R v Peri
[2015] NZHC 3221
•15 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-090-3023 [2015] NZHC 3221
THE QUEEN
v
STEVEN KURT PERI
Hearing: 15 December 2015 Counsel:
N Williams &T McGuigan for the Crown
A M Rice for Mr PeriSentence:
15 December 2015
SENTENCE OF DUFFY J
Solicitors:
Crown Solicitor, Auckland
Counsel:
Andrew Rice, Barrister, Auckland
R v PERI [2015] NZHC 3221 [15 December 2015]
[1] Steven Peri, you appear for sentence on one charge of aggravated robbery. The offending occurred just after 9 am on 2 June 2015. You went into a BNZ bank, approached the customer service counter and handed a note to the staff member. The note read:
I HAVE A GUN THAT I WILL NOT HESITATE TO USE I want all the notes from out of the drawer. Do not draw attention or notify anyone until after I’ve left. I don’t want to hurt anyone BUT I WILL if you do not follow the instructions. Remain calm and everything will be alright.
[2] You started pulling a small black hand gun from your left pocket with your finger on the trigger. You stated “I wouldn’t hesitate to use it, give me the money”. The staff member went to the back to alert the manager.
[3] You then approached a second staff member. You said you needed money and had a gun. You then pulled the gun from your pocket and placed it on the counter, covering it from other people’s view. The second staff member told you to wait and went into the rear office. When she returned you again told her to give you the money and that you had a gun.
[4] The manager arrived and stated that there was a minute time delay on the cash drawers. After a minute the manager handed you $5,060 in $5, $10, $50, and
$100 notes. You took the cash and left the bank. You went to a nearby Salvation
Army Store where he had previously left a bag of clothes to change into.
[5] You reported that you committed the offending due to financial pressures. The offending occurred after you had lost your job and owed rent, but could not receive a benefit for 13 weeks, owing to the mandatory stand down period.
[6] You have convictions for three counts of non-aggravated robbery from 2011, a conviction for demand with intent to steal from 2007 and seven counts of non- aggravated robbery from 2007. You also have previous convictions for offending in Canada. In 1999 you were convicted for offences of forcible confinement, robbery with a firearm and robbery without a firearm. You was sentenced to 12 years imprisonment. You were released from prison in 2007 and deported to New Zealand.
[7] You are on your second strike under the three strikes regime. You have already received a second stage warning on conviction for this offending.1
Crown Submissions
[8] The Crown acknowledges that the present case is finely balanced, but asks me to consider preventive detention. I have already said that I am not going to do that. In light of the fact that you must serve the full term of the sentence imposed, the Crown submits that a lengthy finite sentence may be preferable. The Crown submits that the appropriate starting point is in the vicinity of six years imprisonment with a six to nine months uplift to acknowledge the need for specific deterrence, given your previous offending. A full 25 per cent discount for your guilty plea is accepted as appropriate.
[9] The Crown submits that the following aggravating factors are present in this case:
(a) A high degree of planning and premeditation as demonstrated by the fact that you had a pre-written note and a gun.
(b)Disguises and other means of concealing identity: once you left the bank, you went into a Salvation Army store where you had left a bag of his clothes.
(c) Use of weapons. I accept as the Crown has acknowledged today that the gun was an air pistol.
(d)Targeting premises, namely a bank, where members of the public are likely to be present. Your previous burglary offending took place at a bank. In this case, approximately six customers were in the bank at
the time.
1 Section 86C(1) of the Sentencing Act 2002 provides that the sentencing for a stage-2 offence the Court must warn the offender of the consequences if the offender is convicted of any serious violent offences committed after that warning and record that the offender has been warned.
(e) A reasonably high level of threatened violence was present as you indicated in your note that you would not hesitate to use the gun and brandished the gun with your finger on the trigger at the teller. You also showed it to a second staff member.
(f) The property stolen was $5,060. Approximately $400 was recovered.
