R v Kee HC Auckland CRI 2008-092-8864

[2010] NZHC 661

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-8864

THE QUEEN

v

ANITELEA CHAN KEE MYRON ROBERT FELISE JASON NASERI

TINO FAAMELE FELISE ETI FILOA

WALTER MCCARTHY

Hearing:         7 May 2010

Appearances: Mr K Raftery and Mr C Merrick for Crown

Mr J Down and Ms L Hughes for A Chan Kee
Mr R Mansfield and Mr K Brosnahan for M Felise
Mr G Newell and Mr R Earwaker for J Naseri
Mr P Borich for T Felise
Mrs L Freyer for E Filoa
Mr B Hart and Ms B Sellars for W McCarthy

Sentence:       7 May 2010

SENTENCING REMARKS OF LANG J

R V FELISE AND ORS HC AK CRI-2008-092-8864  7 May 2010

[1]      Anitelea Chan Kee, you appear for sentence today having been found guilty by a jury of murdering Mr Navtej Singh.  Earlier last year you pleaded guilty to two charges.  Both of those charges were aggravated robbery, one of the Riverton liquor store on the 7th June 2008 and the other of what has been described as a tinnie house a few days earlier.  The maximum penalty, as you know, is life imprisonment.  The maximum penalty on each of the charges of aggravated robbery is one of 14 years

imprisonment.

[2]      Jason Naseri and Myron Felise pleaded guilty also to charges of aggravated robbery relating to the robbery of the Riverton liquor store.   In the case of Jason Naseri, his plea was entered in November 2009.  In the case of Myron Felise, it was entered in December 2009.

[3]      The other three prisoners, namely Tino Felise, Walter McCarthy and Eti Filoa, pleaded not guilty to the charges of being parties to the aggravated robbery of the Riverton liquor store.   At the conclusion of the trial in March 2010, the jury found  you  guilty on that charge.   As a consequence,  each of  you  also faces a maximum sentence of 14 years imprisonment.

[4]      Before  I  begin  the  formal  part  of  my  sentencing  remarks,  I  wish  to acknowledge the presence here today of the wife of the deceased, Ms Kaur, who has given us her heartfelt thoughts today through her victim impact statement.   Also members of her family, friends and wider community.  I wish to acknowledge also the family, friends and whanau of the prisoners here today.  Everybody here in the back of the Court has been through a traumatic time over the last 18 months.   It would be fair to say that there would not be a person here in this room who did not wish they could put the clock back to before June 2008.  Unfortunately, that cannot be done, and the only thing we are left to deal with are the consequences and, of course, for all of you those are severe.

The facts

[5]      I begin by outlining the factual basis upon which I am required to sentence you.   I take this from the evidence given at trial and in some areas I will need to

make my own findings as to matters of fact that are not immediately obvious from the jury’s verdicts.   I record also, of course, that all prisoners, other than Anitelea Chan Kee, were found not guilty of both murder and manslaughter, they having all originally been charged as parties to the killing of Mr Singh by Anitelea Chan Kee.

[6]      The charges against you had their genesis in quite an innocent event.  This was a birthday party for a five year old that was held at an address in Manurewa on the afternoon of the 7th  of June.  All of you attended and it seems that a good time was had by you and also by wider members of your family and friends.  Once that event had finished, you moved to a house at 5 Giani Court in Manurewa where socialising continued.  Unfortunately, a singular aspect of the socialising that night was the widespread and large-scale consumption of alcohol by you all, and I have no doubt from the evidence, others who were at the party that night

[7]      Eventually during the course of the evening you ran out of alcohol, and so a collection was made for money and several people went out to buy more alcohol from a liquor store.  That, too, was devoured and at that point a decision was made that you would obtain more alcohol but that you would not pay for it.

[8]      I have no doubt that the instigator of this plan was Anitelea Chan Kee.  He is the person who was heard by everybody discussing it, encouraging others to be involved.  He was the person who went out to a vehicle and brought in a firearm. During the course of the evening he took the firearm out to the side, or the rear of the house.  He put a can against a fence and then took a practice shot at the can.  That was the subject of some evidence at trial and the spent cartridge case was later found in the rear yard area.

[9]      It is clear that many of the people who were at the address that night saw the firearm.  Others, including some of the prisoners, saw ammunition and the factual finding I make is that all of these prisoners were fully aware of the presence of the firearm before they left the house.

[10]     Originally, I accept that the plan was to steal alcohol.  I am not satisfied on the evidence that the plan at the house extended to stealing money, although there

was some discussion of it.   I do not accept for a moment, however, that this was simply to be a shoplifting exercise or a “snatch and grab”, in which the prisoners were to run into the shop, grab alcohol and leave with it.   I am satisfied from the jury’s verdicts that each of you knew before you left the house or, at the latest, at the time that you left the house, that Anitelea Chan Kee was taking with him a firearm to carry out the robbery of the liquor.

[11]     I draw that from two factors.   Firstly, why would he have produced it and fired a practice shot at the house unless he was going to take it?  Secondly, the jury found  Eti  Filoa  and  Walter  McCarthy guilty as  being parties  to  the  aggravated robbery when they were in a vehicle sitting across the road and in a position where they could not, in my view, readily have seen  a firearm being carried into the premises.

[12]     Myron Felise told the police in his interview that he saw the firearm for the first time just before he entered the doorway of the shop.  Jason Naseri said that he saw the firearm as at the point at which they got out of the car when it stopped near the liquor store.  Tino Felise, who was the driver of the car, said nothing about the incident at all other than to say that he was not there.

[13]     In my view, the jury’s verdicts in relation to Eti Filoa and Walter McCarthy make it clear that the jury accepted that you all knew and were party to a plan to take a firearm to carry out the robbery of the Riverton liquor store.

