R v Mark

[2015] NZHC 1225

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-003858 [2015] NZHC 1225

THE QUEEN

v

DARREN JOSEPH MARK

Hearing:	4 June 2015
Appearances:	M J Robb for Crown M N Sturm for Defendant
Judgment:	4 June 2015

SENTENCING NOTES OF ANDREWS J

R v MARK [2015] NZHC 1225 [4 June 2015]

Charges

[1]      Mr Mark, you appear for sentencing today having pleaded guilty on 6 May

2015 on one charge of aggravated robbery, which carries a maximum penalty of 14 years’ imprisonment, and one charge of participation in an organised criminal group, for which the maximum sentence is ten years’ imprisonment.

Relevant facts

[2]      You and a co-offender Mr Watts, who I sentenced earlier this morning, are both associated with the Westside Outlaws gang which is a street gang in Hamilton.

[3]      Shortly before 10 o’clock on the night of 12 April 2014, you and Mr Watts, together with a third offender entered the Frankton TAB.   You were all heavily disguised  and  wearing  gloves.    Mr  Watts  and  the  third  offender  were  armed, Mr Watts with a knife, and the third offender with a rifle.  It was a Saturday evening and, as you have just heard Mr Cunneen say, it was shortly after the end of a Chiefs game.

[4]      At that time, there were two staff members present and there were patrons – members of the public – present.  Mr Watts and the third offender jumped over the counter and demanded that the staff members open the safe.  You remained in the customer area of the building and, while you were unarmed, you detained the patrons there.

[5]      In the back of the shop, the staff area, the manager entered the combination to open the safe while explaining to the Mr Watts and the third offender that the safe would not open immediately because it had a time delay setting.  At this point, the third offender pointed his rifle at the staff members.  When one of them tried to push the gun away, there was a scuffle, the staff member was punched and subdued.  The third offender then held his rifle against the staff member and pulled the trigger, but the rifle did not fire.  Nor did it fire when the third offender pointed the rifle in the air and pulled the trigger.

[6]      In the meantime, Mr Watts stole cash from the counter drawers and also took personal property from the manager. After your group became frustrated at the delay in opening the safe, you all fled through the front door.  The amount taken from the TAB was around $3,200 and, as well, cash and a cellphone, together amounting in value about $1,500, was taken from the manager.  None of the property taken has been recovered.

[7]      This offending was planned by the group by text messages, and it relied on the use of a firearm which had earlier been stolen from a private address.  The text messages reveal planning for other crimes which do not appear to have come to fruition.

Victim impact statements

[8]      I have received two victim impact statements – one from Mr Cunneen, who is the TAB agent in respect of the Frankton and three other local TABs, and the other is from the manager of the TAB in Te Rapa.  You have heard Mr Cunneen speak today and I also heard Mr Cunneen when he spoke in Mr Watts’ sentencing.

[9]      It is absolutely clear, from what Mr Cunneen said, that the offending by you and your co-offenders has had a significant impact, not just on the people involved but also on the entity, the TAB itself.

[10]     As  Mr  Cunneen  described  it,  he  said  the  greatest  harm  really  was  the emotional harm to him and his staff.  He said there are many female staff, they have families with children, and there are students.   They are now concerned for their safety.  They are forever conscious as to whether they can safely work at the TAB. Mr Cunneen also described the long-term effects on himself – he is constantly on edge.   You  heard him  describe  how he had  an  extreme reaction  to  an  entirely innocent touch on his shoulder – that is the sort of thing that this offending causes.

[11]     Then Mr Cunneen said (this was near the end of his statement to you and to me) of all the things that have impacted on him the very worst was seeing his colleague, his friend, a manager of another TAB having a rifle held at his head, and the trigger pulled. That is something that will never leave him.

[12]     Mr Cunneen also talked about the financial impact of this offending.  There has been a significant drop in income at the TAB.  As Mr Cunneen described it, the Frankton TAB had been developed into a place with what I think can properly be described as an important social role.   It had become a welcoming place where people could gather and watch sport and racing on TV, and connect with other people.  That has gone now, because it is known that this is a place where an armed robbery can occur.