[10] The Crown relies on R v Mako in submitting that a starting point of six years imprisonment is appropriate for aggravated robbery of commercial premises with these features.2
[11] The Crown submits that the offending is comparable to that in R v Tuia.3 In that case, Mr Tuia entered a Bank wearing a bulky jacket and sunglasses. He went up to the teller and pulled a knife and a plastic bag out of his pocket. He demanded money from the two tellers and thrust the knife within six inches of one of the teller’s chests. He got $4,280. All of this except for $895 was recovered. Mr Tuia then stole two motor vehicles. The Court of Appeal upheld the seven year starting point imposed by the sentencing judge, noting that this reflected the conversion of the getaway cars, the degree of preparation, use of a weapon and the premises
targeted.4
[12] The Crown sees your offending as analogous as both cases involved the offender entering a bank with a weapon and demanding money without any physical injuries being inflicted. However, the offending in Tuia also included two charges of unlawfully taking a motor vehicle.
[13] The Crown in its submissions then addressed preventive detention. In its written submissions the Crown referred to the pattern of your previous offending:5
2 R v Mako [2000] 2 NZLR 170 (CA).
3 R v Tuia CA372/02, 18 November 2002.
4 However, the appeal was ultimately successful as the Court considered that a 12 month reduction was necessary to acknowledge Mr Tuia’s reduced culpability due to the fact that he was suffering from schizophrenia. The Court therefore substituted an end sentence of four years imprisonment.
5 Sentencing Act 2002, s 87(4)(a).
(a) In 1999 you were convicted in Canada on charges of forcible confinement, robbery with a firearm and robbery without a firearm. After serving eight years of a 12 year sentence you were deported to New Zealand in February 2007.
(b)In August 2007 you committed a spree of seven robberies plus what the Crown describes as a further similar incident charged as demanding with intent to steal. You were sentenced to three and a half years imprisonment.
(c) Within five days of your release from prison you committed a further three robberies over nine days in February and March 2011. You were sentenced to three years nine months imprisonment.
(d)The current offending was committed approximately seven months after your release from prison.
[14] The Crown therefore points to what it says is a well-established pattern of offending within a short period of time following your release from prison. Your previous robberies in New Zealand all involved using handwritten notes to threaten bank employees to get money. However, this time was the first when you actually used a gun.
[15] The Crown has addressed the seriousness of the harm caused to the community. There are the victim impact reports which I note which record the serious harm that was caused to at least two of the bank’s employees who were present at the robbery. Those reports show that they still feel a considerable degree of stress and insecurity as a result of what they experienced on the day of the offending.
[16] In 2007 the sentencing Judge noted that your offending had caused enormous amounts of emotional distress to your victims. That was similarly noted in 2011 by the sentencing Judge. However, the psychologist’s report records that you acknowledge the psychological harm caused to the staff this time. You stated that
you could tell the female employee was quite affected by the experience. You stated that this bothered you, unlike with previous offending when you did not notice or consider the impact on the victims.
[17] There are two expert medical reports here. One by a psychiatrist and one by clinical psychologist. Dr Skipworth, the psychiatrist, has concluded that you are not in the highest risk category of reoffending, but he says there is a moderate risk that you will reoffend upon release. The clinical psychologist, Dr Sakdalan, concludes that you have a high risk of reoffending in a similar manner. He considers you are likely to reoffend very soon after release from prison, particularly if you are experiencing financial difficulties and have limited access to support.
[18] The Crown has submitted that your offending is largely attributable to a lack of structured environment and further that your risk is perhaps now mitigated by a good understanding of the risks. You appear to accept the need for intervention and good social support and you appear to have a positive attitude towards personal change.
[19] The next factor is the absence or failure by you to address the causes of your offending.6 The Crown has referred to you completing the Medium Intensity Rehabilitation Programme while serving your most recent sentence of imprisonment but notes you were not engaged in the programme. You previously attended the programme in 2010 and 2012. The Crown considers that you have displayed a low response to the available treatment. However, has noted that there is something of a positive attitude towards therapy now.
