R v Robertson
[2018] NZHC 1557
•27 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-1086
[2018] NZHC 1557
THE QUEEN v
ASIA ROBERTSON
Hearing: 27 June 2018 Appearances:
N E Copeland for the Crown
A J Maxwell-Scott for the Defendant
Sentencing:
27 June 2018
SENTENCE OF WOODHOUSE J
Solicitors:
Ms N E Copeland, Meredith Connell, Office of the Crown Solicitor, Auckland Ms A J Maxwell-Scott, Barrister, Auckland
R v ROBERTSON [2018] NZHC 1557 [27 June 2018]
[1]Ms Robertson, as you know, I have got to now explain the final sentence.
[2] You appear for sentence having pleaded guilty to four charges: aggravated robbery, kidnapping, unlawfully taking a car, and dishonestly using a document.
[3] You pleaded guilty after I provided a sentence indication. The sentence indication contains a summary of the facts and my reasons for concluding that the starting point for all the offences should be 4 ½ years imprisonment.
[4] Because those matters are fully set out in the sentence indication, and because the sentence indication may now be published, it forms part of, and will be attached to, the transcript of what I am now saying. What I will now discuss are the reasons why I consider that factors personal to you justify a reduction of 35 per cent from the starting point. There will be a further 20 per cent reduction for your guilty pleas.
[5] After you pleaded guilty I directed that a report be provided under s 38(1)(d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. I have received a comprehensive report from a clinical psychologist, Sanjeeta Sharma. Ms Sharma’s opinion, which I accept, establishes two matters relevant to sentence – and I state these in a very broad way.
[6] The first is that your personal history – which Ms Sharma assessed in respect of 11 different aspects of your personal history – coupled with your current psychological problems, justify a substantial reduction of the starting point. I do not intend to summarise the wide range of significant difficulties you have experienced from a very young age or the current psychological problems. They are contained in the report. The important thing will be for a copy of the report to be made available not only to the Parole Board but also to the Corrections Department, for reasons I will come to and which were noted by Ms Maxwell-Scott on your behalf.
[7] The second broad conclusion from Ms Sharma’s report – and as I have briefly discussed with Ms Maxwell-Scott – is that, if you return to the community without supervision, and if other circumstances are present, and which are possibly likely to be present, there is a high risk that you will reoffend – certainly a high risk of other
difficulties in the community. This conclusion, which I accept, bears on the type of sentence to be imposed depending on the assessment of an end sentence.
[8] In assessing a reduction of the starting point, for the reasons identified in Ms Sharma’s report, it is also necessary to take account of your youth. You were only 18 years old at the time of the offences. In addition, the offences were committed with three other people who were all older than you by a substantial margin. You were the youngest by eight years of the four offenders. The oldest offender was 13 ½ years older than you.
[9] The Crown accepted that your personal circumstances may justify a reduction in the vicinity of 20 per cent of the starting point. Ms Maxwell-Scott, on your behalf, agreed. I consider it should be at least 20 per cent.
[10] The Crown acknowledged that a separate reduction for your youth may be justified, but submitted that it should not exceed 10 per cent. The Crown referred to a Court of Appeal decision called Huata1 and to the fact that you have previous
convictions. Ms Maxwell-Scott noted that the young offenders in the Huata case were aged 20 and 22. In relation to youth, those are not insignificant age differences from your age at the time, especially with the added influence of much older offenders in your case. Ms Maxwell-Scott submitted that 15 per cent is an appropriate additional reduction for your immaturity, as she put it. I would put it as for your youth, coupled with all the other factors.
[11] In other words, Ms Maxwell-Scott submits that there should be an overall reduction of 35 per cent, before considering your guilty pleas. The Crown submitted that the maximum reduction should be in the range of 30 per cent. But in real terms, there is not much difference between the Crown or the defence.
[12] As I have already indicated Ms Robertson, assessing those factors – all of the factors I have referred to overall – I do consider there should be a reduction of 35 per cent.
1 Huata v R [2013] NZCA 470.
[13] Reducing the starting point by 35 per cent would result in a prison sentence of 35 months; that is, 2 years and 11 months. You are entitled to a further reduction for the guilty pleas and that brings a prison sentence down to 28 months.
[14] You have already spent almost 18 months in custody on remand. I understand this has occurred because a suitable bail address could not be found for you. And that in itself is very unfortunate.
[15] As Ms Sharma has said, what you now need – and what the community needs for you – to reduce risks of future offending, is a range of treatment and substantial support in a closely supervised environment other than prison. The sad reality is that no community based options of that sort have been presented or in fact are generally simply not available. These circumstances are not ones that the Court can fix. At the same time I cannot impose a sentence which would result in your release from prison without close supervision and with suitable carefully thought out conditions. Those are matters for the Parole Board, not for the Court.
