R v Keen

[2015] NZHC 3066

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2015-076-000171 [2015] NZHC 3066

THE QUEEN

v

DIONYSIA PEARL DAMARA KEEN

Hearing:	4 December 2015
Appearances:	M A Beattie for the Crown D I Brown for the Respondent
Judgment:	4 December 2015

SENTENCING NOTES OF NATION J

[1]      You may remain seated Ms Keen while I go through my remarks.

[2]      I need to say that although you have received a sentence indication, it is important that I explain the basis on which the sentence is ultimately imposed in this forum which is now public.   So, you are going to hear me say a lot of what you already heard from Justice Gendall but it is important that I necessarily go through all those matters.

[3]      Ms Keen, you pleaded guilty to two charges of aggravated robbery.  Robbery involves theft accompanied by violence or threats of violence.  Aggravated robbery involves robbery while armed with a weapon.  The maximum penalty for aggravated

robbery is 14 years’ imprisonment.

R v KEEN [2015] NZHC 3066 [4 December 2015]

[4]      On 18 February this year, you picked up the main offender, James Eddington, from an address in Timaru.  You were using your vehicle.  At approximately 2.18 pm, you sent a text message to another person saying “got anyone I can go rob LOL”.  At around 4.40 pm, you and Mr Eddington parked approximately 25 metres from the Highfield Mall.  Mr Eddington went into the Mall.  You waited in the car. Inside the New Zealand Post Shop there were a number of customers and three staff members.  Mr Eddington partially covered his face with a t-shirt.  He went up to a 15 year old staff member at the counter, pulled a knife from his pants and demanded she hand over money to him. That staff member and another were frightened, ran out the back of the shop and hid.  He demanded money from a third staff member who had approached him showing her his knife.  While she was trying to get some money together, he walked around the shop holding the knife, making five customers in the store kneel down on the floor.  He also demanded the staff member open a safe so she could give him some more money.  She was unable to do so.  Eventually he was handed approximately $2,385 in cash before running from the store.

[5]      When Mr Eddington ran from the store, you were waiting for him in the car. The two of you then drove off.  Later that day, at about 7.00 pm, you drove the car with Mr Eddington to Fairlie.   You parked on the footpath beside the BP service station.  Mr Eddington left the vehicle carrying a .22 calibre rifle.  He ran across the BP forecourt and into the building.   Inside there were two staff members and a customer.   When inside, he pointed the rifle at the customer and told him to get down.  He then pointed the rifle at the staff member and demanded cash. After being handed $260 from the cash register, Mr Eddington demanded money from the safe. When advised there was no safe, he demanded cigarettes.  He eventually received six packets.

[6]      During this time, another customer entered the BP shop.  Mr Eddington met her at the door and showed her the rifle.  She left quickly.  Mr Eddington then left the store, threatening the customer and staff member in the shop again with the rifle. As Mr Eddington crossed the forecourt, another customer pulled up.  He swore at her, walked towards her with the rifle and told her to leave.

[7]      You were waiting in the car for Mr Eddington.  He got into your vehicle, in the passenger seat.  You drove off hurriedly from the scene.  You both dumped the car a short time later and walked off on foot.   You were located on a rural road. When spoken to by the police, you were uncooperative and claimed not to remember what had happened.

[8]      The loaded firearm was found in the car along with 70 rounds of ammunition.

[9]      You have told the probation officer that, when you picked up Mr Eddington, he was carrying a bottle of gin and when he climbed into the car he shoved an acid tablet into your mouth before telling you to drive to the Highfield Mall and where to park.  You claim to have little recall of events due to your being under the influence of acid.  You told the probation officer that Mr Eddington was “pretty wasted”.  You said that Mr Eddington was suicidal and wanted to be shot dead or kill himself or someone else and this was the reason you stayed with him.

