R v Taikato

[2018] NZHC 77

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2016-070-2727 [2018] NZHC 77

THE QUEEN

v

SHAUN MERRO TAIKATO

Hearing:	8 February 2018
Appearances:	A Pollett for Crown W T Nabney for Defendant
Sentence:	8 February 2018

SENTENCING REMARKS OF LANG J

R v TAIKATO [2018] NZHC 77 [8 February 2018]

[1]      Mr Taikato, you appear for sentence today having pleaded guilty to charges of kidnapping (x 2), attempted kidnapping, reckless use of a firearm, aggravated robbery (x 2) and being in unlawful possession of a firearm.

[2]      The most serious charges are those of kidnapping and aggravated robbery. Both of those charges carry maximum sentences of 14 years imprisonment.   The charge of attempted kidnapping carries a maximum sentence of seven years imprisonment. The charge of reckless use of a firearm carries a maximum sentence of three years imprisonment, and the charge of being in unlawful possession of a firearm carries a maximum sentence of two years imprisonment.

The charges

[3]      The charges arose out of a series of events that occurred between May and June

2016. They are all detailed in a summary of facts that you agreed with at the time you entered your guilty pleas.

[4]      All but one of the charges relate to a series of events that occurred in the early hours of the morning of 28 May 2016.  On that date you were in the vicinity of the McDonald’s  hamburger  restaurant  situated on  the corner of Cameron  Road  and Eleventh Avenue in Tauranga.   The three victims were sitting in a car outside the restaurant eating food they had purchased in the restaurant.  Whilst they were doing so, you approached the vehicle and got into the back seat. You were carrying a firearm that appears to have been a .22 sawn-off rifle.  You pointed this at the driver of the vehicle and told him “we can do this the easy way or the hard way”. You then told the occupants of the vehicle to hand over all their cash and everything they had.

[5]      At this point the person that was in the back seat of the vehicle tried to open the door and get out. You punched him in the head and told him to shut the door and told the driver to begin driving.  The driver began to drive away and, as he did so, he attempted to drive his vehicle into a light in the area of the McDonald’s restaurant. At that point you asked him if he wanted you to shoot him.  You then told him to drive out the back entrance of the restaurant.  As the vehicle left the restaurant, the person in the back seat took the opportunity to escape after punching you. This left you alone in the back seat of the vehicle and the other two victims in the front seat.

[6]      You then began on a lengthy drive around the streets of Tauranga. You told the people in the car that you wanted money and you told them to drive to an ATM machine so that they could get money out for you. The vehicle drove to an ATM machine, but you considered that this was too well lit. You then told the driver to drive on to another ATM machine.  On this occasion the driver got out and accessed the ATM machine.  He was able to produce a receipt from the machine showing he had no money in his account.  When he told you this you punched him in the back of the head.  He then told you he had money at his home.  You told him that you would go there and that you would go inside with him to get the money.

[7]      Prior to this, during the journey to the ATM machines, you were holding the barrel of the rifle to the driver’s head. On occasions, you would also punch him in the head. This occurred on several occasions.

[8]      The person who was driving the vehicle decided to go to his companion’s address because he believed there may be people at that address and that it might present an opportunity to escape.  When the car arrived at the address you obviously realised something was wrong.  You asked them if they were trying to fool you, and you then told the driver to reverse out and said they were going to Te Puke. You told them that this was going to be their “last ride”. Earlier you had told them that this was going to be their “last ride”, and that you were taking them on a “ride to hell”.

[9]      The final leg of the journey then began. You asked the two men to empty their pockets, and the driver of the vehicle produced approximately $300. You then directed him to drive to Welcome Bay and up a road in a remote rural area.  You then told the driver to turn the car around so that it faced the direction from which it had come. Once the vehicle had stopped, you told the two people in the front seat to get out and stand in the lights of the car. You then made them remove their socks and empty their pockets.  This time, having already taken the cash owned by the driver, you took a packet of cigarettes from the other person in the front seat.

[10]     You then told the two victims to begin walking.  At this stage it was about

6 o’clock in the morning. As they were walking away down the road, you got into the driver’s seat and drove the vehicle at them.  They were forced to jump off the road to

avoid being hit. The victims then walked some distance to a rural property, where they roused the occupants and called for assistance. You departed the scene in their vehicle.