[16] Ms Robertson, I must therefore impose a prison sentence. But I urge the Corrections Department to provide comprehensive treatment for you as outlined in Ms Sharma’s report, to the extent that you remain in custody – because at this point you will be entitled to apply for parole. For that reason, I will direct that copies of these sentencing notes and of Ms Sharma’s report go to both the Corrections Department and to the Parole Board.
Formal sentence
[17]I will now impose the formal sentence. If you would please stand.
[18] On the charge of aggravated robbery, you are sentenced to imprisonment for 2 years 4 months. And you may be aware of this, but the time you have spent in custody will be taken into account – but I cannot take it into account as part of the sentence.
[19]On the charge of kidnapping, you are sentenced to imprisonment for 1 year.
[20]For unlawfully taking a car, the sentence is 3 months imprisonment.
[21]For dishonestly using a document, the sentence is 6 months imprisonment.
[22] All sentences are concurrent. That means that the overall sentence is 2 years 4 months.
[23] I direct that copies of these sentencing notes, including the sentence indication, and a copy of Ms Sharma’s report be sent to the Parole Board and to the Corrections Department.
[24]That is all I have to say Ms Robertson. Stand down.
Woodhouse J
NOTE: PUBLICATION OF ANY INFORMATION ABOUT THIS HEARING, THE SENTENCE INDICTION AND OF THE REQUEST FOR A SENTENCE INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS
BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-1086
[2018] NZHC 788
THE QUEEN v
ASIA ROBERTSON
Hearing: 24 April 2018 Appearances:
N E Copeland for the Crown
A J Maxwell-Scott for the Defendant
Judgment:
24 April 2018
SENTENCE INDICATION OF WOODHOUSE J
Solicitors:
Ms N E Copeland, Meredith Connell, Office of the Crown Solicitor, Auckland Ms A J Maxwell-Scott, Barrister, Auckland
R v ROBERTSON [2018] NZHC 788 [24 April 2018]
[1] Ms Robertson, you have sought a sentence indication on four charges: aggravated robbery, kidnapping, unlawfully taking a car, and dishonestly using a document. The maximum penalty for aggravated robbery and for kidnapping is 14 years imprisonment. For the other two charges it is 7 years imprisonment – the maximum.
[2] I will first deal with some important preliminary matters before summarising the facts.
[3]The information I have for this sentence indication is the following:
(a)The formal charges in the Crown charge notice.
(b)An agreed summary of facts – and that is agreed by you.
(c)Your criminal and traffic history.
(d)Written and oral submissions for you from Ms Maxwell-Scott and from Ms Copeland for the Crown.
(e)There is no victim impact statement. Ms Copeland has advised that at this point one has not been obtained. In terms of the relevant provision of the Criminal Procedure Act, a victim impact statement is not mandatory for a sentence indication if one has not been prepared.
[4] Under s 63 of the Criminal Procedure Act 2011 there can be no publication of any information about the request for this sentence indication or of the fact that a sentence indication has been given; that is, unless and until Ms Robertson accepts the indication I am going to give and pleads guilty.
[5] Against the possibility that Ms Robertson may plead guilty, in this case I think it will assist to provide a reasonably full outline of the summary of facts and note matters bearing on a starting point in reasonable detail.
Summary of facts
[6] The charges arise from a planned robbery involving you and three others, with the events extending over about 6 ½ hours.
[7] Your co-defendants are Carly Jane Goodson, Terrance Rudolph and Nykell-T Hegotule.
[8] At around 2:00 am on 15 January 2017 you were in a bar on Karangahape Road in Auckland, as was the complainant, a male. You had seen the complainant in this bar before. Around 3:00 am you grabbed the complainant by the hand and said “Let’s go to my place” – or something to that effect. The two of you took a taxi to Victoria Street, met Ms Goodson, went to a hotel rented by Ms Goodson, and you and Ms Goodson then went with the complainant to his home. With the complainant’s agreement, the three of you then went to a motel in Epsom in the complainant’s car. You were driving because the complainant was intoxicated. I emphasise that at this point he was not being forced to do anything.
[9] Ms Rudolph was already in the motel unit. An arrangement was made for the complainant to pay Ms Goodson $160 for sex, while you and Ms Rudolph waited in another room of the motel unit.
[10] The complainant and Ms Goodson were interrupted in the bedroom by Mr Hegotule. He was brandishing a knife, with a blade approximately 20 centimetres long. He was wearing a Black Power t-shirt. Mr Hegotule allegedly told the complainant he would be stabbed, and he demanded money. The complainant said all his money had been “paid to the girls”.
