R v Thomson
[2021] NZHC 2304
•2 September 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2019-287-000047
[2021] NZHC 2304
THE QUEEN v
ZENYATA JASON THOMSON
Hearing: 2 September 2021 Appearances:
R Jenson for Crown
M J Hine for Defendant
Judgment:
2 September 2021
SENTENCING REMARKS OF LANG J
R v THOMSON [2021] NZHC 2304 [2 September 2021]
[1] Mr Thomson, you appear for sentence having pleaded guilty to six charges of aggravated robbery,1 two charges of dangerous driving,2 one charge of failing to stop for red and blue flashing lights3 and one charge of being in unlawful possession of a firearm.4 The most serious of these are the charges of aggravated robbery. As you are no doubt aware, this charge carries a maximum penalty of 14 years imprisonment.
[2] You are to be sentenced in this Court because your previous convictions for similar offending mean that the charges of aggravated robbery are “third strike” offences. Only this Court has the jurisdiction to deal with charges in that category.
Facts
[3] You have pleaded guilty on the basis of an agreed summary of facts. This records that all the charges were laid as a result of a series of incidents that occurred as you drove around the Kawerau and Whakatāne townships on 15 and 16 October 2019.
Charge 1: Aggravated robbery
[4] At approximately 3 am on 15 October 2019 you went to a residential address in Kawerau, where you uplifted a male occupant of the address. You told this person to come with you because you wanted to do some “missions”. He then travelled with you and an associate to another address in Kawerau. On arrival you told him to go and knock on the back door and have the occupant of the address come to the garage. He did what you asked, but nobody answered the door. You then drove the complainant back to the address from which he had been picked up. On the journey to his address you produced a sawn-off shotgun, held it to the complainant’s head and told him to take his gear off or you would “smash” him. The complainant then handed over his Nike Air Max shoes, a gold watch and a jacket. Before you let the complainant leave the vehicle you told him that if he “snitched” you would find him.
1 Crimes Act 1961, s 235(c).
2 Land Transport Act 1998, s 35(1)(b).
3 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(5) and 114(2).
4 Arms Act 1983, s 45(1).
Charges 8 and 9: Aggravated robbery
[5] At about 9 pm the following evening you were driving a motor vehicle in the central business district of Kawerau. You were accompanied by two juvenile associates and were again in possession of the sawn-off shotgun.
[6] You approached a parked vehicle and confronted the occupants with the sawn- off shotgun. You then took control of their vehicle and drove it around Kawerau with the occupants still in the vehicle. Thereafter you robbed the two occupants of their baseball caps and a jacket at gunpoint. At one stage you pointed the gun at the head of one of the occupants and told him to take off his stuff or you would shoot him. You then drove the occupants of the vehicle to a service station, where you told them to get out of the vehicle. You then drove their vehicle to the Whakatāne area.
Charge 4: Aggravated robbery
[7] Whilst driving around Whakatāne you pulled up to a person who was walking along the street. You approached this person and pointed the sawn-off shotgun at him. You demanded that he unlock his iPhone and hand it over. Not surprisingly, he complied with your demands and handed over his unlocked iPhone. You then drove away.
Charges 2, 3 and 5: Aggravated robbery and dangerous driving
[8] You and your associates then continued to drive around the Whakatāne area. During your travels you came across two persons who were travelling in another motor vehicle. You intentionally rammed your vehicle into the rear of their vehicle, causing it to spin out and come to a stop. You then approached the stationary vehicle and produced the sawn-off shotgun. You demanded that one of the occupants hand over his watch and he did so. You then pulled the other occupant out of the vehicle and proceeded to assault him with punches and kicks to the face and body. You were still holding the sawn-off shotgun as you did so. You then forcibly took a watch, a chain and a baseball cap from this person. He then ran away, and you passed your shotgun to one of your associates, who began chasing after him. Fortunately, however, the
complainant was able to hide in a nearby address. You and your associate then returned to your vehicle and drove away.
Charge 6: Dangerous driving
[9] You continued to drive around the Whakatāne area. During this time you came across another motorist who was driving in the same direction as you. You then drove your vehicle onto the wrong side of the road and deliberately caused it to collide with the right-hand side of the other vehicle. Fortunately, however, the driver of the other vehicle managed to drive away from the scene.
Charge 10: Failing to stop for red and blue flashing lights
[10] Shortly after this incident the police became aware of your activities. Officers in a police patrol vehicle endeavoured to stop you by activating their siren and red and blue flashing lights. You accelerated away and switched off your headlights to enable you to escape. The police initiated a pursuit and ultimately stopped your vehicle by laying spikes across the road. You and your associates were then arrested.
Charge 7: Unlawful possession of a firearm
[11] When the police searched your vehicle, they located the sawn-off shotgun concealed under the passenger seat. Neither you nor your associates have ever held a firearms licence and you had no lawful reason to be in possession of the sawn-off shotgun.
