R v Petersen

[2022] NZHC 2742

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-063-2740

[2022] NZHC 2742

THE KING

v

TRENT TE AHU JOSH PETERSEN LEEANNE HEMA

Sentencing:

21 October 2022

Counsel:

H R Hancock for the Crown I Hard for Mr Petersen

P N Allan for Ms Hema (by AVL)

Sentencing Notes:

21 October 2022

SENTENCING NOTES OF GWYN J

Solicitors:
Crown Solicitor, Wellington

Copy to:

Mr Hard, Greytown Mr Allan, Christchurch

R v PETERSEN & HEMA [2022] NZHC 2742 [21 October 2022]

Introduction

[1]    Trent Petersen and Leeanne Hema you appear for sentence having pleaded guilty to a charge of robbery.1

[2]    In sentencing you today, I apply a law called the Sentencing Act 2002, which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold each of you accountable for the harm you have caused, to have you accept responsibility for, and acknowledge, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.2 What that means in practice is that I have to look at the whole situation and do what I can to mark what you have done, but also to acknowledge each of you and your particular circumstances and background.

[3]    In sentencing you, I will first say something about your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offences you are charged with; and second, I will consider whether to apply any increases (uplifts) and discounts to reflect your personal aggravating and mitigating factors.

[4]    Because sentencing is a public process, I have to talk about the detail of what happened.

The offending

[5]    You have pleaded guilty to robbing the victim on 30 November 2020. The victim was known to you, Ms Hema, through his partner. He had previously driven you from the hospital. He had some of your belongings and you arranged for him to drop those off at an address in Masterton.

[6]    When the victim arrived at the address at the agreed time, Ms Hema, you were waiting for him along with Mr Petersen and an associate. During the unloading of the

1      Crimes Act 1961, s 234 carries a maximum penalty of 10 years’ imprisonment.

2      Sentencing Act 2002, s 7.

belongings, Ms Hema, you got the victim to come out of the car. You then took the keys out of the ignition. At this point, Mr Petersen, you and an associate came out of the house.

[7]    Mr Petersen, you then accused the victim of having ripped off a Killer Beez gang member, with which you have had some association. Your associate then punched the victim in the face and stomach, before Mr Petersen, you demanded from the victim his cell phone, cigarettes and wallet.

[8]    Mr Petersen, you then drove the victim to the ATM machine with Ms Hema sitting in the back seat. Once there, you demanded that the victim give you the PIN to his eftpos card. Fearing for his safety, the victim complied. Ms Hema, you then attempted to withdraw money from the eftpos card but there was none in the account. But you knew the victim had been paid that day. So you and Mr Petersen demanded that the victim transfer his pay to the account you had the eftpos card to. Again, fearing for his safety, the victim did so. Ms Hema, you again attempted to withdraw cash using the eftpos card and this time you were successful in withdrawing $130.

[9]    Mr Petersen, you then drove back with the victim and Ms Hema. Here, the victim asked to be allowed to go. Instead of letting him go, Ms Hema, you got the victim to drive you to and from a liquor shop. On return, the victim again asked if he could go. Ms Hema, you then consulted with Mr Petersen inside the house while the victim waited outside. Finally, you allowed the victim to leave.

[10]   The victim suffered bruising to his head and stomach as a result of the punches. In a victim impact statement prepared on his behalf, he describes the significant financial loss he suffered because of your robbery, of $1,300. He also describes the loss of trust, anxiety and paranoia he has experienced and the fear he still feels for his safety, especially when going to Masterton.

Personal circumstances

Mr Petersen

[11]   Mr Petersen, before sentencing you today, I have read a report, dated 6 October 2022, prepared by the Department of Corrections (PAC report) and a Cultural Report prepared under s 27 of the Sentencing Act to give me a better understanding of your background. I have also reviewed your criminal history.

[12]   The PAC report suggests I sentence you to home detention. The report writer considers that a sentence of home detention will allow the monitoring of your risk to others while enabling you to access support in the community in gaining future employment and address your impulsive decision-making. Home detention would also mean you could maintain the ties you have with your long-term partner and two young children, who you say you have a healthy relationship with.

[13]   However, the PAC report also places you at a high risk of re-offending and causing harm to others. This assessment is based on your criminal history and the contributory factors of your anti-social peers, anti-social lifestyle, impulsive decision- making and an inflated sense of entitlement. The report describes how you have not had employment and have been in and out of prison since the age of 13, up until 2017. Your significant criminal history shows you have some convictions for violence- related offending and for breaches of community sentences. You have also committed a robbery before, in similar fashion to the present offending. You were also involved with the Killer Beez gang, although I accept from the report writer that you say you were never a patched member and that you have been seeking to move away from the gang and any association with them. You also say you moved away from Wellington to Auckland with your partner and young son in part so that you could get away from those influences.

