R v Rewi
[2013] NZHC 995
•7 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-292-245 [2013] NZHC 995
THE QUEEN
v
DILLON REWI
Hearing: 7 May 2013
Counsel: G R Kayes for Crown
I Jayanandan for Prisoner
Sentence: 7 May 2013
SENTENCING NOTES OF DOBSON J
Solicitors:
Crown Solicitor, Auckland for Crown
Counsel:
I Jayanandan, Auckland for Prisoner
R v REWI HC AK CRI-2012-292-245 [7 May 2013]
[1] Mr Rewi, I have to sentence you this morning on two convictions. One is for aggravated robbery and the second is for conversion of a motor vehicle.
[2] On 11 July 2011, you stole a Nissan Terrano motor vehicle, and that has given rise to the conviction for conversion of a vehicle. The maximum penalty for that is seven years’ imprisonment. The vehicle was one of two stolen to facilitate you and others committing an aggravated robbery.
[3] Then, on 14 July 2011, at about 11.30 in the morning, three males carried out an aggravated robbery of the Junction Bar in East Tamaki. All three were disguised, wearing St John Ambulance high visibility jackets, two of the men had beanies or similar items covering their faces and the third man was wearing a crash helmet. One of the three men was armed with a hand gun and a second was armed with a relatively large knife, estimated to have a blade of some 30 centimetres long. Mr Kayes has advised me this morning that the gun was not recovered and I accept the Crown proposition that I should therefore treat it as an unloaded gun, and it would have been worse had there been evidence of it being loaded.
[4] The offenders told the staff and a number of customers who were in the bar to lie on the ground and not to move. They then forced the woman bar manager into an office area of the bar, made her open the safe and took out approximately $25,000 in cash and put it in the bag that the robbers had brought with them.
[5] The offenders fled the scene in the second of the stolen vehicles, a Mazda Familia. The summary of facts states that the Mazda was seen travelling in convoy with the Nissan that you have been convicted of stealing, with the Mazda being abandoned a short distance from the scene of the robbery and all the offenders then leaving the area in the Nissan.
[6] When you were spoken to by the Police some time later, you admitted stealing the Nissan. You told the Police that you had been approached by one of the three men planning the robbery who asked if you wanted to participate in it and earn some money. You told the Police you were parked near to the site of the robbery in
the stolen Nissan and that you drove the three males from the scene. You told the
Police you had been paid $4,000 for your part in the robbery.
[7] I am to sentence you on the basis of that extent of involvement in the robbery. The Police have raised a concern that you may, in fact, have been one of the robbers because your DNA was identified on the crash helmet that was seen being worn by one of those in the bar. But the Crown does not push that point because, on the approach they argue I should adopt to sentencing, all the participants should be treated as equally responsible for the crime, irrespective of whether they were in the bar when the robbery took place or just sitting outside in the car waiting to help with the getaway.
[8] You were also charged with a number of other offences and it has taken some time to resolve with the Crown a mutually acceptable basis for the entry of the guilty pleas you have made, as a consequence of which the Crown will not be offering evidence in relation to a further six counts.
[9] The purposes under the Sentencing Act 2002 that I have to bear in mind are setting your accountability for the harm done by the offending to the victims of it and to the community more generally, attributing responsibility to you for that harm, and to denounce criminal behaviour of this type and deter others from similar offending.
[10] In setting the appropriate sentence, there are certain principles that I also have to have regard to, including the relative gravity of this offending, the degree of your culpability in the offending, achieving a consistent outcome with sentences in comparable cases and having regard to the effect of your offending on the victims of it. Ultimately, as a purpose of the sentencing, I must be mindful of your rehabilitation and re-integration into society and, as a principle, to impose the least restrictive outcome appropriate in all the circumstances.
[11] So I first set the sentence appropriate for the offending, and then I will consider the circumstances personal to you as the offender.
