R v Maru
[2012] NZHC 1411
•20 June 2012
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2012-054-000267 [2012] NZHC 1411
THE QUEEN
v
HENRY TUKINO MARU
Hearing: 20 June 2012
Counsel: E C Killeen for Crown
C B Wilkinson-Smith for Prisoner
Sentence: 20 June 2012
NOTES ON SENTENCING OF COLLINS J
Introduction
[1] Mr Maru, you appear before me today having pleaded guilty to one charge of aggravated robbery; an offence that has a maximum penalty of 14 years imprisonment.
[2] The District Court has declined jurisdiction to deal with you so that the suitability of a sentence of preventive detention could be assessed.
[3] This is the main question on which I must decide. I have considered it very carefully. I appreciate the seriousness of the penalty, and its purpose, namely that it
should be imposed where necessary to protect the community from those who pose a
R V MARU HC PMN CRI-2012-054-000267 [20 June 2012]
significant and ongoing risk to the safety of its members.1 I have received and reviewed the required health assessor reports, namely those of Dr Barry-Walsh and Ms Fon. I have read all the material available and carefully considered submissions from counsel.
Personal circumstances
[4] Unfortunately Mr Maru, you are well known to the courts. You were born in
1973 and are 39 years old. After the tragic death of your brother when you were 15, you left school with no formal qualifications. You fell in with the wrong crowd. Your use and abuse of substances, including alcohol, cannabis and glue, began to escalate.
[5] Over the next twenty years, you were convicted of several offences. These ranged from counts of male assaults female, assault with a blunt instrument and shoplifting, to one instance of unlawful sexual connection, to several other convictions for aggravated robbery. The aggravated robbery convictions were entered in 1999 (two counts) and 2007, respectively.
[6] As Dr Barry-Walsh has diagnosed, in addition to your addiction to substances, you also suffer from paranoid schizophrenia. The symptoms of this illness began to manifest from the time you were 16. You were subsequently detained at the Te Awhina Psychiatric Unit, then moved to the Lake Alice treatment centre, then to hospitals and other supporting centres. However, diagnosis of your specific condition did not occur until mid-way through these transfers, in 2000. Before then, it was thought to be a principally drug-induced illness. Now, however, you have been taking medication for the condition and it seems to be under control.
[7] As a result of your previous offending and recognised mental illness, you have been incarcerated in some shape or form for the vast majority of the past two decades. As both Dr Barry-Walsh and Ms Fon have reported, you have, in effect, become institutionalised. Despite undertaking programmes to help facilitate a
smooth release from prison, you have continued to reoffend.
1 Sentencing Act 2002, s 87(1).
[8] Against that background, your current offending can be described briefly. At about 6.15am on 30 January 2012, you left your flat on Main Street, Palmerston North, and headed toward the Caltex station on the corner of Main Street and Ruahine Street. You were carrying a box packed with a kitchen knife, a beanie, sunglasses, a pair of socks and a bandana. As you approached the service station, you put on the beanie, sunglasses and bandana and took the knife in hand.
[9] You entered the station. All the while holding the knife, you demanded money from a customer. She gave you her purse but you said you did not want that. You also demanded money and cigarettes from the station attendant. The attendant emptied the cash register into the box you had brought with you. He also loaded 46 packets of cigarettes and tobacco. A total of $319 cash and $981 worth of cigarettes and tobacco was taken.
[10] Afterwards, you left the station and removed your disguise. Later that day, you used the money you stole to purchase various items, including a television, some clothes and a harmonica.
[11] You told police you were sorry for what you had done. You said you only robbed the store because you wanted some cigarettes, and that you had not been thinking properly since being released from prison only five days earlier. I have read your letter of apology to your victim. It does demonstrate remorse.
[12] I have reviewed the victim impact statements of the customer and the station attendant whom you threatened. While neither suffered any physical harm, both statements reveal emotional harm and anxiety as a result of the offending. The station attendant, in particular, has had several doctors’ visits and is undertaking counselling.
