R v Inamata

[2015] NZHC 284

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-055-001321 [2015] NZHC 284

THE QUEEN

v

TOKA INAMATA

Hearing:	23 February 2015
Appearances:	L Mills for the Crown P Hamlin for the Defendant
Date:	23 February 2015

SENTENCING NOTES OF WYLIE J

R v INAMATA [2015] NZHC 284 [23 February 2015]

Introduction

[1]      Mr Inamata, you may remain seated until I ask you to stand.

[2]      You appear for sentence today, having been found guilty by a jury of a number of charges arising out of the aggravated robbery of the Whitehouse Tavern in Papakura in May 2013.  You were not present during the trial because you breached your bail and you were on the run.  Nevertheless, it proceeded in your absence.

[3]      You have been found guilty of the following:

(a)      One charge of aggravated robbery.   That is an offence pursuant to s 235(b) of the Crimes Act 1961.  The maximum penalty is 14 years’ imprisonment.

(b)Five charges of kidnapping.   Kidnapping is an offence pursuant to s 209(b)  of  the  Act.  The  maximum  penalty  is  one  of  14 years’ imprisonment on each charge.

(c)      Two charges of threatening to kill.   This is an offence pursuant to s 306 of the Act, and the maximum penalty is one of seven years’ imprisonment on each charge.

(d)Two charges of conversion.  This is an offence pursuant to s 226(1)(b) of the Act and the maximum penalty is one of seven years’ imprisonment, again on each charge.

(e)      One  charge  of  aggravated  injury.  This  is  an  offence  pursuant  to s 191(2) of the Act and the maximum penalty is one of three years’ imprisonment.

(f)      One  charge  of  the  unlawful  possession  of  explosives.  This  is  an offence pursuant to the s 51 of the Arms Act 1983 and the maximum penalty is three years’ imprisonment.

Background Facts

[4]      On the afternoon of 25 May 2013, you along with five others, met at an address in Manurewa.   At that meeting, the six of you discussed robbing the Whitehouse Tavern.  Three members of the group then set out to Remuera to steal two motor vehicles to use as transport in the robbery.   When the members of the group returned to Manurewa with the stolen vehicles, you armed yourself with a range of weapons, including a loaded sawn-off pump-action shotgun, a crowbar, large screwdrivers and a large drill bit.  You put on heavy clothing, including hooded sweatshirts, and caps.  You took face masks and balaclavas with you and also some plastic cable ties that you could use to restrain any people you might find at the tavern.

[5]      You  then  travelled  to  the  tavern  in  the  two  stolen  vehicles.    When  you arrived, the tavern was crowded, because there was a quiz evening on.  You spent some  time  waiting  in  the  car  park  until  the  tavern  cleared.    At  approximately

10.45 pm, you burst into the tavern brandishing your weapons. You were all wearing masks or balaclavas to conceal your identities.

[6]      There   were   three   staff   present,   and   a   small   number   of   customers. Unbeknown to you, one of the staff – the duty manager – managed to flee.  He went to a neighbour to make a 111 call to the police.  One of your number jumped over the bar in the tavern. You ordered customers onto the floor in an area where there were a number of pokie machines.  You restrained them with cable ties.  You got one of the staff members to show you around the premises.  You found the safe.  It was locked. You tried to coerce that staff member into unlocking the safe.  He did not know how to do so.   He was punched, kicked and his life was threatened in the process. Ultimately,  his  injuries  required  hospitalisation.     Another  staff  member  was threatened with a shotgun, and told that she would have her head blown off if she did not comply with the demands being made by you.   You took cellphones off the various victims.  You also broke into and took money from cash registers.  You took till trays.

[7]      As you and your co-offenders were leaving the premises, you were observed by police who were responding to the 111 call made by the bar manager.  You took off in one of the stolen vehicles.  The police pursued you.   Eventually, the police chase was called off due to concerns for public safety.   A short time later, you crashed the stolen vehicle into a trampoline at the back of a house in Manurewa. You then made off on foot.  The police by this stage had thrown a cordon around the general area. A police handler and his dog started to follow your trail.  You split into two groups, one of four persons and the other of two persons. The group of two tried to exit the area in a taxi.  They were apprehended by the police and arrested.  They were in possession of the shotgun, the shotgun cartridges and the various items from the  tavern,  including  the  cash  that  was  taken.    Two  of  your  group,  you  and Mr Wellington, were apprehended in a park by the police dog handler and his dog. Mr Martin and another offender managed to flee the scene and get through the cordon.  Mr Martin was apprehended at a later stage.