[11]     The police located the vehicle in a suburb of Tauranga on 3 June 2016. Several items had been stolen from the vehicle including a cellphone, a tablet, several power tools and car grooming items.  In total, these items had a value of more than $2,000. None of the property stolen from the vehicle or from the two victims has been recovered.

[12]     The  final  charge  of  being  in  unlawful  possession  of  a  firearm  was  laid following an incident that occurred on the evening of 23 June 2016. On that date you were at your home address in Tauranga. You were handling the firearm you had used in the earlier robbery. The firearm discharged and inflicted injuries on your hand and chest. This resulted in you being admitted to hospital.

[13]     When the police examined the firearm, they discovered it was a bolt action single shot .22 calibre rifle.  The barrel had been sawn off, and the shoulder stock removed so that it was much shorter than in its original form.  The police found the firearm was in working order, but that it was extremely unsafe because the trigger guard was missing.  This meant the trigger could be unintentionally operated so that the firearm would discharge accidentally.

[14]     When the police spoke to you about the aggravated robbery and kidnapping, you denied any knowledge of the offending and said you had nothing to do with it. You told the police you had found the firearm in a park and that you had taken it home. You said it went off and injured you whilst you were having a look at it. You did not have a firearm’s licence at the time of that offending.

Starting point

[15]     I need first to set a global starting point encapsulating the culpability of all of your offending. This means I need to take into account all the relevant features of your offending.

[16]     As the Crown points out, there are several aggravating factors.  The first of these is that there must have been a degree of premeditation about your offending.  I say this because you must have taken the rifle to the McDonald’s restaurant in the early hours of the morning when the first series of offences was committed.  Having said that, there is no suggestion you were aware the victims were going to be there or that you had specifically targeted them before that morning.  You have said that one of the victims owed you money and that this was the reason why you demanded money from all three victims.  Whether or not that is true is unknown, but the likelihood is that you saw the three men in the vehicle and decided to take the opportunity to rob them of their possessions.

[17]     Next, there is the fact that the offending involved a firearm.  More than that, it involved a firearm that was in a very dangerous state.   This firearm could have discharged at any stage and killed any of the three men in the vehicle.

[18]     The second point about the firearm is that, whilst you were travelling through the streets of Tauranga you actually discharged it through the window of the vehicle. There is no suggestion that this caused damage to any person or property. Nevertheless, that was a highly dangerous thing for you to do as you were travelling through a built-up urban area.

[19]     The next factor is that, in addition to the use of the firearm, there was actual violence inflicted on the persons in the vehicle.  You punched the person in the back seat when he tried to get out on the first occasion. You then punched the driver of the vehicle on several occasions during the journey in and around the city.  In addition, there were the threats you used about taking them on a road to hell and that they were going on their final ride.   They would no doubt have believed from this that you intended to either kill them or cause them extremely serious harm.

[20]     The next aggravating factor is that the offending took place over a considerable period.  It took place in fact for about an hour.  That is a very long time indeed for these men to have remained captive and subject to your threats and violence.

[21]     Next, it involved the theft of property. It involved the taking of the vehicle and the theft of the items from the vehicle and from the victims.  In total, you stole about

$2,340 worth of property, putting aside the vehicle. As I have already recorded, none of that property has been recovered.

[22]     Finally, the impact of the offending has been significant. I have a victim impact statement from one of the victims. He describes how the incident has traumatised him. It also cost him his fledgling business.  So far as he is concerned it is going to take a very long time to recover from the effects of your offending.

[23]   Counsel for the Crown and your counsel have both provided me with submissions in relation to the appropriate starting point.  In the case of aggravated robbery, the starting point is governed by a guideline decision of the Court of Appeal of R v Mako.1   In that case the Court of Appeal gave guidelines for the starting points to be applied in cases involving different types of aggravated robbery.  Perhaps the most comparable of the examples given in that case is the robbery of taxi drivers, who can be regarded as vulnerable because they are required to be in their vehicles at all times of the day and night. The Court said that in such cases a starting point of around four years imprisonment will be appropriate, and where actual violence is employed, the starting point is likely to be in the region of five years imprisonment.

[24]     Counsel have referred to two other cases.  They are the cases of R v Anderson and R v Hewitt.2   Both cases have some similarity to the offending here, because they involved the kidnapping and robbery of persons in their vehicles.  Each case can be distinguished factually, but in Anderson the Court took a starting point of around eight years taking into account all factors. That case needs to be treated with some caution because the starting point reflected factors personal to the offender. In R v Hewitt, the sentencing Judge adopted a starting point of five years six months imprisonment.

