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…

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 [2013] NZHC 696
Case: [2013] NZHC 696
Decision Date: 9 April 2013

CaseChat Overview and Summary

The defendant, Tamati Nathan, was sentenced for aggravated robbery, having pleaded guilty on the eve of his trial. The court had to decide the appropriate sentence for this offence, which carried a maximum penalty of 14 years imprisonment. The incident occurred on 1 December 2011, when Nathan and his associates visited a residential address in Wiri. When the pizza delivery man arrived, Nathan and his male associate confronted him with knives and demanded his money and keys, subsequently fleeing in his vehicle. The vehicle was recovered, but the sum of $500 cash and two pairs of shoes had been stolen.

The court identified several legal issues to consider, including the starting point for the sentence, the aggravating factors, and the mitigating factors. The court determined the starting point using the guideline judgment of the Court of Appeal in R v Mako, which provided bands of offending involving the crime of aggravated robbery. The court found Nathan's offending to be broadly analogous to the type of offending referred to in Mako, which involved a starting point of between four and five years imprisonment. The court selected a starting point of four and a half years imprisonment for Nathan's case, considering it slightly less serious than the case of R v Waiwai, but still involving aggravating factors such as the use of knives and some element of premeditation. The court also considered the mitigating factors, such as Nathan's age, expressions of remorse, attempts at rehabilitation, and his guilty plea. However, the court declined to provide a discount for Nathan's youth and did not give a significant discount for his late guilty plea.

The court ultimately decided on a sentence of three years six months imprisonment for Nathan. The court emphasized that Nathan was now viewed as a violent offender and that any future charges involving serious violence could result in an increased starting point for sentencing. The court also stressed the importance of Nathan addressing underlying issues such as alcohol, drugs, and gang associations to avoid reoffending. The court acknowledged the support Nathan had from his family and encouraged him to take advantage of opportunities to distance himself from the influences that led to this offending.

Orders