R v Paki

[2013] NZHC 1008

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-007802 [2013] NZHC 1008

THE QUEEN

v

CHARLES PAKI

Charges:         Aggravated Robbery x4

Plea:               Guilty

Appearances: N Webby for Crown

M Wharepouri for Prisoner

Sentenced:     8 May 2013

Nine years’ imprisonment with a minimum period of 4½ years

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            M Wharepouri, Auckland

R V PAKI HC AK CRI-2012-004-007802 [8 May 2013]

[1]      Charles Paki, you are for sentence in this Court having pleaded guilty to four counts of aggravated robbery.  The maximum penalty for aggravated robbery is 14 years’ imprisonment.

[2]      At 3.15 in the afternoon on 5 April last year, you went into a clothing shop in High Street.  The shopkeeper was alone.  You were holding a black handgun.  You said:  “Where’s the money?”  You then moved part of the top of the gun and said: “Otherwise I will shoot you”.  There was then a discussion about money.  Ultimately the victim produced her handbag and gave you a $10 note and two $5 notes. You left after directing her not to tell anyone about the incident or to call anyone for half an hour.

[3]      Shortly afterwards at about 3.30 in the afternoon of the same day you went to another shop, Ace Mart, in the PricewaterhouseCoopers building on Quay Street.  It was a superette owned and operated by the victim and her husband.   Again the victim was alone.  You pulled the black coloured hand gun out.  With your finger on the trigger you pointed the gun at the victim and then pointed at the cash register. The victim removed two $20 notes and passed them, together with two packets of tobacco, to you.

[4]      Later the same day, at about 6.20 pm, you went to another store, this time in Dominion Road.  You waited until you and the victim were the only two people in the shop.  You took the gun out from beneath your top, held it at waist level and pointed it at the victim.  You told her to open the till but she walked past you and started screaming.   You then pushed her to the floor, placed your hand over her mouth and told her to “shush”.  You asked her to open the till which she did.  She gave you a $50 note. You asked for another $50, which she also gave you.  You then asked for a further $20.  She said she could not do that and you left shortly after.

[5]      Two days later, just after 6.00 o’clock in the evening, you went to a parking building.  You got into an elevator with a woman.  You pulled the gun out of your front right pocket of your sweatshirt and said:  “Give me your purse”.  When the elevator doors opened the victim walked past you to get away.   You again said:

“Give me your purse”.  When she tried to run away you chased her saying:  “Give me your purse, my gun is loaded”.  The victim started crying and you said:  “Don’t scream, otherwise I’ll shoot you”.  You continued to follow her as she tried to get away.  You put your left hand over her face, with your palm covering her mouth and your fingers digging into her eyes.  She resisted you, pulling at her handbag but after about half a minute or so you managed to rip her handbag away.  It contained miscellaneous personal items and $205 in cash.

[6]      When  you  were  spoken  to  initially about  the  offending  you  declined  to comment.  However, as noted, you pleaded guilty prior to trial.

[7]      Mr Paki, you are an only child.  You had little or no contact with your natural father.  You did have a stepfather who was supportive for a time, and for a time you lived in Australia.  However, you returned to New Zealand in the early 1990’s and you started offending shortly as a youth thereafter.

[8]      Although  you  are  only  32  years  old  you  have  a  number  of  previous convictions and relevantly, several for aggravated robbery.   On 5 September 2000 you were sentenced to a considerable period of imprisonment for seven aggravated robberies and several other offences, including aggravated wounding, and other offences of dishonesty.  I understand you served effectively the full time.  I record you do not accept one conviction that appears on your criminal record for aggravated robbery said to have occurred in May 2001.  I accept that at the time it appears you would have been in prison for the 2000 offending.

[9]      You have 16 previous convictions in the District Court. Apart from those you also appeared in the Youth Court on 42 occasions.  You have a very bad history of offending.   To make matters worse, the offending for which you are for sentence today was committed while you were subject to parole.