[14]   You spoke to the report writer of your wish to be a good role model for your son. You say you want to get a job, get fit and healthy and lead a pro-social lifestyle. You acknowledge your wrongdoing in offending against the victim and report that you are working on your impulsive decision making. You have shown good compliance with your current bail conditions.

[15]   The Cultural Report is positive about your attitude. It describes the dysfunctional childhood you experienced with minimal support and without a sense of safety and security. You suffered physical abuse and neglect at the hands of your father, brother and at the various youth justice facilities that were supposed to care for you. Substance abuse and resulting violence was common in your family home which led to you seeking refuge outside, with anti-social peers and drug consumption. All of this meant you spent a significant period of your young adulthood in youth justice facilities.

[16]   The report describes your positive future-focussed outlook. You want to open a tattoo business. You have an interest in art and you seem to have a talent for it. A highlight of your life was receiving a significant art scholarship. The report writer was impressed by your genuine engagement with your plan and willingness to make it work. You have not used illicit substances for some time now, and report not having any craving to do so.

[17]   Another positive aspect highlighted in the report is your relationship with your long-term partner. She is a pro-social source of support for you who has had and will continue to have a big positive influence on your life. You also reported that your mother is moving to Auckland from Australia to support you in changing your lifestyle for the better. An important reason for the report writer to recommend a non-custodial sentence is your two young children. You are playing an active role in their lives and have a strong desire to continue that. However, if a custodial sentence is imposed, that will of course limit your contact with the children. There is also a risk that if a custodial sentence is imposed, you will be put in an environment with your old gang associates, which could encourage anti-social behaviour.

[18]   The report also gives some further insight into your offending. It describes your offending as opportunistic, rather than premeditated. Your motivation for the offending was to provide the basics for your recently pregnant partner. But your partner was most disappointed with your behaviour. The report writer believes that you are genuine remorseful for how your actions affected the victim, yourself and your family. This is especially so because you had spent some time not engaging in criminal

behaviour. So you were clearly trying to and succeeding in breaking old habits before this incident set you back.

Ms Hema

[19]   Ms Hema, before sentencing you today, I have read a report, dated 19 October 2022, prepared by the Department of Corrections (PAC report), and considered your criminal history.

[20]   Your PAC report describes you as suffering from various mental health problems. This has been a reason for your non-compliance and non-engagement with your sentences. But with new methods used by your Probation Officer, this has changed. The report says that you are actively looking for employment. You have made changes to your life and left abusive and anti-social relationships behind. The report describes how you continue to challenge the summary of facts to which you have pleaded guilty. You say that you did not know your co-offenders’ plan to rob the victim and you happened to be stuck in an unfortunate situation. This means you have not yet accepted responsibility for your part in the offending. But you have expressed remorse for the offending and have made an offer to pay reparations.

[21]   The report writer places you at medium risk of harm to others. If you get mental health support and are able to find stable accommodation, this will be reduced. The overall recommendation for you, Ms Hema is a sentence of intensive supervision.

[22]   A Cultural Report was not prepared for you, Ms Hema, but the PAC report has provided some insight into your background. You have had a difficult life, there can be no doubt about that. You had to take on the role of caring for your ill mother when you were very young, you were excluded from your mother’s whānau after her death, you have not had relationships with your father’s whānau, you have been in an abusive relationship, one of your daughters has died recently and you have lived a life disconnected from your heritage. Your sole sources of support in life are your flatmates and your dog.

Submissions

[23]   I am now going to summarise what each of Crown counsel, Mr Hancock, and your lawyers, Mr Hard and Mr Allen, have had to say about the appropriate sentence for each of you.

[24]   Mr Hancock, for the Crown, says that for you, Mr Petersen, a sentence of imprisonment is appropriate because of the seriousness of this offending and because you have offended in a similar way before. He also says that I should not accept that you accept the full detail and significance of what you did. For you, Ms Hema, the submission is that a sentence less than imprisonment could be given since this is your first serious offence.

[25]   Mr Hancock says about both of you that your offending had a number of characteristics which make it serious. For example, there was a degree of planning involved, with Ms Hema luring the victim out of the car while Mr Petersen and an associate waited inside the house; there were three offenders against a single victim; there was actual violence inflicted on the victim; the victim was detained for a significant period of 30 minutes; he suffered financial loss of $1,300; and there was a gang element involved as the motivation for the offending.