[13]     Mr Cunneen was also concerned that there were customers involved.  They were herded together and made to sit, and they were guarded by you.  The TAB has had  to  spend  many  thousands  of  dollars  in  increasing  security  measures  and installing new lighting.

[14]     Mr Cunneen also noted the personal items he had lost, and particularly noted one of great sentimental value to him – a leather hold-all (or bag), a gift from an elderly aunt which had been owned by his older uncle who had recently died.

[15]     As well, Mr Mark, I have read the victim impact statement of the gentleman who was the person who had the rifle held to his head.  He has had his life invaded; he has been threatened at knife and gun point; he has been made to feel helpless in a way that he has never, and hopefully will never ever experience. As a consequence he  says  he  has  become  more  aggressive,  he  has  become  selfish  and  impatient towards other people.  He has become paranoid, he is on edge, and he is on guard as to the possibility that this might happen to him again.  He says he constantly has in his mind a plan of attack and an exit strategy if this was to happen again at any time. As he said, it has become emotionally draining as he thinks of these things on top of all of the responsibilities he stills has at work.   Before the robbery he would only ever think about doing his job well and serving his customers.  That has changed completed since the robbery.

[16]     Mr Mark, we read and hear these victim impact statements so that offenders can understand the consequences of their offending.   These two victim impact statements that I have heard and read today are stark reminders that offending has

consequences that are far beyond even the most horrific consequences at the time.  In this case the consequences of the offending can only be described as serious.

Pre-sentence report

[17]     I turn first to consider the pre-sentence report.  You appear at 28 years old, of Tainui (local) descent.  It appears that you had an unsettled childhood, living at times with various members of your whanau.  You reported to the report-writer that you were mixing with anti-social peers, and left school without gaining qualifications. Notwithstanding that, and as a positive for you, you have had a number of jobs in the building industry, and you have some skill in that area and in carving but you have not obtained any formal qualifications.

[18]     You told the report writer that you have been addicted to alcohol, but you managed to cut this down following completing a rehabilitation programme when you were serving a term of imprisonment.  You said that you are not a core member of the Westside Outlaws, but you associated with that gang as you have family members who are members of that gang.  You said that you had previously been a member of another gang, but have left that.

[19]     You have an extensive history of criminal convictions dating back to July

2004.  Before that there were appearances in the Youth Court dating back to 2002. You have numerous convictions for dishonesty and some for offences of violence. Your most recent conviction was in September 2012, on two charges of burglary and a charge of interfering with a motor vehicle, and in respect of all those charges you were sentenced to cumulative imprisonment for terms of one year ten months, and then one year.

[20]     You told the report writer that your offending was caused by your use of alcohol.  You expressed remorse, and told the writer that (these are your words) “it hurts that on this one night we hurt other people”.  You were assessed as being at a high risk of re-offending, although you said that you are motivated to change so that you can improve your life and that of your partner and children.  The report writer says that there would need to be a major shift in your attitude and lifestyle if you are to reduce your risk of re-offending.

Sentencing process

[21]     The first step when I sentence you is to establish what is referred to as the starting point, that is the sentence which I would impose on the most serious of the charges on which you have been convicted, that is, the charge of aggravated robbery, if you had been convicted after a trial in court.   The second step is to adjust the starting point to arrive at the appropriate sentence for your offending, and for you.  I do this by considering whether there is anything about the offending that would lead me to reduce or increase the starting point.  I also consider matters that relate to you, personally, because these may also lead me to adjust the final sentence.

[22]     When I sentence you I have to take into account the purposes and principles of sentencing.  As to the purposes, I have to hold you accountable – I have to make you responsible for your own offending.  It is your responsibility, not anybody else’s, it is yours alone.   I have to consider deterring you and others, and protecting the community.  I also have to denounce your offending – what this means is that I have to tell you, as plainly as I can, that your offending is simply not acceptable.  At the same time, the purpose of sentencing any offender is to help that offender to get back into the community and to be a useful member of the community.