[10]     Because of that previous offending the Court is required to consider whether s 87 of the Sentencing Act requires a sentence of preventive detention to be imposed. However, first I address the appropriate finite sentence if that is the sentence to be imposed.

[11]     In  doing  so  I  have  regard  to  the  relevant  purposes  and  principles  of sentencing under ss 7 and 8 of the Sentencing Act.  In your case it is necessary to have particular regard to the need to hold you accountable for the harm you have caused the community, the victims, the need to denounce and deter you and others from such behaviour, the need to protect the community but also to consider the need to assist insofar as it is possible in your rehabilitation.  In relation to the victims, the victim impact statements make it clear the effect your offending had on the victims, even though in this case it appears the gun you used was a toy replica as opposed to an actual firearm.   One victim says she feels nervous when working alone, and is concerned that whenever she sees a Maori or Polynesian now she considers they may hurt her.   She hates the fact that you have made her feel that way towards those races.  Another victim says she can never work alone because she is scared that you or someone like you will come into the shop and attack her.  She suffers from depression.  The victim you physically attacked, says she still thinks about that and feels afraid when she is out walking in town.  She is concerned that someone might jump out with a gun and attack her again.  She was very fearful that you would shoot her because that is what you said you would do.

[12]     I also take into account the gravity of your offending and the seriousness of this type of offending as compared to other types of offending, which is reflected by the maximum term of imprisonment imposed by Parliament for such offending. There is also the need for consistency in sentences.  To the extent relevant I also take into account your personal circumstances.

[13]     In this case Mr Paki, having regard to R v Mako1  and taking account of the totality of the four instances of offending, a starting point for the offending I have described in the range of nine years is appropriate.  To that starting point there must be an uplift for your previous history and propensity to offend in this way and for the seriously aggravating fact that the offending was committed while you were subject to parole for similar offending.  An uplift of two years is necessary to reflect those factors which takes the starting point before consideration of personal mitigating

factors, to 11 years’ imprisonment.

1      R v Mako [2000] 2 NZLR 170.

[14]     The only relevant mitigating factor available to you is your guilty plea.  An allowance of between 15 and 20 per cent in relation to that is appropriate.  While, as Mr Wharepouri submitted, in his written submissions earlier, you were entitled to test the Crown case before pleading guilty, I consider this was a strong Crown case. There were three witnesses who identified you.  Your fingerprints were at one of the scenes and you left DNA material at another scene.  Propensity evidence would also have been available to the Crown if necessary.

[15]     The ultimate end sentence appropriate for you, if a finite sentence is indeed to be imposed, would be nine years’ imprisonment.  In your personal circumstances and given the nature of the offending more than the standard minimum non-parole period is required to reflect the purposes and principles of the Sentencing Act.  A minimum non-parole period of 50 per cent, namely four and a half years, would be appropriate.

[16]     However, as counsel have discussed with the Court, the real issue in your case today is whether a sentence of preventive detention is required.

[17]     Mr Paki, you meet the requirements for a sentence of preventive detention as counsel concedes.  You have been convicted of a qualifying violent offence, namely aggravated robbery.  You were over 18 years at the time and this Court is satisfied you are likely to commit another violent offence if released at sentence expiry date. That follows not only from your previous convictions for offending of similar nature but also from the reports of the two health assessors obtained to satisfy the further requirements of the Act.   Dr Goodwin, the psychiatrist, says your tendency to potentially commit similar offences in the future based upon your static risk factors is moderate to high.  Ms Visser, the clinical psychologist, is of the view you must be considered to be a high risk of reoffending in a similar manner following release into the community.  I also note and record you were previously advised of course that you were at risk of preventive detention.  I have heard very full submissions in relation to that from counsel.

