R v Taniora
[2016] NZHC 610
•8 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-063-003363 [2016] NZHC 610
THE QUEEN
v
JOSHUAH TANIORA
Hearing: 8 April 2016 Appearances:
Henry Steele for the Crown
Annabel Ives for the DefendantJudgment:
8 April 2016
SENTENCING NOTES OF MOORE J
R v TANIORA [2016] NZHC 610 [8 April 2016]
Introduction
[1] Joshuah Taniora, you appear for sentence today having pleaded guilty to one charge of conspiracy to commit aggravated robbery. The maximum penalty for this offence is seven years’ imprisonment.1 I note that you have been remanded in custody since 8 September 2015, or roughly seven months.
[2] On 15 March 2016, I gave you a sentence indication. I indicated to you that if you were to plead guilty to this charge, I would sentence you to a term of 15 months’ imprisonment. You accepted that indication. Even though I provided my reasons for reaching such a sentence when I gave you the indication, I am now required to once again record those reasons as part of this formal sentencing process.
Facts
[3] On 20 November 2015 I delivered my judgment on your application for a discharge under s 147 of the Criminal Procedure Act 2011. I dismissed the application because I was satisfied there was sufficient admissible evidence for a jury to convict. In coming to that decision I reviewed over a dozen intercepted telephone communications between the various parties, yourself included. These conversations took place over a 12 hour interval between 11:00 am and 11:00 pm on Monday, 4 November 2014. I determined that the elements of conspiracy to commit aggravated robbery had been made out to the point I was satisfied there was sufficient evidence to require you to face trial.
[4] The background to these events is that in 2014 the Police began an investigation into the manufacture and supply of methamphetamine in Auckland. The operation was code-named “Goa”. It focused on the activities on one George Gaitau and a number of his associates. It is not part of the Crown’s case that you were involved in the activities which brought Mr Gaitau and others to the attention of the Police.
[5] Between 20 July 2014 and 30 October 2014 this Court issued a number of surveillance device warrants. These warrants lead to cellphone communications between Mr Gaitau and others, including you, being intercepted.
[6] The first call of relevance took place at 10:49 am on 4 October 2014 when Mr Gaitau and Mr Doherty discussed the need to obtain funds. Mr Gaitau spoke about needing to sit down with others to try to get some money.
[7] Following this call, Mr Gaitau called you and asked if you wanted to “do a mission”. He told you that the two of you could get $7,000 to split. You asked who you were going to rob and Mr Gaitau replied it would be the female partner of an Asian man he knew. You told him to set it up.
[8] At 12:39 pm Mr Gaitau texted an unknown person who advised him that the intended victim would not be at the arranged location until after 5:00 pm.
[9] At 2:16 pm Mr Gaitau spoke with Mr Doherty. He told Mr Doherty that he
had “an earn at about 5 o’clock” and that you would be assisting him.
[10] Following this there were several more conversations between you, Mr Gaitau and other associates about whether the robbery would, in fact, go ahead and if so when.
[11] In the early evening there were more discussions about whether the robbery “was still on”. It was confirmed it was but because the intended victim was not expected to return to her home until later, the plan would have to be delayed.
[12] Finally, a little after 11:00 pm Mr Gaitau called you again and told you that he was still waiting for a telephone call to advise him that the intended victim had arrived. You replied that the two of you should, “run over there and smash them and take their money”.
[13] In the end, the conspiracy came to an end because its purpose was frustrated by the fact that the target had not returned home. It was plain from that exchange you were irritated the plan had not evolved into reality.
[14] The Police were unable to establish the identity of the intended victim.
Personal circumstances
[15] Mr Taniora, your counsel, on your behalf, has waived the right to have a pre- sentence report prepared for the purposes of this sentencing. It is agreed that the existing pre-sentence report dated 12 October 2012 will be used instead.
[16] This states that you are a 22-year old male with 29 previous convictions. Three are notations in the Youth Court.