[13] I now turn to your sentence. Throughout this exercise I must consider the relevant purposes and principles of sentencing under s 7 and 8 of the Sentencing Act
2002. I have had particular regard to the need to hold you accountable for the harm you have caused to the community, the need to denounce and deter others from imitating your conduct, the need to protect the community from you and the need to assist in your rehabilitation.2
[14] I have taken into account the gravity of your offending, the seriousness of this type of offending as against other types of offending and the need for consistency in sentencing.3 I have also taken particular notice of your background, Mr Maru, as well as your particular circumstances as a sufferer of paranoid schizophrenia and your substance addition (although I note Dr Barry-Walsh’s comments that your mental illness has been under control in recent times and did not, in his view, contribute to your offending).4 I have imposed what I believe is the least restrictive
sentence appropriate in the circumstances.5
Starting point
[15] The first stage in this analysis is for me to work out what an appropriate finite term of imprisonment would be. The first step in that exercise is to identify a starting point. In this respect, the relevant tariff for aggravated robbery is R v Mako.6
[16] Mako establishes that sentencing for aggravated robbery is a “matter of judgment calling for the careful exercise of the sentencing discretion”.7 The Court of Appeal in that case identified several (non-exhaustive) factors that could affect culpability in any given case. These included:8
(a) The degree of planning and preparation.
2 Sentencing Act 2002, s 7(1)(a), (e), (f), (g) and (h).
3 Sentencing Act 2002, s 8(a), (b) and (e).
4 Sentencing Act 2002, s 8(h) and (i).
5 Sentencing Act 2002, s 8(g).
6 R v Mako [2000] 2 NZLR 170 (CA).
7 At [35].
8 At [36]-[51].
(b) The number of participants and the nature of their deployment. (c) Disguises and other means of concealing identity.
(d) The number, type, and use of weapons. (e) The type of premises or persons targeted. (f) Presence of members of the public.
(g) Actual violence (distinct from threats and intimidation). (h) Property stolen, and whether recovered.
(i) Any associated offending (eg. converting vehicles, taking hostages). (j) Victim impact.
(k) Gang involvement (although not all criminal offending by gang members has a gang connection).
(l) The need for deterrence in aggravated robbery cases specifically. (m) Multiple offending involving separate incidents.
[17] Mako also provides a series of guidance-only starting points, tailored to particular situations.9
[18] Here, the Crown emphasise your threatened violence and use of a knife. They also point to premeditation, the emotional harm to the customer and station attendant, your use of a disguise and the presence of members of the public. They submit a starting point of 5 years is appropriate.
[19] Your counsel, Mr Wilkinson-Smith, agrees that somewhere in the range of four to five years is acceptable. He accepts there was premeditation but says it was only moderate, and that your approach to the offending was also somewhat impulsive and confused. He also submits you made no attempt to confine your victims, you did not act in concert with others or avoid apprehension by the police. Finally, he submits the use of a weapon, by itself, cannot aggravate, since that is a component of the offence of aggravated robbery. He adds the knife was not used,
and no actual harm was occasioned.
9 At [54]-[60].
[20] In my judgement, a starting point of four years six months is appropriate here. There was premeditation, although I accept Mr Smith’s submission that your offending was also coloured by confusion and impulsivity. The offence was also committed in a public place and a disguise was used. A modest, although not insignificant amount (just over $1000 in value) was taken. On the other hand, I accept that no physical harm was occasioned, no actual violence used and no others were involved.
[21] In arriving at this point, I have considered several comparable cases.10 I also consider this starting point is consistent with the example given in Mako of starting points for simple shopkeeper robberies, which provides:11
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.
[22] This is not the end of the road, however. As R v Mist establishes, Judges have the flexibility of increasing the starting point of the finite term, if that would ensure that the finite term would have the necessary protective effect.12 The Court of
Appeal said:13
When considering the finite sentence, it is permissible to consider a finite term which would be less severe than preventive detention but which is higher than what would otherwise be the other level of a finite sentence for the offence.
[23] In my judgement, the application of this principle warrants a further increase of eight months for a final starting point of five years two months’ imprisonment.
10 See generally R v Smith HC Auckland CRI-2005-092-4221, 9 June 2006, Cooper v Police HC Hamilton AP106/98, 20 November 1998.