[18]     However, even though you qualify for a sentence of preventive detention and are at risk of such a sentence, it is still for the Court to determine whether to impose preventive detention in the particular circumstances of your case today.  In relation to

that I address myself to the factors I am required to consider under s 87(4) of the Sentencing Act.   There is a pattern of serious violent offending disclosed by your past history, in particular, the offending for which you were sentenced to imprisonment in 2000.   That was serious offending involving the use of disguises and gas operated pistols.  The only thing that can be said about the present offending is that this time you only used a replica plastic gun although the impact and effect on the victims emotionally was not lessened because of that.  Offending of this nature is clearly serious and causes harm to the community.

[19]     As noted, your past history suggests a propensity to offend in this way and the opinion of both the psychiatrist and psychologist is that you have a tendency to commit such offending in the future.

[20]     Next, the Court is required to consider your efforts to address the causes of your offending.  In relation to this factor the information before the Court is mixed. While you attended some rehabilitative courses in prison, because of your own actions some of the courses were not completed.   However, there is a further complication as noted by the psychologist.  You were classified as a very high risk which placed a number of restrictions on you in prison.  Because of those restrictions you were not able to put into practice any of the skills that you did acquire through the courses that you did complete.  This placed you in a difficult situation upon release.

[21]     As noted, the psychologist considers that you have difficulty adjusting to your release and programmes may need to be tailored specifically to support you on your ultimate release to the community.  Mr Paki on this issue I refer to the letter you have written for the Court and the certificates counsel provided.  They confirm that you have recently successfully completed a number of courses, and your letter shows some insight into your offending and the position you are now in.  You also say that you are determined to change.  Mr Paki, words are cheap and easy.  It is actions that count and you will be judged in the future by your actions in the future.

[22]   Finally, the Court is required to consider the principle that a lengthy determinative sentence is preferable if it provides adequate protection for society.

While the Court has recognised on a number of occasions preventive detention is not a sentence of last resort, but rather is a protective sentence to be imposed if and when necessary for the protection of the community, the ultimate question is whether preventive detention is necessary in your case to protect the public or, whether the risk that you pose may be suitably managed or addressed by a lengthy finite term of imprisonment.

[23]     In determining whether a sentence of preventive detention is required I have been particularly assisted by the detailed psychologist’s report in particular.  Ms Visser considers that:

... a custodial sentence of a sufficient term to allow Mr Paki to undertake intensive, specialist rehabilitative treatment designed to address his offence related needs and ultimately, ameliorate his potential risk of re-offending is preferable.   Mr Paki has shown some motivation for change and has done rehabilitation within the prison environment.  Mr Paki appears motivated to continue this work and attend programmes that may assist him.

[24]     I also note and refer to the case that counsel have addressed, that of R v Maru.2   In that case Collins J declined to impose a sentence of preventive detention even though the offender had offended very shortly after release from prison as you have in this case.  I also note that the Crown accepts that the Court can in its discretion impose a finite sentence.

[25]     Like Collins J in Maru’s case, I am concerned at your offending so shortly after your release from prison.  At the age of 32 you are at a crossroads Mr Paki. However, I take into account the matters that I have referred to and also note your recent offending, as I have said, did not involve an actual weapon.  The offending really can be categorised as small time, haphazard, spree offending.   Without diminishing the effect your offending had on the victims emotionally and psychologically, none of the victims suffered any long-term physical injuries as a result of your offending.

[26]     I consider that notwithstanding the pre-conditions for preventive detention are met, in this case if you are ever to successfully reintegrate into society, that goal

will best by achieved through imposing a finite period of imprisonment that would

2      R v Maru [2012] NZHC 1411.

provide protection for the public but would also provide some incentive for you to prepare yourself for life outside prison and change your ways in the way you say you intend to.

[27]     For those reasons and by the narrowest of margins Mr Paki, I have decided in this case that the need to protect the community can be achieved by a lengthy prison sentence with the minimum non-parole period I have indicated.  I also note that there is the possibility of an extended supervision order on your ultimate release.

[28]     Mr Paki please stand.  On the four charges of aggravated robbery you have pleaded guilty to, you are sentenced to nine years’ imprisonment.  You are to serve a minimum period of imprisonment of at least four and a half years.  That is all, stand

down.

Venning J