R v Kee HC Auckland CRI 2010-404-23

[2010] NZHC 1545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-23

THE QUEEN

v

AMETO CHAN KEE MISIONA TIA

Appearances: C P Merrick for the Crown

A D Couchman for Chan Kee
S Tait for Tia

Sentence:       3 August 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel:

C P Merrick, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

A D Couchman, P O Box 194 Shortland Street, Auckland. Fax: [phone]. Email: [email protected]

S Tait, P O Box 76538, Manukau City 2241. Fax: [phone]. Email: [email protected]

R V  CHAN KEE AND ANOR HC AK CRI-2010-404-23  3 August 2010

Introduction

[1]      Both of you pleaded guilty on 22 March of this year to a charge of being parties to an aggravated robbery under s 235(c) of the Crimes Act 1961.  That Crime carries a maximum penalty of 14 years imprisonment.   You pleaded guilty on the morning of a trial which had been scheduled for you in the High Court.  Your co- offender and the principal offender was Anitilea Chan Kee.  He also pleaded guilty but was dealt with by Lang J on 7 May.  Lang J was sentencing him on a number of charges including the serious charge of murder.

[2]      You were both to have been sentenced by Stevens J approximately six weeks ago.   That sentencing unfortunately could not take place because home detention appendices had not been prepared.   Stevens J also considered the Court would be assisted by the preparation of psychological reports.

Description

[3]      The two of you were parties to an aggravated robbery of a tinnie house.  The offending took place in South Auckland in June 2008.  You were the least culpable of the three offenders involved.  The principal offender was your brother, Mr Chan Kee, Anitilea, who was convicted of a high profile murder which flowed from a second aggravated robbery of a liquor store committed by him and others two days after the robbery in which you were both involved.   The robbery for which I am sentencing you, like the one which occurred two days later, involved the carrying and deployment of a loaded firearm by Anitilea Chan Kee.

[4]      For comparative sentencing purposes I record that Lang J, when sentencing Mr Anitilea Chan Kee on 7 May 2010, regarded a start point for your co-offender in the range of five to six years as appropriate.

[5]      You, Ameto Chen Kee, provided the utility truck which was involved on the evening of the robbery.   You drove it to a social gathering which occurred in a garage  where  cannabis  and  alcohol  were  being  consumed.    You  three  robbers

hatched a plot to rob a tinnie house.  An associate of yours drove you, Mr Tia, to the tinnie house where you bought a single cigarette.  This was clearly a reconnaissance.

[6]      Whilst the plot was being hatched your co-offender, Anitilea Chan Kee, who had concealed a long barrelled .22 calibre rifle in a black plastic bag in the utility truck, brandished the firearm in front of you.  There can be no doubt both of you knew the firearm was to play a part in this robbery.

[7]      Now I accept, Mr Chan Kee, that as far as you were concerned the idea was not yours and you had little option but to go along with your brother’s plan.  I also accept that there is no evidence that you were involved in any significant way in the planning of this aggravated robbery before your brother announced what he wanted to do, brandishing a firearm in the process.

[8]      Between midnight and 1.00 am on 6 June you, Mr Chan Kee, drove the vehicle to the tinnie house.  You Mr Tia, as I have said, having been there before, navigated.   The two of you stayed in the vehicle with its engine running and its headlights on whilst Anitilea went up the driveway with his firearm, and robbed the tinnie house of a quantity of drugs, money, and the jacket.   How much money is involved we do not know.   Probably not much.   Approximately 40 tinnies were involved.  You then returned to the garage and the 40 tinnies were divided up.  The Crown accepts that you did not receive, Mr Chan Kee, any of those tinnies..

[9]      When interviewed by the police you, Mr Chan Kee, admitted your offending. You, Mr Tia, denied it, falsely claiming an alibi.

Personal circumstances

[10]     I need to say something about your personal circumstances which have been extensively recorded in the pre-sentence reports and the psychological reports and also canvassed helpfully by your counsel.

