R v Rolleston
[2018] NZHC 2656
•12 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-8415 [2018] NZHC 2656
THE QUEEN
v
SHANDA ISABELLA ROLLESTON ARONA ROLLESTON
Hearing: 12 October 2018 Counsel:
HD Benson-Pope for Crown
Q Duff for S Rolleston and on instructions from E FaleautoJohnston for A Rolleston
Judgment:
12 October 2018
SENTENCING NOTES OF FITZGERALD J
Solicitors: Crown Solicitor, Manukau
To: Q Duff, Auckland
E Faleauto Johnston, Manukau
R v Rolleston [2018] NZHC 2656 [12 October 2018]
Introduction
[1] Shanda Rolleston and Arona Rolleston, you each appear for sentencing having pleaded guilty to various dishonesty and property-related offences which arise from your association with group that carried out burglaries which targeted the Indian community in Auckland. Though neither of you participated in the burglaries themselves, you each received, used or otherwise interfered with property stolen from the victims. From the papers, I see that for each of you, this is your first – and I very much hope your last - time to appear in the High Court.
[2] I will start today by outlining the facts upon which each of you have pleaded guilty. They will be familiar to you obviously, but it is also important that members of the public and the broader community know why I am sentencing you today in the way that I am going to.
Facts of the offending
[3] The group which you were associated with was led by Mr Dhillon. He engaged others to enter various properties by force and to steal from the occupants inside. That must have been a terrifying experience for those people. As I have noted, the involvement of the two of you started after the property had been taken.
[4] Mr Rolleston, I will start with your offending. You pleaded guilty to dishonestly using a document,1 unlawfully taking a motor vehicle,2 and to one representative charge of receiving goods of more than $1,000.3 The maximum sentence that can be imposed on each of these charges is seven years’ imprisonment. Your offending involved:
(a)On 29 June 2017, being given the keys to a stolen BMW, which you and a co-defendant then drove back to your home. You then, with others, searched it for valuables.
1 Crimes Act 1961, s 228(1)(b).
2 Section 226(1).
3 Section 246 and 247(a).
(b)Also on 29 June 2017, you received a stolen Macbook Air laptop, which you attempted to sell to associates; and on 8 July 2017 receiving three stolen Toshiba laptops.
(c)Last, on 11 July 2017, using a stolen ASB bank card in an attempt to buy around $1,300 worth of sports goods online.
[5] Ms Rolleston, your offending was not dissimilar. You pleaded guilty to dishonestly using a document,4 carrying a maximum sentence of seven years’ imprisonment, and to a representative charge of receiving goods less than $500,5 carrying a maximum of three months’ imprisonment. On the first of these charges, you received a stolen ASB bank card and purchased on TradeMe perfume and a jacket totalling around $400. As part of your receiving charge you came into possession of:
(a)A black Samsung J2 cellphone, which you received on 29 June 2017 and attempted to sell on Facebook;
(b)An iPhone 6S cellphone, received on 8 July 2017, which you also tried to sell;
(c)A black Samsung A3 cellphone, received on 10 July 2017, which you successfully sold to a pawnbroker in Manurewa; and
(d) Jewellery and jewellery boxes, which were found in your possession on
14 July 2017.
Approach to sentencing
[6] In reaching a sentence for each of you, I first have to adopt starting points that reflect the nature of your offending itself. In his submissions, Mr Benson-Pope for the Crown has proposed examining the “lead” or your most serious offence that each of you committed, and uplifting the start point for that offence to reflect the additional charges you have pleaded guilty to, and I agree with that approach.
4 Section 228(1)(b).
5 Sections 246 and 247(c).
[7] After I have reached the starting point for your sentence, I will examine matters personal to each of you and these may increase or decrease the proposed sentence. I will then consider what reduction should be given for your guilty pleas. My primary consideration today has been whether a sentence of imprisonment is necessary to respond to your offending and to deter each of you from offending further.