[11] You then went into the room with the complainant’s phone. Ms Rudolph came in with a knife. You demanded the PIN to the complainant’s phone banking app. Mr Hegotule threatened to stab the complainant if he did not provide the PIN.
[12] You and Mr Hegotule then told the complainant to transfer $5,000 to a bank account, but then told him not to. The four of you took the complainant’s phone and wallet and demanded PINs for his bank cards, which he provided.
[13] The complainant was held in the room against his will. When you and Ms Rudolph went to leave, the complainant attempted to escape. You and Ms Rudolph stopped him.
[14] At that point Mr Hegotule punched the complainant several times in the head, for which he faces an independent charge of wounding with intent to injure. You are not charged with this offence.
[15] The four of you then pushed the complainant back into the bedroom while he was still dazed from the punches. He was then punched again by one of you on the right side of his face. The four of you put the complainant on the ground, tied his hands and legs behind his back, put a towel in his mouth, and wrapped something around his face to hold the towel in place.
[16] You and Ms Rudolph left the motel in the complainant’s car to find ATM machines. A total of $2,800 with withdrawn from three machines in different locations. The money has not been recovered.
[17] Ms Goodson and Mr Hegotule left the motel at around 9:30 am, leaving the complainant bound and gagged. He was eventually able to escape. You and the other defendants were located and arrested at a later date. I have been advised this afternoon that you have been in custody since 17 January 2017.
Starting point
[18] As I expect you may understand, Ms Robertson, I need to fix what is called a starting point for the sentence. This is an assessment of the sentence based on the seriousness of your offending, without at this point taking into account any personal factors which might increase or decrease the sentence. And as you have already heard, there will be no increase in the sentence because of your previous offences.
[19] For the purpose of setting a starting point I have taken account of the submissions for you from Ms Maxwell-Scott and from Ms Copeland for the Crown, relevant provisions of the Sentencing Act 2002 and cases that counsel have referred to in their submissions.
[20] The most relevant case is a Court of Appeal decision called Mako, which provides guidelines for sentencing for aggravated robbery.1 In your case, aggravated robbery is what is called the lead offence. The three other charges are taken into account in an appropriate way to fix what may be called an overall starting point.
[21] The Crown submits that there should be a starting point of 4 ½ years imprisonment for the aggravated robbery and that that starting point should be increased by 1 year for the other offences. Ms Maxwell-Scott submits that the starting point should be 4 ½ years without any increase. She further submitted that if I consider there should be some increase it should be minimal.
[22]The Court of Appeal decision in Mako refers to a range of aggravating factors
– that is, factors which may increase the seriousness of the offending. The Crown submits that in your case there are seven aggravating factors. I will note these, Ms Maxwell-Scott’s response, and my assessment, in a summary way:
(a)First: the Crown submits there was planning and pre-meditation. Ms Maxwell-Scott submits, for reasons she outlined, that there is “nothing to suggest a large degree of co-ordination or sophistication”. From the facts you have agreed to I am satisfied there was planning and pre- meditation with you central to this, but no more central than any of the others. You lured the complainant out of the bar, collected Ms Goodson and then went to the motel where Ms Rudolph was already waiting. I do accept Ms Maxwell-Scott’s submission that it is not clear when Mr Hegotule was alerted. I also agree it was not sophisticated.
(b)There were four participants in the aggravated robbery. That is not in issue and it is an aggravating factor, but I will come back to this.
(c)Weapons were used. This is a reference to the knives. This is not in issue and it is, again, an aggravating factor and it is of some gravity. In respect of this aggravating factor, however, I would refer to what the Court of Appeal said in Mako. The Court said that it is not to be
1 R v Mako [2000] 2 NZLR 170 (CA).
assumed that the more potentially lethal the weapon, the more serious the offence. From the agreed facts, I infer that the intended purpose of the carrying of these knives was intimidation rather than an intention to actually use knives – and I have got to weigh this in the overall assessment. But it is an aggravating factor.
(d)Fourth: there was violence or threatened violence. Ms Maxwell-Scott says that this is accepted, but submitted that you did not inflict any of the injuries and that you were not a party to the separate charge against Mr Hegotule of wounding with intent to injure. You were not a party to that separate charge and, as I have already indicated, I do not intend to take it into account to increase your starting point. But there was other violence or threatened violence of a degree. This includes use of force in which you were directly involved and the tying up and gagging of the complainant before you left with Ms Rudolph to steal the money. This can be described as violence but it is, however, at a fairly low level compared with many other cases.
(e)The Crown submits that gang involvement is an aggravating factor. Ms Maxwell-Scott disputes this. I agree with Ms Maxwell-Scott. This is not an aggravating factor. The fact that Mr Hegotule was wearing a gang t-shirt and said he was a gang member does not indicate gang involvement. In fact, one could speculate that if he was wearing a gang t-shirt and then felt compelled to say he was a gang member, he may not even have been a gang member. The simple point is that I do not consider that this is case of gang activity or gang involvement.
