R v Redshaw
[2022] NZHC 1175
•26 May 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-288-28
[2022] NZHC 1175
THE QUEEN v
BRETT REDSHAW
Counsel: C S Taylor for Crown
A B Fairley for Defendant
Sentenced:
26 May 2022
Charges:
Aggravated Robbery (3); Unlawfully taking motor vehicle
Plea:
Guilty
SENTENCING NOTES OF BREWER J
Solicitors:
Marsden Woods Inskip Smith (Whangārei) for Crown Thomson Wilson (Whangārei) for Defendant
R v REDSHAW [2022] NZHC 1175 [26 May 2022]
Introduction
[1] Mr Redshaw, you pleaded guilty to three charges of aggravated robbery with a firearm1 and one charge of unlawfully taking a motor vehicle.2
[2] I am going to be talking to you for quite some time. I know that all you want to know is what the outcome is. But there is a wider audience for what I have to say than just you –there are the victims; there are other lawyers; there might even be other Courts. So, if you think I am taking a bit of time it is because I am actually talking to quite a lot of people and not just yourself.
[3]I gave you a sentence indication on 3 February 2022 as follows:3
[7] I assess the starting point as eight years’ imprisonment. I would not increase the starting point to take account of your criminal history. I would consider your criminal history as a factor going to a discount for your youth.
[8]As to the discounts:
(a)You are 18 years old. You were 17 years old at the time of the alleged offending. You would get a discount for youth. But, your extensive and relevant previous offending would be a factor limiting the discount. On the other hand, reports showing that you have real prospects of rehabilitation, a positive pre-sentence report and a relevant cultural (s 27) report could increase the discount.
(b)You would be entitled to a discount for pleas of guilty. I would be generous and make that a 20 per cent discount.
[4] That is what I said to you on 3 February 2022. But, in preparing for your sentencing, I have decided that a starting point of eight years was too high. I will explain why shortly. I will adopt a starting point of seven years.
[5] That means that what I have to do today is assess the further discounts you are entitled to for your youth and background.
1 Crimes Act 1961, s 235(b): carrying a maximum penalty of 14 years’ imprisonment.
2 Section 226(1): carrying a maximum penalty of seven years’ imprisonment.
3 R v Redshaw [2022] NZHC 87.
Background
[6]I will begin by summarising your offending.
[7] At the time of the offending you were 17 years old. You committed the offending with your co-offender, a man who is five-and-a-half years older than you.
[8] The first two aggravated robberies were of the Pizza Place and then the GAS service station which are located in the same building in Tikipunga.
[9] On 7 June 2021 you went with your co-offender to the building in Tikipunga. You were both wearing masks and gloves and your co-offender was armed with a sawn-off firearm.
[10] Your co-offender went to the GAS station service desk and pointed the firearm at the first victim and demanded cash. Your co-offender obtained cash, the victim’s car keys and tobacco products.
[11] While this was happening you went to the counter of the Pizza Place. You were aggressive and you were swearing at the attendant who is the second victim in this matter.
[12] You then walked a few steps towards the GAS station counter which gave the second victim the chance to retreat to a back room and lock himself in. You then returned to the Pizza Place counter and took cash from the till drawer.
[13] It is estimated that you took approximately $1,000 in cash which you stuffed into a small black shoulder bag you were carrying.
[14] You then joined your co-offender who had his bag filled with the proceeds of the GAS service station robbery.
[15] The two of you went to the first victim’s motor vehicle. You got into the driver’s seat and your co-offender got into the front passenger’s seat. Your co-offender still had the firearm.
[16] You drove the vehicle away from the scene of the robberies and later dropped your co-offender off before you dumped the vehicle.
[17] Three weeks later, on 27 June 2021, you and your co-offender again set off to commit an aggravated robbery. You were both wearing masks and dark clothing. Your co-offender had gloves and was armed with a firearm. At approximately 5.35 pm the two of you entered the Whau Valley dairy in Whangārei. There were two people working in the store as well as a customer.
[18] Your co-offender pointed the firearm at the male shop attendant and forced him to sit on the floor. He demanded that the victim hand over his car keys, which he did. At this time the victim’s wife was also behind the counter with their young infant.
[19] You, Mr Redshaw, went behind the counter and collected cash from the till drawers while your co-offender brandished the firearm in a threatening manner.
[20] Your co-offender threw a black sports bag to you over the counter and you filled the bag with the cash as well as cigarettes. Your co-offender joined you behind the counter and helped.
[21] While this was going on a customer entered the store. Your co-offender threatened the customer with the firearm as he and you walked towards the exit.
[22] The two of you left on foot having obtained approximately $3,000 in cash and cigarettes valued at approximately $20,000.
[23] None of the cash and other items stolen in the three robberies have been recovered.
Victim impact statements
[24] I have read the victim impact statements. As is to be expected, the victims were terrified by what you did.
[25] The attendant at the GAS service station describes being terrified and not able to believe what was happening. He was scared he was going to be shot. His car was taken by the two of you and, although he got it back, he had to get new locks and new keys and had to pay $505 for the insurance excess.