[12] For aggravated robbery, we have the advantage of a guideline judgment from the Court of Appeal in R v Mako.[1] In that case, the Court of Appeal set out a significant number of factors, the presence or absence of which helps the Court rate the relative seriousness of the offending in the particular case. A number of those
[1] R v Mako [2000] 2 NZLR 170 (CA).
apply here, including:
the degree of planning and preparation;
the number of participants in the robbery and how they were deployed;
the use of disguises;
the number and types of weapon and how they were brandished;
the premises in which the aggravated robbery occurred;
the nature of the members of the public present;
whether there was actual or merely threatened violence;
the nature and value of the property stolen and the extent of recovery that has been made;
any offending associated with the aggravated robbery; and
the impact on victims.
[13] For robberies of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or safes by a number of offenders with an illegal weapon, and using disguises and other indications of preparation, the Court of Appeal in Mako set a starting point of six, or perhaps more,
years.[2]
[2] At [54].
[14] A higher starting point than six years is justified if there was increased danger of harm because, for example, the firearms were loaded, or if actual violence was used. Happily those are not a part of the facts as I have to deal with you. Of course, the guidelines from Mako cannot be applied precisely or in a mathematical way. Rather, they are to be used flexibly. Indeed, in her written submissions, your counsel has suggested a comparison with another of the examples of aggravated robbery circumstances that was considered by the Court of Appeal in Mako. That was the robbery of small retail premises by a single burglar, and with a number of other features that were not present here but can be in robberies of that type. Mr Kayes discounted that as a comparator and I accept his position, as indeed Ms Jayanandan has done this morning. Ultimately your counsel accepts this morning that the comparator with the six year starting point is appropriate and I accept that that is right.
[15] In addition to the guidance from Mako, I have analysed the circumstances of three other aggravated robbery sentencings that seem to me to have a measure of similarity and therefore there should be a measure of consistency. When my notes of this sentencing are made available, I will annex a schedule of the features of those
three cases which are Mamea v Police, R v Pakinga and Mata v R.[3]
[3] Mamea v Police HC Auckland CRI-2006-404-257, 12 October 2006; R v Pakinga HC Hamilton
CRI-2010-019-2038, 1 October 2012 and Mata v R [2012] NZCA 593.
[16] The Crown argues for a starting point in a range between six and six and a half years’ imprisonment. On your behalf, Ms Jayanandan contended for a starting point in her written submissions between five and six years, but having heard the argument this morning she concedes that six years is the appropriate starting point. Your offending certainly fits the category provided for in Mako for which the starting point is six plus years. Also, assessing that against the other cases I have considered leads me to a starting point in your case of six years’ imprisonment. Whilst you cannot expect to be treated any more lightly than those who carried out the confrontation with the victims in the bar, in the end your culpability is to be
measured by your own actions in supporting and driving.
[17] Turning next to your circumstances as the offender, I am obviously troubled by the number of convictions you have, at the age of just 19. Your full criminal record reveals 22 previous convictions and 12 Youth Court notations. Relevantly to today’s sentencing, you have two burglary convictions from 2010, plus three receiving convictions from 2010 and one in 2011, and unlawfully taking motor vehicles in 2011 and 2012.
[18] The Crown has not pressed for an uplift on the starting point for your sentence because of the number and nature of your previous convictions, but does argue that they prevent you claiming credit for being of good character. Your counsel also predictably argued that no uplift is required for your previous convictions.
[19] With some reluctance, I accept that no uplift is required. My reservation is that your offending is actually worse because it was committed when you were only
18, in the context of what is becoming a pattern of offending by you, with the offences getting relatively more serious. This is likely to be the last occasion on which the extent of prior convictions does not count against you as an aggravating factor that would increase the severity of the sentence from the appropriate starting point.
