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 agree only one victim was affected by the aggravated robbery. She has had many nights of sleep deprivation, has to remind herself she is safe when at work at night and feels uneasy in uniform, like a target.

[7]    On 3 August 2017, the Police found 30 gold and silver rings at your house and in your car. You were charged on 4 August 2017 and pleaded guilty on 1 November 2018, four days before your trial was due to commence. You received a first-strike warning. Mr Anderson and Mr Cameron also pleaded guilty.

Starting point

[8]    Mr Nathan, in sentencing you, I first set a starting point to reflect the seriousness of the offending. The starting point set for Mr Anderson in the District Court in January 2018 was nine years and for Mr Cameron in the High Court in October 2018 was seven years.2

Submissions

[9]    Mr Scott, for the Crown, departs from the starting point advocated for in his written submissions. Mr Scott submits the starting point should be six years on the basis there is nothing to distinguish your culpability from that of Mr Cameron’s. He refers to the guideline judgment of R v Mako, your co-offenders’ sentences and other cases of aggravated robbery.3 He submits that, while your role was different from that of your co-offenders, it was still essential and should not be treated as lesser than

2      R v Anderson [2018] NZDC 1305; R v Cameron [2018] NZHC 2046.

3      R v Mako [2000] 2 NZLR 170 (CA); R v Anderson, above n 2; R v Cameron, above n 2; Te Ruki v R [2018] NZCA 319.

theirs. He submits that their detention of five victims, for which your co-offenders were charged with kidnapping, was foreseeable – in the written submissions. He submits that is an aggravating factor as is the loss to The Warehouse. He acknowledges you did not know of the firearm which, he says, modestly mitigates your culpability.

[10]   Ms Thode, your counsel, submits it is important to assess your culpability independently from that of your co-offenders. She submits she is instructed that you only became aware of the plan the day of the offending so there was low or moderate planning and premeditation on your part. She accepts the multiple offenders, value of the property taken and harm suffered by the victim are aggravated factors. She submits that, while your co-offenders used a firearm, you have offered to assist in recovering it. Ms Thode submits you did not know or foresee there would be a kidnapping, the Crown withdrew kidnapping charges against you and they should not be treated as aggravating factors for your sentencing. She also submits your limited involvement in the offending is a relevant mitigating factor. She points to the High Court case of Mahia v R where the starting point for the getaway driver was five years’ imprisonment compared with six years’ for two principal offenders in what she submits is more serious aggravated robbery.4 She submits your culpability was much less than Mr Cameron and the starting point for your sentence should be in the region of four and a half to five years’ imprisonment.

Decision on starting point

[11]   As counsel submit, the Court of Appeal’s judgment in R v Mako is the guideline judgment for sentencing for aggravated robbery. It sets a starting point of four years’ imprisonment for robbery of a small sum of money from a small retail store under threat of use of knife by one person whose face is covered, after ensuring no customers are present, with or without a lookout or getaway accomplice.5 Confining or assaulting the shopkeeper or multiple offenders or more money or property being taken would raise it to five years and, in bad cases, six years. Forced entry at night by a number of

4      R v Mahia [2014] NZHC 1396.

5      R v Mako, above n 3, at [56].

offenders, brandishing weapons where there was actual violence, would require seven years.6

[12]   In R v Cameron, van Bohemen J carefully set a starting point of seven years for Mr Cameron’s offending with reference to Mako, pointing out the offending was premeditated but not sophisticated, a lethal weapon was present but not loaded, there were threats of violence towards staff members but no actual violence, and there was property of considerable value stolen and not recovered. He added this was targeting of a commercial premise, though at night when the general public were not present, and that binding and immobilising the staff members was terrifying and traumatic.7 He considered the offending was more serious than the Mako example for a six-year starting point because of the detention of employees, and the starting point of seven years could be expressed as a starting point of six years’ imprisonment for the aggravated robbery with a one-year uplift for kidnapping.8

[13]   The Court of Appeal has found, as a general principle, defendants cannot rely on their role being only a driver to reduce their culpability in aggravated robberies.9 But this depends upon the driver being a full participant in the offending.10 Distinctions are possible.11 Here, you were an important and willing participant and you texted the lookout. But you did not plan the robbery. You did not know about the firearm or about any intention to tie up the victims. You were not as full a participant as Mr Cameron or Mr Anderson. I  consider  your  culpability is  less than  theirs.  Mr Cameron’s starting point, which I consider correct, was six years for the aggravated robbery. I consider yours should be five years’ imprisonment.

Adjustments

[14]   Now I consider what adjustments to make to the starting point. Mr Nathan, you have written me a letter, which accords with what Ms Thode has told me in

6 At [58].

7      R v Cameron, above n 2, at [31].

8 At [34].

9      R v Royal [2009] NZCA 65 at [20].

10     R v Mako, above n 3, at [64].

11     O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [35].

submissions and with what the Department of Corrections report-writer records you told them.

[15]   You were brought up in Dargaville, without your father who died when you were a baby, in a world of gangs, alcohol, drugs and crime. You won a scholarship to a school in Auckland but you were expelled. Eventually, you were imprisoned.