[26] The male shop attendant at the Pizza Place was also scared and now locks the door of the store after 7.00 pm and only allows customers in if he verifies they are genuine customers. He is scared of this happening again.
[27] The male attendant at the Whau Valley dairy was terrified. His wife and infant son were present and he was very scared for them. He is frightened that something like this will happen again. The female attendant, the male attendant’s wife, was also scared. She thought they were going to be shot. She was particularly worried for the safety of her 11 month old son who was behind the counter with her when the two of you came in to commit the robbery. The female attendant says she still feels scared when certain people come in, especially the ones wearing hoodies.
Criminal record
[28] I have said I will not increase the starting point for your criminal record, but I do need to take it into account when I decide the discount for your youth at the time of the offending.
[29] Your offending prior to these charges took place when you were within the jurisdiction of the Youth Court.
[30] There are 15 charges which were found proved against you and which you committed in the period 9 May 2019 to 23 October 2020 when you were 15 and 16 years old. There is a total of three burglaries, two of making serious threats, one aggravated robbery (committed on 23 October 2020) and one of assaulting a person with a blunt instrument (on the same day).
Starting point
[31] I have reached the starting point of seven years’ imprisonment having regard to a guideline judgment called R v Mako.4 The aggravating features of the offending are:
(a)The use of a firearm in all three of the aggravated robberies.
(b)The offending was obviously planned.
(c)You were working with another offender and the two of you co- ordinated your actions.
(d)You targeted small retail stores, which are highly vulnerable to this sort of armed robbery. The times you chose for the robberies meant there was a high risk of customers being present.
(e)There are three robberies, the third of which took place less than a month after the first two.
[32] I note further that you were still subject to your Youth Court sentence of supervision imposed for your 23 October 2020 aggravated robbery.
[33] I have already set out the impact of your offending on your victims. I add that the approximately $4,000 in cash and $20,000 of tobacco products were never recovered.
[34] I decided for the sentence indication that the first two aggravated robberies coupled with the charge of unlawfully taking a motor vehicle justified a starting point of six years. Having reflected, I now consider that those offences were components of a single incident and that a starting point of five years is more appropriate. The third aggravated robbery took place some three weeks after the first two. It was serious. The firearm was used to threaten the two attendants — one of whom was
4 R v Mako [2000] 2 NZLR 170 (CA).
carrying their 11 month old son. A customer who came in was threatened. A significant sum in cash and cigarettes was stolen. I calculated an uplift of two years having regard to totality. I consider that to still be appropriate.
Personal background
[35] You grew up in a family home where there was conflict between your parents (mostly shouting). There was alcohol abuse. Your parents separated when you were nine years old. Your mother later went to prison for drug dealing and you got very little emotional support from your father. From the reports I have read you had no permanent home. You drifted between your father’s home, your mother’s home and the homes of friends and relatives. Some of those people are involved in gangs and you became influenced by them. You told Ms Henare (who is one of the writers of your cultural report) that you are a Crip and so is your co-offender.
[36] Your home environment was not a physically violent one. Your parents made sure you were immersed in your Māori culture. You went to full immersion schools. You did not go to a mainstream school until you went to Kamo Intermediate at age 11. By then you were fluent in Te Reo Māori and competent with tikanga. You loved your Māoritanga. However, you hated mainstream schooling. You were frequently violent in school. According to a Youth Court report dated 11 February 2020 you were excluded from Kamo Intermediate at 12 years for continual physical violence. It was reported that you “led the pack” of disruptive pupils at the school. That was the end of your formal education.
[37] You were 16 years old when that report was written. It was prepared because you were before the Youth Court on charges of burglary and escaping from custody. This is what the report writer says was your explanation for your offending at that time:
10.Brett reported the use of alcohol at the time of offending and in relation to the index offences. He reported drinking alcohol, going out and then getting into trouble whilst under the influence. At interview Brett when asked to provide an explanation for his offending said he stated he realises now that he needs to desist from associating with certain peers, felt “wretched now” and asserted that “crime was just not worth it anymore”. He stressed that his actions were wrong and unlawful, and aimed to avoid further trouble with the law, wanting to
get employment. He believes that getting a job will be crucial in helping him stay out of trouble.
[38] You were 16 then. Your behaviour just got more out of control and your offending got more serious. I have read a social worker’s report to the Youth Court prepared when you were 17 years old. It describes an aggravated robbery you committed on 23 October 2020, which you did not deny and is now part of your record:
Brett was walking West towards William Jones Drive, Brett was being aggressive and asking the people who were there if they wanted a fight or if they [wanted] to get stabbed while lifting his top to reveal a knife he had tucked into his waist band. He walked around the BMW (HRP998) and continued to be aggressive to the three victims and others present. Brett went to the [driver’s] door of the car and pulled a large knife from his waist band and put it through the open [driver’s] door window pointing it towards the victim and made threats to stab him. Brett has entered the car through the front passenger door, punched the victim in the head twice then pointed the knife at the waist of the victim and said “give me everything you’ve got”. Brett walked to the front [driver’s] door which was locked, he kicked the door multiple times until it smashed open, he again presented the knife to the victim and said “get out of the fucking car, get out or I will kill you, I’m taking it”. Brett has driven off in the car.
