R v Taha
[2014] NZHC 1615
•10 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-057-000747 [2014] NZHC 1615
THE QUEEN
v
HARLEY TAHA PHILLIP WIKI TAHA TAHERE HUTCHINS
BOBBY ROBERT MAXWELL
Hearing: 28 April 2014 to 16 May 2014 Counsel:
A Pollett for Crown
R M Mansfield for Harley Taha
P Hamlin for Phillip Taha
E Te Whata for Tahere Hutchins
A-M Beveridge for Bobby MaxwellSentence:
10 July 2014
SENTENCING NOTES OF KATZ J
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Public Defence Service, Manukau
Counsel: R M Mansfield, 22 Lorne Barristers, Auckland
P K Hamlin, Hamlin Law, Manukau
A-M Beveridge, Hamilton Legal Chambers, Hamilton
R v TAHA [2014] NZHC 1615 [10 July 2014]
Introduction
[1] Mr Harley Taha, you appear for sentence today, having pleaded guilty to one count of aggravated robbery and one count of accessory after the fact to an aggravated robbery.
[2] Mr Tahere Hutchins, you appear for sentence having pleaded guilty to two counts of aggravated robbery.
[3] Mr Phillip Taha and Mr Maxwell, you both appear for sentence having been found guilty of one count of aggravated robbery, following a jury trial.
[4] Aggravated robbery carries a maximum penalty of 14 years’ imprisonment.
Being an accessory after the fact is punishable by up to five years’ imprisonment.
Facts
Aggravated robbery: veterinary centre
[5] These proceedings concern two aggravated robberies that took place in
Pukekohe in September and October 2012.
[6] The first robbery took place at the Pukekohe and Waiuku Veterinary Centre on 25 September 2012. The individuals involved were Mr Harley Taha and Mr Hutchins. They developed a plan to ‘hit’ the veterinary centre, which was put into action at about 11:30 am on 25 September 2012. Mr Hutchins entered the centre and inquired about the cost of euthanizing a dog. Mr Harley Taha remained in a vehicle outside. A receptionist and three other employees were inside the clinic.
[7] Mr Hutchins left the centre but returned approximately five minutes later, with a blue and white bandana covering the lower part of his face. He produced what appeared to be a black handgun and pointed it at the receptionist’s face. He later pointed the gun in the direction of another staff member’s face. Mr Hutchins told the receptionist to put money in a bag, to which she replied ‘please don’t shoot me’. Mr Hutchins left the scene with $500.00.
[8] On 1 October 2013 Mr Hutchins was arrested for his involvement in the robbery. Mr Harley Taha became aware of this, and instructed an associate to remove items from Mr Hutchins’ address that may have been of interest to a police investigation.
Aggravated robbery and accessory after the fact: ANZ Bank
[9] The second robbery concerned the Pukekohe branch of the ANZ Bank. It took place on 1 October 2012. Prior to the robbery, text messages were exchanged discussing the obtaining of a motor vehicle for use in the robbery and what weapons were available for use.
[10] Mr Maxwell, Mr Hutchins, and Mr Phillip Taha were driven to a carpark near the bank and, at 9:37 am, entered the bank, with their faces disguised. Mr Hutchins was armed with a knife and Mr Phillip Taha was armed with a double barrelled shotgun. Inside the bank were 10 people, nine bank employees and one customer.
[11] Mr Phillip Taha yelled at the customers demanding money. Mr Phillip Taha ensured the compliance of those in the bank by moving around threatening and intimidating those present with his shotgun. He pointed a gun at one of the tellers. He also yelled ‘get down’ and pointed his gun at the head and upper body of the bank’s sole customer. He also strode across the bank to point the gun at the head and body of another staff member. Mr Hutchins and Mr Maxwell moved into the teller area to steal money from the teller drawers, which they placed in a bag. All three offenders then ran from the bank, chased by the sole customer. The total sum stolen was $8,908.
[12] During the subsequent chase, Mr Hutchins separated from the other two offenders. He texted Mr Harley Taha asking to be picked up. Mr Harley Taha advised Mr Hutchins via text message to stay where he was and hide the ‘stash’. He also advised him to change his clothes and delete his text messages, before collecting Mr Hutchins from a location not far from where the robbery had occurred.
