R v Nathan

[2013] NZHC 696

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-1339 [2013] NZHC 696

THE QUEEN

v

TAMATI NATHAN

Hearing:         9 April 2013

Counsel:         E McCaughan for Crown

K Preston for Prisoner

Judgment:      9 April 2013

SENTENCING REMARKS OF LANG J

R V TAMATI NATHAN HC AK CRI-2012-092-1339 [9 April 2013]

[1]      Mr Nathan, you appear for sentence having pleaded guilty on the eve of your trial to a charge of aggravated robbery.  The maximum penalty for that offence, as I am sure you know, is 14 years imprisonment.

Background

[2]      The charge to which you pleaded guilty arose out of an incident that occurred on the evening of 1 December 2011.  On that date you and two associates, one male and one female, were out drinking in the South Auckland area.  During the evening you obviously became hungry and went to a residential address in Wiri. Your female associate went to the door of the address and engaged the attention of the occupier. On the material before me, I do not know whether the address and/or the occupier were known to you and your associates prior to your visit.

[3]      When the occupant came to the door, your female associate asked her if she could use her telephone to order some pizza because you were all hungry.   The occupier allowed your female associate to use the telephone, but asked that you and your male associate remain outside.   You then remained outside until the pizza delivery man arrived.

[4]      When the pizza delivery man arrived, he spoke to your female associate. You and your male associate then went through the house and out through a door to the area where the pizza delivery man and your associate were standing.   You then produced a knife and held it to the neck of the pizza delivery man.   Your male associate also produced a knife, and stood in a position where the victim was able to see it.  The pizza delivery man was therefore able to see that he was confronted by two men, both carrying knives.

[5]      You then demanded that the victim hand over his money and his keys.  He told you that the money was in his vehicle.  You then required the victim to climb over a fence into a neighbouring driveway.   You did this so that he could not interfere when you and your associates drove away in his vehicle.   You and your associates then drove away from the address.   The vehicle was  later  recovered

elsewhere in South Auckland, but the sum of $500 cash and two pairs of shoes had been stolen from the vehicle.

Sentencing Act 2002

[6]      In any case involving serious violence, issues of deterrence and denunciation are to the forefront.  The courts must ensure that offenders who commit these types of crimes receive a sentence that properly deters and denounces their conduct.

[7]      At the same time, however, it is necessary to select a sentence that is broadly consistent with those imposed in other similar cases.  It is also necessary to impose a sentence that provides, so far as is possible, for the rehabilitation and reintegration of the offender into the community.

Starting point

[8]      Both counsel recognise that the starting point for the sentence to be imposed on you is to be determined having regard to the guideline judgment of the Court of Appeal in a case called R v Mako.[1]   In that case the Court of Appeal identified bands of offending involving the crime of aggravated robbery.  It also gave guidelines as to the starting point that should be applied in respect of different types of aggravated robbery.

[1] R v Mako [2000] 2 NZLR 170.

[9]      Both counsel agree that the starting point in your case falls broadly to be determined in accordance with the following paragraph from the judgment of the Court of Appeal:

[57]      Another form of offending of disturbing frequency is the robbery of taxi drivers.  These offences, generally at night, commonly involve violence to victims who, by their occupation, are vulnerable.  Other road users may be endangered.  Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.

[10]     I consider your offending to be broadly analogous to that referred to by the Court of Appeal in the passage I have just cited.  Your offending occurred at night and involved a victim who was vulnerable.   Persons such as the pizza delivery person in this case place themselves at risk when they go to other peoples addresses to deliver pizzas.  They are away from the public gaze and, as such, are easy prey for groups of young people such as you and your associates.   I therefore accept the submission that the starting point should be determined having regard to the passage I have just cited from Mako.

