R v Repia

[2017] NZHC 426

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-019-428 [2017] NZHC 426

THE QUEEN

v

HUGHIE AMOTIA REPIA

Charges:

Plea:

Aggravated robbery

Guilty

Counsel:

R G Douch for Crown
T Sutcliffe for Prisoner

Sentenced:

14 March 2017

SENTENCING NOTES OF BREWER J

Solicitors:           Almao Douch (Hamilton) for Crown

Counsel:            Thomas Sutcliffe (Hamilton) for Prisoner

R v REPIA [2017] NZHC 426 [14 March 2017]

Introduction

[1]      Mr Repia, you have pleaded guilty to one charge of aggravated robbery.  The

maximum penalty is 14 years’ imprisonment.

[2]      I have to sentence you on this charge and I would like you know that in doing so I feel a sense of despair.  You have a lengthy history of armed robbery and you have spent a great deal of your life in prison as a result.  I am now going to have to add to that history of imprisonment, although I know that it will do nothing to help you  personally and  the  only purposes  that  will  be served  are denunciation  and protection of the public. As I will come to, that last factor has to be paramount.

The facts

[3]      At  approximately  4:15 pm  on  Wednesday,  20 January  2016,  you  and  an associate drove into the car park of the shopping precinct in Te Awamutu in which a branch of the ASB bank is situated.  It is a public environment to which many people come to access the businesses in the precinct.

[4]      You got out of the vehicle and went towards the bank.  You were carrying a backpack-style bag.   Unfortunately for you, you were captured on closed circuit television before you put on your disguise. As you approached the main doors to the bank, you pulled the hood of your top over your head and pulled a scarf up over your lower face.

[5]      You went into the bank and reached into your bag, taking out a sawn-off shotgun.  The shotgun was a fearsome weapon, having been altered so that the barrel was shortened and the stock removed.

[6]      You held that weapon in a pistol grip with your arm extended and approached the first teller.  You pointed the shotgun at her body.  You were just around 30 cm from her and you said in a quiet voice “fuck you”.  You then said “yeah I’m talking to you” and “give me all your money”.  The teller opened the money drawer and emptied all the coins into your bag.  She could not open the drawer that had the notes

in  it  because  the  bank  manager  had  seen  you  come  into  the  bank  and  had immediately pushed the security button which locked the main cash drawers.

[7]      You then moved behind the first teller to the work area of the second teller. She was in the process of serving a customer, a young girl.  You stood about one metre from the second teller and fully extended your arm, holding the sawn-off shotgun so it pointed straight at her head.  You then gestured with the firearm to the second teller’s cash drawer and to your bag.  The second teller explained that she could not open the cash drawer containing notes because it was locked.  She had to demonstrate that to you.  The second teller then opened the coins drawer and you indicated with the sawn-off shotgun that she should place the coins in the bag you were holding. The second teller did this. You then left the bank.

[8]      You were only in the bank for about a minute.  During this time there were, in addition to the tellers and the bank manager, two customers present.  Because of the measures taken by the manager, you obtained only $117.50.

[9]      I make two points at this stage:

(a)      I do not know whether or not the sawn-off shotgun was loaded.   In previous robberies, you have accepted that the firearms were loaded. However, in the context of this robbery and the effect on your victims, I do not think that this makes a difference.

(b)The amount you received in the robbery was small.  But I take it that that was the way it worked out and that you anticipated getting a considerably greater sum.

[10]     You were found by the Police two days later and arrested.  You have declined to make any comment.  You have not identified your associate and that person has not been found.

[11]     You told the writer of the pre-sentence report that you carried out the robbery to try to fund your methamphetamine habit.  Worryingly, you said you were “high on

drugs” when you carried out the robbery but said you would never have used the sawn-off shotgun to shoot anyone.  A person who commits an armed robbery while high on drugs is a more volatile person.

Starting point

[12]     Having regard to a case called R v Mako, the starting point for an armed robbery of this sort is six to eight years’ imprisonment.1     Mr Sutcliffe submits I should adopt a starting point of no more than six years’ imprisonment.  Mr Douch, for the Crown, submits a starting point of seven to eight years’ imprisonment is appropriate.

[13]     The  aggravating  features  of  your  offending  are  similar  to  many of  your previous armed robberies.  In particular:

(a)      You robbed a public place while it was open and working.  Members of the public could be expected to be there (two were) as well as the workers.

(b)      You had a fearsome weapon, a sawn-off shotgun.

(c)      This was a planned offence.  It involved another person who remained in the car.

[14]     There were two main victims, the cashiers.  These people work with money and are vulnerable to the sort of offending you carried out.  The effect on them was considerable.

[15]     The first teller you robbed was afraid that when she could not get the cash drawer open that you would hurt her.  She has been unsettled at work and has had counselling.  She has said:

The robbery is hard to forget and doesn’t just last for the few moments that

the offender is there.

