R v Kinghazel

[2018] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-8415

[2018] NZHC 1937

THE QUEEN

v

POUNAMU KINGHAZEL

Hearing:

31 July 2018

Appearances:

H Benson-Pope for Crown

C B Hirschfeld for Defendant

Judgment:

31 July 2018

SENTENCING REMARKS OF LANG J

R v KINGHAZEL [2018] NZHC 1937 [31 July 2018]

[1]    Mr Kinghazel, you appear for sentence today having pleaded guilty to a charge of aggravated robbery. The maximum sentence for that charge is 14 years imprisonment. You are to be sentenced on the basis of a summary of facts prepared prior to sentencing today. I proceed on the basis that you accept as correct the statements made in the summary.

The charges

[2]    The summary records that you became involved with a group of people who were carrying out burglaries of persons in the Indian community. The ringleader of the group carrying out the burglaries was a Mr Dhillon. He engaged a Mr Nuku as the lead perpetrator of incidents in which a group of people would enter private dwellings and steal property by force from the occupants. Fortunately, you only became involved in one of these incidents. Other offenders within the group became involved in several and, for that reason, the sentences imposed on them have been significantly greater than the sentence you will receive.

[3]    Your offending relates to a single incident that occurred on 28 June 2017. At about 8.40 pm on that date you were one of four persons, including Mr Nuku, who arrived at an address in Franklin Avenue, Papatoetoe. When the group arrived, they asked for one of the occupants of the address. They then confronted this person and Mr Nuku presented a knife at him and demanded that he pay the sum of $20,000.

[4]    It transpired that there were no fewer than ten people at the address that night. They were directed into the lounge of the address and your task was to stand guard over them. Whilst you were doing this Mr Nuku took Mr Singh into another room and demanded money again at knifepoint.

[5]    Whilst you remained guarding the occupants of the address your co-defendants began searching the rooms belonging to the occupants and stealing items from them. These included laptops, tablets and cellphones. The intruders also stole bank cards belonging to the occupants of the address and instructed them to write down pin numbers and passwords for their cards. They also stole a set of car keys from one of the occupants of the address. You later received items from the robbery by way of payment for your contribution to it.

[6]    The victims of the offending have filed measured, but thoughtful, victim impact statements. Not surprisingly this was an extremely frightening incident for them. They were terrified at being held captive and seeing one of their number held at knifepoint. They are now extremely nervous when they are in their homes at night. Burglaries such as this strike fear into the hearts of residential occupiers.

Starting point

[7]    The starting point for the sentence to be imposed on you is informed to a large extent by starting points selected in respect of Mr Dhillon and Mr Nuku. When I sentenced Mr Dhillon, I selected a starting point of eight years imprisonment on the charge relating to the aggravated robbery of the Franklin Road address.1 This reflected the lead guideline  judgment  in  this  area,  a  decision  of  our  Court  of Appeal  in R v Mako.2 I took that offending as being the most serious single offence Mr Dhillon had committed. Although Mr Dhillon organised the offence, he was not present when it was committed.

[8]    The Judge who sentenced Mr Nuku took a starting point of eight years six months imprisonment.3 This reflected the fact that he was present during the robbery and used a weapon to extort property from the occupants.

[9]    I consider your offending is at a lesser level than that of both Mr Dhillon and Mr Nuku. You were not a mastermind of the robbery. Rather, you were a foot soldier tasked with keeping control of the occupants of the address. In doing that you did not use a weapon, but your presence nevertheless was an unspoken threat to the occupants that they should obey your commands and remain where they were.

[10]   The Crown submits I should select a starting point of eight years imprisonment. Your counsel submits a starting point of between seven and eight years imprisonment is appropriate. I consider the Crown is too high in its submission. I select a starting point of seven years six months imprisonment to reflect the aggravating factors of your

1      R v Dhillon (Sentence Indication) [2018] NZHC 471.

2      R v Mako [2000] 2 NZLR 170.

3      R v Nuku (Sentence Indication) [2018] NZHC 689 at [19].

offending. These included the intrusion of a private dwelling at night by a group of persons, the use of weapons and the theft of items using violence.

Aggravating factors

[11]   You have a number of previous convictions. Many of these, however, are of no relevance in the present case. Many of them relate to the breach of Court orders and sentences. You do have some convictions for offending involving violence, the most serious of which was a conviction for injuring with intent to injure in 2015. You were sentenced to one year eight months imprisonment on that charge.

[12]   I consider your convictions for offending involving violence to be material in the present case. The Crown submits you should receive an uplift of two months to reflect that factor. I consider that to be too low, because you have been prepared in the past to burgle premises and you have also been prepared to inflict violence on others. I consider an uplift of four months is proportionate to reflect that factor.

[13]   This produces a sentence of seven years ten months imprisonment before taking into account mitigating factors.

Mitigating factors

[14]   You have expressed your remorse to the person who prepared the pre-sentence report. You have also provided me with a letter today apologising for your actions and expressing your determination to tread a different path in the future. In addition, you have offered to undertake a restorative justice process although, not surprisingly, the victims of your offending had no interest in that. I agree that these factors warrant a discrete discount and I propose to reduce your sentence by five months to reflect them. This produces a sentence of seven years five months imprisonment before taking into account your guilty plea.

[15]   Your guilty plea was obviously not entered at the earliest opportunity because the charge has been before the Court for some time. Nevertheless the Crown accepts disclosure has been ongoing and that you indicated a desire to enter a guilty plea some time ago. For that reason the Crown accepts you are entitled to a full discount of

25 per cent. By my calculations this is a discount of one year ten months, resulting in a sentence of five years seven months imprisonment.

Sentence

[16]   Mr Kinghazel, on the charge of aggravated robbery you are sentenced to five years seven months imprisonment.

Minimum term of imprisonment

[17]   Mr Nuku and Mr Dhillon were ordered to serve minimum terms of imprisonment before being eligible to apply for parole. You face a single charge, however, and I agree with the Crown that it would not be appropriate in your case to order a minimum term of imprisonment.

[18]   Can I say in closing that I hope that you make good on your promise to change your path in the future. I am not encouraged, I have to say, by the fact that whilst you were on bail for these offences I see that you were charged with other offences involving family violence that are yet to be determined. Your willingness to change has obviously got some way to go, Mr Kinghazel.

[19]Stand down.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau

C B Hirschfeld, Barrister, Auckland