[10]     The conduct of you both was so irrational and dangerous, I have no trouble accepting that you were under the influence of drugs during these events.  I do not accept necessarily the explanation you gave the probation officer as to how you came to take acid or as to your reason for being with Mr Eddington.  That is just as well for you.  If he had told you that he wanted to kill someone else and you drove him to the service station at Fairlie, as you did, knowing that he had a rifle and was going to take it into the service station, you would have known that there was a real risk he could use it to shoot someone.

[11]     Mr Eddington has pleaded guilty to eight charges relating to his offending. Because he was the principal offender and in control of what happened within both shops and because he pleaded guilty to a serious charge which you are not facing, the sentence you receive is likely to be significantly different from the sentence he receives.  His charges are currently before the District Court and I am thus able to sentence only you at this point.

[12]     I am sentencing you on the basis that you knew he was intending to use the rifle as a threat to obtain money.

[13]     You have pleaded  guilty to  these two  charges  after receiving a sentence indication from Justice Gendall.   You heard his explanation as to how he would approach sentencing if you pleaded guilty to the charges you faced.  Mr Beattie, for the Crown, has submitted that you should now be sentenced in accordance with that indication. Your counsel, Mr Brown, agrees with this approach.

[14]     As I said, although you heard from Justice Gendall how he would approach sentencing, I need to explain how the sentence which I am actually imposing is arrived at.

[15]     I must first set a starting point for your offending.  The Court of Appeal, in a case called R v Mako, has given guidance as to what that might be and the factors which should influence my assessment.1   I must follow those guidelines.

[16]     This offending involved actual and threatened violence, with the use of a knife in the first instance and a firearm in the second.  With your pleas of guilty, you accept you knew that weapons were going to be used.  The weapons were used to threaten and terrify innocent people who were inside both shops.   Justice Gendall said that the terror they experienced must have been abject and palpable.  I agree. They had good reason to be terrified.  With what was happening and the way Mr Eddington was acting, they were horribly at risk.

[17]     I must have regard to the extent of the loss, damage or harm that resulted from what happened.   The amount of cash stolen and the value of the cigarettes obtained were not great.  Most of it was recovered by the police but the terror and trauma inflicted on the victims in the two shops was severe.

[18]     I have regard to the extent of premeditation or planning in what happened. These robberies were not spur of the moment or opportunistic.  In each instance, you drove to the premises intending to commit a robbery.  The text you sent before you went to the Highfield Mall shows you were thinking of robbery and regarded it as a bit of a joke.   In this regard, the robbery of the BP service station in Fairlie was

particularly serious. You drove Mr Eddington out of town to Fairlie, knowing he had

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

already robbed the New Zealand Post Shop in Timaru.  You knew he had a rifle and ammunition in the car. You waited in the vehicle ready to help him with his escape.

[19]     I must consider whether your involvement in the offending was limited.  I do accept that you were not directly involved with what happened when Mr Eddington was in each shop, just how he threatened particular people with the knife and later with the rifle.   He was very much the principal offender.  You were the get-away driver, enabling him to quickly escape after he had done what he wanted.  But the assistance you provided was significant.   You drove him to the places where the robberies occurred.   You provided him with practical support and encouragement, even to the extent of driving him out of town to Fairlie after you knew he had committed the first robbery.

[20]     Having regard to tariff decision factors, I accept Mr Eddington used an ill- conceived disguise when robbing the New Zealand Post Shop.  The targets in both robberies were busy commercial premises where members of the public were likely to be present.  The actions of Mr Eddington in relation to the people at each address were serious.  As I have already mentioned, in each case the impact on the victims was serious.

[21]     Taking into account all those factors, Justice Gendall said he would adopt a starting point of four years for your offending.  The Crown and your counsel accept that is appropriate.  I am not going to depart from it.

[22]     That starting point is appropriate for both incidents and both charges.   It is therefore appropriate for the totality of your offending.

[23]     I  must  then  adjust  that  starting  point  either  upwards  or  downwards  for mitigating or aggravating features relating to you personally. You have four previous convictions.  In 2010 and March 2014, you received sentences of community work. This  offending  is  significantly  more  serious  and  different  from  your  earlier offending.   I do not take your previous more limited offending into account as an aggravating feature that requires any uplift in the sentence.