[14]     I need to deal also with another aspect of the evidence.   At trial it was suggested that somebody else may have loaded the firearm rather than Anitelea Chan Kee.  I reject, as a matter of fact, that contention.  He was the person who had the custody of the firearm for most of the time it was at the address, although there was some evidence that it was seen lying unattended on a table.  I do not accept that any other person took the firearm at any stage and loaded bullets into it without his knowledge.

[15]     The plan to rob the liquor store was discussed in some detail at the house.  It is clear that the people involved decided that two vehicles would be used.  One of

these was a black Astina.   The other one was a four wheel drive motor vehicle belonging to Walter McCarthy’s parents.   Discussions were held, at which I am satisfied all of the prisoners were present for at least part of the time.  During these discussions there was reference to Plan A and Plan B.  There was a division, if you like, of roles.  During this time it seems that Eti Filoa took it on himself to be the driver of Walter McCarthy’s vehicle when it went to the liquor store.  When the two vehicles left the address at Giani Court to go to the liquor store, Tino Felise was driving the Astina.  Anitelea Chan Kee was seated beside him in the front seat with the firearm, and Myron  Felise and Jason Naseri were sitting in the rear of the vehicle.  The four wheel drive vehicle belonging to Walter McCarthy’s parents was driven by Eti Filo and Walter McCarthy was in the front passenger seat of that vehicle.

[16]     The jury’s verdicts, as I have said, make it clear that by the time you had left the address, all of you had agreed to become part of a plan to rob the Riverton liquor store and to use a firearm in doing so.

[17]     The Crown case at trial was that the common agreement that you formed had an additional and vital element.  This was that you knew that the firearm in question was actually loaded.  I have no doubt, as I have said, that Anitelea Chan Kee knew the firearm was loaded but in my view the verdicts of the jury demonstrate that the jury was not satisfied beyond reasonable doubt that that was included within the common intention that the otheres reached with Anitelea Chan Kee.  The jury was therefore left in a state of doubt as to whether or not you knew the weapon was loaded.

[18]     There has been a suggestion in some submissions I have received today that the jury may also have been in a state of doubt regarding the possibility that injury might be inflicted during the armed robbery.  In my view, if the jury had concluded that a loaded firearm was to be used, it would have been a very short step from there for the jury to have concluded that you must, at least, have been guilty of manslaughter because the risk of causing injury to somebody during the course of the robbery would have been obvious.  I suspect that the jury did not get that far and

that they decided the case on the basis that they were not satisfied that you knew that the weapon was loaded.

[19]     Well, two cars proceeded to the liquor store.  The Astina parked on one side of the street near the liquor store.  The four wheel drive vehicle parked across the road and further down.  I am satisfied that the role of Eti Filoa and Walter McCarthy in that vehicle was to be that of lookouts, to keep an eye out in case anybody came that might threaten the operation.

[20]     Secondly, it seems that they were there to pick up any stragglers from the robbery that might have been left behind in the event that the other car had to leave in a hurry.

[21]     I am satisfied, however, that once the robbery started, nobody in the four wheel  drive  vehicle,  that  is  neither  Eti  Filoa  or  Walter  McCarthy,  actually did anything further to assist in the carrying out of the robbery.

[22]     The robbery was carried out by Anitelea Chan Kee, Jason Naseri and Myron Felise.  Before they had left the address they had got various items of clothing and had disguised themselves with hoodies and, it seems, other items wrapped around their head and/or face.  So when they went into the liquor store, they were dressed in these disguises.

[23]     We were able to see during the trial precisely what happened during the robbery because of the videotaped version of events taken from the cameras that were installed in two locations in the liquor store.  These gave, from two different perspectives,  an  accurate view  of  what  happened,  both  in  terms  of  actions  and timing.

[24]     Immediately Mr Chan Kee went into the store he pointed the gun at the two storekeepers, that was Mr Navtej Singh and Mr Gurwinder Singh.  They were behind the counter and I record that at no stage did they take any step or evasive measure that could in any way be seen to have been resistant towards or intimidatory to the people who entered the store.

[25]     Mr Chan Kee was followed virtually immediately by Mr Naseri and Mr Myron Felise, who immediately began raiding the fridges and other stocks of the store taking boxes of liquor with them.  They filled their arms with liquor and then ran out of the store.

[26]     During this time, and during the moments that followed, Anitelea Chan Kee was brandishing the rifle and pointing it at, first, one of the shopkeepers and then at the other.   The victim impact statement that I have read from Gurwinder Singh speaks volumes of the terror that he felt during the incident.  He believed that he was about to die.

[27]     I am satisfied that the shopkeepers essentially told you that you could take what you want.   For some inexplicable reason, Mr Chan Kee, at a time when the other two men were out of the shop, you elected to pull the trigger of that firearm and thereby mortally wound Mr Singh.  As I have said, there was no reason for that. The video records that he was making efforts to remove the till at the time that you shot him.  It may be that you became frustrated with the time that he was taking to do that.  It may be that you panicked to some extent with your other two associates out of the room, but the video gives absolutely no clue as to why you elected to pull the trigger at that time.

[28]     I do not know, either, whether, as I have said, the theft of the money was something that was ever in contemplation of those who went there.   I suspect, Mr Chan Kee, that the final decision to take the money was yours and yours alone, and that you made that decision once the robbery was in progress.  But at the end of the day that decision is what has led to you facing the conviction of murder.

[29]     After Mr Singh was wounded and he received the shot to his chest, he fell backwards and he was in that position when the other two prisoners came back into the shop.  They heard the shot from outside and ran back in.  Rather than grabbing Mr Chan Kee and leaving with him immediately, Mr Naseri helped himself to more alcohol.  Mr Felise could see that Mr Chan Kee was struggling to take away both the till and the gun.  He went over and then assisted by removing the gun and taking it out of the premises.