[11]     Counsel have also cited a number of authorities to me to provide me with assistance as to where within the band of four to five imprisonment the starting point should be selected.  I consider the case of R v Waiwai[2] to be of some assistance.  In that case three offenders robbed a pizza delivery driver at knifepoint.  The case was a little more serious than yours, because they also pushed the delivery man into the back seat of his car and drove off with a knife pushed into his back. After taking his personal property, the three offenders forced the victim into the boot of his car for at least two hours.  The incident ended when one of the offenders opened the boot to

release the pizza delivery man before the three men left the scene.  In that case the sentencing Judge took a starting point of five years imprisonment.

[2] R v Waiwai DC Manukau CRI-2007-092-019447, 24 March 2009.

[12]     I consider your offending to be slightly less serious than that in Waiwai, because you and your co-offenders did not abduct the pizza delivery man at knifepoint.  Nevertheless, there are aggravating factors about your offending.

[13]     First, it involved two men confronting the victim.  Secondly, two knives were produced and one of these was placed at the neck of the victim.  Thirdly, there must at least have been some element of premeditation about this incident.  I accept that the idea to commit the robbery may not have entered your minds until after you arrived at the address but, clearly, you and your associate decided at some stage while you were there that you would rob the pizza delivery man.  Fourthly, physical property was taken in the form of cash and the victim’s shoes.

[14]     Taking all of those matters into account,  I do  not accept  your counsel’s submission that your offending falls at the bottom of, or below, the range identified in Mako.  I accept the Crown’s submission that an appropriate starting point is one of four and a half years imprisonment.

Aggravating factors

[15]     It is now necessary to have regard to aggravating factors personal to you that operate to make the offending in the present case more serious.  The Crown points out that two aggravating features exist.  The first is that you were on bail at the time of this offending on a charge of unlawfully getting into a motor vehicle.  People who offend  again  whilst  they  are  on  bail  can  often  expect  to  have  their  sentences increased, because they are only at large by virtue of the Court’s decision to grant bail.  Any further offending is a breach of the confidence that the Court has shown the offender by granting bail.  Secondly, the Crown points to the fact that you have already amassed a number of convictions. These include convictions for common assault and being in possession of an offensive weapon.

[16]     Your case lies at the margin.  I accept that you were on bail, but you were not on bail for serious offending such as this.   Secondly, none of your previous convictions comes anywhere near the seriousness of the offending in this case.  For that reason I decline to apply an uplift to the starting point I have selected.

[17]     You need to know, however, Mr Nathan, that you will now be viewed by the courts as a violent offender.  If you appear again on a charge involving any form of serious  violence,  you  can  expect  the starting  point  that  the Court  selects  to  be increased to reflect the fact that you have not learned your lesson from the sentence I am going to impose on you today.

Mitigating factors

[18]     It is now necessary to have regard to mitigating factors personal to you to reduce the starting point I have selected.

[19]     Your counsel submits that I am entitled to take into account several factors in this context.   These are your age, the fact that you have expressed remorse, the attempts you have already made to rehabilitate yourself and your guilty plea.

[20]     The issue of the youth of an offender was the subject of express comment by the Court of Appeal in Mako.[3]

[65]     Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences.  As noted in the  judgment  of  the  Full  Court  of  the  High  Court  in  Cooper,  a  high proportion of aggravated robberies in this country are committed by teenagers.  In some cases young offenders may have been directed by others who are older.   It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and unlikelihood of reoffending.

[3] R v Mako, n 1.

[21]     This passage demonstrates that the courts have only taken into account to a limit  extent  the  youth  of offenders such  as  you  who engage in  serious  acts  of violence.  If you are old enough to commit a crime as serious as that, then you are probably old enough to serve the full sentence that should be imposed in respect of it.

[22]     You had just turned 21 years of age at the time of this offending.  That does not place you in the category of being a youth as far as I am concerned.  In addition, you had already accumulated a large number of previous convictions for what might generously be described as “nuisance type offending”.  I therefore decline to provide any discount in respect of youth.

[23]     I accept that you have expressed remorse to the probation officer, and you have also  asked that  a restorative justice conference be held  so  that  you  could apologise personally to your victim.  Those matters are to your credit.  I record that the victim was not prepared to attend such a conference, and that was his absolute

right.