[20] Finally, I note the Crown considers that a lengthy determinate sentence may be preferable.7 There are programmes that have not addressed issues of violence and you have not had intensive individual psychological treatment.
[21] The Crown has sought an uplift for previous offending where a second strike warning is given and relies on the approach of Moore J in Palalagi v Police. The
6 Section 87(4)(d).
7 Section 87(4)(e).
Crown considers that an uplift of six to nine months for your previous offending is appropriate and accepts you are entitled to a full 25 per cent discount.
Defence Submissions
[22] Your counsel has submitted that preventive detention is not necessary in this case and I have confirmed that. He appears to agree that a starting point of six years imprisonment is appropriate. He had initially argued that there should be no uplift for previous convictions but I consider that at the sentencing hearing today he correctly and responsibly acknowledged that the decision in Palalagi is in fact the correct one and that there should be some uplift.
[23] In the written submissions which I have read carefully your counsel set out why preventive detention is not appropriate. The following points were identified:
(a) Dr Skipworth recording that you accepted that you would be required to undertake rehabilitative programmes.
(b)Dr Skipworth noting that you understood risks and expressed a greater degree of remorse towards victims for this offending than for previous offending.
(c) Dr Skipworth noting that you accepted that a remedial programme of higher level intensity is appropriate.
(d)You are aware of the importance of good social support to mitigate against the risk of reoffending.
(e) In conclusion, Dr Skipworth noted that you are not in the highest risk category and at the moderate-high risk of offending on release. His view was risk could be mitigated if you completed high intensity rehabilitative programmes during your period of imprisonment.
(f) Dr Sakdalan records that you suffered a serious assault whilst serving imprisonment in Canada and reported you were still suffering from post-traumatic stress disorder.
(g)On being deported to New Zealand you were isolated with no family support.
(h)Prior to your current sentence you were receiving support and assistance from the Salvation Army.
(i)You had acknowledged the psychological harm that your offending would have caused to bank staff.
(j)Dr Sakdalan’s report concluded that you have a high risk of reoffending but that the chances that you would engage in serious physical violence at this time appear to be low. He recommended that you attend further violence prevention programmes in prison.
[24] It was for those reasons that your counsel in his written submissions submitted that preventive detention should not be imposed because you have shown an inclination to address the causes of your offending and are prepared to work at that during your prison sentence. You will receive a lengthy prison sentence which will adequately provide protection to society. Your counsel submitted the reports do not paint a hopeless picture of you and you have not served a long prison sentence in New Zealand.
Discussion – finite sentence
[25] In sentencing you must take into account the principles and purposes of sentencing in ss 7 and 8 of the Sentencing Act 2002. I consider that the purposes of accountability, denunciation, deterrence and rehabilitation are particularly relevant here.
[26] The leading case for aggravated robbery remains R v Mako. There the Court of Appeal stated that sentencing for aggravated robbery required a careful exercise of
sentencing discretion to assess the seriousness of the offending by reference to the particular combination of features in the circumstances.8 The Court gave as one example:9
The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of 6 or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be 8 years or more.
[27] I consider two other cases are helpful. In Fitikefu v R the Court of Appeal dismissed an appeal against a sentence of four years six months imprisonment. The appellant and two co-offenders arrived outside of a bank in a car they had stolen earlier that morning. The appellant and one co-offender got out of the car and went into the bank with the hoods of their sweatshirts up, covering their heads. Mr Fitikefu stayed at the door. His co-offender leapt over the barrier and demanded cash. $2,800 was taken. Mr Fitikefu yelled threats at the staff as the two offenders
ran to the car.10
[28] The Court identified the relevant factors as: the offending was planned, and an attempt made to disguise appearance, the offending targeted a bank; there was no evidence of weapons but threats were made to members of the public and staff; there were multiple offenders.
