R v Parata
[2022] NZHC 3503
•16 December 2022
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2020-042-1510
[2022] NZHC 3503
THE KING v
DESMOND PARATA MAHUTA TE AO
KELLY DUKES THOMPSON
Hearing: 16 December 2022 Appearances:
A Goodison and M Harris for Crown E J Riddell for Defendant Parata
T Bamford for Defendant Te Ao
M J Vesty for Defendant ThompsonSentencing Date:
16 December 2022
SENTENCING REMARKS OF McQUEEN J
Introduction
[1] Desmond Parata, Kelly Thompson, and Mahuta Te Ao, you each appear via AVL for sentencing today on charges to which you have pleaded guilty. Mr Parata and Mr Te Ao, you have pleaded guilty to two charges of aggravated robbery.1 Mr Thompson, you have pleaded guilty to one charge of aggravated robbery, and one charge of driving while disqualified (third or subsequent).2
1 Crimes Act 1961, s 235(B); maximum penalty 14 years’ imprisonment.
2 Land Transport Act 1998, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment or a
$6,000 fine.
R v PARATA, TE AO & THOMPSON [2022] NZHC 3503 [16 December 2022]
[2] I start by setting out the sentencing method that I will apply. I will first describe the nature of your offending and assess the appropriate starting point for offending of this kind. I will then address discounts from the starting point arising from any matters that are personal to each of you.
[3] I must sentence you in accordance with the principles and purposes of the Sentencing Act 2002. In particular, I must consider the need to hold you accountable for your offending, promote in you a sense of responsibility for the harm that you have caused; to denounce your offending; and to deter you and others from similar offending. Your rehabilitation and reintegration are also relevant in fixing the end sentence. The law requires me to impose the least restrictive outcome that is appropriate in the circumstances.
The offending
[4] All three of you were known to the flatmates of the victim. On an earlier visit to one of those flatmates at the property, about a month before the offending, Mr Thompson and Mr Te Ao, you acted to intimidate the victim at the property. By coincidence, the police attended the property to speak with the victim’s flatmate. However, Mr Te Ao, you believed the victim had called the police on you.
[5] On 25 July 2020, Mr Te Ao and Mr Parata, you went to the flat with the purpose of visiting another of the victim’s flatmates known to you. You sat in the lounge with the victim, and both smoked some methamphetamine with his flatmate. During this time, Mr Te Ao, you became agitated. You started to insult and berate the victim, particularly for “calling the police” on you during your last visit. You told the victim he now owed you $100 as compensation. During this time, Mr Parata, you took out a black BB gun (being an imitation firearm) from an inside jacket pocket and gestured towards the victim in a shooting motion, saying “pow pow”. Mr Te Ao, you continued to threaten the victim that he would be shot or you would cut his throat if he went to the police again. You said you would take his cellphone as collateral, returning it only once the $100 was paid. The victim believed he would be seriously harmed or killed if he did not comply, and he did so.
[6] The second aggravated robbery occurred four days later on 29 July 2020 and involved all three of you. You entered the victim’s flat in the afternoon, and his bedroom, where he was sleeping. You asked the victim if he had your money. He said he only had $40 in his account. You instructed him to come with you in your vehicle to an ATM to withdraw the money. The victim, fearing for his safety, complied. He got into the car with you all. Mr Thompson, you were driving, despite being disqualified. Once at the ATM, the victim removed the money from the ATM and gave it to Mr Te Ao. You then drove him back to his flat.
Victim impact
[7] The victim was not physically harmed from your acts, but the psychological harm you have caused is clear. It is apparent from his victim impact statement that he was terrified throughout the process and feared for his life and safety. He left the Nelson district as a result of the offending and this put financial strain on himself and his family.
[8] You have heard from the victim’s partner today. It is clear he too has suffered ongoing psychological trauma. He has described the significant impact of the offending on his relationship with the victim and on their life together.
Starting point
[9] As I have noted, Mr Te Ao and Mr Parata, you have pleaded guilty to two charges of aggravated robbery, in relation to both the 25 July and 29 July incident. Mr Thompson, you are only being sentenced for your participation in the aggravated robbery on 29 July and the charge of driving while disqualified. I assess the appropriate starting points separately then.