The mandatory sentence
[12] Given your exposure to the so-called three strikes regime, I am required to impose the mandatory sentence prescribed by s 86D of the Sentencing Act 2002. In Fitzgerald v R, the Court of Appeal noted the absence in s 86D of any safety valve enabling the Court to decline to impose the maximum sentence for a Stage 3 offence where that would be manifestly unjust.5 I therefore have no option but to impose the
5 Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ 350 at [34].
maximum sentence available on a charge of aggravated robbery, namely a sentence of 14 years imprisonment.
Would it be manifestly unjust to require the sentence to be served without parole?
[13] An offender is ordinarily eligible to apply for parole after serving one-third of any sentence of more than two years imprisonment. This means that, but for the fact that this is a Stage 3 offence, you would have been eligible to apply for parole after serving four years eight months of the sentence.
[14] The only form of safety valve in s 86D is that contained in s 86D(3), which permits the Court to decline to order that the offender is required to serve the whole of the sentence without parole. The Court may only take that step where it is satisfied, having regard to the circumstances of the offender and the offending, that it would be manifestly unjust to require the offender to serve the whole of the sentence without parole.
[15] In R v Harrison the Court of Appeal considered the approach to be taken when determining whether it would be manifestly unjust to require an offender to serve a life sentence for murder without parole when the offending in question constituted a Stage 2, or “second strike”, offence.6 The facts in Harrison are different but the principles enunciated in that case are nevertheless of considerable assistance in determining whether it would be manifestly unjust to require you to serve the whole of the mandatory 14 year sentence without being able to apply for parole.
[18] In Harrison the Court recognised that gross disproportionality may arise where sentences stipulated by the three strikes legislation are imposed.7 The Court held that the assessment of whether a requirement that an offender serve the whole of a maximum sentence without parole was manifestly unjust must be reached through “a conjunctive examination of the circumstances of the offence and those of the offender”.8
6 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.
7 At [94].
8 At [102].
[16] However, the Court of Appeal disagreed with the Crown's submission that the threshold of manifest injustice is likely to be reached only in exceptional circumstances.9 It said such an approach would often give rise to grossly disproportionate sentences. The Court said it was “driven to the conclusion that the test for circumstances that are manifestly unjust must be of sufficient breadth to ensure that any sentence imposed under s 86E is not grossly disproportionate”.10
[17]It is now necessary to apply these principles to the circumstances of your case.
The circumstances of the present offending
Aggravating factors
[18] Your offending has several aggravating factors. The first, and most obvious, is that it involved the robbery at gunpoint of no fewer than six victims on four separate occasions. In each case the victims handed over items of personal property after you threatened them with the sawn-off shotgun and, in some cases, pointed the shotgun directly at them. Some of the offending also involved the use of physical violence in addition to threats using the sawn-off shotgun.
[19] Secondly, the offending involved the complainants being confronted by multiple offenders and in circumstances where they had limited if any opportunity to escape.
[20] Thirdly, the offending ended with a sustained piece of reckless driving that placed other motorists and the pursuing police officers at considerable risk.
[21] Fourthly, the victim impact statements that the Crown has provided me with demonstrate that your offending has had considerable effect on the victims. The psychological effect of being threatened by a shotgun cannot be underestimated.
[22] On the other hand, I do not accept the Crown’s submission that the offending was premeditated. Although you had taken the prior step of arming yourself with a
9 At [106].
10 At [106].
firearm, the offending itself was opportunistic because it involved the robbery of persons encountered at random rather than by design. Furthermore, although this factor would have been of little comfort to the victims, there is no evidence the firearm was loaded. The use of a loaded firearm would obviously have been a seriously aggravating factor.
[23] Finally, the property you stole during the robberies was of moderate value and has now all been recovered.
The sentence that would ordinarily be imposed
[24] The leading authority in relation to the starting point for sentences to be imposed on a charge of aggravated robbery remains that of R v Mako.11 In that case the Court of Appeal emphasised that selection of the starting point will involve a careful weighing of all relevant factors.12
[25] I consider the circumstances of your offending have some similarities to those in the recent decision of the Court of Appeal in Carr v R.13 That case also involved an offender who committed multiple aggravated robberies. The Court of Appeal referred to the starting points selected in other cases involving multiple charges of aggravated robbery.14 It considered a starting point of 14 years imprisonment was appropriate for offending that I consider had more aggravating features than yours.15 By way of example, the value of the property stolen was significantly greater, there was considerable premeditation and several of the offences involved a home invasion. On the other hand, the offending in Carr did not include the dangerous use of a motor vehicle as your offending does.
