R v Rodgers

[2022] NZHC 1942

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-054-000020

CRI-2021-054-001836 [2022] NZHC 1942

THE QUEEN

v

SHARRAS TYSON RODGERS

Sentencing:	8 August 2022
Counsel:	B D Vanderkolk for the Crown J Younger for Mr Rodgers
Sentencing Notes:	8 August 2022

SENTENCING NOTES OF GWYN J

Introduction

[1]                   Mr Rodgers, you appear for sentence having pleaded guilty to two charges of aggravated assault1 and one charge of accessory after the fact.2

[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 you accountable for the harm you have caused through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in

1      Crimes Act 1961, s 192(1)(a) carries a maximum penalty of three years’ imprisonment.

2      Sections 312 and 71 carry a maximum penalty of three years and six months’ imprisonment.

R v RODGERS [2022] NZHC 1942 [8 August 2022]

your rehabilitation and reintegration into society.3 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 who you are 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

Accessory after the fact

[5]                   At about 7.30 pm on Thursday 31 December 2020, you were driving to Palmerston North with Mr Kovaleski in the passenger seat and two women in the back seat. You were travelling on Tennent Drive at a speed of 30 kmph. The speed limit  on that section of the road is 100 kmph. Because of your slow speed, the victims’ vehicle approached and then overtook your vehicle.

[6]                   As well as the driver and the driver’s partner, their  two  young  children, aged one and two years’ old, were in the back seat of the victim’s car. As the victims’ vehicle was overtaking your vehicle, the victims recognised you because you are personally known to them.

[7]                   A short while later, you accelerated heavily so that you were tailgating the victims’ vehicle. As your vehicle got to within one to two metres of the victims’ vehicle, Mr Kovaleski, from the passenger seat, leant out the window so that his whole upper body was outside the vehicle. He pointed a firearm in the direction of the

3      Sentencing Act 2002, s 7.

victims’ vehicle and discharged it. Mr Kovaleski fired around two shots at the victims’ vehicle from a distance of one metre away while both vehicles were travelling at about 100 kmph. During this phase of the incident, the victims again identified you as the driver.

[8]                   The victims were screaming that they had children in the car. They called the emergency services and accelerated heavily to try to get away from your vehicle. At this time, both vehicles were travelling at around 200 kmph.

[9]                   The victims’ vehicle sustained two bullet holes: the first bullet having travelled through the rear left tail light, through the boot and ending at the vehicle frame, a short distance from where the head of one of the children was positioned; and the second bullet having made a hole in the handle of the driver’s door.

[10]               After the shooting, you followed the victims’ vehicle before turning away. In doing so, you assisted Mr Kovaleski’s escape from the Police. The Crown accepts that you were not aware that Mr Kovaleski was going to shoot at the victims before the offending took place.

Aggravated assault

[11]               On 2 January 2021, at about 8.20 am, you and Mr Kovaleski entered an address in Palmerston North after receiving a phone call from two friends who said they were not being paid for services they provided to the victims that night.

[12]               The two friends had left the address before calling you and Mr Kovaleski and got into your vehicle when you arrived. You and Mr Kovaleski entered through the front door, wearing masks to disguise your identity. You then entered the first bedroom where two victims were asleep. One of the victims woke and you or Mr Kovaleski tried to put a foot on the victim’s chest. You and Mr Kovaleski demanded from the victims their I.D, wallets and bank cards. When the victim told you that he did not have his wallet with him, you searched the bedroom and the bed.

[13]               You and Mr Kovaleski then followed the victim into the lounge area, where the victim’s flatmates were asleep. You and Mr Kovaleski then proceeded to demand

from two other occupants of the house their I.D, wallets and bank cards. When they refused, two of the victims were punched in the face with a closed fist.

[14]               You and Mr Kovaleski then left the address in your vehicle. As you were leaving, one of the victims took a photograph of your vehicle.

[15]               The injuries suffered by the victims included bruising to the face, neck and head.