[39] On 29 January 2021, the Youth Court approved a Supervision with Activity Order for your offending. But you soon left the approved address. On 23 April 2021 you failed to appear in the Youth Court. The operation of the Supervision Order was suspended and a warrant for your arrest was issued. You were arrested on 2 May 2021 and bailed to your father’s home. On 28 May 2021 the Youth Court reinstated the Supervision with Activity Order with some variations and additional conditions.
[40] It was 10 days later that you and your co-offender carried out the first two aggravated robberies for which you are due for sentence today.
[41] Mr Redshaw, the reason I have gone into all this background is because I have to decide to what extent your youth and cultural background should reduce your sentence.
[42] It is well understood that 17 year old youths are impulsive risk-takers. Their brains have not finished developing and they are prone to making rash decisions. If a 17 year old has a dysfunctional family, is living by his own impulses and identifies
with criminal associates, then his impulsive and risk-taking behaviour may well be criminal behaviour.
[43] In your case, there is nothing impulsive about your behaviour. Your background before this offending shows you were already an experienced offender. The current offending was clearly planned. It was repeated. The choices you made to get involved in the offending were certainly poor choices which a mature person might not have made, but they were choices made against a background in which you had previously made similar choices.
[44] You told Ms Henare that you had begun using methamphetamine and this was one of the reasons you offended. I accept you might have started using methamphetamine, but there is no evidence you were an addict driven to offend by your addiction. You are reported as saying:
It was for money for shoes and clothes. I was on meth when I did both of those offences. I only touched [methamphetamine] like two years ago … That’s when I just started robbing anywhere and anyone. I think I was just trying to feed my habit.
I do not take that as reliable evidence of addiction.
[45] Indeed, you were asked by Ms Henare to tell her when you committed your first crime. Her report is that you said:
When I was 12 I think, stealing, you just watch someone else do it. [The Crips] all grew up around the same area, we are just all from the same hood and we are tight too. I was just brought up in a gang environment.
[46] Ms Henare then asked you how you would describe the gang environment. Your reply was:
Just animal things, just rob, home invasions, cousins and all that. They like [to] video it and I’d see it on the media; even if it doesn’t get videoed, it still gets videoed on CCTV.
[47] So, here is my problem in your case, Mr Redshaw. I do not want to send you to prison for a day longer than the law requires. Prison is not a good place for an 18 year old. You are already part of the gang world. Going to prison is likely to just
entrench that and have you come back into the community more antisocial than you are now.
[48] Youths of your age are more likely to benefit from rehabilitation programmes than mature offenders. I am encouraged by what Mr Fairley said to me just before about what you have been doing in prison on remand. But you do not yet show real insight into your behaviour, you do not show real remorse, nor are you particularly motivated to change. As I quoted earlier, when you were 16 years old you were able to give an explanation for your offending at that point, and you said you wanted to change, but you did not. I think that is because of your age and particularly because of your life experience. The PAC report, Mr Redshaw, assesses you as being at high risk of re-offending. Sadly, as I sit here today, I agree with that.
[49] So, I will give you a discount for your youth, but it will not be as much as it would be if your youth was directly causative of your offending and there were more substantial prospects of rehabilitation.
[50] Of greater significance, I think, is your upbringing. Of course it interweaves with your young age. But, I have no doubt that your background is causatively linked to your offending. Your background was, thankfully, not nearly as bad as many we have described to us. But you had limited role models, were allowed to drop out of education at the age of 12 years, and your major influencers have been criminals; many older than you. You see yourself as a Crip.
[51]I will allow you a discount of 25 per cent for your youth and background.
[52] That means that from a starting point of seven years’ imprisonment you will have a discount of 45 per cent, being 20 per cent for your pleas of guilty and 25 per cent for youth and background. Your end sentence will be (rounded) three years and 10 months’ imprisonment.
[53] I will not order a minimum period of imprisonment. You are best assessed by the Parole Board.
Sentence
[54] Mr Redshaw, I have no reason to think that you will listen to an elderly Pākehā Judge. But I am the father of three boys and I have seen literally hundreds of young men in your situation. You are going to be in prison for a bit over a year if you can show the Parole Board that you are making progress. Significantly longer if you do not. Your father has been to prison, your mother has been to prison, your eldest brother has been to prison, and now you are going to prison. Your cousins and your friends are in the gangs.
[55] I do not expect you to know how much I hope that you will take advantage of the courses in prison; that you will particularly take advantage of the educational programmes to improve your reading and your writing and your ability to do maths. If you do those things you will have a proper future. If you do not you will end up with full-face tattoos and a lifetime in prison. Those are the choices that you have.
[56] Mr Redshaw, on each of the charges of aggravated robbery you are sentenced to three years and 10 months’ imprisonment. On the charge of unlawfully taking a motor vehicle you are sentenced to six months’ imprisonment. All sentences are to be served concurrently.
[57]You may stand down.
Brewer J
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