[25]     Having regard to the aggravating factors in this case,  I  consider that  an appropriate starting point on all charges relating to the first incident is one of six years

six months imprisonment.

1      R v Mako [2000] 2 NZLR 170 (CA).

2      R v Anderson HC Auckland CRI-2006-090-005921, 26 September 2006.

[26]     Your counsel says no uplift is required in relation to the firearms charge laid as a result of the incident on 23 June 2016. I do not accept that submission. You retained the firearm after you had used it in serious offending.  It remained available for use in further offending.   It also presented a continuing risk that other people would be injured because it was in such an unsafe state.

[27]     Your counsel says you were injured on 23 June because you were depressed and had decided to end your own life.  That may be so, but the fact that you had available to you such a dangerous weapon is of itself a matter of concern.  It meant you were able to find a means by which to seriously injure yourself.

[28]     Ordinarily, a charge of being in possession of such a dangerous weapon would result in a starting point of around 18 months imprisonment. Having regard to totality principles, I propose to apply an uplift of six months to reflect that factor.

[29]     This means that  I have selected an  overall starting point of seven  years imprisonment to reflect all factors relating to both sets of charges.

Mitigating factors

[30]     I now need to consider the extent to which the starting point should be reduced to reflect mitigating factors personal to you.

[31]     You are now 24 years of age. The offending occurred when you were 23 years of age. The probation report reveals that up until that time you have largely stayed out of trouble.  You have held full-time employment for the whole of your working life after leaving school at a relatively young age. Your only criminal conviction is in 2013 for being in possession of cannabis. You received a fine for that offending, so it must have been within the lower end of the range.

[32]     You say you have never been involved with methamphetamine, and that you do not have any issues with alcohol.  You also say you have never had any direct involvement in the gang culture.  In those respects you stand apart from many people your age.   Many persons who appear before the courts at your age have had a longstanding association with drugs, alcohol and the gang culture.

[33]     You also say, however, that your offending on 28 May 2016 was precipitated by the fact that you had been drinking throughout the day and had been using cannabis. Obviously the consumption of cannabis and alcohol played a significant part in the present offending.

[34]     You have also been a caring father.  Although your relationship with your partner had disintegrated by the time of this offending, you have a close relationship with your child and this continues to be the case notwithstanding the fact that you are now in prison. The series of events that have led you to where you are today therefore appears to have been an aberration in what, up until then, been a relatively trouble- free life.

[35]     You are at the upper end of what would normally be described as a youth.  I am prepared, however, to provide you with a discount of six months to reflect your relatively young age and the fact that you have stayed away from trouble up until now. I am not prepared to provide any further discount in respect of remorse, even though I understand you have written letters of remorse to your victims. I say that for reasons that will shortly become obvious.

[36]     You are entitled to a discount for your guilty pleas.  These came on the day of the trial and ordinarily this would have meant that you would receive a discount of no more than ten to 12 per cent. Subsequently, however, you sought to vacate your guilty pleas.  You gave evidence in front of me that you were never involved in the events that gave rise to the first set of charges. You also called evidence from your mother to provide an alibi for your offending.  Those explanations were patently false, and this is obvious from the fact that you told the person who prepared the pre-sentence report that you agreed with the summary of facts.  The inference I draw is that you wanted to vacate your pleas so that you could confront the victims and persuade them not to give evidence at your trial. That is hardly an objective that does you any credit.

[37]     Nevertheless, I accept that your guilty pleas saved the cost of a more lengthy trial.  I am prepared to provide a discount of six months, or approximately nine per cent, to reflect that factor.  This means that the effective sentence I will be imposing on you is one of six years imprisonment.

Sentence

[38]     On  each  of  the  kidnapping  charges  you  are  sentenced  to  six  years imprisonment.   On the charge of attempted kidnapping you are sentenced to three years imprisonment.  On the charge of reckless use of a firearm you are sentenced to

18 months imprisonment.   On each of the charges of aggravated robbery you are sentenced to three years six months imprisonment. On the charge of being in unlawful possession of a firearm, you are sentenced to five months imprisonment.

[39]     All of those sentences will be served concurrently, which means you will serve a term of six years imprisonment.

[40]     Stand down.

Lang J

Counsel/Solicitors:

W T Nabney, Barrister, Tauranga

Crown Solicitor, Tauranga