[17] Of greater relevance is the fact that you have been convicted of offences involving both dishonesty and violence. You have been convicted of theft, receiving stolen property and using a document for pecuniary advantage. You also have three convictions for threatening to kill. In 2009, you were convicted of aggravated robbery with a firearm, although this charge was dealt with in the Youth Court.
[18] Your partner is pregnant and is expected to give birth in late April.
Crown submissions
Generally
[19] Both counsel recognise there is no tariff case or specific sentencing guideline authority for conspiracy to commit aggravated robbery. Given the relative rarity of the charge that is unsurprising. However, the principles in R v Mako2 provide assistance in your case. The Crown submits there are three heads of aggravation engaged here; first premeditation, secondly the number of participants and the nature of their deployment and, finally, the threats of violence. I shall deal with each of these in turn.
Pre-meditation
[20] The Crown submits there was a reasonable level of planning in this case. You and Mr Gaitau began discussing the robbery at 11:30 am on the morning of
4 November 2014. The planning continued over various conversations for the following 12 hours during which a victim was identified, a plan was formulated and someone was able to provide the strategic direction and intelligence as to the whereabouts and timing of arrival of the intended victim.
Number of participants and the nature of their deployment
[21] A total of four individuals were involved in the conspiracy. One was the insider whose task it was to provide the intelligence around the arrival of the intended victim and the place where the robbery would occur. Mr Gaitau was the recruiter who organised the other participants and enlisted their assistance.
Threatened violence
[22] You told Mr Gaitau that the two of you should, “run over there and smash them and take their money”. This demonstrates the level of violence which you not only contemplated but indicated you were prepared to engage in.
Mitigation (offence and offender)
[23] The Crown does not accept there are any mitigating factors in relation to the offending. It suggests a starting point of between 15 and 18 months’ imprisonment.
[24] The Crown submits that your previous convictions justify a modest uplift of around two months.
[25] It accepts a discount of 15 per cent should be applied to recognise your guilty plea.
Home detention
[26] Finally, the Crown submits that a sentence of home detention is inappropriate having regard to your multiple convictions for breaching Court-ordered conditions. It also points out that you have already spent approximately seven months in custody.
Defence submissions
[27] Ms Ives, on your behalf, submits that premeditation, multiple offenders and threats of violence are elements of the offence itself. As such they are not, in themselves, aggravating factors. She points out there was no actual loss although, of course, that in itself too is a reflection of the nature of a charge of conspiracy.
[28] Ms Ives submits that you appear to have had limited involvement in the actual organising of the robbery, and certainly a less active role than that of others. I accept that.
[29] She also submits, by reference to case law, that had the robbery actually occurred it is likely a starting point of approximately two and a half years would have been set. She thus submits that a starting point in the range of 12 to 15 months would be appropriate.
[30] Ms Ives does not accept the Crown’s submission that your previous convictions warrant an uplift. She submits this is a neutral factor when balanced against the productive use you have made of your time in custody by attending various rehabilitative programmes. Certificates of participation and completion were attached to the defence submissions.
[31] Ms Ives agrees with the Crown’s submission that a discount in the region of
15 per cent is appropriate.
Analysis
Starting point
[32] The Crown refers to Martin v R.3 This was a case where the lead offence was conspiracy to commit aggravated robbery. Mr Martin and two associates were seen sitting in a van watching an armoured security vehicle servicing ATM machines. Their conduct lead members of the public to call the Police, who made their way to the scene. After a short car chase, the three men were apprehended. The van they
had been driving was stolen and its back window screened. The defendant’s role was to be the driver. His co-defendants were dressed in overalls and were wearing gloves. One of them was wearing a gorilla mask. In a suitcase in the back of the van, there were two sawn off shotguns and three live cartridges.
[33] Mr Martin was sentenced to five years’ imprisonment. The sentencing Judge did not identify a starting point. The sentence was reduced on appeal to four years’ imprisonment with the Court of Appeal finding that the starting points in respect of the co-offenders, who were more culpable, were greater than Mr Martin’s end sentence.