[13] When arrested and interviewed, each offender denied involvement. Mr Hutchins and Mr Harley Taha subsequently pleaded guilty, however, to charges
relating to both the veterinary clinic robbery and the ANZ robbery. Mr Phillip Taha and Mr Bobby Maxwell were found guilty of the aggravated robbery of the ANZ, following a jury trial earlier this year.
Approach to sentencing/purposes and principles of sentencing
[14] I will first set a starting point for each of your sentences. I will then assess whether there are any factors personal to you that require me to either discount or uplift your sentence. I will also assess whether there needs to be any adjustment to your sentence to reflect the totality of your offending. Finally, I will assess what the appropriate discount is for those of you who pleaded guilty.
[15] In undertaking this process I must take into account the relevant purposes and principles provided for in the Sentencing Act 2002.1 These include: the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; to provide for the interests of the victims; to denounce and deter your conduct; to protect the community; and to assist in your rehabilitation and
reintegration.
Starting point
Aggravated robbery: the law
[16] R v Mako is the guideline judgment for aggravated robbery sentencing.2
There, the Court of Appeal outlined the following factors that would be relevant to an assessment of relative seriousness:3 the degree of planning and preparation; the number of participants and their deployment; disguises; number and types of weapons and how they are brandished and whether any firearms are unloaded; the target premises or person and number of members of the public affected; vulnerability of the victims; need for deterrence of certain types of activity in view
of their frequency or prevalence in a particular area; use of violence; presence of
1 Sentencing Act 2002 ss 7 & 8.
2 R v Mako [2000] 2 NZLR 170 (CA).
3 At [36]-[51].
threats and intimidation; property stolen and extent of recovery; associated offending; impact on victims; evidence of gang activity; and multiple offending.
[17] The Court stated, at [54]:
The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.
[18] Counsel have referred me to a number of aggravated robbery cases in the course of their written submissions. All of the cases referred to differed in some respects from this one. I have, however, found the following cases to be of some assistance in determining an appropriate starting point: R v Campbell4 (starting point of nine years six months’ imprisonment); McMaster:5 (sentence of eight years’ imprisonment upheld on appeal); R v Minhinnick6 (starting point of eight or nine
years adopted); R v Tuhi7 (starting point of six years and six months); R v Gray8
(starting point of five years and six months); Karaitiana & Huta v R9 (starting point of six years six months adopted for one of two armed robberies).
[19] In relation to the veterinary clinic robbery, I find the following factors to be relevant in assessing the culpability of the offending:
(a) Premeditation: Text messages confirm that Mr Harley Taha and
Mr Hutchins planned the robbery.
(b)Disguises: Mr Hutchins wore a blue and white bandana which covered the lower part of his face.
(c) Type of weapon: A gun was used.
(d) Threatened violence: The gun was pointed at a victim’s face.
4 R v Campbell HC Napier CRI-2009-069-2003, 15 December 2010.
5 R v McMaster [2009] NZCA 393.
6 R v Minhinnick HC Christchurch CRI-2005-009-13228.
7 R v Tuhi [2012] NZHC 2955.
8 R v Gray HC Wellington CRI-2005-032-5005, 30 March 2007.
9 Karaitiana & Huta v R [2014] NZCA 126
(e) Target premises: The veterinary clinic was targeted because of the availability of cash, and potentially because of the low level of security.
(f) Property stolen: $500 was stolen and not recovered.
(g)Victim impact: The victim impact statements show that the victims suffered from lack of sleep and worry and continuously reliving the episode. The staff were jumpy and watchful of the public coming into the clinic. The clinic itself incurred costs in order to install surveillance cameras and lost a day of trade.
[20] I assess Mr Hutchins and Mr Harley Taha’s culpability in relation to the vet clinic robbery as being broadly similar. They jointly planned the robbery and are equally responsible for what occurred. Taking into account the submissions of counsel, and the comparable cases I have referred to, I consider that a starting point of six years is appropriate for both Mr Hutchins and Mr Harley Taha in relation to this charge.
[21] In relation to the ANZ robbery, I consider the following factors are important features in assessing the culpability of the offenders:
(a) Premeditation: The text messages show that the robbery was planned. (b) Disguises: The offenders wore hats, hooded clothing and face
coverings before and during the robbery.
