R v Houia

[2018] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2016-019-5890

[2018] NZHC 1056

THE QUEEN

v

DANIEL TAI HOUIA

Hearing:	15 May 2018
Appearances:	J N Foster and R L Mann for Crown R Fairbrother QC for Prisoner
Judgment:	15 May 2018

SENTENCING NOTES OF JAGOSE J

Solicitors/Counsel: Almao Douch, Hamilton

R Fairbrother QC, Napier

R v HOUIA [2018] NZHC 1056 [15 May 2018]

[1]                  Mr Houia, you have pleaded guilty to one charge of aggravated robbery,1 which carries a maximum sentence of 14 years’ imprisonment. I am now going to sentence you on that charge.

[2]                  You – along with a father and son known to you, both named Lance Bush – were initially charged with murder. But on 16 April this year, the first day of your trial, the Crown, with the leave of the Court, withdrew that charge, and you pleaded guilty to aggravated robbery. A conviction was entered by Justice Edwards at the time your plea was taken, and Her Honour also gave you a first strike warning.2

[3]                  I have listened to what counsel have to say, both for you and for the Crown. Before taking into account your personal factors, the Crown says a starting point of five years’ imprisonment is appropriate. Your counsel, Russell Fairbrother QC, recommends a lower starting point of two to three years’ imprisonment.

[4]                  However, I am not bound by counsels’ recommendations. I must satisfy myself of the appropriate sentence for the gravity – or seriousness – of your offending, including your culpability – or responsibility – for it.

The facts of your offending

[5]Mr Houia, I first outline the facts of your offending.

[6]                  You pleaded guilty to a revised summary of facts dated 10 April 2018. It records Mr Bush Snr formed an intention to steal a Ford Fairmont car valued at $800 from the victim, Brent Paul Brown. This was the subject of discussion between you and Mr Bush Snr a week before the offending.

[7]                  The aggravated robbery occurred on the evening of 31 August 2016. You visited the victim’s property along with the two Bush men. Your intention was clearly to steal the vehicle. But you played a different role in the offending to the Bushes. They went inside to detain Mr Brown. (I return to what happened inside in a moment.)

1      Crimes Act 1969, s 235(1)(b).

2      Sentencing Act 2002, s 86A and B.

[8]                  You stayed outside the property. Your job was to take Mr Brown’s car. The car was parked inside a residential property, but readily accessible from the street. After overcoming its immobiliser to render it towable, you tied his vehicle to a white utility van, in which you three arrived, to be ready to tow it away.

[9]                  After the Bushes left the property, you all drove away together, towing Mr Brown’s vehicle behind you. In the aftermath of this incident, you took responsibility for disposing of the stolen vehicle. Various text messages were exchanged between you and Mr Bush Snr on 1 September 2016 to come up with a plan. Later communications indicated a level of concern about whose fingerprints would be located in the vehicle. But ultimately your plan succeeded: the vehicle still has not been retrieved by police.

[10]               For completeness, I say something about the tragedy that unfolded inside the property while you remained outside dealing to the vehicle. The Bushes confronted the victim, Mr Brown, in his bedroom. The summary of facts records, during this confrontation, Mr Brown was violently assaulted in his bedroom causing his death.

[11]               I am satisfied you did not intend or foresee this use of violence against Mr Brown, or his eventual death. There is no evidence to indicate otherwise. As Mr Fairbrother says, if such intention or foresight could have been imputed to you, you would have faced liability as a party to a culpable homicide. Instead, you have been charged with, and pleaded guilty to, aggravated robbery.

Impact of your offending on Mr Brown’s whānau

[12]               I have heard today – as have you, Mr Houia – frankly harrowing statements of the impact of your offending on Mr Brown’s family. The Crown has sought leave to bring those statements because – although the family is not a victim, as defined in the legislation – the Crown is entitled to apply to have them treated as such where they are disadvantaged by your offending.3 There cannot be any doubt from what you and I have heard, that your offending has disadvantaged them in a very visceral and painful way.

3      Victims’ Rights Act 2002, ss 4 (definition of ‘victim’) and 20-21.

[13]               I have heard also from your own counsel reading your letter acknowledging that that is something you also have to carry as a burden, but it is a burden that you have to carry as a consequence of your actions; it is a burden that you have imposed on Mr Brown’s family.

Personal circumstances

—pre-sentence report

[14]               I have also read a pre-sentence report from the Department of Corrections which assesses the risk of you re-offending as medium but the risk of you harming others in that re-offending as high. The report acknowledges the “mainly historical nature” of your past offending, but it relies on your recent conviction for violence, and your association with others who offend.