Chan Kee

[11]     You, Mr Chan Kee, are 24 years old.  You were born in Samoa and moved to this country when you were 12.  Samoan is your first language.  There were possibly some interpretation difficulties whilst you were being interviewed by the probation officer.   Your wife assisted in that.   You have three children who are now, I am informed, aged 7 years, 18 months, and 8 months.  It is of some significance that two of those three have been born since the offending.  You dropped out of school early. The pre-sentence report records that your most significant source of income has been from Social Welfare.  You report that you are in good health.  You deny that you have ever consumed drugs.  You have clearly consumed alcohol but have been doing your best in recent times to consume less and to avoid people involved with crime.

[12]     You told the probation officer that on the night of the offending you were not seriously affected by drugs or alcohol and that it was your brother’s idea.   The probation officer notes that you do not appear to appreciate fully the seriousness of your offending.   You have some $11,500 in outstanding fines, mainly for traffic offences.  You do not present as being a violent or aggressive man.  You claim to have had a strong Christian upbringing and a clear sense of the difference between right and wrong which you admit to not having taken aboard on the night of the offending.  You have complied with bail conditions over a long period.  During the period of your bail you have had to cope with the death of your father.   You are highly motivated, so it would seem, to comply with a home detention sentence.

[13]     The pre-sentence report does indicate that because of your lack of insight there is a high risk of re-offending.  That observation, however, has to be tempered by the psychological report which I have read and to which Mr Couchman has referred.   Mr Couchman, as your counsel, observed that there were perhaps difficulties with you processing information.  The psychological report describes you as being inept, polite, lacking in confidence.  It refers to low self-esteem and social isolation.   You also have poor interpersonal and problem solving skills.   The psychological report for its part assesses your risk of re-offending as being low, although does refer to risk factors of criminal attitudes, criminal peers, and substance abuse.

Tia

[14]     I turn now to you Mr Tia.   You are a 27 year old Samoan male.   Your adoptive parents, you say, moved you to New Zealand against your wishes.   You report, when you were a child, incidences of sexual abuse against you.   You left school in the fifth form with no formal qualifications.   You are married with two children.   You said to the probation officer that your life had been saved from spiralling out of control by the intervention of your wife and those children.  You have had some employment and are, so I am told, at the moment employed in a packing firm.   You express some remorse.   You acknowledge alcohol and drug abuse as being key factors in your offending.   You are willing to partake in rehabilitative programmes.   For the last three months, when interviewed by the probation officer in June, you have not smoked cannabis.

[15]     As far as the psychological report is concerned, you referred to some attempt at suicide in December 2008, disturbed sleep, and anger in your sleep is reported. You were assessed by the psychologist as having a low to moderate risk of re- offending.  An alcohol and drug services programme in prison or the community was recommended.

[16]     So far as the previous offending of both of you is concerned you, Mr Chan Kee, significantly have no previous offences for violence.   You have two minor convictions.  One for drink-driving and the other for wilful damage.  Your previous convictions Mr Tia are more serious and in the context of what I have to do today are more  significant.    You  have  five  previous  convictions.    Two  of  these  are  for violence, assault with intent to rob, and threatening to kill.  You were released from a four year prison term imposed on you in May of 2005.  In 2007 I notice you were convicted for breach of those release conditions.

Sentencing Act purposes and principles

[17]     I  need  to  say  something  about  Sentencing  Act  purposes  and  principles although there is no dispute between counsel on this.  In terms of s 7 purposes I need

to hold you accountable, promote a sense of responsibility in you, denounce your conduct, important here, deterrence for what it is worth, and assist in your rehabilitation.

[18]     I cannot, in terms of s 8 principles, ignore the gravity of aggravated robbery as an offence.  I also have to maintain consistency with that of the sentence imposed on your co-offender and impose the least restrictive outcome appropriate in all the circumstances.

Aggravating and mitigating factors

[19]     I turn now to aggravating and mitigating factors, aggravating factors being what makes it worse and mitigating factors, matters for which you can properly be given credit.   I consider these too have been appropriately identified by counsel. Aggravating factors were the presence of violence here and in particular the use of a weapon,  some  degree  of  premeditation,  and  arguably  the  fact  that  there  were multiple offenders, although I give little weight to that in the factual circumstances of this case.

[20]     Aggravating features relating to you, Mr Tia, are your previous convictions, to which I have referred.  I do not identify any aggravating features so far as you Mr Chan Kee are concerned.