(c) Type of weapon: A gun was used to threaten and intimidate the victims and ensure their compliance. The gun used was in working order but there is no evidence that it was loaded and I proceed on the basis that it was not. Another offender carried a knife.
(d)Threatened violence: The gun was pointed at three different victims, including to the head and face region.
(e) Target premises: The ANZ bank was targeted because of the availability of cash. Targeting a bank, however, meant a fairly high
likelihood of members of the public being present as well as the bank staff.
(f) Property stolen: $8,908 was stolen and not recovered.
(g)Victim impact: The victim impact statements show that the victims suffered from lack of sleep and many now suffer from levels of anxiety and paranoia. Some of the victims have found that their views about the community have changed. Many now have trust issues and feel very angry. The experience was understandably terrifying for them.
[22] I have seen the CCTV footage taken inside the Bank during the robbery. It makes for chilling viewing. Mr Phillip Taha, you pointed a shotgun at a teller’s head and then at her customer, who was made to kneel on the floor. Another staff member had the misfortune to attract your attention simply because she was attempting to dissuade a somewhat confused elderly customer from entering the Bank while the robbery was taking place. You strode aggressively towards her, brandishing the shotgun at her, which you then pointed at her as she knelt on the ground. We heard that particular staff member read her victim impact statement in Court this morning. She was clearly traumatised by your actions which have had a lasting effect on her life. Having seen the CCTV footage it is not difficult to see why the experience must have been a terrifying one for her, and for all of the staff who were inside the Bank that day.
[23] Mr Phillip Taha, given the aggressive way that you brandished the shotgun during the robbery, including aiming it at people’s heads, it is my view that your culpability is slightly higher than that of your two co-offenders. In my view a starting point of seven years’ imprisonment would appropriately reflect your culpability.
[24] Mr Maxwell and Mr Hutchins, I assess your level of culpability as similar to each other but slightly less than that of Mr Phillip Taha. I assess the appropriate starting point for your involvement in the ANZ robbery at six years and six months’ imprisonment.
Accessory after the fact/totality
[25] I note the Crown’s submission that Mr Harley Taha was instrumental in organising and planning both robberies and should be sentenced accordingly. While the evidence at the trial of Mr Phillip Taha and Mr Bobby Maxwell certainly suggested that that may well have been the case, I accept your counsel’s submission that such evidence must be put to one side in sentencing you. You pleaded guilty to a reduced charge in relation to the ANZ bank robbery prior to trial, on the basis of an agreed summary of facts. You must accordingly be sentenced on the basis of that summary of facts, which does not indicate that you were instrumental in the planning of the ANZ robbery. A standalone sentence of two years and six months on this charge would, in my view, be appropriate. I accept Mr Mansfield’s submission, however, that when adjusting for totality, an uplift of two years’ imprisonment would more appropriately reflect your involvement as an accessory after the fact in the ANZ bank robbery. This results in a global starting point of eight years’ imprisonment.
[26] Mr Hutchins, you have participated in two serious aggravated robberies. From a starting point of six years six months, for the ANZ robbery, I uplift that sentence by two years in order to reflect the totality of your offending. This results in a global starting point of eight years six months’ imprisonment.
Adjusting the starting point
Mr Harley Taha
[27] Mr Harley Taha, you are 25 years old and you have now appeared before the Court on multiple occasions. You have seven prior dishonesty related convictions, two convictions for possessing weapons in public, two violence related convictions, and of particular relevance, a conviction for aggravated robbery in 2008.
[28] Your pre-sentence report says that your partner views you as a good father and a good person. While on remand, you have undertaken several programmes to address the issues that led to your offending. You appear to accept some responsibility for your offending, but the pre-sentence report indicates that you have
minimised your participation. I do note, however, that I have been provided this morning with a letter from you expressing your remorse and your commitment to turning your life around. Your grandmother, father, and partner have also provided me with letters expressing their deep love and ongoing support for you and explaining some of the challenges that you have faced in terms of your family background, while growing up.
[29] Your counsel appropriately accepts that your sentence should be uplifted to reflect your criminal history but advocates for a lower uplift than the Crown. Considering that you were convicted of injuring with intent to injure in 2010 and aggravated robbery in 2008, both very serious incidents of offending, I consider that an uplift of six months is warranted.
