R v Nathan - [2018] NZHC 3111

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2017-088-1600

[2018] NZHC 3111

THE QUEEN

v

THOMAS SUBRITZKY NATHAN

Hearing: 29 November 2018

Appearances:

J P R Scott for the Crown

S Thode and B A Harris for the Defendant

Sentencing:

29 November 2018

SENTENCING BY PALMER J

Solicitors:
Marsden Woods Inskip Smith, Crown Solicitor, Whangarei Thode Utting & Co, Auckland

R v NATHAN [2018] NZHC 3111 [29 November 2018]

Introduction

[1] Mr Thomas Nathan, a 39-year-old of Māori descent, has pleaded guilty to aggravated robbery of The Warehouse in Dargaville on 28 May 2017. The offence carries a maximum sentence of 14 years’ imprisonment.1 I sentence him today.

Approach to sentencing

[2] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. In this case, I have particular regard to the purposes of holding Mr Nathan accountable for the harm done to the victim and community; promoting in him a sense of responsibility for, and acknowledgement of, that harm; providing for the interests of the victim; denouncing Mr Nathan’s actions; deterring future such actions; protecting the community from him; and assisting in his rehabilitation and reintegration.

[3] I take into account, in particular: the gravity of the offending and the degree of Mr Nathan’s culpability; the desirability of consistency with sentences for similar offending; the effect of the offending on the victim; Mr Nathan’s personal and whanau background; and I impose the least restrictive outcome that is appropriate in the circumstances.

What happened?

[4] Mr Nathan, you pleaded guilty on the basis of a summary of facts which states you were the driver in the offending. On the evening of 28 May 2017, you drove two co-offenders, Mr Daniel Cameron and Mr Kaipara Anderson, to an address near the driveway of The Warehouse in Dargaville. They were there, as you knew, to carry out a robbery. They wore gloves and balaclavas and black clothing and shoes. You did not know until afterwards that one of them carried a cut-down .22 rifle and the other was to acquire a screwdriver and pair of scissors once inside.

[5] You waited in the car while they entered the manager’s office in The Warehouse and they watched five workers on CCTV. They confronted them, tied them

1 Crimes Act 1961, s 235.

up and put them in a bathroom and required one of them to give $27,612 in cash and 300 items of jewellery worth $242,805 from a safe. They also stole items from a handbag belonging to one of the victims. While they were inside, a lookout nearby texted you with concerns. You reassured him and encouraged him to remain in position. Mr Cameron and Mr Anderson left The Warehouse and returned to your car. You drove them away in the car.

[6] The victims were not physically injured other than one suffering some minor lacerations. The Crown and the defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nathan

Details

AGLC: R v Nathan [2018] NZHC 3111
Case: [2018] NZHC 3111
Decision Date: 29 November 2018

CaseChat Overview and Summary

The High Court of New Zealand heard the sentencing case of Thomas Nathan, who pleaded guilty to aggravated robbery of The Warehouse in Dargaville on 28 May 2017. Nathan, a 39-year-old of Māori descent, was the driver for his co-offenders, Daniel Cameron and Kaipara Anderson, who committed the robbery while wearing gloves, balaclavas, and black clothing. Nathan waited in the car while his co-offenders entered the store, confronted five workers, tied them up, and stole cash and jewellery. Nathan was unaware of the weapons his co-offenders carried until after the offence. The victims suffered no physical injuries, but one experienced sleep deprivation, anxiety, and a sense of being a target. The legal issues in this case involved determining the appropriate sentence for Nathan, taking into account his level of culpability, the effect of the offence on the victims, and Nathan's personal and whānau background.

The court considered the purposes of sentencing, such as holding Nathan accountable for the harm done, promoting a sense of responsibility and acknowledgement of the harm, providing for the interests of the victim, denouncing Nathan's actions, deterring future similar actions, protecting the community from him, and assisting in his rehabilitation and reintegration. The court set a starting point of five years' imprisonment for Nathan's culpability, which was less than that of his co-offenders, as he was not as fully involved in planning and premeditation. The court also took into account Nathan's personal background, his remorse, and his offer to participate in restorative justice and pay reparations. After considering various adjustments, the court decided on a final sentence of three years and eight months' imprisonment, along with an order for Nathan to pay $200 in reparations upon his release. The court also remitted Nathan's outstanding fines and warned him of the serious consequences of a future strike offence.

Orders