Mr Te Ao and Mr Parata
[10] The Court of Appeal has issued a guideline judgment for the sentencing of aggravated robbery, R v Mako.3 As all counsel have recognised, the offending does not
3 R v Mako [2000] 2 NZLR 170 (CA).
fit squarely into any of the categories identified in Mako. The Crown have proceeded on the basis that the most comparable cases are those involving aggravated robbery occurring in a private dwelling,4 while your counsel for Mr Te Ao and Mr Parata say that your offending aligns closely with the street robbery category. 5 It is unsurprising then, that the starting points advanced differ substantially. Ultimately, what is required is for the Court to undertake a careful assessment of weight and combination of aggravating features to determine the seriousness of the particular offending and the appropriate starting point.6
[11] The 25 July robbery did not involve a home invasion. You were both present at the address on the invitation of the victim’s flatmate. It was also opportunistic offending. The property taken (being the victim’s cellphone) was modest in monetary terms, although as the Crown says, a person’s cellphone holds an abundance of personal information. The offending also did involve threats to the victim; Mr Te Ao, you threatening to cut his throat, and Mr Parata, you aiming the BB gun in his direction and imitating the discharge of the weapon. I note that the victim did not know that this was not a genuine firearm.
[12] The 29 July offending was more serious. It is unclear how you gained entry into the house and the summary of facts is silent as to the fact. I accept it is likely that given you were welcome to the address due to being friends with the victim’s flatmate, so this is not a typical home invasion scenario. Nonetheless, you did enter the victim’s bedroom uninvited, a very frightening experience for the victim and his partner, which must be taken into account. This offending involved no weapons, but I accept the Crown’s submission that it must be viewed in light of the previous threats made. It also involved the taking of the victim from his home to an ATM to withdraw cash, although the quantum taken was small.
[13] There is debate as to the premeditation aspect of the 29 July offending. The Crown say that this was planned, namely that you went to the victim’s property with
4 Tuhi v R [2021] NZHC 459 (five years’ imprisonment); Marsh v R [2019] NZCA 220 (three and a half years’ imprisonment); and Reid v R [2017] NZCA 451 (four years’ imprisonment).
5 The submissions of Ms Riddell, for Mr Parata, as to starting point have been adopted by Mr Bamford, for Mr Te Ao.
6 Marsh v R, above n 4, at [10].
the purpose of getting cash off him, following the 25 July incident. Your counsel say that it is unclear whether you went there that day to rob the victim or to hang out with your friend living at the address, with whom you spent time after the robbery. On the information before me, I consider there to be a low level of premeditation involved. You were clearly expecting to be paid $100 by the victim at some point, and in my view, you were clearly following up as to that perceived debt with intention to retrieve the money.
[14] Both the Crown and your counsel refer me to a number of cases. I consider two to be particularly helpful to my assessment.
[15] The first is Marsh v R.7 The case involved a pre-meditated robbery with an element of home invasion. The two offenders entered the home separately, the first under the guise of purchasing drugs. A female associate who entered with him then went and let the second offender into the residential complex. The victim, concerned about the turn of events, made his way to another apartment and those living there tried to get the offenders to leave, to no avail. The offenders would not leave and one stood over the victim with a clenched fist and threatened him. Half a gram of methamphetamine, $50, a sports bag and a cell phone were then taken. The Court of Appeal in that case noted “there was no forced entry into the residential complex or into the apartment itself, but both appellants were unlawfully present after being asked to leave by the occupants, and the robbery took place in a private dwelling”.8 The Court of Appeal considered a starting point of three years and six months’ imprisonment more accurately reflected the seriousness of the offending.
[16] I also find the case of R v Petersen helpful.9 The victim was delivering some belongings back to the female offender in this case. Once at the address, her male co- offender and an associate came out of the house and accused the victim of “ripping off” a gang member. The associate punched the victim in the face and stomach. The male co-offender then took the victim’s phone, wallet and cigarettes. Both offenders then drove the victim to an ATM and demanded the PIN number to his bank card, and
7 Marsh v R, above n 4.
8 At [7].
9 R v Peterson [2022] NZHC 2742.
that he transfer money to the account connected to the bank card. Ultimately, $130 was withdrawn. The victim was then asked to drive the female offender to the liquor store and back, before being allowed to leave.