[30] Your counsel argues for a reduction of nine to 12 months to reflect your insight into your offending and your motivation to change, as well as your offer to attend a restorative justice conference and your positive support from family and the community. Further, your counsel seeks a discount of five per cent for remorse. Your offer to attend a restorative justice conference was indicated to the Court only yesterday. In my view such a belated offer to engage in a restorative justice process, does not in itself warrant a sentencing discount. You have had a number of months to explore the possibility of restorative justice, if this was something you were genuinely interested in. I do have some reservations as to the genuineness of your somewhat belated expressions of remorse. I will, however, allow for a modest reduction for remorse and your willingness to constructively engage in a variety of programmes while in prison on remand. I accordingly discount your sentence by three months to take account of those factors.
[31] As for your guilty plea, your counsel submits that you are entitled to a discount of 20 per cent. You pleaded guilty on 23 April 2014, shortly prior to trial and following resolution discussions with the Crown and a reduction in the charge you faced in relation to the ANZ robbery. Your counsel submits that you are entitled to a significant and meaningful discount to reflect the savings in time and resources. The Crown submits that a discount of between five and 10 per cent should be given to reflect your guilty plea. I consider that your guilty plea was fairly late in the
piece, but nevertheless some credit is clearly warranted. I therefore discount your sentence by nine months for your guilty plea.
Mr Hutchins
[32] Mr Hutchins, you are 19 years old and have four previous convictions, three of which are dishonesty related. Your pre-sentence report indicates that your use of methamphetamine appears to have played a significant role in your offending. You told the report writer that it was the first time you had used meth and had been ‘up’ for four weeks.
[33] The pre-sentence report shows that while you expressed some remorse, it was evident that your regret is more focussed around your own circumstances rather than that of the victims of your offending. You are quick to blame external factors for your offending. I do note, however, that you have this morning provided me with letters apologising to the victims of both robberies. You are assessed as posing a medium risk of harm to the community and medium likelihood of reoffending. The risk you pose could be mitigated if you are willing to engage in programmes aimed at addressing your rehabilitation and re-integrative needs.
[34] Mr Hutchins, the Crown contends that your sentence should be modestly uplifted to account for the fact that your offending occurred while you were subject to a sentence of supervision for other offending. Your counsel contends that if any uplift, if one is considered appropriate, should be minimal. Considering you were serving a sentence of supervision for theft at the time of the two robberies, a two month uplift is, in my view, appropriate.
[35] You were 17 years old at the time of this offending. Ms Te Whata submitted to me that this warrants a discount of 12 months, citing the decision of Tuhiwai v R.10
I accept that submission and accordingly discount your sentence by 12 months to
reflect your youth at the time of this offending.
10 Tuhiwai v R [2012] NZCA 209.
[36] Your counsel also submitted that a discount of between 10 and 12 months could be justified as you have spent around 13 months on electronically monitored bail. You appear to have had a 24 hour curfew while on bail, which is obviously very restrictive. Your counsel pointed to the decisions of R v Aram11 and R v Potoru.12 In Aram, the offender had 12 months deducted from a starting point of
16 years for being subject to fairly restrictive bail conditions for 18 months. In my view, a discount of six months is appropriate to reflect the time you have spent on electronically monitored bail.
[37] In relation to your guilty plea, the Crown submits that the discount should be between five and 10 per cent. Your counsel submits that a discount of 15 to 20 per cent is warranted, as your plea was earlier than that of your co-offender, Mr Harley Taha. Communications regarding resolution by way of guilty pleas to the two aggravated robberies commenced in August 2013. While you did not take the opportunity to present yourself for committal until 26 March 2014, your intention not to proceed to trial was communicated to the Crown well before that date. I am nevertheless of the view that your guilty plea came at a relatively late stage. Nevertheless some discount is clearly appropriate and I will accordingly discount your sentence by nine months on account of your guilty plea.
Mr Phillip Taha
[38] Mr Phillip Taha, you are 21 years old and have several previous convictions, including one conviction for an aggravated robbery in 2010 and two violence related convictions, both for offending in 2010. You were sentenced to two years’ imprisonment for aggravated robbery on 2 June 2011, with a cumulative sentence of six months’ imprisonment for injuring with intent to injure. The current offending occurred relatively soon after your release from prison for that offending.