[30]     The three men then went back to the vehicle, where Tino Felise was waiting in the driver’s seat.  He then drove off as, I infer, did the four wheel drive vehicle. When the black Astina drove away, it drove a few streets away and stopped.  There the till was examined and cash was distributed.   You then went back to the Giani Court address and proceeded to drink the alcohol that had been stolen during the course of the robbery.   You knew virtually immediately that a serious thing had happened because, as soon as you arrived back at Giani Court, you were able to see and hear police helicopters on their way to the scene.

[31]     The police arrived and ambulance help arrived.  Unfortunately, however, the chest wound that Mr Singh suffered proved to be fatal.   The evidence from the pathologist was that it caused significant damage to internal cavities.  Even if he had been able to survive, I have no doubt that he would have been very severely injured as a result.

[32]     The party eventually broke up and you went your separate ways.  The next day, however, you learned through seeing items on the news that the shopkeeper at the Riverton liquor store had died.  From that point on, you held some meetings at which you tried to work out what to do.   I do not say that that is an aggravating factor because, by that stage, it is quite clear that you were all terrified about what had happened and did not know what to do.   Very quickly, however, you were identified and the police investigation led to your arrests.

[33]     It is against that factual background that I need to assess the penalties that are to be imposed upon you.

Aggravating factors

[34]     It will be obvious from what I have said that your offending had some serious aggravating factors, most of which I have referred to in setting out the narrative to this case.  The Crown has listed these in its submissions and I agree with them.

[35]     The first is that you embarked on a plan using a firearm.  Loaded or not, the use of a firearm in a robbery creates serious risk of injury whether or not it is actually fired.

[36]     Secondly, actual violence was used.  You are not to be punished, other than Mr Chan Kee, for the death of Mr Singh because Mr Chan Kee is the only person who has been found guilty of that.  Nevertheless, I must sentence you on the basis that the potential for violence materialised into actual violence.

[37]     Next there can be no doubt that there was a degree of pre-meditation about this plan.   As I have said, at the house it was the subject of reasonably detailed discussion  that  involved  the  use  of  two  vehicles  and  disguises,  so  it  was premeditated.

[38]     Submissions have been made to the effect that it was a fairly loosely planned enterprise with reasonably low-level organisation and thrown into the mix was the fact that all of you had been drinking heavily on the night.  I agree with that, but I am not sure really whether that can be said to be a mitigating factor.  It is just that kind of environment when young men, fuelled by alcohol, get together and hatch a loose plan like that that things can go terribly wrong.  And as the Court of Appeal said in the leading case in this area, R v Mako [2000] 2 NZLR 170 (CA), when things go wrong in the case of an armed robbery the reality is that the risk of serious injury or death looms large.

[39]     Next, there is the fact that multiple offenders were involved.   One of the frightening aspects for the people in the shop would have been the fact that they were confronted by not one person but three people, all of whom were wearing disguises of one sort or another.  Being confronted by multiple offenders is a serious thing for any victim of an armed robbery.   And, of course, there was always the potential here for members of the public to be involved and to get caught in any cross-fire.

[40]     Luckily for you, there was nobody else in the shop when you went in there but the evidence made it clear that there was a group of persons on their way to the

liquor store at exactly this time.   Fortunately, they saw something amiss over the road and they elected to terminate their journey.  But other people could so easily have been involved and hurt in this undertaking.

[41]     Then, of course, there is the fact that property was stolen.  The till contained about $4,000 of Mr Singh’s hard-earned cash.   You also took phone cards and alcohol.

[42]     Perhaps one of the greatest aggravating factors here in terms of both the murder and the armed robbery is the effect that this has had on the victims of the offending.   That is, of course, one of the factors that I am required to take into account under the Sentencing Act.

[43]     So far as the robbery is concerned, I have the victim impact statement of Gurwinder Singh who is the shopkeeper who survived.  He makes it clear that the incident was terrifying for him.  As I have already said, he believed he was about to be shot.  He also had the mortification of seeing his friend and partner, Navtej Singh, shot before his eyes.  You can imagine what went through his mind once he saw that occur.

[44]     He has told me in his victim impact statement how that has affected him.  It has affected him significantly financially in a number of ways, and I do not propose to go into that because that is a private matter involving Mr Singh.   But the real damage to him, as it has been to everybody who was the victim of your offending, is that he has been left emotionally bereft by what happened.  He has nightmares, he cannot stop thinking about the scene in the liquor store.   It has been played you know, that video, in the media, on television, many times.  Your victims have seen that.  Every time Mr Singh and the members of the family see that, it brings them back to what happened on that day.

[45]     Anitelea Chan Kee, as your letter to the Court today advises, you are the person with the most to think about when it comes to damage to victims.  Today, as you know,  you  will be receiving a very long  prison sentence.   But  eventually, provided you show the authorities you are worthy of release, you will come back

into our community.  Navtej Singh does not have that ability.  He will never come back to our community.  He will not come back to his family, his wife, his parents. His children, aged 7, 5 and 2 ½, have lost their father, husband and son forever.  That really puts into perspective the sentence that you are going to receive today.  You heard, and I hope you took on board today, Ms Kaur reading her victim impact statement where she told you and your associates that you had destroyed her life.  I do not need to say anymore about that.

[46]     So it goes without saying that, in sentencing you, I have to take all of those factors into account because they do aggravate the severity and seriousness of your offending.  They make it worse.

Sentencing Act 2002

[47]     In  sentencing  you, though,  I have to  also pay particular attention to  the principles and purposes of sentencing set out in our Sentencing Act 2002.  In a case of offending as serious as this there really cannot be any doubt, as all counsel accepted, that issues of deterrence, denunciation and the need to hold the offenders accountable rise to the forefront.  Deterrence looms large in a number of ways.

[48]     Firstly, you have to be deterred yourselves from acting in this way in the future.   I have to say that I doubt very much whether any of you will ever be involved in something like this again.   But deterrence goes wider than that.   The sentence of this Court has to be seen and heard by other people out in the community who might be tempted in the future to act in the way that you have done here.