[17] In that case, as has been mentioned by counsel, the offenders were initially charged with aggravated robbery on a “together with” basis, as is the case here. But it was ultimately reduced to robbery. Nonetheless, the Court still referred to Mako as informative of the appropriate starting point, reaching a starting point of two years’ and two months’ imprisonment for the male offender and 16 months’ imprisonment for the female offender. The Court appears not to have considered the violence as an aggravating factor attributable to the offenders in that case, and noted there were no disguises or weapons, no members of the public involved, and that the robbery occurred during the day.10
[18] Here, given both aggravated robberies are part of a clearly connected series of events, I consider the correct approach in setting the starting point is taking the 29 July aggravated robbery as the lead offence, as it is the most serious, with an uplift to reflect the 25 July offending.11 The 29 July offending is of similar severity to Marsh, and I consider it warrants the same starting point of three years’ and six months’ imprisonment. I uplift this by one year for the 25 July offending.
[19] A total starting point of four and a half years’ imprisonment, in my view, adequately accounts for your culpability over the course of both aggravated robberies, recognising the low level of premeditation involved, the minimal element of home invasion, the number of offenders present, the threats of violence made to the victim and the taking of the victim from his home to the ATM.
Mr Thompson
[20] Mr Thompson, I turn to you. The Crown accepts that you had a lesser role in the offending, stating that you were brought in as muscle to assist in the endeavour started by your co-defendants. Your counsel has addressed me as to the culpability
10 At [39].
11 Sentencing Act 2002, s 84(2).
factors relevant to you. For your role in the offending, I adopt a starting point of three years’ imprisonment in relation to the aggravated robbery charge.
[21] You also face an additional charge for driving while disqualified. You were disqualified on 9 July 2020, approximately three weeks before the current offending. This is your fourth conviction from driving whilst disqualified. Your starting point is uplifted by three months to reflect this charge.
[22] I reach an overall starting point for you of three years and three months’ imprisonment.
Personal circumstances
[23] I now turn to each of you individually to address the factors personal to you and their impact on your sentence. I have received a pre-sentence report, s 27 cultural report and alcohol and drug report for all of you, to assist the Court with this assessment.
Mr Parata
[24] Mr Parata, you were 20 years old at the time of the offending. You are now 23. You are Māori. You were born into a severely dysfunctional family. Your parents suffered from drug and alcohol addictions and you bore witness to substance and physical abuse from a young age. At the age of five you were removed from your parents’ care. This also resulted in your separation from your sister, which was deeply traumatising for you. Over the course of your childhood and teenage years you were placed in numerous state foster homes and had no contact with your whānau. This has led to your lack of connection to your culture on both sides of your family. You experienced sexual abuse while in care and you were undoubtedly let down by the system when you tried twice to report it. You started using cannabis at eight years’ old and methamphetamine at 12. By 14, you say you were using methamphetamine daily to cope with your trauma. You say you had consumed methamphetamine prior to the offending. You also began to engage in criminal behaviour. Since you turned 18 you have had over 30 convictions primarily for violence and dishonesty offending.
[25] You are a talented sportsman and have had opportunities to represent New Zealand in rugby. However, the pathways you have taken up to this point have prevented you from taking this further.
[26] You have the support of your partner and her family, and you consider her family is like your own. They are supportive of you and have recognised some changes that you have made in your life since opening up to them about the trauma of your past.
[27] You report being a patched gang member, and that you joined a gang for acceptance and belonging. I note that it appears you became a patched member of this gang during the time between the offending occurring and the completion of your reports. I note that in February 2022 you denied prospecting for this gang and this was influential to your grant of bail at the time. You were seen in July 2022 in the gang’s insignia. The reports also conflict as to your attitude to the gang. In the cultural report, you say that you wish to leave gang life behind to focus on your own healing. However, the alcohol and drug report writer records that you said that you would always be a member of your gang.