[15]               The report also records details of your personal life, which you describe to the Corrections officer as revolving around family and work. It is an awful irony that that is the same description that Mr Brown’s family gave of him. Your work has seen you set up a couple of businesses; your two sons are employed in your latest business, which involves garden maintenance. It appears family is central to you. You have been married for 20 years; you are the father of eleven children, as stepfather of the two eldest. The report notes you take pride in your children, several of whom have excelled in their schooling.

[16]               Finally, the report remarks on the remorse you expressed regarding Mr Brown’s fate, and your regret you did not contact police once you understood what had occurred to him.

—character references

[17]               Your counsel has also provided two letters of reference to the Court. The first is from a retired teacher, Christine Taiawa, who came to know you and your whanau on Matakana Island, near Tauranga in the Bay of Plenty. She describes how you lost your father at a very young age and, lacking a supportive family network in your formative years, you started to get into trouble.

[18]               Years later, Ms Taiawa’s path crossed again with yours when you, your wife, and your then three children, moved back to Matakana Island to care for your grandparents for some years. Ms Taiawa outlines your deeply respectful and caring relationships with your family. During this time, Ms Taiawa’s husband became your hunting companion, a father-like figure to you.

[19]               Another reference is provided by Shane Ngati, principal of Hamilton’s Rhode Street School, in which five of your children are enrolled. He praises your parenting, and how you have worked hard to support your family and to encourage your children’s learning. Both references finish by reminding the Court of how your family, in particular your children, will pay the price of your continued incarceration.

Approach to sentencing

[20]Mr Houia, I approach your sentencing in three steps.4

[21]               With reference to relevant cases, I first set a starting point for your sentence to take account of the facts of your offending. Then I consider whether to adjust it up or down in light of your personal circumstances Finally, a discount is given for your guilty plea.

[22]               Throughout this process, I have regard to all the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002.

[23]               To summarise them, I must impose a sentence to hold you accountable for your offending and encourage you to feel a sense of responsibility for the harm you have caused. The sentence should denounce your conduct, and deter others from committing the same or similar offences. I should protect the community from you.

[24]               I must also take account of the gravity and seriousness of your offending, the effect of your offending on your victims, the need for consistency with appropriate sentencing levels, and the need to impose the least restrictive sentence that is appropriate in the circumstances.

4      R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Starting point

[25]               Both Mr Fairbrother and Crown counsel, Ms Foster, set their respective recommended starting points in almost exclusive reliance on the Court of Appeal’s guideline judgment in R v Mako.5

[26]               Mr Fairbrother says a starting point of two to three years’ imprisonment is appropriate based on the Court of Appeal’s observation:6

A sentence of 2 years or less is available to the sentencing Judge only if the elements which convert robbery into an aggravated robbery are present to a small degree or the offender’s participation in the crime and its planning (if any) was very much in a secondary role.

[27]               Mr Fairbrother’s submission with respect to the planning stage has some substance. He points to two text exchanges between you and Mr Bush Snr – both recorded in the summary of facts – as evidence of your lesser involvement in the planning:

On the 24th of August 2016 at 7:44pm the following text exchange took place between the defendant and Mr Bush Senior in respect of the Ford Fairmont referred to:

HouiaBro indian sam came ova. I told him don’t come here or i punch u over

BushSenior true dat they having a drink im rolling back down later when thay fucked up do da car

“Indian Sam” is a reference to another occupant of the boarding house named Sam Karamvir aka Mehla.

And further on the 25th of August 2016 at 5:49pm the following text exchange occurred concerning the same vehicle:

Bush Senior     bro u bizy Houia Nah wos up?

Bush Senior     need holden move to get ford out to pik up the other ford Houia     wot b long

5      R v Mako [2000] 2 NZLR 170 (CA).

6 At [68].

[28]               The exchanges indicate a week before the offending, you at least knew Mr Bush Snr had plans for Mr Brown’s car, and needed a Holden moved to access another vehicle by which to recover Mr Brown’s car. The exchanges do not establish you were to be involved in the offending at all. It is equally possible you opportunistically joined the Bushes a week later, when their plan to obtain Mr Brown’s car was actioned.