[26]   The Crown says that for you, Mr Petersen, I should fix a starting point of four years’ imprisonment because of your gang affiliations and the lead role you played in facilitating the robbery. For you, Ms Hema, the Crown says I should adopt a starting point of between three and four years’ imprisonment because of your role in setting up the offending, assisting the robbery and making the victim drive you to a liquor shop afterwards.

[27]   Mr Petersen, the Crown says that your sentence should be increased (uplifted) by six months because you have offended in a similar way before and therefore, a stronger response is required so that you do not offend again and to protect the public from your high risk of re-offending.

[28]   Both of you have pleaded guilty. You will have heard the lawyers talk about what kind of discount I should give you for pleading guilty. The maximum discount

available is 25 per cent for a guilty plea at the earliest possible time. The Crown says that in your cases a discount of between 15 and 20 per cent would be generous.

[29]   The Crown also says between you should make a reparation payment of $1,300 to the victim.

[30]   Mr Petersen, your lawyer, Mr Hard, says that I should take a starting point of three years and three months’ imprisonment. This is because there was a minimal level of planning involved in the robbery, the three of you acted in a relatively unsophisticated way to conduct the robbery, no weapons or disguises were used, and, that you, Mr Petersen, did not use any violence nor did you threaten violence with a weapon, although he acknowledges that you did intimidate the victim. Your lawyer says that although there was some gang element to the motivation for the offending, you are no longer an active member of the gang.

[31]   On the issue of your personal factors, Mr Hard says that you are young      (26 years old) and have had a difficult upbringing, marked by frequent violence in the home and drug use at an early age. The negative effect of your unstable childhood and youth has a direct connection with your offending. You now have a family to support, including two young children.

[32]   In these circumstances, Mr Hard says that an increase (uplift) to your sentence of six months is accepted to account for your previous convictions. A guilty plea discount of 25 per cent should be given because you pleaded guilty at the earliest opportunity. And a further discount of 25 per cent should be given for the direct connection between your difficult childhood and offending. Finally, Mr Hard says that the time you have spent on remand (three months) and on EM bail (nine months) should be taken off. That would give an end sentence of 13 and a half months’ imprisonment, which Mr Hard says should be commuted to a sentence of home detention.

[33]   Ms Hema, your lawyer, Mr Allan says at the outset that your role in the offending was less serious than the role played by Mr Petersen. He says that, just like the victim, you were also fearful of what Mr Petersen might do. Mr Allan says that a

starting point of three years’ imprisonment would be excessive for you. Looking at similar cases, a starting point of 18 months’ imprisonment is appropriate instead.

[34]   Mr Allan says that although you have previous convictions, they are not for this kind of offending. So an uplift should not be applied to your sentence. Mr Allan says I should give you a full 25 per cent discount for you pleading guilty as soon as the charge against you was amended. Mr Allan says your personal factors warrant a further discount to arrive at an end sentence of between 10 and 12 months’ imprisonment. Mr Allan says that the least restrictive sentencing option that should be imposed on you, Ms Hema, is intensive supervision.

Starting point

[35]   Now I will talk about the way I have decided to approach the starting point of the sentence for each of you. I will refer to some other cases that involved similar charges, as they provide a useful comparison.

[36]   The case of R v Mako is helpful when setting a starting point.3 That case sets out a list of factors to assess the level of seriousness of this kind of offending. I consider your offending falls at the lower end of the scale in the examples described in Mako. Your offending was equivalent to a street robbery “by demanding that the victim hand over money, …where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand…”.4 A starting point of between 18 months and three years is suggested. For a charge of robbery (as opposed to aggravated robbery), this would be the equivalent of between 12 and a half months and two years and two months.5 While your offending did not involve weapons, actual violence was inflicted on the victim by your associate. Therefore, this is the range I will work within for both of you, Mr Petersen  and     Ms Hema.

[37]   I am satisfied that the level of planning involved in this robbery was limited.  I accept that Mr Petersen, you saw an opportunity to get some money at a time when

3      R v Mako [2000] 2 NZLR 170 (CA).

4 At [59].

5      See also Bell v Police [2016] NZHC 1715.

you had recently found out your partner was pregnant and you felt like you were unable to provide for your family. You decided to take the opportunity.

[38]   Ms Hema, I also accept that you were not acting on a sophisticated plan in committing the robbery, although you did betray the trust of the victim who was doing you a favour, essentially, but you say the situation got out of control as it progressed, leaving you little choice but to go along with it.