Uplift
[28] The Crown say an uplift is warranted for your previous offending, which includes assault on a person in family relationship, common assault, nine charges of unlawfully taking motor vehicles and four burglary charges, over the last five years. The current offending appears to be an escalation from your previous offending. You had also been sentenced to supervision and community work on a number of driving charges and assault only one week before the first aggravated robbery. Despite an absence of convictions for aggravated robbery, your history of offending and the fact the offending occurred while serving a supervisory sentence points to your reoffending risk (which is assessed in the pre-sentence report as medium to high) and a
corresponding need for community protection.12 A small uplift of three months’ imprisonment is warranted.13
Youth
[29] A discount is warranted for your youth. The offending, in my view, reflects a level of impulsivity and risk-taking by you that are often the hallmarks of youth offending and the neurological differences between adult and child offenders. I also note the comments of the Court of Appeal that for young offenders, long sentences can be counterproductive, with such a sentence having less of a deterrent impact on youth offenders and also potentially harming rehabilitation prospects.14
[30]I consider a discount of 10 per cent for your youth to be appropriate.
Personal factors
[31] Mr Parata, your cultural report sets out a number of background factors which have significantly disadvantaged you, namely whānau dysfunction, placement in state care, cultural disconnection from te ao Māori, alcohol and drug dependence and sexual abuse. Your life has been marred by social deprivation which I accept no doubt has contributed to your decision-making and culpability in the present case. As the Supreme Court recently noted in Berkland, this helps explain how you came to offend and accordingly amounts to a causative contribution relevant for sentencing.15 A 25 per cent reduction in your sentence is warranted on that basis.
Guilty plea
[32] I turn then to the guilty plea. The charges were laid on 31 July 2020. You pleaded guilty a week before trial. I consider a 15 per cent discount as appropriate in the circumstances.
12 See Wipa v R [2018] NZCA 219 at [36]; and Marsh, above n 4, at [19]
13 This is consistent with other cases where uplifts have been imposed for offending while serving a supervisory sentence: see Tauia v R [2021] NZHC 2803 (two month uplift); Molia v R [2013] NZCA 402 (six month uplift); and Jones v R [2021] NZCA 401 (four month uplift for offending while serving sentence of intensive supervision and criminal history combined not disturbed on appeal).
14 See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.; and Millar v R [2019] NZCA 570.
15 Berkland v R [2022] NZSC 143 at [109].
Remorse
[33] I do not accept that an additional discount for remorse is appropriate. I note that you have written a letter of apology to the victim and sought to engage in restorative justice, although that could not proceed. However, I accept the Crown’s submission that you have previously misled the court for your own benefit, denying your involvement in the gang in order to support a bail application. The Crown also notes that the joining of a criminal gang subsequent to this offending, your denial of certain aspects of the statement of facts that you have pleaded guilty to is inconsistent with your remorse. In the circumstances, I do not consider you to have demonstrated tangible and genuine remorse such that a further discrete discount should be imposed.16
Time spent on EM bail
[34] The Court is required to consider the time that you have spent on EM bail as a factor potentially justifying a credit on sentence.17 There is no mathematical formula for equating time spent on EM bail to a specific sentencing credit; this is an evaluative exercise for the sentencing court. Allowances of between 30 and 50 per cent of the time spent on EM bail are not uncommon.18 In determining the appropriate discount, the level of restriction is a relevant factor; the greater degree of restriction, the stronger the case is for sentencing credit.19 The degree of restriction on liberty should be compared with restrictions of remand in custody.20 Your compliance with conditions is also relevant to this assessment.
[35] You spent 13 months on EM bail. During that time, you were largely compliant (with one uncertified breach for your battery of your tracker going flat). You were permitted absences for work, exercise, a work function and a holiday over the Christmas period. In the circumstances, I consider a four month reduction from the
16 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, (2020) 29 CRNZ 381.
17 Sentencing Act 2002, s 9(2)(h); and Paora v R [2021] NZCA 559.
18 Paora, above n 17, at [53]; and Parata v R [2017] NZCA 48 at [12] and [15].
19 See Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA9.28B(b)], citing R v Nepe [2008] NZCA 98 at [33]; R v Faisandier CA185/00, 12 October 2000; Hohipa v R [2015] NZCA 485; Parata v R, above n 18; and Paora v R, above n 17.
20 Keown v R [2010] NZCA 492 at [12].
time spent on EM bail (30 per cent of the time spent) is appropriate in the circumstances.
