C Walker for Crown
E Forster for Ms H
Sentence imposed: Aggravated robbery (x1)
12 months home detention with special conditions:
see para [20]
100 hours community work
Judgment: 3 August 2010
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, Napier
Counsel:E Forster, Hastings
R V H HC NAP CRI 2009-069-2003 3 August 2010
Introduction
[1] H , you appear for sentence today having pleaded guilty to one count of aggravated robbery, arising out of an incident that occurred at Hastings on 30 June 2009.
[2] The maximum penalty for aggravated robbery is 14 years imprisonment. That should emphasise to you the seriousness of the offending in which you were involved.
Facts
[3] Between 1 and 30 June 2009, you were involved in discussions from which a plan was hatched to engage in a crime. One of those with whom you were involved, Mr Garnham, has already entered guilty pleas. Each member of the group was assigned a specific role in respect of the plan to rob an Armourguard security van, at a time when cash was being delivered to a bank in Hastings.
[4] On 15 June 2009, a Subaru Legacy motor vehicle was stolen from outside an address in Albert Street, Hastings to facilitate the robbery. You were asked to store the vehicle at your home but did not respond to that inquiry. Subsequently, the vehicle was stored at two different places, at Clive and Hastings respectively.
[5] At about 11pm on 29 June 2009, that vehicle was uplifted by two of your associates and taken to Karamu Road in Hastings. It was left there overnight, with the intention that it be used in the robbery the next morning.
[6] At about 5.30am on 30 June 2009, your associates, dressed in clothing designed to disguise their identity, drove to the place where the Subaru motor vehicle had been placed. The vehicles were swapped. The stolen vehicle was driven to a distance close to the central city branch of the ANZ on the corner of Karamu Road and Heretaunga Street. It was at this time you set yourself up at an observation point so that movements of the Armourguard van could be monitored.
[7] At about 7.30am you telephoned one of your associates to advise that the
Armourguard van was in Heretaunga Street, heading towards the bank.
[8] Two of your associates ambushed the Armourguard personnel. One of them had a pistol in his hand. They confronted the guards. At that time the guards were taking a large cash case from the passenger side of the vehicle. They were ordered to place their hands above their head. Without warning, one of the guards was struck on the head with the pistol. Cash totalling $156,000 was taken back to the Subaru motor vehicle.
[9] As I have said, the offending was serious. It has caused significant psychological harm to both of the Armourguard employees who were involved in the incident. Both have suffered stress which has prevented them from functioning adequately, or interacting with others, both in their daily life and with their families.
[10] The Crown accept that your role was simply to keep an eye out for the van and to let the principal offender know when it was near. On that basis, the Crown accept your role was limited, albeit important. Others alleged to have participated in the offending have pleaded not guilty. For that reason, I have refrained from naming them in that summary.
[11] You have no previous convictions. It is clear that you were persuaded to participate in the robbery by people close to you. Unfortunately, they were able to manipulate you considerably and influence you down a path of criminality that you have not gone down before.
Principles and purposes of sentencing
[12] For offending of this type, the principal purposes and principles of sentencing
I consider assume prominence are these:
a) I must hold you accountable for your actions;
b)I must deter you and others from committing similar offences in the future;
c) I must denounce your conduct;
d) I must provide for the interests of the victims;
e) But, on the other hand, I am required to impose the least restrictive sentence appropriate in the circumstances.
Analysis
[13] The Crown accepts that your role in the offending was described accurately by Mr Garnham in his statement to the Police. From that, I accept you were “dragged into” the offending and, while you accept by your plea that you had knowledge of the likely presence of a weapon, I accept that you did not believe there was any likelihood that someone would use that weapon to harm others during the course of the robbery.
[14] My task is to choose a starting point for sentencing, having regard to the actual crime committed and the degree to which you participated in it. I must take a starting point which reflects the offending overall. One of 8 years imprisonment was taken by Judge Rea when he sentenced Mr Garnham.[1] I consider that particular factors influencing your role can be taken into account as mitigating factors but I use that same starting point.
[1] Police v Garnham DC Napier CRI 2009-020-4072, 19 January 2010, applying R v Mako [2000] 2
NZLR 1 (CA).
[15] So far as mitigating factors are concerned, you are entitled to substantial credit for your prior good record. You have never previously appeared before the Court. Your role was limited. I accept you are remorseful. It is clear that your associates manipulated you considerably. The risk of any further offending is largely ameliorated by your move to Gisborne. Indeed, you are considered at low risk of reoffending.
[16] In those circumstances, I propose to allow a credit of 5 years 6 months[2] to reflect mitigating factors other than the plea of guilty.[3]
[2] I inadvertently stated in open Court that the credit was 4 years 6 months. I have corrected the notes to reflect the credit I intended to give which accords with the calculation for end sentence purposes.
[3] R v Mako [2000] 2 NZLR 170 (CA) at [34]-[35].
[17] That reduces the starting point to one of 2 years 6 months imprisonment. From that needs to be deducted a credit that reflects the principles laid down by the Court of Appeal for the entry of guilty pleas.[4] I treat you as having pleaded guilty at the first callover and have applied a discount of 20%.
[4] Hessell v R [2010] 2 NZLR 298 (CA) at [15].
[18] In those circumstances, the end sentence would ordinarily be one of 2 years imprisonment. That brings into play the possibility of home detention.
[19] I am not satisfied there is a need to imprison you to mark your offending. But a lengthy term of home detention is. And, I agree with the Crown that that should be coupled with a sentence of community work to repay your debt to the community for what you have done.
Sentence
[20] I impose a sentence of 12 months home detention. Standard conditions shall apply, with the following additional terms:
a) You shall reside at 11 Collins Street, Te Hapara, Gisborne and you shall not move from that address without the prior written approval of a probation officer.
b)You shall remain at that address at all times unless an absence from the residence is authorised in writing by your probation officer.
c) You shall abstain from the consumption of alcohol and illicit drugs for the duration of your sentence.
4
[21] I also impose a sentence of 100 hours community work. The nature of the work will be determined by a probation officer.
[22] You shall travel directly from the Court to Gisborne. By 9am tomorrow morning you shall be at the home detention address. You will be met there by a supervising probation officer and an electronic monitoring supervisor and your sentence of home detention will commence from tomorrow.
[23] Ms H , I hope you realise that is a lenient response to the despicable offending in which you were involved. As I have said, you have taken responsibility for your actions through the entry of guilty plea. But, please do not appear before the Court again. You will find the Courts will not be so lenient in the future.
[24] Stand down.
P R Heath J
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