[20] Turning more positively to the mitigating circumstances that are in your favour as the offender, your relatively young age is material. A credit for youth can be more positive where you are a first offender, or have only an insignificant criminal record. But you do run out of credit for being young as the Court has to deal with you on subsequent occasions for more convictions. This is a step up in relative seriousness of the offending and I am satisfied there is a small credit still appropriately recognised for your relative youth, but it is only small. I am persuaded to give you credit for four months of what the sentence would otherwise be, on account of your age and because it is not too late to acknowledge that credit as a source of encouragement to you to take all steps open to you to rehabilitate yourself, and move towards re-integration as quickly as possible.
[21] The pre-sentence report writer acknowledges on the one hand that you are remorseful, and have apparently offered to make amends for the financial loss caused by the offending. On the other, Mr Rewi, you are assessed as being at high risk of re-offending and a medium risk of harm to the public. You seem to keep company with others who would either encourage offending, or at least not discourage you from further offending, and it is relevant that you rejected the notion of an electronically monitored sentence, if that had been on, because you do not think you could resist pressure from others to breach the terms of such a sentence. Ultimately, the report writer recommended a substantial term of imprisonment and that is realistic.
[22] The Crown has questioned whether you could be given any credit for an offer to make amends when that appears unrealistic, and I note you have fines outstanding of some $1,730.
[23] The final mitigating circumstance is the credit you can be given for your guilty pleas. In terms of the timing, they have been made only after a lengthy remand, and shortly before you were due to face trial. On the other hand, your counsel has identified the prospect of an outcome along those lines being foreshadowed on your behalf in February 2012, and as I understand it from her, it has not been possible to move from that point to where we have reached now because of confusion with the way the file was being managed. The Crown does accept that an offer was made in February 2012 and it does seem, in light of the admissions you had made and the Crown case, that that offer was in the face of a relatively strong case against you.
[24] I am not satisfied that this is a situation in which you are entitled to a discount of the full 25 per cent. I consider a 20 per cent discount is the appropriate figure. Before reaching that point, I would allow five per cent discount for your apparently genuine and positive wish to pursue rehabilitation. I have read carefully the letter that you have handwritten for presentation to me, and also the acknowledgement of the rehabilitative steps you have taken whilst on remand in custody.
[25] So, from the final starting point of five years and eight months, that is, having started at six years, four months for your youth and after deduction of a combined
25 per cent discount, that produces an end sentence of four years and three months’ imprisonment and that is what I will impose on you. I will also order the remission of the amount of fines outstanding so that when you are released from custody you will not have the millstone of the financial obligation.
[26] On the conviction for conversion of a motor vehicle, I sentence you to
15 months’ imprisonment, which is to be served concurrently with the longer term.
[27] I note that when you entered you pleas of guilty, you were given a first strike warning and I hope that has been delivered to you in writing and you understand it. I need say no more on that.
[28] As a consequence of the sentencing the Crown offers no evidence on counts
11, 12, 16, 18, 19 and 20 in the indictment.
Dobson J
Schedule of comparable sentencings
Mamea v Police HC Auckland CRI-2006-404-257, 12 October 2006
The offender, aged 19, was the getaway driver in an aggravated robbery. His three co-offenders robbed a massage parlour at 3am in the morning. Several employees and one or two patrons were present. The offenders engaged in violence with the patrons, including hitting the manager on the head with a beer bottle, throwing a bottle at a patron and hitting the patron’s leg, hitting that patron with a mailbox and pole. They took the cash register (containing about $1,400 in cash). When the bar manager attempted to stop this, the offender pushed the bar manager to the floor, causing her to bump her head. The offenders then left the premises in the getaway vehicle driven by Mr Mamea.
Mr Mamea had stolen the vehicle. There was no evidence that he was aware that weapons would be used in the offending, although he accepted that he knew that the object was to rob the premises of cash, and that violence might be used in the course of the robbery. The sentencing Judge set the starting point at six years’ imprisonment.