[24]     I must consider whether there are any other personal matters which should mitigate the sentence to be imposed.  In this regard, I do acknowledge the remorse you expressed to the probation officer about what you did.  The report writer said you had described your offending as “appalling”, that you recalled sitting in the police cells as you were withdrawing from the drug in your system and feeling sorry for the victims.  You were able to think of a 15 year old victim in the New Zealand Post Shop, someone who had been terrified by your co-offender’s actions.  You were able to relate to her as someone of a similar age to your sister.  You said you were “heart-broken” at what had happened with her.  To the probation officer, you offered to attend a restorative justice conference with the victims in the future if that was possible. The report writer accepted your remorse was apparently genuine.

[25]     Significantly,  you  are  now  approximately  18  weeks  pregnant.    You  are expecting to give birth on 25 April 2016.   You are not in a relationship with the father.  You have a four year old son who is in the care of your mother and step- father.  I note you told the probation officer that you want to live a normal life and you plan to complete a parenting course.  I take it from that that you want to be able to parent the child you are about to have.  Any prison sentence will have a major impact on your ability to do that.   A prison sentence will, however, give you the opportunity to make the changes which are necessary so that you can be a real parent to your children.   You received an indication that a 10 per cent discount on the starting point sentence would be appropriate having regard to your pregnancy.   I consider that remains appropriate, taking into account also the remorse you demonstrated to the probation officer.

[26]     Against a starting point of four years’ imprisonment, you are also entitled to credit for your guilty pleas.  The Supreme Court has again provided guidelines as to what is appropriate.   Both the Crown and your counsel accept that a 20 per cent credit is appropriate in this instance.

[27]     Because your vehicle was used in this offending, the Crown seek an order for the confiscation of that vehicle.  It is not opposed.  Because you drove a vehicle in the course of this offending, you are liable for disqualification.  However, given the

sentence of imprisonment which I have to impose, I do not consider disqualification is appropriate or necessary.

[28]     Ms Keen, you have told the probation officer that you want to be able to lead a normal life, that you know you have to deal with your drug use and you have begun doing so.   You realise the associations you keep put you at risk of serious offending.  This offending has been very serious.   It could have been even worse. You want to make significant changes in your life.  You have said you feel sorry for the victims of your offending.  The best way you can truly demonstrate your remorse is to turn your life around.  Perhaps if you really do make that commitment, there may be an opportunity to reinforce the progress you have made and to provide some consolation  to  your  victims  through  a  restorative  justice  conference  if  they  are willing at some stage in the future to participate in such a meeting and you will be able to demonstrate to them that you have taken advantage of this opportunity to turn your life around.

[29]     Ms Keen, please stand.

[30]     On   the   two   charges   of   aggravated   robbery,   you   are   sentenced   to imprisonment for two years and nine months.  Those sentences are concurrent.  In accordance with section 128 of the Sentencing Act, I make an order that your Subaru Impreza car, registration BTC615, be confiscated.

[31]     Given reparation can be paid from the proceeds from the sale of your vehicle, I make an order that you are to pay reparation of $150 for cash which was taken in the robberies and not recovered by the police.

[32]     Now, Ms Keen, you have been convicted of a particularly serious offence and, as a result of that, I am obliged by law to give what is called a three strikes warning.  It probably sounds a little bit technical but you can talk to Mr Brown as to exactly what it means but there are specific words that I need to read out to you and I will do that now.

[33]     Given your convictions for aggravated robbery, you are now subject to the three strikes law.   I am now going to give you a warning of the consequences of another  serious  violence  conviction.    You  will  also  be  given  a  written  notice outlining these consequences which lists the serious violent offences.   If you are convicted of any serious violent offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.  If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event, the Judge must sentence you to a minimum term of imprisonment.  That is the warning I am required to give you.

[34]     You may now stand down.

Solicitors:

Gresson Dorman & Co., Timaru

D I Brown, Barrister, Christchurch.