(f)Next: the Crown submits that a further aggravating factor is that property was stolen and none has been recovered. This is accepted on your behalf. But in my judgment it is not an aggravating factor of major consequence in this case because taking property is an essential element of robbery and the value is not high when assessed against many other cases.
(g)The Crown submits that the remaining aggravating factor was the impact on the complainant from the extent of the harm. Ms Maxwell- Scott accepts this as an aggravating factor. I agree that it is. I take it into account, but on the basis that it does not include the harm caused by the separate assault by Mr Hegotule. There is also need not to double count this aggravating factor with the separate aggravating factor of violence or threatened violence. Those factors must largely be taken into account as a single aggravating factor to be assessed in the overall circumstances of this offending.
[23] There is a general requirement that aggravating factors which are separately identified in Mako are not double counted when, in the circumstances of a particular case, they amount to the same thing or reflect similar elements. Another example, in addition to those I have mentioned, is the number of participants. The Court of Appeal said in Mako that this is relevant because this can indicate the extent of planning, or it can indicate the extent of intimidation, or both. But both of those factors are referred to separately and have been referred to by me separately in the summary of the Crown’s submissions of aggravating factors.
[24] As I noted earlier, Ms Robertson, the Crown submits that the starting point for the aggravated robbery, taking account of the seven aggravating factors relied on by the Crown – and which I consider are fewer – should be 4 ½ years imprisonment and that this should be increased by 1 year for the other charges. The most serious of the remaining charges is the kidnapping. The Crown submits that the steps taken by you and the co-defendants to prevent the complainant from escaping from the room or from the motel add significant aggravation to the kidnapping charge. This appears to be put on the basis that it is aggravation distinct from the aggravation taken into account on the aggravated robbery charge. The kidnapping is in itself a serious charge, but this charge is integral to the nature of the aggravated robbery that was planned and which evolved with your participation. Again, double counting must be avoided.
[25] The same applies in relation to the charges of taking the car and getting the money from the ATM machines. Taking the money from the ATM machines was part of the objective of the robbery and the amount of money taken has been taken into
account for the aggravated robbery. Taking the car for this purpose is an additional, or separate, factor, but it is minor in the overall assessment.
[26] Taking account of these various considerations, the submissions I have received, and other cases I have been referred to – and I will simply note those in a footnote2 – I am satisfied that the overall starting point, taking account of all charges, should be 4 ½ years imprisonment as submitted by Ms Maxwell-Scott.
[27] I repeat something I said at the beginning, Ms Robertson. It has taken me a bit of time to get to that point, but I do consider it has been important to outline these matters so you understand.
Adjustment for personal considerations
[28] Again, as I have already indicated, I am not able to provide any indication to you whether there should be an increase or decrease for factors personal to you, except to say that there will be no increase because of your previous convictions. And that simply confirms what I also said before. There do not appear to be any other personal matters which could warrant an increase. The Crown agrees that there should be no increase for the previous convictions.
[29] There are indications in Ms Maxwell-Scott’s submissions that there are grounds for a reduction of the starting point because of a range of personal considerations. As Ms Maxwell-Scott, I am sure, has explained to you, I cannot at this stage indicate the extent of any reduction for personal factors. Amongst other things, Ms Maxwell-Scott has submitted that it will be appropriate, if you plead guilty, to obtain a report under s 38 of an Act called the Criminal Procedure (Mentally Impaired Persons) Act 2003. I am satisfied – and again, as I have already indicated – that, if you do plead guilty, there should be an order for such a report.
2 Edwards v Police HC New Plymouth CRI-2009-4443-16, 21 September 2009; R v Hewitt [2017] NZHC 1220; and Opetaia v R [2013] NZCA 434.
Guilty pleas
[30] The final matter is the guilty pleas. There appears to be no disagreement between your counsel and the Crown that there should be a reduction if you plead guilty of 20 per cent for the guilty pleas. That would be brought into account right at the end of this assessment, after any reduction for personal factors.
Duration of sentence indication
[31] Ms Robertson I generally need to specify a date by which you must accept this sentence indication otherwise it will expire. Ms Maxwell-Scott has already said to me that she wants a short adjournment so she can discuss this with you. So I will stand this matter down so you can talk to Ms Maxwell-Scott and let me know what you want to do.
Addendum
[32] Following the adjournment Ms Robertson was arraigned and pleaded guilty to the four charges. She was convicted and remanded for sentence on 7 June 2018. A report under s 38(1)(d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 is to be provided, as well as a pre-sentence report.
Woodhouse J
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