Personal circumstances

[16]               Mr Rodgers, before sentencing you today, I have read a provision of advice to Courts (PAC) report, dated 2 August 2022, prepared by the Department of Corrections. I have also read two reports from psychiatrists prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.4 The PAC report notes you have an extensive criminal history, dating back to 2014 and including 50 convictions. Several of these convictions relate to violent offending. The report writer does not consider that your propensity for violence is slowing because today, too, you appear for further violence-related charges.

[17]               The PAC report places you at a high risk of reoffending and at a high risk of harm to others, based on your use of violence at such a young age, your high number of convictions and your association with the Mongrel Mob gang. The report notes that you have acknowledged that it is your lifestyle, associates and use of drugs and alcohol which results in poor decision-making on your part and that you must change these negative factors to turn your life around.

[18]               You have goals to turn your life around. You have been completing NCEA Level 1 while in custody and you want to become a vet one day. It is promising to see that you have clear plans in mind to achieve this goal and I hope you do get there. You also spoke to the report writer of your painting work while you have been in custody and your plan to pursue employment through the skills you learned. You want to do

4      These reports were prepared in March and May 2022 to assess Mr Rodgers’ fitness to stand trial, having regard to his epilepsy.

better so that you are able to be a better role-model for your son and you wish to make your mother proud of you.

[19]               While your use of drugs and alcohol prior to your time in custody is of concern, you now report having been drug-free for the longest period in your life, which is something you wish to continue.

[20]               I have read in the reports how you suffer from the condition of epilepsy. The reports note that stopping your use of drugs and alcohol has had a positive effect on your health: the seizures you used to have daily when you were using drugs heavily have now subsided to a much lower frequency, aided by medication.

[21]               The PAC report notes that you were very remorseful about your offending. You acknowledge how distressing the experience must have been for the victims of your offending. You express a desire to apologise to the victims and you have expressed regret for your role in the offending.

[22]               The report writer concludes by saying that you will be at high risk of reoffending if you fall in with your old associates and your old ways again, which includes drug use. But, if you accept the assistance that is available to you, you can reduce your risk of reoffending significantly.

[23]               The report recommends a sentence of imprisonment with release conditions. On the topic of your outstanding fines totalling $7,736.75, the recommendation is to remit the fines you owe to allow you a fresh start on release, but seek a commitment on your part to pay the amount of $3,187.75 for reparation payments.

Submissions

[24]               I am now going to summarise what each of Crown counsel and your lawyer Ms Younger, have had to say about what is an appropriate sentence.

[25]               First, I acknowledge the fair and pragmatic concessions made in the Crown submissions. Counsel for the Crown, Mr Vanderkolk,  says that  a starting point  of 16 months’ imprisonment is appropriate to reflect the totality of your offending, with

10 months’ imprisonment adopted for the lead offence of accessory after the fact to discharging a firearm with reckless disregard and six months added for the aggravated assault charges. Counsel concedes that your offending on both sets of charges is at the lower end of the spectrum because Mr Kovaleski’s shots did not hit anyone, and, the aggravated assaults constituted two punches to the face or head of the two victims.

[26]               The Crown has not sought an increase (uplift) for your previous convictions because the context of this offending is different to your prior offending. Nor does the Crown oppose a full discount for your guilty plea.

[27]               Your counsel, Ms Younger, agrees that the starting point proposed by the Crown, of 16 months’ imprisonment, is appropriate. Counsel is also in agreement that no increase for previous convictions is warranted, because they are of a different nature and therefore not directly relevant to the present offending.

[28]               Ms Younger has said to me that your youth is a mitigating factor – that is, I should take it into account.

[29]               Mr Rodgers, you were 23 at the time of the offending. You are now 25 years old. This is a positive factor because it means you have the ability to change. It is submitted a discount for your youth is appropriate. Ms Younger says a full discount of 25 per cent is also appropriate for your guilty pleas at the earliest opportunity. The Crown agrees.

[30]               You have expressed remorse for your offending. Counsel submitted that this should be reflected in a discount to you.

