R v Tereora
[2014] NZHC 772
•14 April 2014
ORDERTHAT THE IDENTITY AND ADDRESS OF THE VICTIM OF THE AGGRAVATED ROBBERY IS NOT TO BE REPORTED
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-008110 [2014] NZHC 772
THE QUEEN
v
ALEX TEREORA
Charges:
Plea: Hearing:
Aggravated robbery x1;
Attempting to use firearm against a constable x1; Assault with a weapon x1;
Guilty
14 April 2014
Appearances:
I M Brookie for Crown
S Moala for DefendantSentenced:
14 April 2014
SENTENCING NOTES OF VENNING J
Solicitors: Moala Merrick, Auckland
Copy to: IM Brookie, Auckland
R v TEREORA [2014] NZHC 772 [14 April 2014]
[1] Alex Tereora you are for sentence having pleaded guilty to charges of aggravated robbery, assault with a weapon and attempting to use a firearm against a constable in the course of his duty. The most serious charge is that of aggravated robbery. It carries a maximum penalty of 14 years’ imprisonment.
[2] You pleaded guilty to the above charges on 11 February this year, which was the second day of an alternative trial on these charges. I have set out the background to how your guilty pleas were entered and the process followed in a separate minute, which dealt with your application for an adjournment of the sentence this morning. I am conscious that I am sentencing you this morning without the benefit of a pre- sentence report, but again the reasons for that and why that has come about are covered in that minute.
[3] I however make the point that although there is no pre-sentence report before the Court your counsel in her very full and helpful submissions has given the Court a great deal of background to you and your personal circumstances, including the sort of information that would be contained in a pre-sentence report. If I might say so at this stage Mr Tereora, you are very fortunate to have had the assistance of counsel of Ms Moala’s understanding and compassion. She has assisted you greatly to this stage and perhaps may be able to assist you in the future but that is for another day. But I do wish to place on record the Court’s appreciation for her assistance in a professional way to both you and the Court in the way that she has dealt with matters.
[4] I turn to the offending for which you are to be sentenced this morning. The summary of facts, which you have agreed to in relation to that offending discloses that at some time before half past six in the evening on 3 June 2012 you smashed a lounge window of the complainant’s home in Papatoetoe and accompanied by at least two others entered the premises. You were all wearing balaclavas and fingerless gloves. At about half past six the complainant, a 51 year old male, arrived at his home address in Papatoetoe to find the car that you had arrived in parked in his driveway. As he was parking his car he was grabbed out of his car and dragged into the lounge of his home where his hands were tied behind his back and he was forced to lie on the ground face down. You and your associates then threatened him. There
was talk of a firearm. Someone told him that he would be kicked if he tried to look at the offenders present and he was asked: “Where is the money and the gold”? Understandably the complainant feared for his life while lying down on the floor with his hands tied behind his back. In that situation you and your associates searched the house, opening drawers an cupboards. The complainant’s wallet, cell phone, car keys and cigarettes were taken. He was left tied up on the floor of his home. He suffered sore wrists and bruising as a result of the attack. Property to the value of approximately $3,500 was taken and was not recovered.
[5] Some five days later on 8 June 2012 another complainant was at home with her 14 year old daughter. It seems the only connection with you was that about six years earlier you had purchased a laptop from the complainant. You arrived at her address, unannounced and with an unknown associate. You told the complainant’s daughter to get in your car with the associate. The complainant objected to that as she and her daughter walked back into their home. You followed her into the home and pointed a pistol at her. The complainant screamed and told you to get out. You continued to point the pistol at her as you backed out of the house. You then ran off and left with your associate in the car that you had arrived in.
[6] Then six days later, just after midday, you were a passenger in a car that was stopped at a routine traffic stop in Te Irirangi Drive. You were asked by several armed police to show your hands and exit the car when you were located. You pushed the female driver out of the car and attempted to drive it away. A police officer tried to get into the car to remove you and take you into custody. You resisted, you fought off the officer and you tried to reach for a pistol which was in your jacket inside left hand chest pocket. You tried to reach inside that pocket despite the constable’s attempts to stop you. As you were reaching for the pistol you said to the constables “You’re going to get it, you’re going to get it c….”.
[7] After a struggle two of the officers managed to get you out of the car and placed you in handcuffs. When they were searching you they found something solid in your left hand inside chest pocket. When asked what it was you kicked the back of the patrol car, a further struggle took place and during the struggle the pistol fell from the pocket and onto the ground by your feet.
[8] Your counsel has submitted that your addiction to drugs and perhaps alcohol has affected your offending. Certainly the type of offending just described is consistent with the type of offending one sees by people affected by drugs.
[9] Mr Tereora, you were born and lived in New Zealand until you were about two years old when you and your family, your mother, father and brother, moved to Australia. Your mother and father still live in Australia. From an early stage you struggled with your family relationships and with your schooling. You left school and home at a young age. As soon as you were able to you returned to New Zealand to see your brother who had earlier returned here. You were still a teenager at that time. When you arrived here you did not have anywhere to go, nor any family support. You said you looked after yourself by effectively stealing and taking what you needed to survive. You were itinerant. You moved from place to place.
[10] At 17 you were charged with your first serious offence, the aggravated robbery, and you have told Ms Moala that you were held in custody for days and were told by the lawyer to plead guilty so you could get out of custody. You consider you should never have pleaded guilty as you had not committed that particular offence. Since then you have a long list of previous convictions. The list of previous convictions does however disclose that you were convicted and discharged on that offence. Counsel says that your experience with the police in that situation had a negative impact on you and you no longer trust the police and you do not trust authority either.