Mr Arona Rolleston
[8] Mr Rolleston I will start with your sentencing. The lawyers for the Crown and for you agree that the lead charge is unlawfully taking a motor vehicle. The Crown suggests a starting point of nine months’ imprisonment and Mr Johnston in his written submissions suggests a starting point of four months. Having regard to the other cases which the Crown have referred to,6 which suggest a starting point of 12 months’ imprisonment but were more serious than your offending, and also taking into account a global starting point adopted in the District Court for your older brother of 10 to
12 months, for what I think to be more serious offending and additional charges, I have considered a starting point of seven months’ imprisonment to be appropriate.
[9] The Crown then suggests an uplift of four to six months for the offences of receiving and dishonest use of a document. I agree with your lawyer, however, that the four-month figure is appropriate. That results in a final starting point of 11 months’ imprisonment.
[10] Turning to you personally, Mr Rolleston, this is your eighth appearance for sentencing since 2013. You have several relevant past convictions, including breaching community work, unlawfully interfering with a motor vehicle, aggravated robbery and burglary. Your lawyer has said I should not impose any further uplift for this past offending but in my view a small uplift is necessary to reflect it. I adopt a further month.
[11] No particular mitigating features have been referred to. The Crown also seeks reparations and has filed a schedule calculating the monetary loss to two of your
6 Gideon v Police [2014] NZHC 1065 and Beattie v Police [2017] NZHC 1626. No additional cases were cited by the defence.
victims at roughly $2,150. I have not been given any particular information about your ability to pay reparations, but obvious concerns have been raised, including your position in emergency housing, and I have seen documents in that regard and the payment obligations that are imposed on you as a result. Taking those matters into account, and that any reparations I would have ordered would have been limited in nature anyway, I have decided that I am not going to order reparations in the sentencing today.
[12] You are entitled to a reduction for your guilty plea. In light of the significant disclosure in this case and the changing charges you faced, the Crown suggests 15 per cent, and the defence 15 to 20 per cent. Mr Benson-Pope has responsibly drawn my attention today to the 15 per cent discount that was given closer to trial to one of your
co-defendants. For that reason, and taking into account the disclosure and the changes in the charges, I am willing to adopt the higher reduction of a 20 per cent discount.7
That brings a nominal start point to a figure close to 10 months imprisonment.
[13] Mr Rolleston, I now need to decide whether a sentence other than prison should be imposed. I must stress to you, and I really do stress to you, Mr Rolleston, that your pattern of offending is increasingly likely to result in a sentence of imprisonment if you continue to offend in the way that you have done. As you are no doubt aware, to date, no suitable address for electronic monitoring has been identified for you, which makes it increasingly likely that any next sentence will be imprisonment. You are only
21 and although your offending does not appear to be escalating in seriousness, a deterrent sentence is necessary in my view.
[14] Counsel on your behalf in his written submissions suggests that I should maintain parity with your co-offender, and older brother. He was sentenced in the District Court to six months’ imprisonment with leave to apply for home detention, given a home detention address was not initially available.8 After a month of imprisonment had been served, and as you may be aware, your brother’s sentence was commuted to two months’ home detention.9
7 See, for example, Kara-Newcombe v Police [2018] NZHC 25, where a reduction of 20 per cent was given following the amendment of charges against the defendant.
8 Police v Whaiapu-Rolleston [2017] NZDC 27754.
9 Police v Whaiapu-Rolleston [2017] NZDC 25882.
[15] Mr Rolleston, I have decided not to sentence you today to a period of imprisonment or home detention. Your offending is, in my view, less serious than your brother’s. In addition, in the particular circumstances of your current offending and where you are at now at in your life, I do not see prison or home detention as being appropriate or necessary responses. I consider that a combination of supervision and community work is appropriate.
[16] I have formed the view that the purpose and aims of sentencing on your current offending can be accommodated via supervision with special conditions rather than intensive supervision.
[17] I am going to impose nine months’ supervision and 100 hours of community work, and I see you have breached community work provisions before. And, you really need to take this seriously and engage in this properly because, as I say, further offending and breaches are only going to lead to imprisonment. To try to avoid this happening, I consider it would be beneficial for you, and the broader community, if you were enrolled in a programme which might help break the cycle of your offending. Your sentence of supervision is therefore subject to conditions that:
(a)you are to attend an assessment for an alcohol and drug programme, and for a departmental programme, as directed by a Probation Officer; and that
(b)you attend and complete any counselling, treatment or programme as recommended by those assessments, as directed by and to the satisfaction of a Probation Officer.