[23]     In your case the relevant principles of sentencing are the seriousness of the offending and your own responsibility for it, and the seriousness of your offending in comparison with other types of offences.  I consider the information I have as to the effect of your offending on the victims.  I also take into account that it is generally desirable to be consistent in sentencing levels.  Also, I am directed to impose the least restrictive outcome that is appropriate in the circumstances.

[24]     It is generally desirable to keep offenders in the community as far as that is practicable having regard to the type of offending and the safety of the community. In your case, it is accepted that a sentence of imprisonment is inevitable.

Starting point

[25]     In his submissions for the Crown, Mr Robb noted several features which indicate the seriousness of your offending, which is important for setting the starting

point:1     Those  features  were:  the  significant  level  of planning required  for this offending and the fact that there were three offenders, using disguises, and using dangerous weapons.  Mr Robb also noted that the TAB is a commercial premises and it was targeted, it was open to the public and there were members of staff and the public detained during the robbery.  He also referred to the use of threats, and the use of actual violence.  He also noted that none of the money or other items have been recovered, and a significant impact on the victims.  Finally, Mr Robb referred to the fact that this was gang-related offending.

[26]     While Mr Robb accepted that the amount taken during the robbery (in dollar terms) is relatively small, he submitted that this was only because of the time delay safe in the premises.  He submitted that you should not receive any benefit because of that.

[27]     Mr Robb submitted that the starting point should be eight to eight and a half years’ imprisonment both for you and for Mr Watts.  While he acknowledged that each of you played a different role in the offending, he did not seek to distinguish between you and Mr Watts in terms of the starting point.

[28]     On your behalf, Mr Sturm submitted that the offending in your case is less serious than in the cases referred to in Mr Robb’s submissions, and that it does not have  several  of  the  aggravating  features  that  were  present  in  those  cases.    In particular, in his written submissions, Mr Sturm submitted that the planning in your case was less detailed and less serious, as was the amount of money taken.  He also submitted that the risk of members of the public being present during the offending, while ultimately of course there were members of the public there, that risk was lower because of the fact that the attack was just before 10 o’clock at night.

[29]     Mr Sturm highlighted the fact that you were unarmed, although you knew your co-offenders had weapons, and he noted that you were not actually wearing gloves, but had instead placed socks on your hands.  He also pointed to your relative

youth and your apparent nervousness in committing the crime (he was referring to

1      See R v Mako [2000] 2 NZLR 170 (CA); Tukaki v R [2013] NZCA 411; Mata v R [2012] NZCA

593.

one of the witness statements in that respect) to suggest that you were not a primary player in the offending.

[30]     Mr Sturm submitted that the starting point suggested by Mr Robb is too high, and he instead sought a lower starting point in the region of six and a half years’ imprisonment.  In his oral submissions you will recall Mr Sturm saying he had sat through and heard the submissions made and the sentence I gave in the case of Mr Watts, and he understood that I do not accept that the starting point should be that low.

[31]     In their submissions to me the lawyers referred to a case known as Mako.2

That is a judgment of  the Court of Appeal;  we call it a tariff case,  because it describes a range of factual scenarios and suggests an appropriate range of starting points for each of those scenarios.

[32]     The Court of Appeal also set out a list of factors which make an aggravated robbery more serious, depending on whether they are present or not.  Factors which are present in your case, I have found, are:  a degree of planning and premeditation; the fact that there were three offenders involved; the fact that you were all using disguises; the fact that there were two weapons used, one of which was a knife and the other a rifle; that the premises targeted was a commercial premises; that there were members of the public present; that actual violence was used; that the property stolen (while not of particularly high value) has not been recovered, and the property stolen involved items of particular significance and in particular to Mr Cunneen; there is the impact on the victims, which I have already described as serious; and the fact that this was a gang-related offence.