[49]     It is quite clear to me from the material that has been placed before me at sentencing that armed robberies of small businesses are a real problem in South Auckland.  That fact is plain if you read the papers every day.  The ease with which people make the decision to carry out a robbery like that is probably demonstrated by the way in which you came to a decision to rob that liquor store.  You had run out of alcohol, you had no money, so you decided to take what you could not buy and to use a firearm in doing so.   The fact that you could even make that decision so casually speaks volumes about the need for deterrence.

[50]     One positive aspect about this whole incident is that there were responsible people in that house at Giani Court.  We heard evidence from people who tried to dissuade everybody from going.  Thankfully, some people heeded that wise advice and they were not involved, even though they thought that they would go along initially.  Some of you elected to ignore that advice and you stand here today for that reason.

[51]     The sentence of this Court must show people like you who think that it is all right and part of a night out to take a firearm and steal alcohol, that it is not all right; that the damage, the destruction that you cause to human relationships and people, cannot be tolerated.   To my mind that is the single most important principle on sentencing you today.   Implicit in that also is the need to denounce your conduct, that goes without saying, and to hold you accountable for what you did.

[52]     At the same time I am  bound by the Sentencing Act to ensure that the sentence imposed is not out of kilter with the seriousness of your offending, that it fits in within the overall matrix of what you all did in terms of the culpability of each of you, and also to ensure that, so far as it is possible to do so, the sentences are consistent  with  those  imposed  in  other  broadly  similar  cases.    I  say,  “broadly similar” because, as the authorities demonstrate, the circumstances of no two cases are ever exactly the same.  I also have to provide, as far as possible, for a sentence that provides for your rehabilitation and reintegration into the community.

Murder – Anitelea Chan Kee

[53]     With those principles in mind, I propose to begin considering the individual charges and I begin with the charge of murder in respect of which you have been found guilty, Mr Chan Kee.  You know that the only sentence in the context of this case  that  I  can  impose  is  one  of  life  imprisonment.    Any time  that  the  Court sentences an offender to life imprisonment, it is required to impose a minimum term of imprisonment.  In the ordinary course of events the minimum term that would be imposed is one of ten years imprisonment.

[54]     Before I deal with this issue further I think it is important that I explain what we are talking about here.  When we talk about a minimum term of imprisonment, we are not talking about the sentence that the offender will serve.  The sentence that Mr Chan Kee will serve is life imprisonment.  That means that if and when he is released, he will be on parole for the rest of his life.  If he transgresses his parole or offends again, he is recalled to prison to keep serving his sentence.  It is a sentence without an end.

[55]     The minimum term is the term that a prisoner must serve before that prisoner is allowed to apply for parole.  It does not mean that that is when someone will be granted parole.     The decision as to whether or not parole is granted is a matter entirely for the parole authorities, having regard to the statutory criteria that they must apply.  So when we talk about a minimum term here, we are not talking about the sentence.   We are talking about the term of years that must expire before a prisoner may make an application for parole.

[56]     The real issue, as you know, in sentencing you on the charge of murder is to determine whether or not I should, or must, impose a minimum term of more than ten years imprisonment.  This arises because of s 104 of our Sentencing Act, which requires the Court in certain circumstances to impose a minimum term of imprisonment of at least 17 years.

[57]     Two of those criteria have been identified by the Crown as coming into play in this case.  The first is that the crime of murder was committed in the course of carrying out, or committing, another serious offence and there really cannot be any argument about that.   The offence that  you  were  committing was serious, very serious.  The murder was committed whilst you were carrying out, or committing, that other offence.  So quite clearly, as your counsel realistically acknowledges, that section is in play.

[58]     The second section that the Crown says I should rely upon is that the Court must impose a minimum term of not less than 17 years in circumstances where the killing is particularly brutal or callous, and I accept that there are aspects of callousness in the killing that you perpetrated.

[59]     I  say  that  because  you  had  a  loaded  firearm.    You  had  it  pointed  at  a defenceless person going about his business.  For no reason that I can see you pulled the trigger.

[60]     At your trial, you ran your defence on the basis that this was something that happened in the heat of the moment and the tension of the robbery, that effectively the pulling of the trigger was a reflexive or instinctive reaction.

[61]     The jury did not accept that, by virtue of their verdict.  In sentencing you, I take the view that I cannot be satisfied beyond reasonable doubt that you intended to kill Mr Singh, that is, that you intended to bring about his death.  But the Crown ran its case on two other bases and, in my view, the jury really had no option but to come to the conclusion that one, if not both, of those was proved.  The first was that when you pulled the trigger you intended to cause Mr Singh injury that you knew was likely to lead to his death but you carried on regardless.   Anybody, Mr Chan Kee, who pulls the trigger of a loaded gun that is just a short distance away when it is pointed at the chest of another person must intend to cause an injury and also must know, in my view, that that injury is likely to cause death.  I do not see how the jury could have avoided reaching that conclusion.

[62]     Thirdly, the Crown advanced its case on the footing that you were intending to cause serious harm to Mr Singh whilst committing a serious offence, namely an armed robbery.  Again, really there could be no defence to that charge and the jury was virtually duty bound to find that that had been proved.  So I take the gravity of your actions to be a reckless killing or a killing that occurred whilst you were trying to cause serious bodily harm in committing a robbery.

[63]     As I have said, I accept that there are aspects of callousness about your conduct.  I am not sure that, on their own, they would have been sufficient to attract the 17-year minimum term or at least the full 17-year minimum term.   I have no doubt, though, that your offending falls squarely within the type of conduct that Parliament intended to capture when it enacted s 104 of the Act.  Parliament clearly took   the   view   that   in   circumstances   where   murder   was   committed   -   not manslaughter, murder - in the course of committing another serious offence, then the

offender should serve a very long sentence of imprisonment before being allowed to apply for parole.