On appeal, the High Court noted that Mr Mamea was not the principal offender, and whilst, as Mako has made clear, getaway drivers will not automatically be regarded as less culpable than the principal offender, in this case there was no evidence that Mr Mamea role was anything other than the driver. He did not, for example, take any part in planning the robbery, and could not be regarded as a principal offender in any respect. An appropriate starting point would be five years six months’ imprisonment. A discount of one third was given for Mr Mamea’s youth, rehabilitative efforts and co-operation with the Police.
That robbery involved the use of actual violence but the amount of cash stolen was modest. It is unclear what weapons were used in Mamea. In the present case, Mr Rewi had some involvement in the planning stages of the robbery (being
involved in the conversion of the car), more victims were affected and more money was taken. Mr Rewi’s offending is therefore marginally more serious.
R v Pakinga HC Hamilton CrI-2010-019-2038, 1 October 2010
Mr Pakinga and two other associates planned to rob a Post Shop and Kiwibank. They drove past the bank, noting its location, the car parking area and the points of access. They also went to a park area to determine the best location to “dump” the getaway car they intended to use. They then stole a car, hid it overnight, retrieved it the next day and parked it at the rear of the Kiwibank. Mr Pakinga remained in the driver’s seat as the getaway driver. His two associates walked to the Kiwibank wearing dark coloured clothing, including gloves and garments partially concealing their faces. Mr Pakinga knew that one of his associates had a sawn-off single-barrel weapon. His associates yelled at the customers and staff members in the bank, and made it clear that they would be shot if they did not co-operate. They approached the tellers to obtain money, which they put into plastic shopping bags they had brought with them. They escaped in the getaway vehicle. Mr Pakinga drove them to a park and left the car there. They then fled on foot to a second vehicle where another associate was waiting. The total amount stolen was just over $7,000. The proceeds were divided equally amongst the four offenders.
Heath J noted that there was careful pre-meditation. Mr Pakinga was intimately involved in the planning stage, although the Judge noted that he had no control over what actually happened in the bank once his associates had entered. He knew that his associates carried a firearm. The robbery involved multiple offenders, and the victims were vulnerable and suffered serious emotional and psychological harm. The Judge set the starting point of eight and a half years’ imprisonment (the same starting point as for the co-offenders).
The Judge then uplifted the starting point by one year given Mr Pakinga’s extensive previous convictions. The Judge gave a 50 per cent discount to reflect this frankness and co-operation with the authorities, his relatively early guilty plea, extensive personal circumstances and remorse. The end sentence was four years nine months’ imprisonment.
With respect, both the starting point and the level of discount from it in Pakinga appear to be higher than other judges may have imposed. Certainly, if comparing starting points, there is only a marginal difference between the offending. This suggests that somewhat more than six years would be the comparable starting point here, given the prospects that Mr Rewi was less involved in the planning, and the threats of violence to the victims seem to have been at a more serious level in Pakinga.
Mata v R [2012] NZCA 593
M, W, K and L were party to the unlawful taking of two motor vehicles and the subsequent robbery of Armourgard Officers at an ANZ Bank. L and W had stolen two cars the week before the robbery and they were used as getaway cars. M, W and K went into the bank while L waited in one of the stolen vehicles. The faces of the three males were covered. One offender pointed a firearm at an officer. The group stole $20,190 and drove away at high speed. Shortly afterwards they swapped cars to avoid detection and discarded clothing worn during the robbery. L pleaded guilty. The District Court Judge adopted a starting point of six years’ imprisonment for his role in the offending. Starting points of six and a half years’ imprisonment were adopted for M, W and K. They appealed their sentences on the basis of disparity between them and L. The Court of Appeal noted that L had been “treated leniently” and that the starting point could well have been higher.
Mr Rewi’s contribution to the present offending appears comparable with that of L in Mata. As in that case, I am sentencing Mr Rewi on the basis that he had no immediate control over the conduct of the co-offenders in the bar. The Court of Appeal view that six years was lenient conforms with the starting point from Mako. It means that anything less than six years would be inadequate here.