11 At [56].
12 R v Mist [2005] 2 NZLR 791 (CA).
13 At [61].
[24] That starting point must now be adjusted to reflect factors personal to you, Mr Maru.
[25] I turn first to the aggravating factors. The first and, unfortunately, most obvious is your long list of previous convictions. Clifford J remarked on this at your previous sentencing for aggravated robbery.14 Since then, with this conviction, the situation has only got worse. You now have three previous convictions for aggravated robbery, not including the present case. You also have a conviction for unlawful sexual connection: a very serious offence. I consider your previous convictions warrant an uplift of two years.
[26] The second relevant aggravating factor is that you offended while on parole, only days after having been released from prison for the same offence. I acknowledge that you say you were not thinking properly at the time. I link that to the comments of Dr Barry-Walsh that, following your long periods of incarceration, you have trouble reintegrating into society on release. However, that does not excuse what is very serious offending. I consider that offending so soon after release warrants a further uplift of one year.
[27] I accept that there are also relevant factors in mitigation. The first is remorse.
You have clearly “shown” remorse for the purposes of the Sentencing Act 2002.15
This warrants a downgrade of two months. The running total at this stage is eight years’ imprisonment.
[28] Second, you have pleaded guilty at the earliest possible opportunity. I agree with counsel that this warrants a reduction of 25 per cent which, in this case I will round up to 26 months.
[29] This produces a final finite sentence of six years’ imprisonment.
14 R v Maru HC Palmerston North CRI-2007-054-2190, 26 October 2007.
15 Sentencing Act 2002, s 9(2)9f) and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
[30] I now have to consider if it is necessary to impose preventive detention. As set out above, the purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.16
Preventive detection is not a sentence of last resort,17 but a protective sentence, to be
imposed if and when it is necessary to do so.
[31] The qualifying criteria for preventive detention, set out in s 88(1) and s
87(2)(a) – (b) of the Sentencing Act 2002, are clearly satisfied. You have been sufficiently notified this was a possibility, and the necessary reports have been prepared. Aggravated robbery is a qualifying offence, and you are of sufficient age.
[32] The first issue for determination is whether it is sufficiently “likely” that you will commit another offence that qualifies for preventive detention if released at the expiry of an appropriate finite term.18 I consider this test is satisfied. I refer to your (numerous) relevant previous convictions, the pre-sentence report and the reports of Dr Barry-Walsh and Ms Fon.
[33] The pre-sentence report concludes:
The writer does not agree with the medium risk of reoffending [proposed by the Departmental Risk Analysis Tools used] and assesses [Mr Maru]’s risk of reoffending as high. Mr Maru poses a high risk to the community at large, as evidenced by his previous offending history and recidivist nature of his current offending combined with his limited insight.
[34] Dr Barry-Walsh concludes:
Mr Maru’s untreated and significant substance abuse issues, poor ability to tolerate distress and frustration, his lack of adaptive emotional regulation skills, and his poor problem-solving skills in the context of executive functioning deficits and intellectual limitations, are all said to contribute to his high level of risk.
...
16 Sentencing Act 2002, s 87(1).
17 R v C [2003] 1 NZLR 30 (CA) AT [6].
18 Sentencing Act 2002, s 87(2)(c).
At present, Mr Maru is considered to remain at a high risk of reoffending in a violent manner in the future.
[35] Ms Fon concludes:
In terms of future risk, I have identified Mr Maru as a significant risk of future offending as is self-evident by the rapid reoffending despite planning and intervention. Mr Maru has enduring and stubborn deficits to reverse, particularly those that centre around his problem-solving, impulsivity and lack of social judgement as well as his substance abuse.
[36] The real issue for me to determine is whether I should exercise my discretion19 to impose preventive detention in this particular case. Several statutory factors circumscribe the exercise of that discretion and must be considered. They are listed in s 87(4) of the Sentencing Act 2002, and are:
(a) any pattern of serious offending disclosed by the offender’s history;
and
(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and
(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[37] In addition to these factors, I am also required to consider whether the risk you pose to the community could be suitably mitigated through the option of an application for an extended supervision order of up to ten years on release, pursuant to Part 1A of the Parole Act 2002.20
[38] Stepping back, the overall (discretionary) question in the light of these factors is whether a sentence of preventive detention is necessary to serve the purpose of protecting the public from you Mr Maru, or conversely, whether the risk you pose is
suitably managed by a lengthy finite term of imprisonment.