[21]     Turning more positively perhaps to mitigating factors there is the late guilty plea of both of you.  There is for you Mr Chan Kee the fact that you are prepared to give evidence against, or sign a statement against your co-offender Mr Tia.   You both had limited involvement in the execution of this robbery.  You are entitled to credit, it seems to me, Mr Chan Kee for your previous non-violent record.  You are both  relatively  young  men  with  family  responsibilities  and  both  of  you  have indicated a desire to participate in rehabilitation programmes.

Submissions

[22]     I have been assisted by counsel’s submissions. Mr Merrick, for the Crown, submitted that a start point between three and four years was appropriate.  He also submitted that even if I were to come down to the level of a short sentence, given the nature of this offending, being an aggravated robbery, that despite your involvement as parties, home detention was not an appropriate sentence.

[23]     Mr Couchman for you Mr Chan Kee, has suggested a start point of between two  and  a  half  and  three  and  a  half  years.    He  has,  however,  made  a  strong submission to me that in weighing mitigating factors I should try to come down to a two year sentence so that a sentence of home imprisonment can follow.   His submission, which has considerable weight, is that you have a strong tight-knit and supportive family; that you are easily led; that you really had little option in this particular situation to go along with your more dominant brother; and that for someone in your situation, being easily led and a follower rather than a leader, keeping you in prison is probably the worst result, whereas keeping you in your family environment is a preferable result.   I have considerable sympathy with that submission put by Mr Couchman very ably, and am perplexed as a result.

[24]     For you, Mr Tia, Mr Tait has made a number of submissions.  He wants me to give you credit for the 22 months you have been on bail.  A term of that bail has been the imposition of a night time curfew with all the attendant irritations of police checks.  Mr Tait has stressed to me that I should give a discount of somewhat more than the R v Hessell[1]  mandated 10% because of confusion as to exactly what the situation was between you and your co-offender and certain cross-overs between the two trials.   In your counsel’s submission a guilty plea could not realistically have been expected much earlier.

[1] R v Hessell [2010] 2 NZLR 298

[25]    Mr Tait has referred to your current employment, your efforts to try to rehabilitate yourself, and your family responsibilities.  Mr Tait, too, urges on me a short sentence with a resulting sentence of home detention.

[26]     Mr Tait also submitted to me that because your victims, who were nameless, were criminals operating a tinnie house, I should treat your offending as less serious than would otherwise be the case.  Certainly I agree with Mr Tait that public reaction to offending against the criminal community may not be as significant or great as public reaction to offending against law abiding citizens.  I am, however, unaware of any authority for the proposition that where victims are criminals sentences should be reduced.  As I said to Mr Tait in argument, certainly that proposition would not apply to the killing of a criminal.   Aggravated robbery, in the usual catalogue of crimes, must be regarded as a serious offence as must any offence involving the deployment of a firearm.

Sentence

[27]     The two of you must now be sentenced and in fixing a start point, which must fairly reflect your individual culpability and the aggravating components of your offence, I have regard to the following factors:

[1]      The start point indicated for the principal offender by Lang J, with which I agree and which no counsel dispute, was in the five to six year range.

[2]      The aggravated robbery involved the use of a loaded firearm which, although neither of you deployed, you both knew about.   There is clear authority for the proposition that courts must regard the presentation of firearms, particularly loaded firearms, as a serious aggravating factor.  This feature sets your offending apart from other aggravated robberies, which sit at the lower and more trivial end of that crime.

[3]      Unlike the principal offender, your respective role in the execution of the robbery was relatively minor.  You did not go on to the premises or  participate  in  the  intimidation  of  your  victims  by  weight  of numbers.  Rather you stayed in the truck, being content to leave the execution of the robbery to your co-offender.  Your culpability is thus

less serious and must result in a start point lower than that indicated by Lang J.

[4]      You  were  both,  however,  involved  in  differing  degrees    in  the planning of the robbery.  You, Mr Tia, engaged in reconnaissance and navigated.   You, Mr Chan Kee, although I accept that you had no significant part to play in the planning, used your vehicle to travel to the tinnie house and to flee from it.  You drove it.