[8]      The  evidence  presented  at  the  trial  clearly  suggested  that  you  were  the ringleader who brought  the group together.   You are much older than  your co- offenders and you took the primary role in organising the offending.

Pre-sentence Reports

[9]      Your  pre-sentence  report  noted  that  you  have  six  children  ranging  from

23 years of age to three years of age. You also have two grandchildren. You indicated that you are currently in a relationship.  The probation officer was unable to contact your partner to gauge her level of support for you.

[10]     You said that  you spent most of your free time at the Latter-day Saints Church.  Your brother is also involved with the church. His wife confirmed that you were an elder and that prior to being remanded, you were about to be become a priest. You indicated that you are committed to turning your life around.

[11]     It seems that you have used your time on remand constructively.  You have attended courses on parenting, power in relationships, anger management and business  studies.   You  have  been  wait-listed  in  a  community alcohol  and  drug services course and you have enrolled in physical health studies and legal studies.

[12]     Regarding your offending, you claimed that you have been unfairly treated as the jury verdict was reached in your absence. You continue to deny the offending. You insisted to the probation officer that you have no knowledge of the robbery and that you were a victim of being in the wrong place at the wrong time.

[13]     You reported that you have not consumed alcohol or drugs for a number of years. The  report  noted  that  these  factors  did  not  contribute to  your  offending. Nevertheless, your risk of reoffending is assessed as high and your risk of harm to others is also assessed as high.

[14]     The probation officer recommended a sentence of imprisonment. He also recommended that your current sentence of community work should be cancelled.

Victim Impact Statements

[15]     I have received three victim impact statements.

[16]     It is clear that your actions had a very major effect, particularly on the staff members you assaulted and threatened.

[17]     One of the staff members still has physical scarring.  She has been affected psychologically by the events which occurred.   She described those psychological effects.   She still suffers from anxiety attacks, and has flashbacks.   She does not leave her house unless she has to, and her enjoyment of life has significantly diminished.  She is no longer a social or outgoing person.  She no longer has a job. Your offending has had a very real effect on her family relationships.  The victim feels that her life is on hold.

[18]     Another of the victims says  that, for a time after the offending, he was paranoid, and became stressed and irritable.  He has returned to work, but he remains nervous in his work environment even today.

[19]     The third victim, the manager of the tavern, has noticed a significant loss of takings.   He says that it is hard to employ staff.   His sleep patterns were initially

disturbed and he had flashbacks. The incident is still at the back of his mind, and has made him what he called “over cautious”.

Prior Sentencing

[20]     Two of your co-offenders have already been sentenced for their involvement in this aggravated robbery after they pleaded guilty to one charge of aggravated robbery.

[21]     The first offender, N, was sentenced by Ellis J.1   She had regard to the use of a weapon, the degree of planning, the effort that went into stealing the cars and the disguises used, in setting the starting point.  She considered the number of offenders and the fact that the target was a busy tavern were aggravating features.  She adopted a starting point of eight years’ imprisonment, before making deductions for N’s guilty plea, and his youth.

[22]     In sentencing the second offender, Mr Tuku-Inamata, Ellis J relied on her earlier decision.2     Again, she set the starting point at eight years’ imprisonment. Reductions were made for Mr Tuku-Inamata’s guilty plea, his youth and the fact that he had engaged in the restorative justice process.

[23]     Two   of   your   other   co-offenders   were   sentenced   earlier   by   me.3

Mr Wellington’s starting point was eight years and six months’ imprisonment. He received  discounts  for  his  youth  and  for  the  time  he  spent  on  restrictive  bail conditions while awaiting trial. Mr Martin received a starting point of seven years and six months’ imprisonment. A small reduction was made to recognise the restrictive bail conditions which applied to him. No discount was given for youth.

Submissions

[24]     Mr Mills for the Crown submitted that there are various aggravating features applicable to your offending.  He referred to premeditation, the number of offenders

involved, the use of disguises, the use of weapons, the number of victims, and the

1      R v N [2014] NZHC 2236.

2      R v Tuku-Inamata [2014] NZHC 2654.

3      R v Wellington [2014] NZHC 2993.

threats and use of violence, the value of the property stolen, and the degree of harm to the victims.