[29]               Robbery involves theft accompanied by violence or threats of violence used to extort the property stolen or to overcome resistance to the stealing.7 It becomes aggravated when there is more than one person acting together, or a person alone is armed with an offensive weapon or causes grievous bodily harm to any person.8 Only the former – acting together – is relevant here. But violence or threats of violence is inherent in the offending, being “used to extort the property stolen or to prevent or overcome resistance to its being stolen”.9

[30]               In the present case, the robbery was perpetrated by three of you. It cannot be said you played a secondary role in its execution. I agree your participation in the events on 31 August 2016 suggests a lower culpability than your co-offenders. You stayed outside Mr Brown’s residential dwelling; they unlawfully entered it at night. You prepared Mr Brown’s immobilised car for towing; they confronted and violently assaulted him, ultimately resulting in his death. But the aggravated nature of the robbery was at the core of your offending, which at least anticipated violence or threats of violence to obtain the vehicle or to overcome resistance to its theft.

[31]               Therefore, contrary to Mr Fairbrother’s submissions, I cannot reasonably locate your offending within the bottom end of the Mako scale:10

At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

7      Crimes Act 1961, s 234. This carries a maximum sentence of 10 years’ imprisonment.

8      Section 235. See also R v Mako, above n 5, at [33].

9      Section 234(1).

10     R v Mako, above n 5, at [59].

The description of that lower end markedly understates the level of your planning and preparation.11 This was far from an opportunistic street robbery.

[32]               In addition to premeditation and planning, I note these additional aggravating factors of your offending:

(a)you took property from a residential property (even if the property was easily accessible from the street);12

(b)the car has still not been recovered,13 and you were chiefly responsible for its disposal; and

(c)the plan, which you were part of making, required an evening home invasion by your co-offenders, with the reasonable possibility Mr Brown would be home and needing to be detained by (at least) threats of violence so you could prepare the vehicle for towing.

[33]               Ms Foster, on the other hand, draws an analogy between your offending and this scenario described in Mako:14

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more.

[34]               It is implicit in your plea of guilty you understood Mr Brown would be subjected to at least threats of violence, and recourse to a degree of actual violence was within the realm of possibility to detain Mr Brown if he resisted. But there is no evidence you anticipated serious violence and certainly not Mr Brown’s death; the plan, after all, was to steal a car valued at $800 (no matter how precious that was to Mr Brown). There is no evidence your offending involved use of a weapon.15 Ms Foster relies on those factors, in her written submissions, to reduce the starting point here to five years’ imprisonment.

11     R v Mako, above n 5, at [36].

12     At [37] (planning), and [40] (target premises).

13 At [44].

14 At [58].

15 At [39].

[35]               I consider your offending has a starting point of four years’ imprisonment. Neither counsel went beyond Mako in providing authorities in support of their respective positions. Yet the Court of Appeal in Mako was emphatic:16

The illustrations given are intended for guidance and should minimise the need to trawl through large numbers of previous sentencing decisions seeking those in which the offending appears similar. The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then to select a starting point. That can be related to the examples given. They are not intended to prescribe the starting point for any case but are to inform the assessment the sentencer is required to make.”

With this in mind, I have a range of cases which, by comparison to the instant case, support a four year starting point.

[31]              Cases attracting starting points of four to four and a half years tend to involve the offender’s direct use of a weapon. For example:

(a)in R v Spicer,17 a four years, three months starting point was imposed for aggravated robbery charges. In that case, Mr Spicer, assisted by two companions, assaulted and robbed two overseas tourists who were asleep in a campervan parked on the foreshore at Ahipara. Mr Spicer played a direct role in assaulting at least one of the victims; and

(b)similarly, a four years starting point was upheld by the Court of Appeal in Reid v R.18 Mr Reid knocked on a vulnerable victim’s door, went inside when it was opened, and demanded money. He threatened the victim by holding a knife to the victim’s throat, cutting it sufficiently to leave a long mark. He took $200 from the victim’s pocket, and then forced the victim to drive to an ATM to withdraw more money.

[36]              In R v Keen,19 a starting point of four years was adopted in circumstances where Ms Keen was effectively the get-away driver for the main offender, Mr Eddington, in

16     R v Mako, above n 5, at [60].

17     R v Spicer [2017] NZHC 1899.

18     Reid v R [2017] NZCA 451.

19     R v Keen [2015] NZHC 3066.

two aggravated burglaries. After picking up Mr Eddington, and parking near the Highfield mall, Ms Keen stayed in the car while Mr Eddington stole over $2000 in cash from one of the stores inside the mall; when he returned with the cash they drove off together. She played the same role in a burglary of a BP service station later that day, driving Mr Eddington away from the scene after he stole money and cigarettes at gunpoint. In setting a starting point, Justice Nation took into account Mr Keen’s premeditation – he had sent a text earlier that day joking, “got anyone I can go rob LOL” – and the level of violence and intimidation used by Mr Eddington.