[39] The pre-sentence report records that you had a good upbringing. Your girlfriend is supportive of you, as is your father. You continued to deny involvement in the robbery. You are, however, said to be motivated to turn your back on your
former criminal associates. Indeed your counsel says that this dates back to your
11 R v Aram [2007] NZCA 328.
12 R v Potoru HC Auckland CRI-2006-092-3877, 14 September 2007.
earlier conviction for aggravated robbery in 2010, following which you made a commitment to turning your life around and distancing yourself from your former associates. I give this submission relatively limited weight given that your current offending occurred soon after you were released on parole following your earlier sentence of imprisonment for a similar aggravated robbery of commercial premises. That must necessarily cast some doubt on the genuineness of your commitment to turning your life around following your earlier conviction. In my view it is appropriate in all the circumstances to uplift your sentence by six months to reflect your previous criminal history.
[40] In terms of mitigating factors I have already noted your counsel’s submission that you genuinely wish to turn your life around. Your commitment to this is said to have been practically demonstrated by the fact that you are undergoing treatment to remove your gang-related tattoos. Further, you were still relatively young (20 years old) at the time of the offending. I take into account your youth and also give you at least some benefit of the doubt regarding your commitment to turning your life around. To the extent that there are any realistic prospects of rehabilitation and setting your life on a new path, these should be encouraged. I urge you to pursue any opportunities you have to undertake courses or rehabilitative programmes while in prison. I discount your sentence by six months to reflect your relative youth and rehabilitation prospects.
Mr Maxwell
[41] Mr Maxwell, you are 32 years old, and have been appearing before the Court since 1998, where you received a Youth Court notation for an aggravated robbery. Since then you have acquired 44 convictions, 29 of which are dishonesty related and two for possession of weapons.
[42] You have four children and you have been with your current partner for over
17 years. You have a number of medical issues for which you are receiving treatment. Medical records indicate that you suffer from chronic pain, of unknown origin.
[43] Despite being the oldest of the four offenders, it is clear that you were not the ring leader. Of all the offenders, you also probably had the most to lose, given that you are a father of four. It is somewhat surprising then, given your age and family situation, that you were prepared to become involved in such serious offending, which carried with it a fairly high risk of being caught and sentenced to a lengthy prison term.
[44] I note that you continue to deny your role in the offending and are assessed as having low motivation to address your rehabilitative needs. You are also assessed as posing a medium risk of both harm to the community and likelihood of reoffending.
[45] Mr Maxwell, the Crown says that your sentence should be uplifted by six months to reflect your criminal record. Your counsel opposes this. I have carefully considered counsel’s submissions. I consider that your large number of dishonesty convictions are relevant to this offending. In my view it is appropriate to uplift your sentence by three months on account of your criminal history.
Minimum Period of Imprisonment
[46] The Crown submits that I should consider imposing minimum non-parole periods of 50 per cent in relation to Mr Harley Taha, Mr Phillip Taha and Mr Maxwell. Counsel for each of the offenders submit that a minimum non-parole period is not necessary.
[47] After careful consideration I have concluded that the circumstances are not such as to warrant the imposition of minimum periods of imprisonment. This decision was particularly finely balanced in relation to Mr Phillip Taha. Had it not been for your relative youth, and your prospects of rehabilitation, a minimum period of imprisonment would have been justified. I have concluded, however, that the matter is best left in the hands of the Parole Board, who will be best placed to assess the genuineness of your commitment to turning your life around at the relevant time, based on the progress you have made while in prison.
Result
[48] If you would all please stand.
[49] Mr Harley Taha, you are sentenced to seven years and six months imprisonment on the charge of aggravated robbery of the veterinary clinic. You are also sentenced to two years’ six months imprisonment on the charge of being an accessory after the fact in relation to the ANZ Bank robbery. The sentences are to be served concurrently.
[50] Mr Hutchins, you are sentenced to six years five months’ imprisonment in respect of the ANZ robbery. You are also sentenced to six years’ imprisonment for the veterinary clinic robbery, which is to be served concurrently.
[51] Mr Phillip Taha, you are sentenced to seven years’ imprisonment on the charge of aggravated robbery of the ANZ Bank.
[52] Mr Maxwell, you are sentenced to six years nine months’ imprisonment on the charge of aggravated robbery of the ANZ Bank.
[53] I also make an order for the destruction of the firearm and the knife that were used in the ANZ robbery.
[54] You may all stand down.
Katz J
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