[64]     That  is  demonstrated  by  two  things.    First,  the  Court  must  impose  that minimum term.  It is not a question of the Court, if it thinks just to do so, imposing the minimum term.  The Court has a statutory obligation to impose it.

[65]     Secondly, the only way in which the Court can shrink from and not impose that term is if it is satisfied that there has been some form of manifest injustice.  Not injustice.  Not serious injustice.  But manifest injustice will ensue if the minimum term is imposed.

[66]     As  I  have  said,  I  have  no  doubt  that  this  type  of  offending,  with  the aggravating factors that I have already referred to, falls squarely within the type of case that Parliament intended this section to apply to.  That fact is also shown by the other cases to which counsel have referred to me, including particularly:  R v Lawrie HC Auckland CRI-2004-004-12509 22 August 2006 and R v Churchward HC Tauranga  CRI-2008-270-361  18  December  2009.    They  show  that  in  cases  of robbery using a weapon where a person is murdered, the courts have indeed imposed a 17 year minimum subject only in some cases to a small reduction to reflect a guilty plea.

[67]     The courts have not said that manifest injustice occurs when there is a very young offender, even an extremely young offender:  R v Rapira (2003) 20 CRNZ

396 (CA).  The Court of Appeal has also said that the reasons that the Judge relies upon to impose less than the 17 year minimum term must be demonstrable.  They must be able to be easily articulated so that the public at large can understand why Parliament’s intention that a 17-year minimum term be imposed is not being applied.

[68]     In this case, your counsel has submitted that you are not a thoroughly bad person, that you have many positive qualities, that you have support from family and friends and that this can be viewed as an impulsive action committed under the influence of alcohol.  Well, I have to say, Mr Chan Kee, I do not consider that that brings you anywhere near showing that a manifest injustice will occur if a 17-year

minimum term is not imposed.  As I have said, the circumstances of this offending make it clear that that is the appropriate length of minimum term.  I am also required, though, to look at your personal characteristics.

[69]     The Crown  has properly brought my attention to the  fact  that  you  have previous notations, or a previous notation, for violence in the Youth Court.  That was in 2003 when you were required to serve a term in a youth institution, but it is quite clear that that was an incident involving reasonably serious violence.

[70]     Of importance in this context, too, is the fact that you have pleaded guilty to the  second  charge  of  aggravated  robbery.    The  circumstances  surrounding  that charge are really somewhat unclear, and they only emerge from your interview with the police.  In short, a few days before this incident you were observed with the same firearm, observed with bullets and you went out to a tinnie house intending to rob the occupants of the tinnie house of property, including drugs.  You went there at night. You went into their house.  They ran away and you stole cannabis.

[71]     Now  the  minimum  term  that  I  am  imposing  today  does  not  take  that offending into account, but what it does demonstrate is that it is not open to you to say “this was a one-off event” or “It was something that happened on that night and I would never ordinarily have contemplated that kind of behaviour”.  What it shows is that, as at 7 June 2008, you were at a stage in your life where you believed that the ownership and use of that weapon gave you a licence to go and get property from other people if you wanted to do so.  I have to say that that factor overrides, in my view, any of the positive aspects of your character that had been shown to exist.

[72]     For that reason I have been brought inevitably to the conclusion that I have no option but to impose a 17-year minimum term.  You cannot, and do not, satisfy me that this is an appropriate case to go below the statutory minimum.

Starting point - Aggravated robbery

[73]     I turn now to consider the charges of aggravated robbery.  It is necessary for me, first, to select starting points for the sentences to be imposed on each of the prisoners.   The starting point means the sentence that would be imposed after a defended hearing, having regard to the factors related to the offence but not the factors that are personal to the offender.

[74]     In order to do that, I have to select a starting point in relation to Mr Chan Kee even  though,  realistically,  the  sentence  that  I impose  on  him  will  be  academic because of the sentence to be imposed on the charge of murder.

[75]     As I have said, Mr Chan Kee, you face two charges and have pleaded guilty to them.  The first relates to the aggravated robbery of the Riverton liquor store and the second relates to the robbery of the tinnie house to which I have just referred.

[76]     All counsel agree that the leading Court of Appeal authority in relation to sentences to be imposed on sentences of aggravated robbery is that of R v Mako.  In that case the Court of Appeal described various factual scenarios that would attract starting points of varying lengths and those present in Court today will have heard the submissions of counsel based on where they contend the various starting points should be.

[77]     The  Crown  submits  that  the  starting  point,  so  far  as  Mr  Chan  Kee  is concerned, should be at least eight to ten years imprisonment and preferably in the upper range of that.  It contends, also, that there must be a degree of uplift to reflect the robbery of the tinnie house a few days earlier.  The Crown also accepts, though, that issues of totality arise.  That means that I should not impose an overall sentence that is too long having regard to the circumstances of both sets of offending.

[78]     For all the reasons that I have outlined, Mr Chan Kee, I take the view that this was very serious offending of its type.  From your perspective it involved the use of a loaded firearm.   It involved the brandishing of it for an extended period at the people in the shop.  It involved, in your case, the instigation of the offence because I

am satisfied that if it was not for you, none of the other prisoners would be in the dock today.  You alone, coupled with alcohol and bowing to peer pressure, were the cause of the offending.

[79]     You had the assistance of people who were in disguises.  You acted in a way that terrified the shopkeepers for a considerable period.  You stole cash and liquor and then drank what you stole and then divided up the cash.  Taking into account the aggravating factors that I have listed earlier, and there is no need to repeat them here, I am satisfied that the appropriate starting point for you in relation to the Riverton robbery is one of nine and a half years imprisonment.

[80]     I must factor into the sentence to be imposed on you a sentence in respect of the other aggravated robbery.  It involved elements of home invasion at night, again the use of a firearm that was probably loaded, and the theft of property.  Standing alone, it would attract a sentence of five to six years imprisonment I have no doubt in terms of the principles set out in Mako.   I need to take into account, though, the overall sentence that I impose.   I consider that the overall culpability of your offending would be met by an overall sentence of 12 and a half years imprisonment. That would add three years for the earlier offending.