[24]     In addition, I accept that you have made efforts at rehabilitation.  You have this morning provided me with certificates of achievement showing that you have undertaken various courses since your arrest in order to better prepare yourself for your release into the community.

[25]     I am prepared to provide some recognition for these matters, but they cannot loom large given the seriousness of your offending.   I am prepared to reduce the starting point by four months to reflect those factors.

[26]     This leaves me with the discount to be applied in respect of your guilty plea. It did not come until very late, in fact not until, as I have said, the eve of the trial. For that reason, the discount that would otherwise be available cannot be given to you.  Offenders who plead guilty at the earliest opportunity must necessarily receive a greater discount than those who wait until the day, or week, before their trial to plead guilty.

[27]   Having said that, the guilty plea has several effects.   First, it is an acknowledgement of responsibility by you - you accept that you were the person responsible for committing the crime.   Secondly, it saves the state the cost of the trial.   Thirdly, it means  that the victim of the offending does not have to give evidence and thereby relive the trauma of the incident that gave rise to the charge. All of those factors, I consider, can properly be taken into account in fixing the discount to be applied in respect of your guilty plea.

[28]     The Crown suggests that the lateness of your plea means that a discount of just ten per cent should be applied.   Your counsel argues that a greater discount should be applied.  He points out that the victim was advised some time before the entry of your plea that he would not be required to give evidence at the trial.   In addition,  there  were  difficulties  between  you  and  your  former  counsel  that contributed in some way to the lateness of the plea.

[29]     I propose to apply a discount of eight months, or about 15 per cent, to reflect that factor.  This means that I am left with an end sentence of three years six months imprisonment.

Other matters

[30]     Your counsel has urged me to tailor the sentence in some way so that a sentence of home detention could be imposed having regard to time served.  As I advised him during the hearing, that is not possible.  The appropriate procedure for the Court to adopt is to fix the sentence that is appropriate for the offending.  If that sentence is two years imprisonment or less, the Court may then go on to consider whether or not to exercise its discretion to impose a sentence of home detention.  I consider that it would not, in any event having regard to your past history, have been appropriate to sentence you to home detention.

[31]     The sentence that I have imposed in any event means that you are either eligible for parole now or will be very shortly.  You have been in custody, I am told, since approximately December 2011.   The pre-sentence report and the drug and alcohol assessment that  I have received make it clear that, at the time of  your offending, you had a serious issue with alcohol.   You were drinking regularly to excess  with  offenders  who  had  a  similar  disposition.     This  offending  was undoubtedly committed whilst you were under the influence of alcohol.  In addition, you had had an involvement with drugs of varying descriptions.   You were also mixing with people who were part of a well-known street gang.

[32]     These factors led the probation officer who prepared the pre-sentence report to say that you present as a high-risk of reoffending unless you address those underlying issues.  I have no doubt that this is the case.  If you are released into an environment where you are free to mix with gang members and to consume alcohol and drugs at will, then you will inevitably be back before the courts within a very short period.  If you appear again for offending such as this you can expect to receive a reasonably lengthy prison sentence.

[33]     The only realistic way, in my view, that you can avoid that outcome is to ensure that you are subject to a carefully prepared release plan that prepares you for release into the community, and then assists you once you are released.  The plan will need to assist you so far as possible to remain drug and alcohol free.   In my view, the Parole Board is the body best equipped to undertake that process.

[34]     You are lucky that you have the strong support of your family, who I know will appear at Parole Board hearings and outline to the Parole Board how they plan to assist you upon your release.  I hope that you take advantage of every opportunity that is given you to get away from the influences that have led to this offending. Otherwise, as I have said, it is inevitable that you will be back here in the future.

Sentence

[35]     In respect of the charge to which you have pleaded guilty I impose a sentence of three years six months imprisonment.

[36]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

K Preston, Wellington