19 Pursuant to s 87(3).
20 R v Mist [2005] 2 NZLR 791 (CA).
[39] This factor is undeniably present. There is a pattern of serious offending, represented by your convictions for aggravated robbery in 1999, 2007 and now
2012.
Section 87(4)(c) – Tendency to commit serious offences in the future
[40] The third factor, (c), is also clearly present. The pre-sentence report and reports of Dr Barry-Walsh and Ms Fon, which I have already referred to, establish that you have a tendency to commit serious offences in the future.
Section 87(4)(d) – Failure to address cause of offending
[41] Sadly, the fourth factor, (d), is also present, albeit to a lesser degree. This is not a case where attempts to address the causes of offending are absent, but it is one where they have failed. A previous Parole Assessment Report shows that you have previously been placed in a Modified Special Treatment Unit Rehabilitation Programme but were “kicked off after only two months due to ... self-harming to get smokes”. The Director of the Trust, at whose residences you were staying when you committed the most recent aggravated robbery, has reported you were unsettled, difficult to engage and would often break curfew and leave without telling anyone.
Section 87(4)(b) – Seriousness of harm to the community
[42] In my assessment this is a significant factor. I acknowledge that the seriousness of harm done to the community by your offending has been relatively low. Your previous convictions for aggravated robbery were of a similarly low seriousness.
[43] I acknowledge that my assessment of the merits of a lengthy finite sentence compared to preventive detention are very finely balanced. In my assessment, however, if you are ever to successfully reintegrate into society you will best achieve that goal through having a finite period of imprisonment. That will provide you both a fixed time and incentive to prepare yourself for life outside of prison.
[44] Ultimately, I consider that a lengthy term of imprisonment, coupled with a minimum period imprisonment (which I will explain shortly) and the possibility of an extended supervision order on release, will be sufficient to protect the public. I therefore decline to impose preventive detention.
Minimum period of imprisonment
[45] As suggested, I consider it is appropriate to impose a minimum period of imprisonment in this case. Section 86 of the Sentencing Act applies. In my judgement, a minimum period of imprisonment is necessary here to meet the purposes set out in s 86(2) of the Act. I emphasise in particular the need to denounce your conduct, the importance of deterring others in the community from committing aggravated robbery, and the need to protect the public from you. I record that I have been greatly troubled by my sentencing of you. I have decided to opt for a finite prison sentence because of your remorse on this occasion and because I believe a finite sentence provides you with the best incentive.
[46] In determining the length of the minimum period of imprisonment, I note that all relevant purposes and principles of sentencing and aggravating and mitigating factors can be considered, including those mitigating factors personal to you.21 The term must not exceed two thirds of your finite sentence.22
[47] In this case, I consider a period of four years is appropriate. I accept this is the maximum minimum period of imprisonment that is available in the
21 R v Gordon [2009] NZCA 145.
22 Sentencing Act 2002, s 86(4).
circumstances of your case. The imposition of the maximum minimum period of imprisonment reflects the seriousness with which I view your offending and illustrates how perilously close you have come to having a sentence of preventive detention imposed.
Final sentence
[48] I therefore sentence you, Mr Maru, to a period of six years’ imprisonment, with a minimum period of imprisonment of four years.
Three strikes
[49] Finally, I am obliged to give you what is commonly known as a “three strikes” warning. Your conviction for aggravated robbery is a “stage 1 offence” for the purposes of s 86B of the Sentencing Act. From this point, if you commit another serious violent offence (except murder), you will receive a final warning. Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole. If you are convicted of murder, you will be sentenced to life imprisonment, which you will have to serve without parole unless this would be manifestly unjust. If serving that sentence would be manifestly unjust, the Judge must specify what minimum period of imprisonment you will serve.
[50] You may stand down Mr Maru.
Solicitors:
Crown Solicitor, Palmerston North
D B Collins J
4