[5]      Because the target of your robbery was a house being used for illegal purposes you were seeking both tinnies and cash.   There is no information about the effect this robbery had on your victims. Although Mr Tait suggested that the robbery carried out on a tinnie house is significantly less culpable than a robbery carried out on a dairy, a home, or a bank, I do not really accept that submission as one which I should factor in.   But certainly the proceeds of your crime were trivial, being in the main 40 tinnies.  Nonetheless, a robbery of a residence, albeit being the site of a tinnie house, where a firearm was deployed is not to be trivialised.

[6]      In terms of the Court of Appeal tariff judgment of R v Mako,[2]  there are some difficulties in identifying with precision some of the Mako aggravating features.   I have already identified some aggravating features.   There was here a degree of premeditation.   And although there were three participants only one took part.   Use of a loaded firearm (Mako at [39]) is a serious feature. I agree with counsel in the main that Mako does not give much assistance here.

[2] R v Mako [2000] 2 NZLR 170

[28]    Counsel, in their written submissions, have referred me to a number of authorities which I have considered but, none being comparable, I do not list them. Weighing all the above factors, particularly the need to keep parity with the indicated

start point for your co-offender, I consider the Crown is correct in urging a start point in the three to four year band.

[29]     Given the adjustments which I intend to make in terms of the R v Taueki[3] methodology, I consider that a three year start point is a fair, and arguably a lenient figure.  I have given some thought as to whether I should use different start points for each of you but in the circumstances I consider that the same start point for both of you is appropriate.

[3] R v Taueki [2005] 3 NZLR 372

[30]     [Stand up please]

[31]     For you Mr Chan Kee, I do not consider there are aggravating factors relating to you which justify an uplift.  For you, however, Mr Tia, the situation is different. You have previous convictions for violence.  Two of these are assault with intent to rob and threatening to kill.  You were released from a four year prison term in May

2005.  There follows a conviction for breach of release conditions.  This past history of violence is of concern.  I consider for you a modest three month uplift, to three years three months is justified.

[32]     I turn now to reductions to reflect appropriately mitigating features.   You both pleaded guilty but, by any stretch of the imagination, this was a late plea entered on the morning of a scheduled High Court jury trial.  In terms of Hessell a discount of more than 10% cannot be justified.

[33]     I note that you, Mr Chan Kee, have no previous convictions of any relevance; that you offered to give evidence against Mr Tia on the morning of the trial which, so Mr Merrick submits, significantly strengthened the Crown case, resulting in Mr Tia pleading guilty.  You lack insight and are weak, but given that you have not been sentenced to prison before, are aged 24, and have three young children, I consider your personal circumstances justify a further modest discount of around seven months.

[34]     For you, Mr Tia, it is difficult to find mitigating factors over and above your guilty plea.  I note, however, the comments contained in the psychological section of the presentence report that you have attempted suicide.  You are clearly an angry and disturbed person.   You lack some insight in denying that you have a violent temperament.  I also give some slight weight to your counsel’s submission that for

22 months  you have been subject to restrictive bail conditions although, in the scheme of bail restrictions, a nightly curfew for a person of your background can hardly be regarded as excessively restrictive.  I consider a further discount of four months is justified in your case.

[35]     Factoring in the 10% discount for the guilty pleas and applying a different additional reduction for each of you for the other mitigating factors I have identified I consider that an appropriate end sentence for you, Mr Chan Kee, is one of two years and one months imprisonment and for you, Mr Tia, one of two years and seven months imprisonment.

[36]     Clearly neither of these sentences can be classified as “short” for Sentencing Act purposes.  The issue of home detention thus does not arise.  Even if I were to have moved to a lower end sentence, given the stern approach which courts must take to offences involving firearms and to aggravated robbery involving a firearm generally, I would not consider home detention an appropriate sentence.  Thus, Mr Chan Kee, you are sentenced to two years and one months imprisonment.  You Mr Tia are sentenced to two years and seven months imprisonment.  I consider those to be lenient sentences in the circumstances.

[37]     I recommend to the prison authorities that you both be given the opportunity to participate in life skills and alcohol and  drug addiction courses.   My strong recommendation to the prison authorities is that you should be involved in those courses sooner rather than later.

[38]     I note also that there has been a past suicide threat by Mr Tia and I direct the prison authorities are to take that risk aboard and monitor it.

[39]     Thank you.  Take them down.

.......................................… Priestley J