[11] You have instructed your counsel that you have had a problem with drugs for years and that has led to some of your offending. As I have indicated it does seem that drugs were a factor in the offending that has led you to the position you are now in. Counsel says you understand you cannot blame the drugs for what you have done in the past and you accept you need to address that problem while in custody.
[12] Frankly Mr Tereora the only positive feature in your life appears to be your partner and your seven year old son. You may have some insight into the impact of your offending on them. You have expressed to your counsel that frankly they may be better off without you. You are angry at yourself that you have set a bad example
for your son and you do not want him to end up like you. Your counsel says that when you think about the future you hope that you can change and you are scared because you do not know how to change your life for the better. There will be opportunities for you in prison to take courses and to seek assistance Mr Tereora, it is really going to be up to you how far you take that.
[13] In sentencing you today, however, I am required to take account of the purposes and principles of the Sentencing Act and in this case the particularly relevant purposes are deterrence and denunciation. The sentence I impose must also hold you accountable for your actions and offending and protect the community from you. I do take into account the seriousness of the type of offending which is reflected in the penalty I have referred to. I also have to take into account your culpability, your level of involvement in the offending and of course it was direct involvement in the offending as you have admitted in the summary of facts.
[14] I also take into account your rehabilitation but as noted there are other overwhelming factors that the Court must consider. I also take into account the effect of your offending on the victims and the community. Counsel will have discussed with you the victim impact reports. I hope that that has given you some understanding of the effect your offending has had on the victims. It is in some instances ongoing and will be ongoing for some time.
[15] The Crown submits that the starting point for your aggravated robbery is between six and seven years with uplifts of one to two years for the assault with a weapon and two to three years for the attempted use of a firearm on a constable. The Crown submits the starting point should be between nine and 12 years.
[16] Ms Moala has realistically submitted that the starting point, given the authorities of the Court of Appeal in particular, for the aggravated robbery should be six years with a total uplift of no more than two to two and a half years. She submits a range for the starting point should be between eight and eight and a half years.
[17] Both counsel acknowledge and accept that an uplift is required for your previous offending.
offending. There are two convictions for aggravated robbery or robbery by assault in the past, six of either assaulting, resisting police or escaping from custody and one of assault. There are several for burglary. That record discloses an unfortunate propensity for violence and of concern violence directed at authority.
[19] In his submissions Mr Brookie submitted the Court could approach the matter on the basis of concurrent sentences but I consider that cumulative sentences are appropriate in this case because the sentences you are to be sentenced for are different in kind and they are not really a connected series of offences at all. However, I make it clear to you that practically it does not matter how the Court structures the sentence because at the end of the day it is the ultimate end sentence which is relevant and if the sentences had been imposed by way of concurrent sentences there would have been a significant and major uplift for the aggravated robbery.
[20] Having regard to the Court of Appeal authority of R v Mako and the other cases that counsel have referred to, I take as a start point for the aggravated robbery a sentence of six and a half years.1 To that for the assault with a weapon, a sentence of
15 months would be appropriate and for the attempt to use a firearm on the police constable a sentence of 21 months would be appropriate. That leads to a start point for your offending overall of nine and a half years.
[21] I am then directed to have regard to totality. On taking account of the matters Ms Moala has raised on your behalf I accept that in this case, against Mr Brookie’s submission there should be some reduction to take account of the totality factor, so
that start point is reduced to nine years.
1 R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23; Tiori v R [2011] NZCA 355; R v Bourke HC Palmerston North CRI-2009-054-4180, 14 December 2010; R v Taueki [2005] 3 NZLR 372; R v Taylor CA407/88, 9 May 1989, R v Harris [2008] NZCA 214; R v Hartley [2012] NZHC 2124; R v Fuisi HC Auckland T023755, 19 December 2003; and R v Collett CA83/04, 30 August 2004.
your previous offending, which discloses a propensity for serious violent offending. An uplift of eight months is appropriate to reflect that.
[23] From that notional start point of nine years, eight months I turn to consider your personal circumstances. Frankly Mr Tereora the only matter I can take into account is your guilty plea.
[24] The Crown argue for no more than five per cent, Ms Moala suggests something in the range of 10 per cent would be appropriate. While your plea was entered late I take into account the issues Ms Moala raised in relation to your dealing with previous counsel as much as I am able to, but I also take into account that your guilty plea did mean ultimately the victims did not have to relive the stress and anguish that your actions caused them and you are entitled to a credit for that. I apply a credit of approaching 10 per cent for that guilty plea.
[25] Mr Tereora please stand. The end result Mr Tereora is a sentence of eight years, 10 months. That is structured in the following way:
(a) on the sentence of aggravated robbery six years, four months; (b) on the assault with a weapon, one year;
(c) on the attempt to use a firearm against a constable, one year, six months;
so that is a total of eight years, 10 months. The sentences are cumulative as I have said.
[26] The Court is also directed to consider the issue of a minimum non-parole period. In this case having regard to the need to denounce and deter your offending and to protect the community, despite the matters that Ms Moala has referred to I am satisfied that in this case a minimum non parole period of five years’ imprisonment is required and that is imposed. In relation to the remaining counts in the indictment before the Court, counts 1, 3 and 4, you are discharged.
Venning J
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