[39]   The victim was punched, although not by either of you. While your associate’s violent action towards the victim allowed you to effectively intimidate him, I cannot hold you responsible for that violence. Neither of you used violence as part of the robbery. Nor did you use disguises or weapons. No members of the public were involved and the robbery took place during daytime. But an aggravating factor is that there were three of you, acting against one victim.

[40]   I do not accept the Crown’s suggestion that the offending had the aggravating characteristic of being gang-related. Although Mr Petersen, you were involved in the robbery supposedly because you were avenging a Killer Beez gang member, it seems from the pre-sentence reports that your true motivation was a desire to provide for your family. I accept that you have not had association with a gang for some time now.

[41]   The Crown referred me to the case of Kelly v R where a starting point of two years four months’ imprisonment was adopted.6 That case also involved a prolonged robbery. But there the robbery took place at the victim’s home, actual violence was inflicted on the victim by all three offenders and the assault itself was prolonged. Similarly, I consider your offending to be less serious than the other case cited by the Crown as well, of Piper v R.7 The offending there also took place in the victim’s home and involved a threat to cut off the victim’s hair. Four males were involved against the sole 18-year-old female victim. A three-year and two-and-a-half year starting points were upheld for two of the offenders.

6      Kelly v R [2016] NZHC 2233.

7      Piper v R [2012] NZCA 104.

[42]   Mr Petersen, you bear greater responsibility for the offending than Ms Hema. You took the lead in taking the victim’s valuable belongings, driving him to the ATM and demanding the PIN to his eftpos card. Your greater role will be reflected in your starting point. For you, I adopt a starting point of two years two months’ imprisonment.

[43]   Ms Hema, although you played a lesser role in the offending, it was your initial action which created the set-up for the robbery to take place. You arranged for the victim to arrive at the address of your choosing at a time of your choosing. For you, I adopt a starting point of 16 months’ imprisonment.

Personal aggravating and mitigating factors

[44]I turn now to your personal aggravating and mitigating factors.

Previous convictions

[45]   The law says that I can impose an increase to the starting point because of your previous convictions.8 The thinking behind that is that those convictions “are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending”.9

[46]   Uplifts are not to be applied as a matter of course.10 Before applying an uplift, I have to consider whether the desired deterrent effect of the uplift will take effect. Mr Petersen, you have offended in a similar way twice before: you have a conviction for a robbery in 2017 and a burglary in 2015. You also have a significant criminal history. You have been imprisoned before. However, you now say you have not had an association with the gang you were previously a part of for about three years. The effect of this has shown in your criminal record—you had not appeared before the Court for two years before the present offending, whereas your record previously showed you appearing before the courts almost every year. You have also made a

8      Sentencing Act, s 9(1)(j).

9      Orchard v R [2019] NZCA 529 at [39].

10     O’Connor v R [2014] NZCA 328 at [41].

significant change in your lifestyle by moving away from your anti-social lifestyle and associations in Wellington to Auckland.

[47]   What this all demonstrates is that it appears you had at least started to turn a corner before this offending took place. The pre-sentence reports indicate that you do not intend to return to the life of criminality you were leading previously but that the present offending was a detour on your journey to live a pro-social life. For those reasons, I do not propose to add an uplift for your previous convictions because I think you appear sincere in wishing to turn your life around.

[48]   Ms Hema, in your case too, I do not think an uplift for your previous offending is appropriate because this is your first serious offending. Your various previous convictions are for relatively minor offending, although they do tend to show a pattern of intimidation on your part. Your sentencing today should be deterrent enough for you to not engage in such criminal behaviour in the future. I accept the explanation in your PAC report for your convictions relating to non-compliance with sentences— your mental health problems have created difficult challenges for you. I also note that, with new methods used by your Probation Officer, you have now showed much better compliance.

Guilty plea

[49]   I turn now to your guilty pleas.11 I note that guilty pleas were entered relatively close to trial on the charges of aggravated robbery that were originally filed. However, once the charge was amended to one of robbery, guilty pleas were entered at the earliest opportunity.   In these  circumstances, I consider a guilty plea discount of   20 per cent is appropriate for each of you, Mr Petersen and Ms Hema.

Personal mitigating factors

[50]    In sentencing you today, I must take into account your personal, family, community, and cultural background.12 As  the various pre-sentence  reports  note, Mr Petersen and Ms Hema, the difficult upbringings you have both had has led you

11     Sentencing Act, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

12     Sentencing Act, s 8(i).

both to a life of crime. You have both had dysfunctional upbringings with limited emotional and cultural support. Mr Petersen, you grew up witnessing violence from family members and youth justice facilities. You yourself were the subject of violence and neglect. Ms Hema, you were forced into a stressful adulthood early on in your childhood and things have not got better since.