[25]     Mr Mills also argued that you were more culpable than your co-offenders. Your age coupled with the fact that you were the leader in the offending  warrants, in Mr Mills’ submission, a starting point of between nine and nine and a half years' imprisonment.   He then sought an uplift of three months' imprisonment for your prior offending. Mr Mills did not identify any discounts for personal factors that could be applicable to you.

[26]     Mr Hamlin made submissions on your behalf.   He argued in his written submissions that a starting point of eight years' imprisonment, in line with the earlier decisions of Ellis J, would be appropriate.  He rejected the suggestion that you were the leader of the enterprise, although he accepted that there was evidence at trial which pointed to that.  He accepted that a small uplift may be appropriate in light of the additional charges that you have been found guilty of. He considered that no uplift should be applied for your previous convictions because you have not previously been convicted of any similar offending.   He noted that you have endeavoured to turn your life around and make best use of your time on remand. Mr Hamlin  also  argued  that  if  your  present  offending  is  ignored,  your  level  of offending has been decreasing over the past ten years.

[27]     Mr Hamlin sought reductions for personal factors, in particular the strong family and church support you enjoy and your active efforts in seeking employment.

Principles and Purposes of Sentencing

[28]     In  considering  the  appropriate  sentence  for  you,  I  have  considered  the principles set out in ss 7 and 8 of the Sentencing Act.  In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.   This is a primary factor  in  offending  of  this  kind.    I have  taken  into  account  the  gravity of  the offending with which you were involved, including the degree of your culpability.  I

have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with your co-offenders and with similar offenders committing similar offences.  I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[29]     The relevant tariff case for offending of this kind is the decision of the Court of Appeal in R v Mako.4

[30]     In this decision, the Court gave a number of examples of typical aggravated robberies and set out starting points for each.   The Court made it clear that the identified starting points are to be used flexibly, and that where there are particular features, or combinations of features which have an unusual character, the starting point should be adjusted to reflect that.  Relevantly, the Court noted as follows:

[54] Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels. 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. 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 eight years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

[55] As we said in Tukuafu for very serious armed robberies (even without multiple or repeat offending) a starting point of around 10 years will be appropriate.

[31]     These remarks are helpful in considering this case.

[32]    The Court in Mako identified a number of aggravating features to such offending.  Many of those are present in the case of your offending.  I note them as

follows:

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

(a)      There was  clearly premeditation.   You and  your co-offenders  met earlier in the day to plan the robbery.   In order to carry it out, you stole two cars to facilitate your travel to, and escape from the tavern. You armed yourselves and got together clothing and gear to conceal your appearances.  In my view, there was significant premeditation in this case.

(b)The  number  of  offenders.     Six  offenders  were  involved  in  the aggravated robbery.   Either all or most of  you were armed.   The number of offenders involved and the fact that a number of you were armed would have had a very significant impact on victims.  I bear in mind, however, that the number of offenders involved is an element of the offence of aggravated robbery, and that the mere presence of more than one offender is not, of itself, an aggravating feature.

(c)      The use of disguises. All of you concealed your identities by covering your faces.  One of you wore a clown mask.  Others used bandanas. The effect on victims would have been terrifying.

(d)The use of weapons.   I have already noted that you were carrying weapons.   The most serious weapon was a sawn-off shotgun.   For technical reasons, that charge was abandoned at trial.  However, the evidence established that a gun was used, that it was loaded, and that there were spare cartridges in the magazine.   Introducing a loaded firearm into a situation such as this substantially increases the danger

for all involved.    In my view, it is a serious aggravating feature.5

Other weapons included screwdrivers, a crowbar and a drill bit.

(e)      The number of victims.   The targeted premises were commercial premises.  They were a busy tavern.  I accept that you waited in the carpark until the tavern had largely cleared.  Nevertheless, you did not

know how many people were in the tavern when you burst in.  You

5 At [39].

must have known that it was likely that members of the public would be present, and indeed, that proved to be the case.

(f)      The use of violence.  Robbery requires a threat of violence.  However, in this case, actual violence was used.  Further, you threatened to kill the two members of staff.   One of the staff members was kicked, punched and beaten up.  The violence on him was captured on CCTV. It was gratuitous and at the high end. There was a kick to the head.6

(g)The value of the property stolen.  The property stolen was of modest value.   It was just under $3,000 and much of it was recovered. However, this was because you could not get into the safe.  I have no doubt that you would have taken more, had you been able to do so.