[37]              I also note the case of Nicholls v Police.20 Mr Nicholls appealed his two years, six months’ imprisonment, primarily contending the three years’ starting point was manifestly excessive. The offending – which Justice Downs categorised as being in between the two Mako scenarios considered in the present case21 – was described as follows:22

The appellant and a co-offender, Mr Tonga, were charged with aggravated robbery following events on 17 July 2015. At approximately 2.15 pm that day, Mr Tonga knocked on the victim’s door wearing a Black Power t-shirt. Mr Tonga asked the victim if he wanted to buy any weed, and when the victim declined, Mr Tonga walked into the house. Mr Tonga put his hands into a fighting stance, asked the victim for his money and took $20 from him. Mr Tonga told the victim to sit down and asked the victim what else he had. Mr Tonga then picked up a footstool and held it above his head before throwing it onto the couch.

The appellant was waiting with another man in a van outside. On Mr Tonga's signal, both immediately entered the victim’s house. Once inside, the appellant and the other man began collecting property and loading it into the van.

…

The victim was not injured. Mr Tonga told him to not move for 80 seconds after the van started. All three offenders then left, the last of whom has never been identified.

In dismissing the appeal, Downs J considered a three years’ starting point was open to the District Court Judge, noting the Judge was entitled to conclude Mr Nicholls had provided considerable help to Mr Tonga and was present on the basis he would provide extra “muscle” if needed.23

20     Nicholls v Police [2016] NZHC 1979.

21 At [21].

22     At [6]-[9].

23     At [12] and [20].

[38]              The extent of the offender’s involvement is greater in Nicholls than in Keen. The higher starting point in Keen owes much to its much higher level of intimidation and violence, and her organised participation. In your case, Mr Houia, the extent of your involvement is closer to what you see in Nicholls rather than Keen. But that involvement included readying Mr Brown’s car for towing, as well as providing a quick get-away for your co-offenders, whose level of violence was closer to Keen. A starting point of four years remains appropriate in light of these cases.

Personal factors

[39]              Mr Houia, I now turn to consider your personal circumstances to see if I should adjust that starting point up or down.

—aggravating factors

[40]              You have a lengthy criminal history spanning some 30 years. You have been sentenced to prison ten times, the longest term being for two years and ten months in 1990. Pertinently, your offending includes a previous conviction for aggravated robbery in 1995, and multiple convictions for burglary.

[41]              For a long time, it seemed you had turned your back on crime, with only two convictions in the past 22 years, both for offending in 2014. One of those was for violence: a charge of assault with intent to injure, resulting in a sentence of four months’ home detention. The other was for unlawfully being in a building. The violence and trespass aspects of your recent offending are echoed here. Ultimately, I think I need to uplift the starting point, but only modestly, by two months.

—mitigating factors

[42]              A discount is warranted for your guilty plea. You entered that plea on the morning of trial. Ordinarily, such belated timing would warrant only a small discount, if any. But Mr Fairbrother rightly points out there are unusual circumstances in your case.

[43]              A few weeks before trial, you were approached by Crown counsel proposing if you entered a guilty plea to aggravated robbery, the murder charge would be

withdrawn. You were told, if you did so, the Crown may seek to give evidence of that conviction in the trial against the Bushes. Despite that, and having given notice of alibi as a defence to the murder charge, you accepted the proposal. That was effectively your earliest opportunity to plead guilty to the ultimate charge, which would ordinarily have entitled you to the maximum 25 per cent discount.24 I am going to reduce that slightly on grounds of your non-participation in the previous period of time since your arrest. Notwithstanding that you have no obligation to participate, nonetheless that is part of the circumstances that I take into account in coming to a 20 per cent discount.

[44]              Coming at the end of a drawn-out defended process, I do not give any weight to remorse or other factors that might earlier have been in play. I am conscious you have been in remand custody for that extended period.

[45]              This leads me to an effective final sentence of three years and four months’ imprisonment.

Result

[46]Mr Houia, would you please stand.

[47]              On the charge of aggravated robbery, to which you have pleaded guilty, I sentence you to three years and four months’ imprisonment.

[48]              Mr Fairbrother reminds me that I have not dealt with Mr Houia’s offer to make reparations to the family in the amount of $1,000. I am minded to make that order. The family is able to do with the money as it wishes. It might be an opportunity to mark Mr Brown’s passing.

[49]              I make an order, Mr Houia, you are to pay reparations in the amount of $1,000 to the Crown.

24     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

—Jagose J