[16]     The second teller was serving a young girl at the front counter when you confronted her.  Straight after the robbery she hugged the young girl and stayed with her until her mother returned.  She said:

For months afterwards the robbery caused a change in my personality and I kept watching my back.    I couldn’t say how many months the robbery affected me.

[17]     In her victim impact statement, the second teller describes being paranoid and scared when in the community.  It has had a significant ongoing effect on her, and she has thought a lot about different scenarios that could have happened during the robbery, including why you didn’t pull the trigger when she could not get the cash drawer open.

[18]     In my view, a starting point of eight years’ imprisonment is justified.

Personal factors

[19]     I now have to look at whether I should adjust the starting point up or down to take into account factors personal to you.

[20]     There is no doubt that your criminal history means I have to increase the starting point.   On 6 November 2002, Ronald Young J sentenced you to a total of

13 years’ imprisonment on four charges of aggravated robbery.2  You served virtually

all of that sentence and you were released in late October 2015.  You were either on parole or subject to release conditions at the time of this offending which occurred only three months after you got out of prison.  I choose to look at this factor in this section of your sentencing rather than as a separate aggravating factor so as to eliminate double-counting.

[21]     In his sentencing notes, Ronald Young J went through the facts of the four aggravated robberies.  All of them involved a public place during working hours and in all of them you were armed with a firearm.

[22]     The Judge summarised your record prior to those four robberies as follows:

[8]       … You are a recidivist robber and as such, in my judgment, a highly dangerous person. The two groups of previous convictions that are most relevant  are  these.  Firstly  your  conviction  in  December  1993  on  three charges of aggravated robbery and one of unlawful possession of a pistol. You were sentenced to six years’ imprisonment. A short time after you got out in January 1988 you were convicted again of two counts of aggravated robbery and one of assault with intent to rob. A sentence of six years was imposed. The first of these events occurred the day after your release from prison. The probation report accurately assesses you in this way:

Hughie Repia’s future prognosis looks bleak. His potential risk to public safety is huge ...

[23]     Mr Repia, I can see nothing that has changed since Ronald Young J said that to  you  back  in  2002.    You  have  served  your  13 years  in  prison  and  almost immediately took up a sawn-off shotgun and robbed a bank, inflicting further emotional harm on the people you robbed.

[24]     I have considered the written submissions of the lawyers and in my view an uplift of two years’ imprisonment is appropriate.  That brings the starting point to

10 years’ imprisonment.

[25]     I will give you a reduction for your plea of guilty.  I do not have to. Your trial date was 13 February 2017 and you entered your guilty plea on 2 February 2017. Your image had been captured on CCTV before you put on your disguise.  But, your plea of guilty saved your victims from having to give evidence.  One of them in her victim impact statement said she was dreading that.  Accordingly, I will give you a discount of 10 per cent, which reduces the end sentence to nine years’ imprisonment. Remorse is not a factor in this case.

[26]     A minimum period of imprisonment is clearly necessary in order to protect the public.   The Crown submits that the maximum of two-thirds of your sentence ought to be imposed, and I agree.   Your minimum period of imprisonment will accordingly be six years.

[27]     Mr Repia, I have stood back and looked at this end sentence of nine years’ imprisonment with a six years’ MPI to assess whether it is manifestly excessive. Sentencing is not just a matter of arithmetic.  I have decided that it is an appropriate sentence in your case, although I acknowledge that it is not a lenient sentence.

Leniency is not called for in your case.  If you were younger, if you did not re-offend so quickly after being released from prison, if you did not have a significant history of using firearms to commit your robberies, or if there were positive indications that rehabilitation was possible, then I would have taken a different view.  But, because of those factors, I do not.

[28]     I have read the letter that you gave me, in which you accept responsibility for your actions and explain about your drug problem.  I have noted your request that I intervene to ensure that you get drugs therapy courses while you are in prison.   I record that I expect the Department of Corrections to make available to you access to the courses that are run to assist prisoners with your sort of drugs problem.

Sentence

[29]     Mr Repia, please stand.

[30]     You are sentenced to nine years’ imprisonment, with a minimum period of imprisonment of six years.

[31]     I now have to give you what is known as a three strikes warning.  You should pay attention to this, given your history of rapid offending once you leave prison. This is the warning which the law requires me to give you.

[32]     Given your conviction for aggravated robbery, you are now subject to the three strikes law.   I am now going to give you a warning of the consequences of another  serious  violence  conviction.    You  will  also  be  given  a  written  notice outlining these consequences which lists the ‘serious violent offences’.

(1)If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you  will serve that sentence without parole or early release.

(2)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment.  That will be served without

parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

[33]     Mr Repia, you may stand down.

Brewer J