[29] The Court noted that Venning J’s starting point of five years four months reflected the fact that no weapons were carried. It was consistent with the observations in Mako.11 Venning J’s end sentence included an uplift of one year for seven offences that were similar to aggravated robbery committed in Australia between 1997 and 2004.
[30] Another similar case is Kiwara v R. The appellant and two associates were charged with aggravated robbery. The appellant was the get-away driver. His two
8 At [34] and [35].
9 At [54].
10 Fitikefu v R [2014] NZCA 99. Venning J did not impose preventive detention in this case “by the
narrowest of margins”.
11 At [16].
associates entered a bank, one of them carrying a screwdriver. The first leapt up onto the counter and climbed into the area where the tellers were working. The second observed what was going on. The first robber gathered over $10,000 cash, although he dropped some of this leaving the premises. On appeal the appellant accepted that a starting point of six years was within range.12
[31] Having regard to these two cases as well as R v Tuia relied on by the Crown, I propose to adopt a starting point of six years imprisonment. You entered a bank with a gun and threatened to use the gun. The handwritten note, gun and change of clothes show a degree of premeditation. Unlike in Fitekefu and Kiwara, you committed the offending alone. However I consider that the presence of a gun is more serious than in Fitekefu where there was no gun and Kiwara where the weapon was a screwdriver.
[32] The next question is whether there should be an uplift for your previous convictions. This Court has taken divergent approaches to uplifting for previous convictions where the three strikes regime is in play. The approach initially relied on by defence counsel is Wereta where Courtney J accepted that criminal history is the basis for the requirement to serve the whole of the sentence, and so to uplift the
sentence as well to reflect your criminal history would be double counting.13
[33] By contrast in Palalagi v Police Moore J considered that taking into account the three-strike impact in the sentencing exercise was inconsistent with Parliament’s intention and that non-eligibility for parole is a separate and distinct consideration from sentencing.14 Specifically his Honour noted:
(a) The three-strike regime operates on the principle that parole is a privilege and not a right. Exempting offenders caught be this regime would be to treat them differently;
(b) There is nothing in the Sentencing Act to suggest that non-eligibility for parole was intended to affect the calculation of sentence length;
(c) Uplifting for previous offending does not amount to double counting as a second strike is premised on the fact that the offender is
12 Kiwara v R [2012] NZCA 468.
13 At [12].
14 At [61]. Cited with approval by Venning J in R v Wereta [2015] NZHC 2683.
convicted of a serious violent offence for the second time. It does not take into account other previous offending;
(d) Exempting offenders from the uplift would create an arbitrary distinction which offends against the principle that sentencing should be consistent and predictable.
[34] I have carefully read Palalagi. I find Moore J’s reasoning compelling. I propose therefore to approach the question of an uplift for previous offending in the usual way.
[35] The Court of Appeal has warned against giving an uplift for previous offending as a matter of course. Rather, previous convictions may be relevant as they indicate a tendency to commit the particular type of offence or bear on the issue of character. Deterrence and protection of the public may require an uplift.15 The number, seriousness, date and nature of the previous offences are relevant.16
[36] As the Crown has noted, your previous convictions are almost all for robbery committed in a very similar manner to the current offending. These convictions indicate a tendency to commit robbery. Further, the presence of the gun this time suggested your offending may be escalating. I consider that your previous convictions justify an uplift of at least six months to the starting point. This is the minimum uplift suggested by the Crown. I consider that it reflects the need for specific deterrence given your previous robbery offences. However I am mindful that under the Sentencing Act I should impose the least restrictive sentence and so I propose to adopt the minimum uplift.