[81]     It does not really matter, in this case, whether they are treated or concurrent or cumulative sentences.  In the end result I propose to impose a lead sentence on the charge relating to the Riverton robbery because, in some senses, this can be seen as an ongoing course of conduct by you although, of course, the two robberies were separate in time and place.  Importantly, totality is the principle to be observed and I believe that that is reflected in the sentence of nine and a half years increased to 12 and a half years to take account of the earlier robbery.

[82]     The Crown accepts, however, that you must receive a discount for your guilty pleas.  It accepts that you entered these in relation to the Riverton robbery in April last year and in relation to the Secretariat robbery in August last year.   For that reason it submits that you should be entitled to a discount of 20 per cent for the Riverton offending and 15 per cent for the Secretariat Place, that is the tinnie house, offending.  I propose to reduce the starting point that I have selected by two and a

half years to reflect those facts, leaving an effective sentence of ten years imprisonment on the two charges of robbery.

[83]     Had it been necessary to do so, and it is not given the minimum term I have already imposed, I would have imposed a minimum term of imprisonment on that charge of 50 per cent.  It would be more than that but for your guilty pleas.

Myron Felise and Jason Naseri

[84]     I turn now to consider the starting points to be imposed in relation to Myron Felise and Jason Naseri.  I propose to treat them in the same way in terms of starting point.  I consider that their culpability is roughly the same.  Both of them elected to become part of the plan back at the house at Giani Court.  Both of them elected to disguise themselves and go to the robbery in a vehicle with a person they knew was carrying a firearm.  They went into the store immediately after Anitelea Chan Kee had held up the storekeepers at gun point.  They then proceeded to help themselves to liquor from the store knowing that any resistance to their actions was being met by Mr Chan Kee brandishing his gun.  Then, after they heard the shot, they came back and, as I have said, took more liquor and in the case of Mr Felise, took the gun. They then left the scene and divided up the money before going back to Giani Court where they proceeded to consume the liquor.

[85]     I accept, particularly in relation to Myron Felise, that he may not have been particularly keen about the firearm going on the robbery.  There is evidence to that effect that he remonstrated with Anitelea Chan Kee before they left.   In the end, however, he elected to travel to that robbery knowing, in my view, that Mr Chan Kee had the gun with him.   He therefore elected to assist in creating the risk that an armed robbery using a firearm created.

[86]     I take the view that the starting point in relation to Myron Felise and Jason Naseri should be one of eight years imprisonment.   I record that the Crown submission was that the starting point should be between eight and ten years imprisonment.  Counsel for Myron Felise and Jason Naseri have submitted that the Court should not go beyond seven years imprisonment.

[87]     I leave, at this stage, the issue of mitigating factors that will operate to reduce the sentences imposed on Myron Felise and Jason Naseri.

Tino Felise

[88]     Tino Felise, as I have said, was the driver of the vehicle.  He therefore drove to the robbery with a person sitting a few feet away with a firearm.  He knew what was going to happen.  He knew that an armed robbery was about to take place.  His actions in driving to the robbery and waiting outside provided comfort to those going into the store because they knew that a ready means of escape was at hand.  He had full knowledge, I am satisfied, of what was about to occur even though he said virtually nothing to the police.

[89]     Mr Tino Felise’s counsel submits that a starting point of no more than five to six years imprisonment is warranted.  I take the view that his culpability is less than that of the people who actually went into the store and created the risk that the robbery posed.  I consider that an appropriate starting point for Tino Felise is one of six and a half years imprisonment.

[90]     Eti Filoa drove the second vehicle to the scene.  He parked down the road, on the other side of the road, and away from the other vehicle.   He knew what was going to happen.  His defence was really run on the basis that the plan was to use Walter’s car and that he did not really want Walter’s car to be used because it belonged to Walter’s family and he wanted to protect Walter.  For that reason, he drove the vehicle.

[91]     Well all that can be said about that, Mr Filoa, is that you were 23 years of age.   If you wanted to protect Walter, the way to do it was to get him out of that address, to get in that four wheel drive vehicle and to drive away.  That is how you could have looked after Walter.  Instead, you voluntarily elected to drive a vehicle knowing that you were to perform some sort of function, whether it be lookout or second getaway vehicle.  The jury’s verdict makes it plain that you were part of the plan and I have no option but to sentence you on that basis.  I accept, however, that

your culpability is less than that of the people who actually went into the liquor store and created the risk.

[92]     I take the view that an appropriate starting point in your case is one of five years imprisonment.

[93]     Walter McCarthy was aged just 17 at the time of this offending.   He, too, went along as the jury found, knowing and intending to provide assistance to the robbers.  It can be argued that his culpability was less than the others because he did not have an actual role to play, other than perhaps to be a lookout.   He was not driving the vehicle.   Nevertheless, he had made his parents’ vehicle available and allowed Eti Filoa to drive it there in the knowledge of what was to happen.

[94]     I accept that Mr McCarthy’s culpability is lower than anybody else’s.   He was drunk at the time.  That does not excuse his actions but it may explain a flawed decision.  Having said that, the overall impression I gained was that by the time they left to go to the robbery, Mr McCarthy was a willing participant.

[95]     I consider that an appropriate starting point for Mr McCarthy is one of four years imprisonment.

Aggravating factors

[96]     I now need to consider whether there are any aggravating factors personal to the prisoners that operate to increase the starting point.  The Crown does not suggest that there are any, although there are some previous convictions.  There is nothing that would warrant increasing the starting points that I have selected.

Mitigating factors

[97]     I therefore need to turn to consider mitigating factors that operate to reduce the sentences that I have selected.