End sentence
[36] From a starting point of four years and six months’ (54 months) imprisonment, I adopt:
(a)a three month uplift for previous convictions;
(b)a 10 per cent (five month) discount for youth;
(c)a 25 per cent (14 month) discount for personal circumstances;
(d)a 15 per cent (8 month) discount for guilty plea; and
(e)a four month reduction for time spent on EM bail.
[37]This results in an end sentence of two years and two months’ imprisonment.
Mr Te Ao
[38] I now turn to you, Mr Te Ao. You are only 20 years old and were 18 at the time of the offending. You whakapapa to Tainui, Ngāti Raukawa and Ngāti Kahungunu. You feel disconnected to your whakapapa and your reo. You are a competent outdoorsman and your whānau say that you thrive in outdoor environments and enjoy spending time fishing or diving for kina.
[39] The cultural report describes that you were raised in an environment of extreme neglect, violence and drug abuse from an early age. You were exposed to drugs and alcohol from a young age as well as domestic violence, although you say you were not subject to physical abuse yourself. As a result, you remember being passed around your extended whānau a lot. You are also the oldest sibling of four and given your home environment, you had to learn how to look after yourself from a young age and provide for yourself. By 13 you were drinking, smoking cigarettes and using cannabis. You say you used to steal and rob houses to pay for weed. You were then introduced to methamphetamine at around 15 or 16 years old. You became a heavy user of
methamphetamine and say that you would use up to two grams of methamphetamine in a day. You were under the influence of methamphetamine at the time of the offending and say that it was not worth it. You have not used methamphetamine since being remanded in custody. It is accepted that rehabilitative drug treatment will be important for you.
[40] You had trouble learning at school, due to your dyslexia and say you never fit in with the other kids. When you were a kid, your father also went to prison. And I note your counsel’s emphasis on the traumatic events surrounding your father’s imprisonment when the Police came to your house.
[41] You met your partner at age 16 and have been together since. You have a young baby together and you say you are motivated to become a better person for your child. You have expressed that you are highly motivated to complete any programmes or interventions required for rehabilitation, become a better person and stay away from the “crime life.”
[42] You are at a turning point in your life and I urge you to take your rehabilitation seriously for the benefit of yourself and your family.
Uplift for offending on bail
[43] You committed the aggravated robberies while you were on bail for possession of methamphetamine, possession of ecstasy for supply and failing to answer District Court bail. I uplift your sentence by two months in recognition of this.21
Youth
[44] Turning then to discounts. As I have noted, you were 18 at the time of the offending. A discount is warranted for the impact that your youth has on your culpability, your rehabilitation prospects and to recognise the impact that prison will have on you. I adopt a 15 per cent discount for your age.
21 For other cases where sentence has been uplifted for offending while on bail see: Woodstock v R [2020] NZCA 472 (six month uplift); Manning v R [2020] NZHC 626 (three month uplift); and Belle v Police [2017] NZHC 866 (four month uplift).
Personal circumstances
[45] Your personal circumstances help to explain your offending. As the s 27 report writer notes, you have experienced neglect, an early introduction to violence and drug taking behaviours, and an upbringing compounded by learning difficulties and disconnect from your whakapapa. I note that your addiction is a clear issue for you, and this was connected to your offending, having used methamphetamine at that time. In all the circumstances, a 20 per cent discount for these factors is appropriate.
Guilty plea
[46] For the same reasons as for Mr Parata, I consider a discount of 15 per cent is appropriate for your guilty plea.
Remorse
[47] I also do not accept a discount for remorse is appropriate for you in the circumstances. While you have written a letter of apology to the victim and were willing to engage in restorative justice, your pre-sentence report records that you contest some elements of the offending, saying that they were “twisted and over- exaggerated” by the victim. You say that the victim was not forced into the vehicle, owed money and asked for a lift to withdraw the money. In my view, this shows you lack insight to the offending and genuine remorse, likely also due to your youth and immaturity, which is accounted for in the youth discount.
Credit for time on bail
[48] For the time you have spent on bail it is appropriate to reduce your sentence by a further month.
