R v Huirua

[2018] NZHC 2310

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2017-087-0232

[2018] NZHC 2310

THE QUEEN

v

REDMOND HUIRUA

Hearing:

4 September 2018 (Heard at Hamilton)

Appearances:

A J Pollett for the Crown

R M Adams for the defendant

Judgment:

4 September 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Crown Solicitor, Tauranga Adams Law, Tauranga

R v HUIRUA [2018] NZHC 2310 [4 September 2018]

[1]    Mr Huirua, you spent the first week of February last year committing serious and dangerous offending in Whakatane. You took a car you knew likely to be stolen, and filled it up with petrol without paying. Later, you discharged a firearm at another vehicle. You then turned up at a café armed with a loaded shotgun and additional ammunition, demanded cash from the till, and discharged your weapon at staff and customers, causing serious physical injury and mental trauma, some of which you’ve heard about today.

[2]    You pleaded guilty to five charges: receiving,1 theft,2 discharging a firearm with reckless disregard,3 unlawfully carrying a firearm,4 and using a firearm in the commission of a crime.5

[3]    I have listened to what counsel have had to say, both for you and for the Crown. The Crown recommends a starting point of seven to eight years’ imprisonment, with a minimum term of imprisonment of at least 50 per cent of that sentence. Your counsel, Ms Adams, argues for a lesser starting point, of only four years.

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

Your offending

[5]I begin by describing your offending in more detail.

—summary of facts

[6]    Your first offence was receiving a vehicle, a Subaru car, which had been stolen overnight on 31 January 2017. You took possession of it sometime between then and

1      Crimes Act 1961, ss 246 and 247(a).

2      Sections 219 and 223(d).

3      Section 198(2).

4      Arms Act 1983, s 45(1)(a).

5      Crimes Act 1961, s 198B.

4 February, and in doing so, you knew it was likely the vehicle had been stolen. This gave rise to the receiving charge.

[7]    You then drove up in that vehicle to a petrol station on 4 February. You filled it up with $60 worth of petrol, but then drove off without paying. That is the theft charge.

[8]    You drove the car to another petrol station on 7 February. Soon enough, you became involved in a confrontation with a man, the first complainant, whose vehicle was parked next to yours. During the altercation, you presented your firearm at him through the driver’s window, and discharged at least one shot hitting his vehicle’s bonnet. When he fled in his vehicle, you followed, and the complainant recalls hearing what he thought was another shot. Afraid, he immediately drove to a police station to report your offending. For this, you were charged with discharging a firearm with reckless disregard.

[9]    Later that day, you decided to rob a café. You covered your face with a hoody and scarf, and wore gloves and a long jersey to conceal your identity. You were armed: you had a loaded full-length pump action single barrel shotgun – and also an ammo sleeve on the butt that contained additional shotgun cartridges. In preparation for your offending, you removed the registration plates from the Subaru. For what followed, you were charged with unlawfully carrying a firearm, and commission of a crime with a firearm.

[10]   You arrived at the café at 1.20pm. Numerous staff and customers were present in the café and in the surrounding area. As you drove into the café carpark you saw someone you knew, and warned them to gather their children and leave the premises. When you entered the café, you rushed to the counter where staff were serving, presented your shotgun and, pushing a bag towards a young female staff member, demanded she fill the bag with money.

[11]   At this point, the second complainant – who you later told police was the hero of the story – challenged you and told you to get out. You were yelling at the young staff member behind the counter to hurry up, but the second complainant tried to get

between you and the counter, pushing you and the gun away from the direction of the staff members. You told the second complainant to back up; she stood her ground, and told you the same. So you raised your gun toward her, then lowered it slightly, and discharged a shot at an angle into the concrete floor.

[12]   Three complainants were within metres of you when you discharged that shot. All suffered injuries as a result: the second complainant to both her lower legs; the third complainant, to her abdomen; the fourth complainant, to her back, right arm and hand. The second and third complainants required surgery to remove pellets which were deeply embedded. All spent time in hospital.