Myron Felise

[98]     I begin by considering the position of Myron Felise.  He appears today at the age of 22 years.   Like most, if not all, of the prisoners, the material that I have received makes it clear that he had a good relationship with his family, attended Church regularly, left school at 15 to begin working and held down a job in the building industry.  He has a 15 month old son from a previous relationship.  He does not appear to have a significant drinking problem, although he said to the probation officer that he drank three to four times a week.  He did accept that he was severely intoxicated on this night.

[99]     I consider a telling phrase is that read out to the Court this morning by his counsel because to me it encapsulates what happened here with tragic consequences. “I was drunk, young, stupid and not thinking straight as I didn’t want to back down from the other guys”.  That really says it all.  Young, drunk, perhaps stupid because of being drunk but importantly, not wanting to back down from the other guys and that is such a telling observation.  I acknowledge that he has attended rehabilitation programmes whilst in custody and he has absolutely no previous convictions.

[100]   The  Crown  has  suggested  that  I  should  not  give  recognition  to  lack  of previous convictions or good character.   I take a different view.   I consider that a person is entitled to rely on previous good character, at least on the first occasion on which he or she appears before the courts.

[101]   I  take  the  view  that  Mr  Felise’s  exemplary  previous  record  warrants  a reduction of eight months and that he should also receive a reduction of four months in relation to the remorse that he has shown.  Remorse is a difficult area because, for the victims, it has not come soon enough and I understand that.   Often, however, particularly when people are defending serious criminal charges, it is very difficult to begin writing letters to the victim’s family because they can be construed the wrong way.

[102]   I accept Mr Raftery’s submission for the Crown when he said that remorse tendered late is better than no remorse at all.   And I propose to give you some

allowance, albeit limited, for that.  So I propose to deduct a year from the starting point that I have selected to reflect those factors.

[103]   The Crown also accepts that Myron Felise is entitled to credit for the guilty plea that he entered, albeit that this was not at an early stage.  Counsel for Mr Felise puts it to me that I should give full credit for this because the charge was never going to go to trial.  The leading authority now in relation to guilty pleas is a decision of the Court of Appeal called R v Hessell [2009] NZCA 450, which makes it clear that a sliding scale of discount operates for people who plead guilty. It starts at 33 per cent discount if the plea is entered at the very earliest opportunity. It gradually reduces until a plea of guilty entered on the day of the trial attracts just ten per cent.

[104]   Here, the depositions were completed in January 2009 and the committal for trial occurred at that point.  The first callover in this Court was in March 2009.  Mr Chan Kee pleaded guilty in April 2009.   I appreciate that there may have been reasons why Mr Felise did not enter pleas to the charge of aggravated robbery, but really there could have been no defence to that charge given what he said to the police and given his actions as captured by the video.

[105]   I therefore propose to apply a factor of 15 per cent and deduct one year from Mr Felise’s sentence to reflect the fact that he entered a guilty plea on the 9th December 2009 when the trial was due to commence on 3 February 2010.

[106]   I leave, until I have dealt with Jason Naseri, the issue of minimum term of imprisonment.

Jason Naseri

[107]   Jason Naseri was aged 19 at the time of the incident.  He entered his guilty plea on 11 November 2009, just before Mr Felise entered his guilty plea.  Counsel for Mr Naseri submits that there are a number of factors that should operate to reduce the sentence that I impose on him.  First he refers to remorse and I accept that.

[108]   Secondly, he points to Mr Naseri’s age but I take the view that Mr Naseri, at

19 years of age, knew what he was doing.  I decline to give him any credit for that.  I consider that he took a full part in what was happening and that he should be treated as an adult.

[109]   Counsel for Mr Naseri submits that Mr Naseri should receive a credit because he has no previous relevant convictions.   The use of the word “relevant” there is significant.  Mr Naseri does have previous convictions but, I accept, not for violence. So he is entitled to some credit but I do not consider that it would be appropriate to give him the same discount as a person who comes to this Court with a completely unblemished record.   I propose to give him a further discount of four months to reflect that fact, leaving a discount of eight months before taking into account guilty pleas.

[110]   I propose to adopt the same formula in relation to Mr Naseri for his guilty plea as I did for Mr Felise.  A month really is neither here nor there when it is that close to trial.  I propose to adopt a reduction factor of approximately 15 per cent and to reduce the sentence by a year.  This means that the end sentence for Jason Naseri would be six years four months.

Minimum term of imprisonmnet

[111]   One of the difficult issues in relation to Myron Felise and Jason Naseri is whether or not the Court should impose a minimum term of imprisonment.   The Crown submits that that is appropriate because of the serious nature of their offending.  It submits that issues of deterrence and denunciation cannot properly be recognised unless a minimum term of imprisonment is imposed.

[112]   The Court is given the power under s 86 of the Sentencing Act to impose a minimum term where it considers it appropriate to do so in certain circumstances. Ordinarily if a sentence of two years imprisonment or more is imposed, an offender is eligible to apply for parole after serving one-third of his or her sentence.   That does not mean that an offender is paroled after serving that.   It means that the offender is eligible to apply for parole.  Again, it is the parole authorities who make

the decision ultimately as to whether or not the offender should be released, again according to statutory criteria.

[113]   In some situations the Court can require an offender to serve more than one- third before being eligible to apply for parole.  The Court can order an offender to serve up to two-thirds of his or her sentence before being so eligible.  The Court can do that when it is satisfied that the normal parole period would not be appropriate having regard to the need to denounce the conduct in which the offender was engaged, to hold the offender accountable for what he or she has done and to satisfy issues relating to deterrence.  The Court can also impose a minimum term where the protection of the community requires it but, quite properly in my view, the Crown does not suggest that the community needs to be protected from you in the future.

[114]   Your counsel say that a minimum term is not required.  They submit that the sentences that the Court will impose upon you are sufficient to recognise all of the principles set out in the Sentencing Act and that it should be left to the parole authorities to determine just when you are released.

