R v Lauena
[2018] NZHC 483
•20 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-004882
[2018] NZHC 483
THE QUEEN v
VAI PAIA LAUENA
Hearing: 20 March 2018 Appearances:
H Steele for Crown
P H H Tomlinson for Defendant
Judgment:
20 March 2018
SENTENCING REMARKS OF LANG J
R v LAUENA [2018] NZHC 483 [20 March 2018]
[1] Mr Lauena, you pleaded guilty in the District Court to charges of shoplifting and aggravated robbery. The maximum penalty on the shoplifting charge is three months imprisonment, whilst the maximum penalty on the charge of aggravated robbery is 14 years imprisonment.
[2] Given your previous convictions, the Crown considered you may be a candidate for a sentence of preventive detention. For that reason it submitted, and the Judge in the District Court accepted, that you should be sentenced by the High Court so that preventive detention could be considered.
The facts
[3] The facts that give rise to the two charges are set out in two summaries of fact that you accept. The shoplifting charge was laid after an incident that occurred on the afternoon of 28 April 2017. On that afternoon you entered a store in Albany and went to the area around the till. You waited until staff were distracted by other customers and then removed $150 in bank notes from the till before leaving the store. The offending was detected when the staff noticed cash missing at the end of the day. A review of the CCTV camera footage from the store established that you were responsible for taking the money.
[4] The charge of aggravated robbery relates to an incident that occurred five days later on 3 May 2017. At about 1.10 pm that day you followed a female customer into a bank in Glenfield. You were wearing a white hooded jumper with the hood partially covering your face, and a pair of black sunglasses. You were wearing black gloves and were carrying what appeared to be a black handgun. It is now accepted that this was a toy gun.
[5] Once you got into the bank you leapt over the counter and confronted the tellers on the other side of the counter. You then asked for money and began helping yourself to money from the till drawers. You placed the money in a cloth bag you had brought into the bank. You told one of the bank staff that you wanted the money in the bank safe. She told you that she could not open it herself and would need someone else to open it. At that point you asked to be let out of the bank. The bank officer walked you to the exit and you then left the bank taking approximately $7,200 in cash.
[6] I have read the victim impact statements prepared by the two bank officers whom you confronted on this day. It is clear from their statements that they have been deeply affected by this experience. Not surprisingly, they are now extremely nervous at work and do not trust customers. The ripples from this kind of offending travel a long way because bank officers all over the country become concerned whenever they hear of gunpoint robberies such as this.
Starting point
[7] There is no dispute between counsel regarding the starting point to be adopted on the charge of aggravated robbery. Counsel have referred me to several cases that establish a starting point for this type of offending of around six years imprisonment.1 Counsel agree that a starting point of that order is warranted, and I concur.
Aggravating factors
[8] In addition, it is necessary to increase the starting point to reflect aggravating factors personal to you. The most significant of these is the fact that you have several previous convictions for this type of offending.
[9] In March 2002, you received a sentence of six years imprisonment on six charges of aggravated robbery. You committed those offences between January and August 2001. Then, in September 2009, you were sentenced to three years eight months imprisonment on a charge of aggravated robbery. That offence had been committed on 10 June 2009. In March 2010, you received a cumulative sentence of one year ten months imprisonment on another charge of aggravated robbery. This offence had been committed on 19 May 2009 and therefore predated the offending for which you were sentenced in September 2009. The offending that occurred on both 19 May 2009 and 10 June 2009 involved the same operating procedure as in the present case. In those cases you targeted a post shop and a bank and carried a screwdriver with you as a weapon.
1 Kiwara v R [2012] NZCA 468; Fitekefu v R [2014] NZCA 99; R v Peri [2015] NZHC 3221.
[10] The current offending occurred less than a month after you had been released from serving the sentences of imprisonment imposed on you in 2009 and 2010. This makes the present offending more serious because it shows that the earlier sentences had no deterrent effect on you. For that reason it is necessary to apply an uplift to the starting point I have selected. Counsel agree that an uplift of 12 months is appropriate to reflect that factor. In addition, you were subject to release conditions at the time you committed this offence. That in itself is an aggravating factor, and warrants a further uplift of three months.
[11] It follows that the end starting point, before taking into account mitigating factors, is a sentence of seven years three months imprisonment.
Mitigating factors
[12] You entered your guilty pleas at a case review hearing in the District Court. That was a relatively early stage in the criminal justice process and counsel agree that a discount of 25 per cent is appropriate. I therefore propose to reduce your sentence by one year ten months to reflect your guilty pleas. This produces an end sentence of five years five months imprisonment.
Should a minimum term of imprisonment be imposed?