[13]   After discharging the shotgun, you went over to the counter again and demanded someone fill up the bag with money. But the three complainants – the only people left in the café at that point – joined the others in escaping the scene. After all that violence, you left the café without any money or other stolen property.

[14]   You sped off in the Subaru, driving recklessly. You were spotted by Police and arrested during a routine patrol the following morning. Police conducted a search of your premises and located the Subaru with changed number plates and registration sticker, as well as the bag used in the attempted robbery.

—victim impact statements

[15]   Mr Huirua, the victims of your offending have provided statements, describing the effects of your offending on their lives.

[16]   I begin with the second complainant, the 46-year-old woman who held her ground and told you to “back up”. She describes how her leg pain has not gone away. It impairs the quality of her life: she cannot run anymore, and it is difficult for her to bend down. She suffers post-traumatic stress disorder, she is now afraid, and she is not the same person as she was before. She also had considerable time off work and has suffered financially. That is especially hard for her as she is the sole income-earner for a household of six children.

[17]   The owner of the café describes how numerous staff were affected, and how the café suffered financially as a result. Two other complainants were a 75-year-old woman, and the 20-year-old university student who was the staff member behind the counter. Both say they are now more afraid and cautious in their approach to life. The older woman will not sit in cafés unless she can see the door.

[18]   Finally, there is the second complainant’s friend, accompanying her at the café, who we heard from this morning. She too has suffered financially and emotionally. Her statement describes how she had a panic attack three days after the event while driving past the café. She says directly to you, in te reo Māori, “let your shame be your punishment”. But she ends by expressing compassion and understanding toward you, and wishes you well.

Approach to sentencing

[19]Mr Huirua, I approach your sentencing in three stages.

[20]   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, I give a discount for your guilty plea.

[21]   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.

[22]   To summarise those purposes and principles, I must impose a sentence to hold you accountable for your offending and to 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.

[23]   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. I am also mindful, especially in light of the fact you

offended whilst using methamphetamine, of the need to assist you in your rehabilitation and your reintegration back into the community.

Starting point

—lead charge

[24]   Your lead offence is commission of a crime with a firearm, which carries a maximum penalty of ten years’ imprisonment. The Crown submits a starting point in the vicinity of seven to eight years’ imprisonment is appropriate here; your counsel counters with four years.

[25]   The charge notice specified the ‘crime’ spoken of here is demanding, with menaces, property from another person with the intent to steal it.6 That crime carries a maximum sentence of seven years’ imprisonment.

[26]The following aggravating features are present in your offending:

(a)concealment and intimidation – you took steps to conceal your identity, and by wearing a scarf and hoody you contributed to the intimidating nature of your offending;7

(b)limited premeditation – by donning those clothes, and removing the registration plates on the Subaru, you also displayed a limited degree of premeditation before your offending;

(c)the harm suffered by the complainants – I note specifically the pellet injuries and the need for two complainants to undertake surgery; and the ongoing psychological and emotional trauma the complainants have all faced, and no doubt others present in the café as well. It appears, however, only the second complainant has suffered ongoing physical effects. That is not to downplay the impact for the victims, but to stress

6      Crimes Act 1961, s 239.

7      R v Mako [2000] 2 NZLR 170 (CA) at [38].

you were fortunate no one suffered worse physical consequences than they did;8 and

(d)presence of the public – you targeted a popular café during lunch hours. There was, and one would have expected there to be, numerous members of the public present during your offending.9

[27]   Finally, I note the use of a firearm is an element of this lead offence, and cannot of itself constitute a separate aggravating feature. But, I agree with the Crown the fact your firearm was loaded and you discharged it within the close vicinity of the complainants should be treated as a discrete aggravating factor. That is off-set, but only to a limited extent, by the fact you consciously pointed your gun at the floor rather than at the customers.

[28]   I accept (and counsel both agree) guidance can be found in R v Mako, the guideline judgment for aggravated robbery which carries a 14-year maximum. The Crown points to the example given by the Court of Appeal:10

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 6, or perhaps more, years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be 8 years or more.