[31]               As to the circumstances of your background that may have contributed to your offending, Ms Younger says that there is a causal link between your head injury as a teenager, your drug addiction issues, your association with Mr Kovaleski and the present offending. It is this head injury that brought about the onset of epilepsy. Your condition was made worse by your heavy drug use. Counsel submits that being sober and drug-free while in custody has much improved your health and has allowed your

injury to heal. Further relevant background circumstances include that you grew up in poverty and had a violent step-parent in your childhood.

[32]               In sum, counsel submitted that you should receive a 25 per cent discount for your guilty pleas, a 5 per cent discount for remorse and a cumulative discount in the range of 15-20 per cent for your background, age, health difficulties and addiction. Ms Younger says that an end sentence of less than 12 months’ imprisonment would, therefore, be appropriate.

Starting point

[33]               Now I will talk about the way I have decided to approach the starting point in your case. I treat the charge of accessory after the fact as the lead offending and adopt a starting point for that charge as that represents the more serious offending. I then consider any increases (uplifts) for the remaining charges. I will refer to some other cases that involved the same kind of charges, as they provide a useful comparison.

Accessory after the fact

[34]               In R v Bracken, Ms Bracken received a starting point of 14 months’ imprisonment on a charge of accessory after the fact to wounding with intent.5 That is a more serious charge than yours and the offending in that case was also more serious because Ms Bracken had observed Mr Epiha’s actions before assisting him and Mr Epiha’s offending had caused the death of a police officer.

[35]               In Duncan v R, a starting point of 12 months’ imprisonment was adopted on the charge of accessory after the fact to wounding with intent to cause grievous bodily harm.6 There Ms Duncan was an active and willing participant.

[36]               In your case, the Crown accepts that you did not know that Mr Kovaleski had a firearm in his possession or that he would fire it at another car. The degree of assistance you provided Mr Kovaleski was also not extensive, considering you were on a road where it was difficult to stop and so driving on was an understandable and

5      R v Bracken [2021] NZHC 2615 at [15].

6      Duncan v R [2013] NZCA 354 at [40].

safe course of action for you. At that stage, you were also no doubt acutely aware of the fact that Mr Kovaleski had a gun in his possession.

[37]               Accordingly, I adopt a starting point of 10 months’ imprisonment for the lead offending.

Aggravated assaults

[38]               I turn now to consider whether I need to add to that starting point, to reflect the two charges for aggravated assault.

[39]               While obviously serious for the victims, this offending is of relatively low seriousness, having regard to some other offending. However, there were some aggravating factors which raise the seriousness of the offending. Those factors include that you entered a home, where the victims were vulnerable because they were asleep, and you and Mr Kovaleski wore masks to disguise your identity.

[40]               While the violence itself is less serious than in the case of R v Waitokia, the presence of those aggravating factors of home invasion and the vulnerability of the victims in your case makes the seriousness of the offending comparable.7 In that case, the offender received an uplift of six months for offending which constituted striking an officer several times about the head with handcuffs before reaching forward and biting and removing part of the officer's ear.

[41]For this offending, I uplift your starting point by six months.

[42]That results in a starting point of 16 months’ imprisonment.

Personal aggravating and mitigating factors

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

7      R v Waitokia [2021] NZHC 2905.

Previous convictions

[44]               Your previous convictions are relevant to sentencing.8 You have an extensive criminal history. However, this offending is different in nature to the offending your prior convictions relate to, so there is not the need to reflect an emphasis on denunciation by imposing an uplift for previous convictions.

Guilty plea

[45]               You are entitled to receive the full benefit of pleading guilty at the earliest opportunity. Therefore, I apply a discount of 25 per cent to your sentence.9

Remorse

[46]               You have expressed remorse for your offending to the PAC report writer as well as to this Court in your letter. In order to give you a discount for your remorse, I have to be convinced that it is genuine.10 I am satisfied that is the case. You have admitted the offending; you have not offered a different version of the facts which would place you in a more favourable light; you have made and plan to make further tangible changes to your lifestyle, including stopping the use of drugs and alcohol; and you have expressed a desire to apologise to the victims of your offending.11

[47]               In Hawkins v R, a five per cent discount was given by the District Court and accepted on appeal by the High Court for remorse expressed in a letter accepting “full responsibility” for the offending.12

[48]               Here, I apply a five per cent discount to your sentence for your expression of remorse.