[115]   I accept the submissions of the Crown on this point.  Ordinarily, you would be  eligible  to  apply  for  parole  after  serving  approximately  two  years  of  your sentence.  The serious nature of this robbery, and the issues of deterrence to which I have referred, persuade me that a minimum term of imprisonment is required.  I do not think that, if you were eligible to apply for parole after serving just one-third of your sentence, it would be seen as acceptable to the community in terms of the principle relied on by the Crown in R v Gordon [2009] NZCA 145 where the Court of Appeal said:

[15]      The legislative purpose underpinning s 86 was extensively discussed by this Court in Brown.   The effect of the section is to enable sentencing Judges to over-ride those provisions in the Parole Act 2002 requiring that all offenders be eligible for parole after serving one-third of the sentence imposed; where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, the Court may confer a degree of reality on the sentence and the overall outcome by imposing a minimum period of imprisonment.

[116]   Had it not been for your guilty pleas, I would have selected a proportion of

55 to 60 per cent.  The Crown quite properly, taking into account the guilty pleas,

submits that a minimum term of imprisonment of around 50 per cent is appropriate. I agree.  I therefore propose to make an order under s 86 that you each serve one-half of the sentences that I impose upon you before being eligible to apply for parole.

Tino Felise

[117]   Tino Felise, you, too, were just 17 years of age when you committed this offence.  I think that that disparity in your age when compared to other offenders is significant and I see it in several ways.   It is clear to me from reading all of the material that you may well have been influenced by others older than you into the decision  that  you  made.    You  said  to  the  probation  officer  that  your  brother effectively encouraged you to become involved and to drive the car.  I see lack of insight in you, both at the time, and even now and I put that down to your age.  I think that if you had been a couple of years older you would never have got involved in this type of offending.

[118]   The Court is required by the Sentencing Act to take into account the age of offenders.  I am not prepared to do that here, as I said for people who are 19, because I take them to be adults who are responsible for their own decisions.   But I do consider that I must make an allowance for a person of 17 years of age who had an elder sibling there who may have had some influence on him.  It may also, in my view,  have distorted  the ability to  have insight  into  the true seriousness  of  the offending.  I propose to reduce the sentence by six months to reflect that fact.

[119]   Like Myron Felise, you have absolutely no convictions.  You are entitled to credit for that and for your good character.  You also have expressed your remorse in several different ways.  I propose to allow, in total, taking into account all of those factors, one and a half years to allow for those factors.  So the end sentence for you, Tino Felise, will be five years imprisonment.

Eti Filoa

[120]   Eti Filoa, your counsel submits that I should sentence you to home detention. That is from a starting point of five  years imprisonment.   Before I could even

contemplate a sentence of home detention, I would need to be able to reduce your end sentence down to one of two years or less so that the jurisdiction to impose a sentence of home detention exists.  I have to say that I simply cannot do that, even if I wished to do so.

[121]   You have expressed remorse and you are entitled to credit for that.  You, too, have previous convictions but none for violent offending so I will give you some limited credit for that.  In total, I propose to give you credit of eight months thereby leaving an end sentence of four years four months.

Walter McCarthy

[122]   Walter McCarthy, you, too, were 17 years of age at the time of the offending and, for the same reasons as I have just expressed in relation to Tino Felise, I have to take your age into account.   I am also satisfied that to some extent you may well have been guided by Eti Filoa, who is obviously very close to you.

[123]   Your counsel urges on me a sentence of home detention, because he submits that there are numerous factors that I can take into account on your behalf.   I am prepared, as with Tino Felise, to take your age and immaturity into account and give you a discount of six months for that together with remorse which you have expressed, as with the others.  You, too, have no previous convictions whatsoever and you are entitled to full credit for that.

[124]   For that reason I propose to reduce the sentence that I impose on you by 18 months to reflect that fact.   This leaves an end sentence of two years six months imprisonment.  This means that a sentence of home detention cannot be considered.

[125]   I want to say, however, that even if I had been able to, in accordance with sentencing principles, reduce your sentence to two years, I would not have imposed home detention here.   I accept that there are  many features about  you that are favourable, in particular your age and your previous good record.  You also have a very supportive family, as do many of the other prisoners, if not all.  But the simple fact  remains  that  this  was  very  serious  offending.    I  do  not  consider  that  the

principles and purposes of sentencing would, in this case, have been served by a sentence of home detention even if that sentence had been available to me.

Sentences

[126] Anitelea Chan Kee, on the charge of murder you are sentenced to life imprisonment and ordered under s 104 of the Sentencing Act to serve a minimum term of 17 years imprisonment.

[127]   On the charge of aggravated robbery relating to the Riverton Road liquor store you are sentenced to ten years imprisonment.   That sentence is to be served concurrently with the life sentence.

[128]   On the other charge of aggravated robbery relating to Secretariat Place you are  sentenced  to  three  years  imprisonment.     That  sentence  will  be  served concurrently with all other sentences.

[129]   Myron Felise, you are sentenced to six years imprisonment and ordered to serve a minimum term of imprisonment of three years.

[130]   Jason Naseri, you are sentenced six years four months imprisonment and ordered to serve a minimum period of three years two months imprisonment.

[131]   Tino Felise, you are sentenced to five years imprisonment.

[132]   Eti Filoa, you are sentenced to four years four months imprisonment.

[133]   Walter McCarthy, you are sentenced to two years six months imprisonment. [134]   I remind the media that there are existing suppression issues in relation to

Tino Felise in relation to a matter before the Court that was referred to in Crown submissions.

Lang J

Solicitors:

Crown Solicitor, Auckland

Mr J Down, Auckland Ms L Hughes, Auckland Mr P Borich, Auckland Ms C Bennett, Auckland Mr G Newell, Auckland

Mr R Earwaker, Auckland

Mr B Hart, Auckland Ms B Sellars, Auckland Mrs L Freyer, Auckland Mr Q Duff, Auckland

Mr R Mansfield, Auckland
Mr K Brosnahan, Auckland