[29]   Your offending involves a loaded firearm. You discharged it, causing real physical harm to others. However, the Crown concedes that the café in this case was not the type of premises where significant sums of money were expected to be held. In that singular respect, the present facts might be closer to another Mako scenario:11

… a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with their face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years. Should the shopkeeper be confined or

8 At [46].

9 At [42].

10 At [54].

11 At [56].

assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.

[30]   Your counsel, Ms Adams, suggests your culpability falls somewhere between these two scenarios. Yet the present offending is worse, in my view, than one of those “bad cases” set out by the Court of Appeal in the second scenario. I say that because of the public location, the discharge of a shotgun within metres of the complainants, and the harm suffered by the victims. These factors take your culpability into the ballpark of around seven years’ imprisonment.

[31]   That said, the Crown properly offers a word of caution in applying Mako to your case. The maximum sentence for aggravated robbery — including by use of a firearm12 — is four years higher than your lead charge. That difference reflects the extra culpability of the ‘robbery’ aspect of the offending: theft accompanied by the use of violence or threats of violence to extort the property stolen.13 But given your present ‘crime’ is demanding with menaces, the key difference is really only the theft, that is, the successful extortion of property. In that vein, I note the amount stolen (or then recovered) is explicitly recorded in Mako as being relevant to the overall culpability assessment.14

[32]   A slight reduction is therefore warranted, but not the two years proposed by Ms Adams. I consider a starting point of six years, six months’ imprisonment accurately to reflect your culpability.

[33]   I am strengthened in this view by consideration of the cases referred to me by counsel. Both counsel rely on Vlietstra v Police,15 seemingly one of the few recent authorities where commission of a crime with a firearm is the lead offence. Justice French outlined the facts of that offending:

Five days later, at about 10.50 p.m. on 7 July, he and an associate entered a tavern. Each was armed with a weapon. The appellant was carrying a cut-off

.22 rifle measuring 480 millimetres in length and the associate was carrying a knife. Present at the tavern were three male patrons and the sole female bar manager. The appellant advanced into the tavern while the associate remained

12     Crimes Act 1961, s 235(c).

13     Section 234(1).

14     R v Mako, above n 7, at [44].

15     Vlietstra v Police HC Christchurch CRI-2011-409-3, 22 March 2011.

at the entrance. The two yelled at the people present to get down on the floor. The three patrons complied, while the bar manager retreated to a back office, locked the door and telephoned police. The appellant followed the manager into the back and started kicking the office door to gain entry, but was unsuccessful. Meantime, the male patrons had confronted the associate, who then fled the scene.

The appellant returned to the bar area still brandishing the firearm. When he did this, one of the patrons picked up a stool, threw it at the appellant and then ran towards him. As the patron was advancing towards the appellant, the appellant discharged the firearm. According to the police summary, it was a near-miss. The patron managed to deflect the gun with his arm. A struggle ensued and eventually the three patrons disarmed the appellant and subdued him until police arrived.

[34]   The Crown contends Mr Vlietstra’s culpability is on a par with yours. Both his and your offending involve a firearm being discharged in the course of what was effectively an attempted aggravated robbery. The Crown accepts Mr Vlietstra was accompanied by a second offender, but argues this is balanced out by the fact the shotgun pellets actually hit the victims in your case, with one complainant suffering long-term physical effects.

[35]   The similarities are, however, overstated. Mr Vlietstra was accompanied by another armed associate; he attempted to follow the manager into the backroom by knocking down the door; he physically fought with customers at the bar; and he only just missed shooting, presumably at very close range, a customer approaching him.16

[36]   For these reasons, I consider Vlietstra slightly more serious than the present offending, and it is appropriate I impose a starting point that is six months lower.

[37]   Ms Adams relies on two further cases. The first concerns a domestic incident, a man threatening and abusing his partner at gunpoint.17 In the second, the offender ambushed a woman with a knife in a paddock on her remote property, and fired a shotgun at her when she tried to escape on a motorbike.18 Neither involves an

16 The District Court Judge rejected the defence submission that the gun had been fired into the  ceiling as opposed to towards the patron; and this no doubt factored into his analysis. Granted, on appeal there was some dispute about whether he had pointed his gun at anyone, or intended to do so. The Judge did not challenge the District Court’s finding, but observed “little or no weight” turned on the point, given “[h]is action in bringing a loaded firearm into a public place means the culpability was very high indeed”: At [27]-[28], [32].