End sentence
[49] From a starting point of four years’ and six months’ imprisonment, I therefore adopt:
(a)An uplift of two months’ imprisonment for offending while on bail;
(b)a 15 per cent (8 month) discount for your youth;
(c)a 20 per cent (11 month) discount for your personal circumstances;
(d)a 15 per cent (8 month) discount for your guilty plea: and
(e)a one month reduction for time on bail.
[50] This leads to an end sentence of two years and four months’ (28 months’) imprisonment.
Mr Thompson
[51] Mr Thompson, you are 34 years old and identify as Māori. Like your co- offenders, you know little about your whakapapa and are disconnected from your culture. You grew up in a small town with a large family of 13 children. You grew up experiencing socio-economic deprivation. You recall the power having to be turned off on occasion as there was sometimes little money to go around for necessities. You were subject to physical abuse growing up from your father and had a strained relationship with him in your adult life because of it. You left school at 15 and joined a gang at 18. You report that your family is heavily gang associated and you also report not being on speaking terms with some of your brothers due to belonging to different gangs. However, you say that you are thinking of leaving gang life in order to move on with your family, being your partner of over 10 years and your five children.
[52] You report having a traumatic car accident when you were younger, from which you sustained head injuries and had to be hospitalised for four weeks. You believe that this has had an impact on your ability to control your anger and you are eager to take anger management courses.
[53] While suffering from addiction in the past, you say that that is no longer a struggle for you and that you have quit drugs for your family.
Previous offending
[54] You have 74 previous convictions, including for burglary and assault. I note that your current offending represents an escalation from your previous offending. The Crown say an uplift is appropriate for this criminal history. Your counsel says that any uplift relating to the driving with disqualified charge would amount to double counting, given the relevance of an assessment of previous disqualified driving convictions to the starting point. Your counsel further considers that the majority of your offending is unrelated to the index offending or significantly dated such that an uplift is not warranted.
[55] I do not accept that your previous violence and burglary offending is wholly unrelated to the charge your currently face. In light of your history, I impose a small uplift of two months’ imprisonment.
Guilty plea
[56]As for your co-offenders, I adopt a 15 per cent discount for your guilty plea.
Personal factors
[57] I consider a 15 per cent discount is appropriate for your cultural and personal factors. I recognise the general impact of the fact that, as the cultural report writer writes, children struggle to cope with the risk of violence in the home environment and from parents in particular. Your counsel has emphasised to me how quickly you entered the criminal justice system and that you do not have the tools to remove yourself from that lifestyle.
Time on EM bail
[58] You were subject to EM bail for about a year. You were permitted modest absences from the property for exercise. You complied well while on EM bail, but when the EM component of the sentence was removed and replaced with a curfew, you breached your bail. Nonetheless, I accept that you were compliant while on EM bail. A four month reduction for that time spent on EM bail is appropriate.
Remorse
[59] Like your co-offenders, you have written to the Court a letter of apology which I have read, and offered to participate in restorative justice. However, I note that the pre-sentence report records that you showed some remorse for being involved in the offending, but that you have showed little remorse toward the victim, stating you were “supposed to apologise” to him. I consider in the circumstances a discrete discount for remorse is inappropriate.
End sentence
[60] From a starting point of three years and three months’ imprisonment I therefore adopt:
(a)a two month uplift for previous offending;
(b)a 15 per cent (six months) reduction for your guilty plea;
(c)a 15 per reduction (six months) for personal circumstances; and
(d)a four month reduction for time spent on EM bail.
[61] This results in an end sentence of two years and one month’s (25 months’) imprisonment.
Sentence
[62]Mr Parata, Mr Te Ao and Mr Thompson.
[63] Mr Parata, I am sentencing you for both aggravated robbery charges to a period of two years’ and two months’ imprisonment for your offending.
[64] Mr Te Ao, I am sentencing you for both aggravated robbery charges to a period of two years’ and four month’s imprisonment for your offending.
[65] Mr Thompson, I am sentencing you to two years’ and one month’s imprisonment for the aggravated robbery charge. For the driving while disqualified charge, I impose a sentence of six months’ imprisonment, to be served concurrently. You are also automatically disqualified from driving for 12 months.
[66] I also make an order as sought by the Crown for the destruction of the BB gun and I note that when released you are all not to have any contact with the victim or his partner.
McQueen J
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