[51]    You told the report writers that you have not fully explored your whakapapa or te ao Māori, but it appears from the reports that being cut off from that, together with a pattern of both social and economic deprivation, diminished your opportunities and shaped the choices you made. That does not relieve either of you of personal responsibility for your actions, but it does help me to understand how you got to the point where you became involved in this offending and to that extent it modifies your culpability.

[52]   I accept that your present offending is associated with the social, cultural and economic deprivation that you have experienced. Mr Petersen, I acknowledge your desire to change as you told the report writers. Ms Hema, I acknowledge the changes you have made to your lifestyle since the robbery in 2020.

[53]   Based on your personal mitigating factors, I apply a discount of 15 per cent to each of your sentences for these factors.

Summary

[54]   Mr Petersen, I adopt a starting point of two years and two months’ imprisonment for you. This is to be discounted by 20 per cent for your guilty plea and 15 per cent for your personal mitigating factors, arriving at a sentence of 17 months’ imprisonment.

[55]   You have spent three months on remand and nine months on EM bail. To credit this time in determining the length of the period of home detention,13 I deduct three months from your sentence, arriving at an end sentence of 14 months’ imprisonment.

13     Longman v Police [2017] NZHC 2928 at [7]-[9].

[56]   A sentence less than imprisonment offers a chance to stop the ongoing detrimental effects arising from your background. You experienced neglect in your childhood which no doubt contributed to your criminal offending. I do not wish to inflict a similar fate on to your children, by sentencing you to prison, which would mean you would be absent from their lives during their pivotal early years. The Cultural Report describes your positive future-focussed outlook where you see yourself providing a safe and secure environment for your children and playing an active role in their lives. You also show insight into and genuine remorse for your offending. You are holding yourself accountable. In these circumstances, a sentence of home detention is the appropriate one.

[57]   My focus is on your rehabilitation because that is what will serve your long- term interests, the interests of your whānau and the interests of the wider public. Accordingly, I consider that a sentence which enables you to get work, maintain your ties with your whānau, especially your young children, and engage in rehabilitative programmes which can help to give you the skills needed to manage conflict in healthy ways will best meet the sentencing requirement to protect the public.

[58]   For these reasons, Mr Petersen, I commute your sentence to home detention of eight months.

[59]   Ms Hema, I adopt a starting point of 16 months’ imprisonment for you. This is discounted by 20 per cent for a guilty plea and 15 per cent for your personal mitigating factors, arriving at an end sentence of 10½ months’ imprisonment. I accept the recommendation from the PAC report of intensive supervision as the appropriate sentencing option for you, considering your mental health challenges and the promising rehabilitative prospects you are showing. You have made significant changes to your lifestyle since the offending and you are engaging with the methods of your Probation Officer. This is not the time to rock the boat. Accordingly, I sentence you to intensive supervision for a period of 12 months. You will also be subject to judicial monitoring. This means your Probation Officer will provide the Court with regular reports to show how you are complying with your sentence.

Result

[60]Mr Petersen and Ms Hema, please stand.

[61]   On the charge of robbery, Mr Petersen you are sentenced to home detention to be served at [Redacted], for a period of eight months with the following conditions:

(a)To travel directly to the address of [Redacted] after sentencing and wait for the arrival of the Probation Officer and a representative from the monitoring company.

(b)To reside at [Redacted], and not move to any new residential address without the prior written approval of a Probation Officer.

(c)To not possess, consume or use any alcohol or drugs not prescribed to you.

(d)To attend and complete any recommended treatment, counselling or programme as a result of the assessment if directed by and to the satisfaction of a Probation Officer.

[62]   Mr Petersen, your outstanding fines are remitted, excluding the amount owed as reparation.

[63]You are ordered to pay reparation of $650 to the victim.

[64]   Mr Petersen, you have until 8.00 pm on 22 October 2022 to travel to [Redacted] to begin your sentence.

[65]   On the charge of robbery, Ms Hema you are sentenced to intensive supervision for a period of 12 months, with the following conditions:

(a)To attend and complete an appropriate programme/counselling to the satisfaction of a Probation Officer. The specific details of the programme shall be determined by a Probation Officer.

(b)To engage with community based agencies and support services as directed by a Probation Officer.

(c)To attend and complete an appropriate rehabilitative programme to the satisfaction of a Probation Officer.

(d)To       attend     and     complete     an     appropriate     non-violence programme/counselling to the satisfaction of a Probation Officer.

[66]You are ordered to pay reparation of $650 to the victim.

Gwyn J