[18] I note that in your pre-sentence report, the report writer suggests a condition that you not associate with certain persons, including your sister Shanda. For the purposes of standard condition 49(1)(f), I record that I do not consider a condition which prohibits you from contact with your sister, with whom you are close, to be appropriate or necessary.
[19] Mr Rolleston, as I said, you are young. I see that you have a supportive partner who is here today, and together, a young infant child. The sentence I am imposing on you today gives you an opportunity to try and address issues which are leading to your offending. For the sake of your partner and your young child, I urge you to make the most of this opportunity, and not to wind up again before the courts facing what is more and more likely going to be sentences of imprisonment.
[20] All right. Do you understand that? Good.
Ms Shanda Rolleston
[21] Ms Rolleston, in your case the Crown seeks a starting point of four months’ imprisonment on the charge of dishonestly using a document. It seeks an uplift for one month for the representative charge of receiving to arrive at a notional start point of five months’ imprisonment. The Crown’s reparation schedule seeks reparations of
$680.
[22] In your lawyer’s written submissions and Mr Duff has again said here today in Court, that an appropriate sentence is to come up if called upon and to pay reparations of $400. The pre-sentence report notes your offer to pay reparations at a rate of $20 per fortnight.
[23] Ms Rolleston, you have nine prior offences but I do not consider these particularly relevant to the present offending as the last occurred in 2011. You did not do yourself any favours by being initially unavailable for a pre-sentence report to be prepared. Corrections made several attempts to contact you and you did not make yourself available until 2 October 2018. However, once you engaged in that process, the report writer considered you to be low risk of reoffending and notes that you live with your two children, aged five and 14. You have also made an offer of reparations of $20 per week, as I have mentioned, and that is both responsible and commendable. The report writer recommended that you undertake a departmental programme to assist with your rehabilitation.
[24] I have also read and had regard to the affidavit that you have written and sworn. You talk about being proud of your whakapapa and accept that you have let yourself
and your tupuna down. And, sadly, you have. You also rightly acknowledge the fact that your offending came at somebody else’s expense, which cannot be justified.
[25] I am not going to impose any further uplifts for your past offending. From the notional five-month starting point which I adopt, I accept a 20 per cent reduction for your guilty plea, resulting in four months’ imprisonment. Your lawyer suggests imprisonment would be unjust, for you and your children,10 and I agree.
[26] Ms Rolleston, I consider you should be subject to a short period of supervision coupled with 80 hours of community work. With respect to your counsel’s submissions, a sentence to come up if called upon would not in my view adequately meet the purposes of sentencing — to deter further offending, promote in you a sense of responsibility and assist in rehabilitation and reintegration. Your offending is, however, less serious than that of your brother’s. The minimum period of supervision I may impose is six months and I consider that is adequate.11 I am not going to impose any special conditions as to programmes or the like. In addition to the period of community work, I am also going to order you to pay reparations of $500. Of that,
$100 is to be allocated to the victim from whom the Samsung phone was taken; and
$400 from whom the iPhone was taken. Again, this may be paid in instalments at a rate of $20 per fortnight, commencing in two weeks’ time.
Final sentences
[27] I will just have the two of you stand now, please. Just while I formally sentence you.
[28] Mr Rolleston, you are sentenced to nine months’ supervision, with those conditions as noted earlier as to assessment and attendance at programmes, and 100 hours of community work. I make no orders as to reparations.
[29] Ms Rolleston, you are sentenced to supervision for six months and 80 hours of community work. I make an order for reparations of $500 payable on the instalments
10 Relying on Heta v R [2012] NZCA 267.
11 Sentencing Act 2002, s 45(2).
that I have discussed earlier. For both of you, your sentences are concurrent on all charges.
[30] So, you may now stand down. Thank you.
Fitzgerald J
3
4
0