[16]   Around the age of 21 you got a job and your boss became your mentor. You successfully achieved a drain-laying certificate and set up a construction business and settled in Auckland. But the business collapsed after not being paid for several large contracts. Your partner left with the children, your mother died. You moved back to Dargaville for family reasons. You have two children, aged 8 and 10 years old, who were in your full-time custody before your arrest. You say you were barely able to put food on the table for them and your nephew offered you money if you would help with the robbery. You say what you agreed to was foolish enough but that if you had known it would involve firearms and tying people up you would never have agreed to drive the car for him. The offending occurred when you were at a very low point in your life. You say, at the time, you felt like your life was disintegrating before your eyes and spiralling out of control. You say it is the worst mistake you have ever made.

[17]   In your letter, you say all of that is explanation but no excuse for your actions and you take full responsibility for your part in the offending. You apologise to the people at The Warehouse and hope that they are getting through this. Dargaville is a small town. You are aware of the impact of the offending. You have requested to participate in restorative justice processes with them and offered to pay reparations. No restorative justice process has occurred because the victims have chosen not to participate. You are supported by your family, particularly your sister who has written a letter of support, and by your brother. You tell me that you intend to get back on the right track when you are released and be a contributing member of society and a good father.

Submissions on adjustments

[18]   Mr Scott, for the Crown, submits an uplift may be available for your criminal history. Ten of your 34 previous offences are for violence or dishonesty. He submits

it is seriously aggravating that this offending was committed two months after receiving a sentence to come up if called upon for behaving threateningly and common assault. He submits some discount of five to ten per cent is available for your guilty plea since it came late and you also received the benefit of withdrawal of the kidnapping charge.

[19]   Ms Thode, for you, submits an uplift for your criminal history is not appropriate given the low level of the 2017 offending and the lack of offending for 10 years prior to that. She accepts your offending occurred while you were subject to sentence, but makes no submission on whether that justifies an uplift. She submits the background to your offending, together with your remorse, offer of assistance, and willingness to engage in restorative justice and pay reparation justify a discount from the starting point. She adds that you have completed an alcohol and drug education day programme. She submits your guilty pleas justify a discount of 20 per cent given that they came immediately after a resolution was agreed upon between counsel and the Crown.

Decisions on adjustments

[20]   I agree an uplift to your sentence is justified for offending while still subject to come up for another sentence if called upon. I uplift your sentence by four months for this. I do not consider the two offences in 2017 warrant a separate uplift nor your previous offending which was more than 10 years ago.

[21]   Your circumstances at the time help to explain your offending though, as you acknowledge, do not excuse it. But I accept that remorse that you have expressed is genuine. You have offered to assist recovery of the firearm, to attend restorative justice and to make reparations. You have also indicated genuine commitment to rehabilitation and undertaken steps in that direction already. I consider this justifies  a discount to your sentence of around 15 per cent, or nine months. I make an additional discount of three months, around five per cent, to recognise the effect that your sentence will have on your children who were in your custody before your offending and who need your ongoing support.12 Children need their fathers, as you know.

12     Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163; R v Harlen (2001) 18 CRNZ 582 at [22];

[22]   I understand your counsel’s submission that you pleaded guilty as soon as resolution of both charges were agreed with the Crown. But the time that took meant it came only just before trial. And the Supreme Court has made clear that a double benefit of reduced charges and a full discount for an early plea may not properly reflect the offending.13 Here, I do not consider the full 25 per cent discount is justified. I discount your adjusted sentence by eight months, around 15 per cent, for pleading guilty.

[23]   That adds up to a sentence of three years and eight months’ imprisonment, which I consider is appropriate for the totality of your offending.

[24]   Mr Nathan, it is important that you stay away from further offending. You received your first strike warning on conviction. You will be required to serve any future sentence for a strike offence, without parole. You may know that your nephew, Mr Cameron, has to serve his five years and two months’ sentence without parole for that reason. So, if there is a next time, the consequences will be more serious. Please make sure there is not.

[25]   Ms Thode applies for remission of your outstanding fines and says from the bar that you are quite unable to pay them. Mr Scott agrees there is no way you can pay the fines. Given the amount of time you have spent in prison so far and the prospect of further time, your inability to pay the fines, and the desirability of enabling you to have a fresh start to provide for your children, I remit the outstanding fines under ss 88 and 88A(e) of the Summary Proceedings Act 1957 and s 19(12) of the Crimes Act 1961.

[26]   Mr Nathan, you have also offered to pay reparation. I order you pay reparation of $200 on your release.

[27]   Mr Nathan, finally, I do support you and urge you to hold to your intention to get your life back on track on release, and to be a good father. You have done it before, which cannot have been easy. I’m sure your children deserve that you do it again.

R v Job [2018] NZHC 2543 at [14].

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].

Sentence

[28]Mr Thomas Nathan, please stand.

[29]   I sentence you to imprisonment for three years and eight months for the offence of aggravated robbery. You may sit.

Palmer J