8      Sentencing Act, s 9(1)(j); and Orchard v R [2019] NZCA 529 at [39]-[42].

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

10     Hessell v R [2010], above n 8.

11     Compare Williams v Police [2012] NZCA 176, where the offender expressed remorse in a letter to the Court and the PAC writer but continued to dispute the facts of the offending and did not accept full responsibility for it.

12 Hawkins v R [2022] NZHC 283.

Background circumstances

[49]               Your young age is relevant to the sentencing process in several ways. As the Court of Appeal said in Roberts v R:13

These include young offenders’ incomplete neurological development; associated poorer judgment and greater impulsivity than adults, which can lessen the culpability of their offending; the fact that younger offenders not yet hardened into a life of criminality have a greater capacity for rehabilitation, which can be imperilled by the imposition of a severe custodial sentence early in life; and the greater harshness of imprisonment on young offenders.

[50]               Your epilepsy is also relevant to sentencing because it makes the punitive nature of imprisonment worse for you.14 As Ms Younger submitted, you experienced serious health difficulties in your initial period of custody, waking up on more than one occasion in medical care having injured yourself as a result of overnight seizures.

[51]               Before you were in custody, you were a heavy user of methamphetamine. The Court of Appeal in Zhang v R has identified that mental health (together with addiction, duress or undue influence, and social, cultural and economic deprivation) is relevant to sentence in that it could impair the rational choice made to offend, and thereby diminish moral culpability.15

[52]               In your case, I am satisfied there is a causal link between your head injury, the onset of epilepsy, your attempts to self-medicate using methamphetamine and your offending. To reflect the connection of these factors to your offending and your rehabilitative prospects, given your age, I adopt a discount of 20 per cent for your personal circumstances.

[53]This brings me to an end sentence of eight months’ imprisonment.

Release conditions

[54]               Ms Younger says that you plan to move to the South Island on release to live with relatives and to pursue employment and to be in a place where you do not have

13     Roberts v R [2020] NZCA 441 at [24].

14     Blackwood v R [2011] NZCA 143.

15     Zhang v R [2019] NZCA 507 at [138].

easy access to your old associates and old habits. For this reason, she submitted that you should not be subject to post-release conditions as, realistically, you would have to live in Palmerston North while you were subject to those conditions. This would increase the risk of you falling back with your old associates and into your old habits, which include drug use.  You  would then be at a significant risk of re-offending.   Mr Vanderkolk agrees that imposing release conditions might impede your rehabilitation. I want to avoid that outcome.

[55]               Since your end sentence is less than 12 months’ imprisonment, the Court has a discretion whether to impose release conditions.16 In any event, the conditions may only be imposed until a period of up to six months after the sentence expiry date.17 Mr Rodgers, you have served 528 days in custody, which equates to about 17 and a half months. This means the period for which you could be subject to post-release conditions has now expired.

[56]You will therefore not be subject to post-release conditions.

Result

[57]Mr Rodgers, please stand.

[58]               For the charge of accessory after the fact and two charges of aggravated assault, I sentence you to eight months’ imprisonment.

[59]               You have been remanded in custody for a period of 17 and a half months. Your sentence will be credited as time served by the prison manager, in accordance with   s 91 of the Parole Act 2002. That means that the time you have already spent in prison will count as time served towards the sentence I have just imposed. This means that you are entitled to be released today.

[60]You will not be subject to post-release conditions.

16     Sentencing Act, s 93(1).

17     Section 93(2A); and Mitchell v Chief Executive of the Department of Corrections [2017] NZCA 475 at [34].

[61]               You are ordered to pay $3,187.75 for your outstanding reparation payments. The remainder of your outstanding court fines are remitted.

Gwyn J

Solicitors:

Ms Younger, Palmerston North

Crown Solicitor, Palmerston North