[33]     The  Court  of  Appeal  set  out  suggested  starting  points  for  certain  fact scenarios.  I have concluded that the robbery of the Frankton TAB is similar to the example given of a robbery of commercial premises where members of the public can be expected to be present; where it is a target of substantial sums in tills or a safe by a group of offenders (and here I take into account that the group of you certainly

wanted the safe to be opened); that there is a lethal weapon involved and disguises;

2      R v Mako, above n 1.

and there are other indications of preparation.3   The Court of Appeal said that such a robbery should attract a starting point of six or more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.

[34]     I do not accept the submission that it could not be expected that members of the public would have been at the TAB.  The TAB is a commercial premises, it was open for business at the time.   As you heard Mr Cunneen say, the TAB had encouraged the presence of members of the public to congregate there, to watch sport and racing on TV.  Certainly, it could be expected that members of the public would be there.  Nor do I accept that I should apply a starting point that is relevant where there is only one offender (because there were three of you), and no actual violence (because there was here, violence).   Further, I do not consider it appropriate to take into account the fact that the gun failed to fire.   It was certainly (it would appear  on  the  summary  of  facts)  intended  that  it  would  fire  because  the  other offender tried to fire it several times pointing it up in the air as well.  But I do bear in mind that in your case, the amount of money taken  from the TAB was around

$3,200, and personally from Mr Cunneen items and cash valued at about $1,500.

[35]     As I said when I was sentencing Mr Watts, I have considered whether I should  make  a  distinction  between  you,  in  relation  to  setting  a  starting  point. Mr Robb did not do so, and this was because while Mr Watts was armed with a knife, he was present when the third offender attempted to fire the rifle, and he joined in seeking money, you were directly involved in planning the robbery, you entered the premises with Mr Watts and the third offender, you detained the members of the public, and you were present throughout the robbery.   In the end though, I have concluded that  I should make a small distinction between  you.   Albeit in different ways, your culpability was similar, it was not entirely equal.

[36]     I have concluded that the appropriate starting point for your sentence is seven

years’ imprisonment.

3      See Mako, above n 1 at [54].

[37]     I go on to consider whether there should be a further adjustment to reflect that fact that you are also being sentenced on the charge of participation in an organised criminal group.

[38]     Mr Robb submitted that I should increase the starting point by six months, to take account of that charge.  The reason for this is that you were engaged in ongoing and  significant  involvement  with  other  members  of  the  Westside  Outlaws,  in planning further offending.  You discussed scoping out another “shop”, and hitting a place (in your words) “just for the loot”, discussing arrangements for obtaining a “sawn off” (those are your words), and stealing a car.  Mr Robb submitted that, in the light of the submission that the starting point should be eight to eight and a half years, there was no need for any increase to the starting point on account of your previous convictions.

[39]     Mr Sturm submitted that your association with the gang was only because you have family members who are members.  However, he acknowledged that the starting point should be increased, but he submitted it should be for a lesser amount, that is, three months.   He invited me not to increase the starting point for your previous convictions, on the basis that they are not truly relevant to this offending.

[40]     I have concluded that there should be an increase of three months to reflect the charge of participation in an organised  criminal group.    However,  I do not consider it necessary to increase the starting point for your previous convictions. That sort of increase occurs when an offender’s previous history shows that previous sentences have failed to deter the offender from further offending in the same way, and that a particularly deterrent sentence is needed.  While you have a history (and I describe it as extensive) of dishonesty offending, and there are a small number of convictions for violent offending, the present aggravated robbery marks a significant escalation in the nature of your offending. While that is serious, and it is certainly of concern to the Court, I have concluded that it does not warrant an increase to the starting point.

[41]     Accordingly,  the  adjusted  starting  point,  at  this  stage  before  considering possible discounts, is seven years and three months’ imprisonment.

Personal factors

[42]     I look first at the letter that I was handed just before coming into Court.  You note that this is a letter of remorse for the Courts and for the victims of your offending. You say that it is only right that you make an attempt to make peace. You acknowledge that there is no excuse for your offending, you take full responsibility for your actions, and you will accept the consequences.  You note that prior to the offending you were going through serious hardship with your family and you say that this caused you to relax and turn to alcohol and methamphetamine. At this point you say all your coping strategies and priorities and morals went out the window. You say this was a very negative and dark corner of your life and it also influenced your offending.  In the time you have spent in custody on remand you have reflected on your actions and you say you have honestly come to a turning point in your life. You recognise your faults and the underlying issues which led up to the hardship with your family.