[34] I have managed to find one other case where the charge of conspiracy to commit aggravated robbery was the lead offence. In R v Pottinger4 the defendant and an associate were apprehended as they sat outside a dairy in Christchurch. Mr Pottinger was in the driver’s seat. His co-offender was seated beside him in the front. A loaded sawn off .22 rifle was found in the front seat. The Court of Appeal upheld a sentence of three years’ imprisonment for Mr Pottinger owing to his considerable list of previous convictions. The Court determined that a 19 month suspended sentence was justified in respect of the co-offender given he was only 17,
had no previous convictions and had a moderate to severe drug dependency.
[35] I agree with both counsel that the case law is of limited comparative value. It is helpful only in the sense that it provides a broad context in which to examine the seriousness of the instant offending.
[36] Plainly the offending in the present case is less serious than that in either Martin or Pottinger. Those cases involved the frustration of the actual offence shortly before it was due to be committed. Both involved the use of fire arms and, on the facts, the level of premeditation was significantly greater than in the present. In the present case, a conspiracy was formed over the space of just 12 hours before it was abandoned.
[37] However, it cannot be overlooked that a plan was formed, participants were selected and a potential victim identified. You and your associates formulated a means of finding out when the victim would be at a given location so she could be ambushed. Certainly, the potential for violence was both contemplated and real. Indeed it was you who volunteered, if not encouraged, such a course of action. I consider the appropriate starting point for your offending is 16 months’ imprisonment.
Personal circumstances
[38] The Crown seeks an uplift of two months’ imprisonment to reflect your previous history of violence and property-related offending. I accept that submission. While your only previous conviction for aggravated robbery was in the Youth Court in 2008, by the age of 22 you have already amassed some 29 convictions which include various forms of violent offending and threatening to commit violence.
[39] As I indicated to you in March, I will give you a 15 per cent discount to reflect your guilty plea. It is not the full discount because this plea cannot be said to have been entered at the first reasonable opportunity. You were first charged on
19 November 2014. Counsel had been in discussions about a sentence indication since late 2015. A formal request for a sentence indication was made by your counsel on 1 March 2016. I also assess the case against you as strong.
[40] Accordingly this results in an end sentence of 15 months’ imprisonment.5
Home detention
[41] As I indicated to you, in the present circumstances, I am satisfied a sentence of home detention is not appropriate. You have now been in custody for approximately seven months, meaning that you are already very close to being eligible for release in relation to this charge. The offending in this case is also serious despite the fact that it falls within the lower end of the range. You also have
a long and persistent history of breaching Court orders.
5 (16 + 2) x 0.85 = 15.3. Rounded down to 15 months.
[42] Most notable, while you were on EM-bail awaiting trial last year you cut off your monitoring bracelet and absconded. This lead to the revocation of your bail which explains why you remain in custody today. On any assessment there is a real risk you would fail to comply with a sentence of home detention.
Conclusion
[43] Mr Taniora, please stand. On the charge of conspiring to commit aggravated
robbery, I sentence you to 15 months’ imprisonment.
[44] Mr Taniora I have the sense, although I may be wrong, that you are starting to turn your life around. I have read your letter to the Court and I accept the sentiments which it contains. I am also impressed that you have successfully completed a number of programmes to help you with your insight, your relationships, the management of your anger and your addictions. As I have already said this offending was not the worse of its sort and I note your comment to me that there was an element of “showing off” and bravado.
[45] I hope that your time in custody means you have had time to reflect on the life ahead of you and the immediate prospect of parenthood. Now is the time for you to change and to show those who are important in your life that you not only have the capacity to change but you have changed. Only time will tell. It is your hands.
[46] Stand down.
Moore J
Solicitors:
Crown Solicitor, Auckland
Ms Ives, Auckland
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