[37] This takes the finite sentence to one of six years six months. Your counsel has not argued for any discount for personal mitigating factors. I agree that 25 per cent discount is appropriate for your early guilty plea. This brings the finite sentence to four years 11 months. This takes the finite sentence to one of six years, six months. Your counsel has not argued for any discount for personal mitigating factors. I agree that 25% discount is appropriate for your early guilty plea. This
brings the finite sentence to four years, 11 months imprisonment.
15 Beckam v R [2012] NZCA 290 at [84]; Tiplady-Koroheke v R [2012] NZCA 477 at [23]; and
O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 301 at [41].
16 Kushell v Police [2012] NZHC 230 at [10].
[38] Under s 86C, if, but for the operation of the three strikes provisions I would have otherwise imposed a minimum period of imprisonment, I must state, with reasons, the period that I would have imposed. Given your risk of re-offending and the pattern of offending, I consider that serving one third of a sentence of four years
11 months would be insufficient to deter you from committing the same offence again and protecting the community.17 Accordingly, I would have imposed a minimum period of imprisonment of just over 50 per cent, or two years six months imprisonment.
Preventive detention
[39] I now turn to give reasons why I have rejected the idea of imposing a sentence of preventive detention. This Court may impose preventive detention if:
(a) The defendant is convicted of a qualifying sexual or violent offence;
and
(b)The person was 18 years of age or over at the time of committing the offence; and
(c) The court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date of any sentence the court is able to impose.
There is no dispute that you meet the first two criteria.
[40] When considering whether to impose preventive detention, the court must consider the factors listed in s 87(4) of the Sentencing Act.
[41] In terms of the clinical reports both the prosecution and defence have relied on the findings in two medical reports. Dr Sakdalan’s report was prepared after interviewing you for four and a half hours and is the fuller of the two reports. He
notes:
17 As per s 86(2)(c) and (d).
Mr Peri’s antisocial behaviours and attitudes are well entrenched. He still seemed to have limited insight into the dynamics of his offending despite completing some offence related programmes. He tends to attribute his offending to not being able to deal with negative emotions which to some degree is valid. Notwithstanding, he tends to attribute his offending to external factors (eg lacking support, lack of funds, unemployment, etc.) and has limited insight to internal factors (e.g. antisocial attitudes and behaviours, his choice to ‘live beyond his means’.) related to his offending.
[42] In relation to your responsivity to treatment, the report states:
Mr Peri believes that he would benefit from individual counselling which is targeted at specific issues relevant to him, more than he would from attending additional programmes. Mr Peri reports that he has been diagnosed with PTSD and Social anxiety which may impact on his ability to fully engage in group based therapeutic or rehabilitation programmes. He may benefit from individual support to help him to apply concepts discussed in programmes to his situation and risk factors. Mr Peri evidenced an external locus of control, commenting on the support he requires and attributing previous failed releases as due to insufficient supports being in place. He may therefore require support in working towards understanding and participating in assuming responsibility with respect to self-management of risk and life in general.
Mr Peri has limited understanding of the nature of the impact on others of threats of violence, and hence minimises his violence. This may limit his capacity to benefit from programmes addressing violence which he might perceive as not being personally relevant.
[43] Your risk of reoffending is assessed in the following way:
… of particular relevance in regard to his risk of re-offending are the following: history of violence and other antisocial behaviours, personality disorder, poor employment, limited social support and relationship issues, poor insight into his offending issues and problems with treatment and supervision response. Mr Peri appears to carry limited risk reducing/protective factors. These factors include Mr Peri being placed in a supervised and structured environment and willingness to reengage in treatment. Overall, the writer is of the opinion that Mr Peri’s risk of re- offending in a similar manner as his index offending following his release in the community remains high.
[44] In the second report Dr Skipworth notes the following factors as relevant:
(a) Mr Peri’s violence features across his adult lifespan. He has only been
out of prison for 15 months within the last 18 years.
(b)His offending has repeatedly involved the use of weapons which elevates this risk, although they have only been used to threaten others.