[43]     Significantly, in my mind, you have now realised that you are not the only one doing the term of imprisonment that is going to be imposed.  As you say, your four children, your partner and your wider family are the people who are hurt the most.  And, as you say your children are now going to be without a father for the duration of your sentence.  You have vowed to better yourself as a person and as a father.  You end by saying you are sincerely sorry to each and every person whose life has been affected by your actions.

[44]     Mr  Sturm  also  noted  in  his  submissions  that  you  had  conveyed  your apologies and your remorse, and you offered to participate in restorative justice.  He says you understand the reasons why the victims of your offending did not want to participate in that process.   Mr Sturm also noted the support you have from your partner and your whanau.  He referred me to the letters which I have read from your partner, your mother, a former employer, a rugby league acquaintance, and a member of your whanau.  He reminded me that in 2014 you were awarded the parent of the year award at your rugby league club.

[45]     I have noted the very positive things that have been said about you.  You are truly fortunate to have the support that you have, and it is for you to be worthy of that support.

[46]     I note that you have, yourself, taken the step of approaching Odyssey House for a referral there and  I have seen Odyssey House’s response which notes the appropriate stage at which this referral can be sought.

[47]     Mr Sturm says that there is room for optimism as to your future.  I hope that is the case and in recognition of that support and to encourage you to maintain your motivation to change your ways I will apply a reduction of five months from the starting point.

[48]     I then come to the guilty pleas.   They came very late in the proceeding, during the week before your trial was due to start.  Mr Sturm made points as to why this was and he suggested that it was not until he became involved in representing you, which was late in the process, that it became possible to discuss with you acknowledging your responsibility and entering guilty pleas.  While late, the pleas mean that there did not have to be a two week trial, and the people from the TAB did not have to come and give evidence.   They did not have to re-live their horrific experience by having to give evidence of it in detail.  So I accept that you may be given a discount for the guilty pleas.

[49]     Although Mr Sturm submitted that it should be in the area of 20 per cent, I have  concluded  that  I  should  apply  the  same  discount  I  have  allowed  for  the offenders who entered guilty pleas at the same time as you did, which is around 15 per cent.

[50]     Would you please stand.

Sentence

[51]     On the charge of aggravated robbery, you are sentenced to imprisonment for five years and ten months.

[52]     On  the  charge  of  participation  in  an  organised  criminal  group,  you  are

sentenced to five months’ imprisonment.

[53]     The two sentences are to be served concurrently.

[54]     Mr Robb submitted that I should impose a minimum period of imprisonment of 50 per cent before you could be considered for release on parole.  A minimum period may be imposed if the Court decides it is necessary in order to hold you accountable for the harm done by your offending to the victims and the community, to denounce the offending in which you were involved, to deter you or other persons from committing offences such as these, or to protect the community.   Mr Robb submitted that if you were to be released on parole when you are first eligible for parole – which would be after one-third of the sentence – that would not be appropriate to meet the need to deter serious gang-related offending, or to denounce such offending.

[55]     Mr Sturm submitted that your offending is not so serious, and your own position is not so dire, that a minimum period is justified and he submitted that this was particularly in light of your lesser role in the offending, your lack of truly relevant previous convictions, your remorse, and your guilty pleas.

[56]     I have already considered and to some extent take into account the matters Mr Sturm referred to, but I have concluded that I should not order you to serve a minimum period of imprisonment.   Release on parole is a matter for the Parole Board and the issue of when you are released will depend on the Parole Board’s assessment of what  you  do from now on and how you respond to  your prison sentence.  It will be up to you to earn your release.

[57]     Finally, Mr Mark, you have pleaded guilty to charges 4 and 10 in the Charge Sheet.   The Crown has offered no evidence on the other charges laid against you which are charges 2, 3, 5 and 6 and on those charges you are discharged.

[58]     Thank you. You may stand down.

Andrews J