[13] In any case where the Court imposes a sentence of imprisonment of two years or more, it may order that the offender is to serve a minimum term of imprisonment before being permitted to apply for parole. The Court may take that step when it is satisfied that the usual parole provisions do not adequately reflect sentencing principles of deterrence, denunciation, the need to hold the offender accountable and the need to protect the community.2 In the present case there is no doubt that all four factors are engaged.
[14] In the ordinary course of events you would be eligible for parole after serving just 16 months of your sentence. That would be manifestly inadequate to reflect the sentencing principles to which I have referred. In particular, it would be insufficient
2 Sentencing Act 2002, s 86(2).
to adequately protect the community from further similar offending by you. For that reason I would impose a minimum term of imprisonment of three years four months.
Should a sentence of preventive detention be imposed?
[15] The next issue is whether I should impose the indeterminate sentence of preventive detention. The Court may impose such a sentence when certain criteria have been met and where the Court is satisfied it is likely that the offender will commit a further offence involving serious violence upon release.3
[16] In the present case there is no dispute that you satisfy the criteria in that you were over 18 years of age at the time you committed the latest offence and you have been convicted on previous occasions on charges of aggravated robbery. I am also satisfied it is likely that you will commit another violent offence after your release unless you take active steps to address the causes of your offending. In this context, I consider your history to be highly relevant. In particular, the fact that you were prepared to offend so soon after being released from a lengthy sentence of imprisonment demonstrates that you are prepared to turn to violent offending when the need arises.
[17] I have had the benefit of two comprehensive reports prepared by a clinical psychologist and a psychiatrist. Both reports go through your background history. One of the relevant factors about your history is that you suffer from a form of schizophrenia. At present this is controlled by medication and is in abeyance. The health professionals agree, however, that it may well have played some role in your earlier offending.
[18] Dr Goodwin, the psychiatrist, considers you are at moderate risk of reoffending. I note, however, that he did not have details of your earlier offending available to him so his opinion suffers from that deficiency. The psychologist considers you are at high risk of further violent offending, and I agree with that assessment.
3 Sentencing Act 2002, s 87(2).
[19] You have now demonstrated a pattern of serious offending. You have also committed offences that cause serious harm to the community. In the past you have not shown any particular motivation to address the causes of your offending. I accept, however, the relevance of the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[20] Mr Lauena, your offending falls very much at the margin in terms of a sentence of preventive detention. I have some doubt, as does the psychologist, that the therapy that will be offered to you in prison will be sufficient to stop you from offending again in the future. However, I take on board Dr Goodwin’s observation that you have offended for what he describes as “pro-social” reasons. This means that you have offended in order to meet your own needs after being released from prison with very little to your name. It is clear that the authorities will need to ensure you have a firm support network around you when you are released in the future, or the risk of reoffending will rise greatly.
[21] The Crown accepts it is appropriate for a finite sentence to be imposed rather than a sentence of preventive detention. Its stance is dictated primarily by the fact that you have now expressed a motivation to undertake therapeutic intervention to address your underlying issues. Whether or not you do so is entirely up to you.
[22] In addition, the Crown notes that the Chief Executive of the Department of Corrections has the ability to apply for an extended supervision order upon your release. This may well be what happens.
[23] Having taken those factors into account and, in particular, your professed motivation to undertake rehabilitative efforts, I am satisfied that the imposition of a finite sentence is the appropriate outcome in the present case. You need to be aware, Mr Lauena, that this is probably your last chance. If you are released from prison and reoffend again in a similar way in the future, the Court will be left with very little alternative but to sentence you to preventive detention. In that event you would be required to remain in prison until such time as the authorities believe it will be safe for the community to have you back in its ranks.
Sentence
[24] On the charge of aggravated robbery, you are sentenced to five years five months imprisonment. You are ordered to serve a minimum term of three years four months imprisonment on that charge. You are sentenced to a concurrent sentence of two months imprisonment on the theft charge.
[25]Stand down.
Addendum
[26] After sentencing had concluded, counsel drew to my attention the fact that you have also been committed to this Court for sentence on a charge of burglary.
[27] The summary of facts in relation to that charge reveals that on 25 April 2017 you went to a retail shop in Auckland and asked to view a pair of shoes. The store manager left the shop floor for a short period in order to get the shoes. You took this opportunity to go to an unattended till area and gain access to the till. You reached into the till and removed some cash from it. The store attendant returned at this point and confronted you about what you were doing. You handed the money back and left the store. In total, you attempted to steal about $300.
[28] This offending is very similar to that for which I sentenced you to a concurrent term of two months imprisonment. Counsel agree that no discrete uplift is required to the end sentence I have imposed on you. For that reason I impose a further concurrent sentence of two months imprisonment on the burglary charge.
Lang J
Solicitors:
Crown Solicitor, Auckland
P H H Tomlinson, Barrister, Auckland
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