(c) His first violent conviction at a young age and an unstable home situation when growing up are factors associated with higher risk groups. This is exacerbated with prior release failures.
(d)Mr Peri has a reasonable degree of insight and a good intellectual understanding of his risks.
(e) He had expressed a greater degree of empathy towards his victims that previously.
(f) He accepted responsibility for his actions and the need for intervention. This intervention will need to be at the higher level.
(g)He has been responsible for relatively few misconducts during his time imprison.
(h)His recent offending is not the result of association with criminal peers.
(i)He states that his offending is not related to drug or alcohol consumption.
(j)His offending showed a degree of impulsivity. He blames society and external factors for his offending and has a sense of financial entitlement,
(k) Mr Peri has a small circle of pro-social community supports.
[45] This report describes your risk of reoffending as:
Mr Peri is not in the highest risk category, though I would assess at least a moderate-high risk that he will reoffend after his next release. This risk
could be significantly mitigated if he successfully completes a high intensity rehabilitation programme during this period of imprisonment …. His next release will need to be very carefully planned and well supported.
Such an approach could occur either with an extended finite term, or an indefinite sentence.
[46] Based on the information in those reports and the other information concerning your offending I consider:
(a) There is no doubt that your conviction history discloses a pattern of offending involving robbery of banks which have each occurred within a short period of you being released from prison. Though I note there has never been more than a threat of violence to others.
(b)Your previous offending is recorded as having had a substantial impact on your victims. All of your offending in New Zealand has involved threatened violence rather than actual violence.
(c) There is information indicating that you have a tendency to commit serious offending in the future. Dr Sakdalan has assessed you as posing a high risk of reoffending and Dr Skipworth has assessed you as at least a moderate-high risk of reoffending.
(d)You have described your participation in the rehabilitation programmes as box ticking, and in this way can be seen as not made an effort to address the cause of the offending. However, both reports recorded that you appear to be willing to engage in rehabilitative programmes and consider that therapy would be beneficial. Further, it does appear that you have more insight into the current offending and acknowledge the impact on the victims. In addition, you told the probation officer that you felt that you were at risk of offending again, and this shows you have an understanding of the risks.
(e) Dr Skipworth considers that a higher intensity rehabilitative programme would be able to mitigate the risk you pose of re-
preferable, my view is that Dr Skipworth’s opinion points against
imposing preventive detention.
[47] When the considerations are weighed up, my view is that the requirements in s 87 are not met. Specifically, I consider that for someone of your age and attributes there are further rehabilitative options available to you while serving a determinate sentence. I consider that participation in further programmes and adequate support for you on your release from prison after you have served the whole of your finite sentence will adequately protect society. For this reason, I have decided not to impose preventive detention.
[48] However Mr Peri I want to emphasise that it would be wise for you to take advantage of all the rehabilitative programmes that are available to you. The report writers have referred to a tendency on your part to feel a victim of your own circumstances and so to justify your offending. I acknowledge that through no fault of your own your childhood was difficult and you received little help. I also acknowledge that your deportation to New Zealand at age 28 when your family are in Canada must have made settling in this country exceptionally hard. Without a doubt you are someone who has had a difficult life. I also acknowledge that for someone to be released from a lengthy sentence of imprisonment into the community without family help it is a difficult task to rehabilitate yourself, particularly if you denied a benefit.
[49] On the other hand you are now in your mid thirties. Today you have come close to a sentence of preventive detention. Despite having to face greater obstacles in life than many others you are ultimately the master of your own fate. You can make this offending a turning point and ensure it is your last offending so that on your release from prison you set out to ensure you will avoid further offending. I recognise it will not be easy for someone in your position to do this, but if you don’t do this you are likely to spend the best part of your life in prison. No matter what the odds may seem to be stacked against you, ultimately you are the one who determines which potential outcome will result and you are the one who will bear the consequences the most.
to four years’ 11 months imprisonment. Stand down please.
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