R v Thomas

[2016] NZHC 3083

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-096-931 [2016] NZHC 3083

THE QUEEN

v

DUSTIN MANZONE THOMAS

Date:	15 December 2016
Appearances:	A Winsley for the Crown L M Sziranyi for Mr Thomas
Sentencing:	15 December 2016

SENTENCING NOTES OF MALLON J

Introduction

[1]      Mr Thomas, you pleaded guilty to a charge of demanding with menaces following a sentence indication I gave on 20 October 2016.1    You are now to be sentenced.

Circumstances of the offending

[2]      You  and  your  associate,  [M],  are patched  members of the Nomad  gang. There were two female victims, D and J, who were known to you both.  The charge arose from events in the early hours of 12 December 2015.

[3]      During the afternoon of 11 December 2015 you had dropped J off at D’s house.  D lived with her one year old son (and a flatmate who was not present at the

1      Crimes Act 1961, s 239(2) (maximum penalty seven years imprisonment).

R v THOMAS [2016] NZHC 3083 [15 December 2016]

time of the events).  You had come into the house and stayed a few minutes.  You were not wearing your Nomad gang patch at this time.

[4]      You and [M] returned to the house in the early hours of 12 December 2015 because you believed J had stolen $300 from you.  The summary of facts was that you were both wearing your Nomad patches on your return.  You entered the house through open French doors which led into the lounge.  D and J were in the lounge. You and [M] said some money had gone missing and that J had taken it.  J blamed someone else for taking the money.   The discussions about this took place in the lounge and in one of the bedrooms.  You said you and [M] would not be leaving without taking some “stuff”. The two of you began taking items from the house.

[5]      There was a bit of a scuffle between you and D when D tried to stop you from taking her phone.  D was making a lot of noise.  [M] was holding a knife and told her to “shut the fuck up” or he would stab her.  You put your hands around D’s neck and started to choke her.  D thought she was going to pass out.  The door to D’s son’s room was open and he could see what was happening.  You told D to give him her phone and then she could go to her son.  D handed over her phone.

[6]      You continued to collect items from the house.  [M] said D and J would get their things back when they found out where the money was.   When D or J said something, [M] said something like “I should cut your fucking tongue out”.  [M] told D and J to stay where they were for three minutes.  You and [M] left.  D and J then went to a neighbouring address and called the police.

[7]      D estimates the value of the property taken to be around $1,500.  D and J did not receive any injuries.   They have not provided victim impact statements.   The information now before me indicates that you made arrangements to return to the victims all the property that you personally had taken and that you did so within a few days of the incident and before you were arrested.

Personal circumstances

[8]      You are 25 years old.  You have a lengthy offending history beginning in the

Youth Court in 2006.  You have offended repeatedly since then.  Most relevantly for

present purposes are your two convictions for aggravated robbery.  The first of these occurred in 2011.  You were sentenced to one year imprisonment and received a first warning.  The second aggravated robbery occurred in 2013.  You were sentenced to two years and six months imprisonment and received a stage two final warning.2

Starting point

[9]      There is no sentencing guideline judgment for demanding with menaces.  R v Mako,3  the guideline judgment for aggravated robbery sentences, does not assist because of the different maximum penalties for the two offences.4 Guidance is provided by comparable cases in light of the particular aggravating factors involved.

[10]     In this case the aggravating factors of the offending are:

(a)      you and your associate were unlawfully present in D’s home5  once you started demanding property;6

(b)      you used violence on D, choking her in front of her son;7

(c)       a number of items of D’s property were stolen;8

(d)      there were two of you involved in the offence;

(e)    the  offending  involved  premeditation9    and  intimidation notwithstanding that there may be a dispute about whether you were wearing gang patches upon your return.

[11]     The Crown has provided four demanding with menaces cases to assist with determining where the starting point for this offending should be.10     Of those it

submits the aggravating features in this case are most similar to Vujcich v R.  In that

2      Sentencing Act 2002, s 86C.

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

4      Regan v R [2012] NZCA 2257 at [11].

5      Sentencing Act 2002, s 9(1)(b).

6      See Emery v Police [2014] NZHC 430 at [26]-[28].

7      Sentencing Act 2002, s 9(1)(a).

8      Section 9(1)(d).

9      Section 9(1)(i).

10     Regan v R [2012] NZCA 227, Emery v Police [2014] NZHC 430, Opetaia v R [2011] NZCA

621, and Vujcich v R [20l3] NZHC 1747.

case the starting point was two years and eight months imprisonment.  The Crown submits the starting point in this case should be three years imprisonment on the basis that the violence in the present case was more serious than in Vujcich.

[12]     Your defence counsel submits the starting point should be no higher than in Vujcich.  She emphasises that you had not entered the house unlawfully (you knew D, and had been in the house earlier in the day and the door was open), and the matter only escalated when J denied taking the money and did not offer its return. The property was taken on the basis that it would be returned if the money was repaid. At the time of the sentencing indication your counsel understood that at least some of these items may already have been returned although that had not been confirmed.   There is information now before the Court which indicates you made arrangements for the return of all the property that you personally had taken.

[13]     I consider a starting point of two years and eight months imprisonment is appropriate.  I regard the offending as more serious than Regan v R, Emery v Police and Opetaia v R, and comparable to Vujcich.  In my view the different form in which the violence took in that case does not materially distinguish it from the present case.

Personal aggravating and mitigating features

[14]     The Crown submits that an uplift in sentence is appropriate to reflect your recidivist criminal behaviour.  The defence accepts that the Court may consider an uplift to reflect the previous aggravated robbery convictions.

[15]     An uplift is appropriate in view of the particular need for deterrence in your case.  You are a recidivist offender who has not been deterred by previous sentences and nor by the two strike warnings you have received.  While an uplift of six months might be available in light of the uplifts in Regan and Opetaia, I am mindful that the uplift should not be disproportionate to the starting point for the offending and the starting point I have adopted is arguably stern in comparison with Emery v Police and Opetaia v R.  I have therefore decided the uplift should be four months.

[16]     For the guilty plea the Crown submits a discount of 15 percent is appropriate whereas your counsel submits a discount of 25 percent is appropriate.  In accepting

the sentencing indication, you have received the benefit of a reduced charge.  It was the Crown which first raised the possibility of resolving the matter on this basis.  It did so on 16 September 2016.  The sentencing indication was sought very promptly after this and when the trial was still some months away.  Balancing these matters I have allowed a discount of just under 20 percent.  This would mean an end sentence of two years and five months imprisonment subject to any further information provided after the sentence indication.

[17]     At the time of the sentencing indication I did not have a pre-sentence report. This provides information about difficulties you have experienced and the challenges you face in your expressed desire to make a positive change in your life.  It is good that you understand the need for you to make those changes and that you are sorry for what happened and the impact it had on the victims.  The arrangements for the return of the property are a tangible demonstration of that.   In light of that I am prepared to discount your sentence by a further two months (which is around a five per cent discount prior to the 20 per cent discount for the guilty plea).

Conclusion

[18]     This  means  your  sentence  is  two  years  and  three  months  imprisonment. Stand down.

Mallon J