17     Freakley v R [2010] NZCA 497.

18     R v T [2011] NZCA 94.

attempted aggravated robbery, as in Vlietstra, and in the present case. The offending in these cases did not occur in a public place, and the level of harm suffered by the victims is not comparable to what we see here. In short, I do not find these cases helpful in setting a starting point for your offending.

[38]   I impose a starting point of six years, six months’ imprisonment on your lead offending.

—remaining charges

[39]   As to the other charges, the charge of unlawfully carrying a firearm is associated with the same incident as the lead charge. It does not justify any uplift. The theft and receiving charges are minor, but the charge of discharging a firearm with reckless disregard at the petrol station is more serious. That offence carries a maximum sentence of seven years’ imprisonment. You presented your firearm through your driver’s window, taking aim at a car a short distance away from you. You are fortunate the complainant was not injured.

[40]   An uplift of six months is appropriate to take into account the totality of your offending. That is on the generous side; more could be justified.

Personal factors

[41]   I now adjust that seven-year starting point up or down for your personal mitigating or aggravating factors.

[42]   You have a lengthy criminal and traffic history with over 40 notations, some of which are for violent offending or possession of weapons. But your current offending marks a significant escalation in the seriousness of your offending. By a narrow margin, I will not apply an uplift for your prior offending.

[43]   A discount is warranted for your guilty plea, which was entered a short time before the trial commenced. The circumstances are important. Your plea was entered shortly after counsel resolved the issue that would be determinative in your trial, namely the admissibility of your confessional statements. It was also shortly after the

Crown elected not to proceed on the more serious charges laid against you. In those circumstances, I consider a discount of about 20 per cent is justified. That takes your sentence to five years, six months’ imprisonment.

[44]   A further discount is warranted for your remorse, and your good prospects for rehabilitation. You expressed your remorse to the police immediately after your arrest, and your pre-sentence report indicate you remain remorseful.

[45]   I also have before me three letters of support for you, two from your cousins and one from your social worker. They attest to your good heart, your love for your family, and the strong community support that surrounds you. They recount how shortly before this offending, you lost two close family members, and appear to have turned to methamphetamine and other drugs for respite. You report taking at least half a gram of methamphetamine daily around the time of your offending, even though you were aware this drug inclines you towards violence.

[46]   This, I have made very clear, was awful offending. But you are still a young man, only 27 years old, and your rehabilitative prospects remain hopeful. I grant a ten per cent discount in these circumstances for your personal circumstances.

[47]That takes your effective end sentence to five years’ imprisonment.

Minimum period of imprisonment

[48]   The Crown argues a minimum term of imprisonment is appropriate in your case. By a narrow margin, Mr Huirua, I will not grant a minimum term in the circumstances, given the low sentence that I have imposed and your positive rehabilitative prospects. I recognise the concerns for your reoffending and in particular for your violent reoffending, but I consider the ordinary parole provisions are adequate to hold you accountable, denounce your conduct, deter other offenders and to protect the community.19 I hope you will reintegrate into it and I wish you well in your future.

19     Sentencing Act 2002, s 86(1); R v Gordon [2009] NZCA 145 at [15].

Result

[49]Mr Huirua, please stand —

(a)on the charge of using a firearm in committing a crime, you are sentenced to five years’ imprisonment;

(b)on the charge of discharging a firearm with reckless disregard, you are sentenced to two years’ imprisonment;

(c)on the charge of unlawfully carrying a firearm, you are sentenced to 12 months’ imprisonment; and

(d)for the charges of receiving, and theft you are convicted and discharged.

The sentences are to be served concurrently. That means you will serve them all at the same time, during the longest five-year sentence.

[50]Please stand down.

—Jagose J