(h)The degree of harm to the victims.   The victim impact statements make it clear that some of the victims of the offending suffered both physically and mentally as a result of your offending.   In my view, this increases the seriousness of the offending, although I accept it is important not to double count this factor with the degree of violence used.

[33]     On any account, this was serious offending of its type.

[34]     It is necessary for me to have regard to other decisions, which assist in setting the appropriate starting point.  I refer in particular to R v Campbell7 and Anderson v R8.   In the first case, the sentencing judge adopted a starting point of nine years’ imprisonment for an aggravated robbery involving multiple aggravating features, including the use of a loaded firearm, violence, premeditation and the like.  A total sum of $31,500 was taken. The sentence was upheld on appeal.

[35]     In the latter case, Anderson v R, the offender was armed with a single- barrelled firearm.  He was wearing dark-coloured clothing, balaclava and gloves.  He

6      Compare R v Taueki [2005] 3 NZLR 372 (CA) at [31(e)].

7      R v Campbell [2007] NZCA 121.

8      Anderson v R [2014] NZCA 410.

broke into a jeweller’s store and stole property worth approximately $20,000.  The sentencing judge adopted a starting point for the aggravated robbery of six years’ imprisonment, before applying an uplift of one year for additional motor vehicle and theft-related charges.  A further uplift of six months’ imprisonment was applied for previous convictions. Again, the sentence was upheld on appeal.

[36]     I have also considered the two decisions of Ellis J which I have noted above in relation to two of your co-offenders.   I note that she was only sentencing in respect of the aggravated robbery charge, although I accept that she did take into account the various aggravating features which I have noted above, some of which reflect in the additional offending in respect of which you have been found guilty.  It is noteworthy, however, that neither N, nor Mr Tuku-Inamata, were being sentenced in regard to the aggravated injuring. An eight-year starting point was adopted for both N and Mr Tuku-Inamata.

[37]      I have considered the sentences imposed for two of your other co-offenders, Mr Wellington and Mr Martin. Their culpability was higher than that of N and Mr Tuku-Inamata. A starting point for Mr Wellington of eight years and six months’ imprisonment was adopted. Unlike Mr Wellington, Mr Martin was not convicted of the aggravated injuring offence.   For him, a starting point of seven years and six months’ imprisonment was adopted.

[38]     In your case, though you do not accept it, you were the leader in this criminal enterprise. Unlike Mr Wellington, you also face sentencing for the additional charge of the unlawful possession of explosives. Your increased culpability justifies a higher starting point. I adopt a starting point of nine years’ imprisonment.

Personal Aggravating and Mitigating Features

[39]     The Crown sought a small uplift to reflect your previous offending.  Whilst your previous record is extensive, your previous offending is of a different character and is less serious than the present charges.  I am not inclined to uplift for your prior offending.

[40]     Your counsel sought a reduction to reflect your community support and your desire to  seek  employment.    I accept  that  normally,  a small  discount  might  be appropriate  to  recognise  your  contribution  to  the  local  community  through  the church, but, in my view, your offending really makes a mockery of any claims you make to become a priest or to have a strong involvement with the church.  You have indicated that you are committed to turning your life around.  There is little sign of that, and indeed, even now, you do not acknowledge your role in the offending that has occurred.  I decline to allow any discount.

Sentence

[41]     Mr Inamata, will you please stand.

[42]     Mr Inamata, in respect of the aggravated robbery charge, I sentence you to a term of imprisonment of nine years.  In relation to the five charges of kidnapping, you are sentenced to a term of imprisonment of four years.  In relation to each of the charges of threatening to kill, you are sentenced to a term of imprisonment of two years, and in relation to the two charges of conversion, you are sentenced to a term of imprisonment of one year.  In relation to the charge of aggravated injury, you are sentenced to a term of imprisonment of two years. In relation to the charge of the unlawful possession of explosives – this is shotgun shells – you are sentenced to a term of imprisonment of one year. All of these sentences are to be served concurrently.

[43]     The Crown does not seek a minimum term of imprisonment and I do not consider that one is necessary.

[44]     Finally,  I  cancel  your  existing  sentence  of  community work  pursuant  to s 68(3) of the Sentencing Act.

[45]     Mr Inamata, you may stand down.

Wylie J