[26] Taking into account the starting point adopted in Carr, I accept your counsel’s submission that an appropriate global starting point for your offending would ordinarily have been one of eleven years imprisonment. The Crown originally suggested that a starting point of 14 years imprisonment was appropriate but after
11 R v Mako [2000] 2 NZLR 170 (CA).
12 At [34].
13 Carr v R [2020] NZCA 357.
14 At [51]-[53].
15 At
considering Carr it now acknowledges a starting point of around eleven years imprisonment was justified.
[27] The Crown suggests I should apply a modest uplift to reflect your previous convictions for similar offending. I consider, however, that a starting point of eleven years imprisonment is sufficient to reflect your overall culpability even taking into account your previous convictions.
[28] But for s 86D you would have been eligible for a discount to reflect your guilty pleas. You were arrested on 19 October 2019 and your trial was scheduled to commence in April 2021. You ultimately entered your pleas on 30 March 2021. I would ordinarily allow a discount of 20 months, or around 15 per cent, to reflect this factor. Although your please were late they nevertheless saved the victims the trauma of having to give evidence at a trial. For that reason I consider a discount of 15 percent, rather than ten percent as suggested by the Crown to be appropriate.
[29] I would also allow a further discount of ten months to reflect mitigating factors identified in a psychiatric report to which I refer later in these remarks.16 This means the starting point of eleven years imprisonment would reduce to an end sentence of eight years six months imprisonment.
[30] However, it is clear from the matters canvassed in the pre-sentence report and the psychiatric report that you remain at high risk of re-offending in a similar way once you are released after serving the sentence imposed today. I consider the need to protect the community would require a minimum term of imprisonment to be imposed under s 86(2) of the Sentencing Act 2002. I would therefore ordinarily require you to serve one-half, or four years three months, of your sentence before being eligible to apply for parole.
16 At [36]-[44].
The circumstances of the offender
Previous offending
[31] You appear for sentence today at the age of 23 years. Notwithstanding your relatively young age you have already accumulated four previous convictions for aggravated robbery. These resulted in you being sentenced to terms of imprisonment in 2015, 2016 and 2018.
[32] On 11 February 2015 you were sentenced to two years imprisonment after pleading guilty to two charges of aggravated robbery. This offending occurred on 3 November 2013 and 14 November 2014 and involved the theft of items from members of the public using threats of violence.
[33] Both the subsequent Stage 1 and Stage 2 offending, for which you received sentences of imprisonment in 2016 and 2018 respectively, also involved aggravated robberies having similarities to the charges for which you now appear for sentence. The Stage 1 offending occurred on 5 December 2015. On that occasion you and other young associates were driving around the streets. Your vehicle pulled over beside a pedestrian and you got out of the vehicle. You then pushed the victim up against the wall and demanded he empty his pockets. You were supported in this by your two associates. The victim handed over his bag and you and your associates absconded. This resulted in you receiving a sentence of one year nine months imprisonment.
[34] The Stage 2 offending occurred on 19 February 2017 when you were 19 years of age. On this occasion you robbed another member of the public, again supported by young associates. You did so by confronting an individual walking down the street in the early hours of the morning. You pulled a silver chain from the victim’s neck whilst he was being punched in the face by one of your associates. When the victim subsequently returned to the area to locate his missing spectacles, you and your associates again confronted him and began punching him. You received a sentence of one year 11 months imprisonment for this offending.
[35] Your qualifying convictions under the three strikes legislation, coupled with the nature of the present charges, raise issues of obvious concern. They show a pattern
of offending in which you and young associates confront victims at random with the object of robbing them. You carry this out using force of numbers and either threats or the use of physical violence. The offending for which you appear for sentence now indicates a serious escalation in your behaviour. Rather than using your fists you have now resorted to the carriage of a lethal firearm.
Expert report
[36] I have the benefit of a report dated 24 May 2021 from Dr Nichole Galley, a consultant psychiatrist from Ngāa Ringa Āwhina in Hamilton. This details your background and the influences that have shaped your life to date.
[37] The report records that you were born in Whangārei and lived in Northland until approximately 11 years of age, when you moved to Auckland. During this period your father left the family unit when you were four or five years of age. You witnessed family violence and were also subject to physical abuse yourself at the hands of family members, including your grandmother.
[38] The Kari Centre undertook a helpful assessment in 2011 after you presented at the age of approximately 13 years with significant behavioural issues. This records that you displayed behavioural issues from the age of five or six years when you were repeatedly ejected from school for behavioural problems including bullying and fighting, as well as using weapons to assault other children. The assessment concluded you probably suffered from some form of conduct disorder.
[39] Your mother became involved with your stepfather when you were approximately 11 years of age and this obviously caused issues for you. By 13 years of age you had engaged in significant misconduct at school including arson, bullying, employing standover tactics and committing acts of vandalism. You attended numerous schools and ultimately left school at the age of 15 years without attaining any educational qualifications. Your school career throughout was marked by behavioural issues involving bullying and fighting with other students. These included the use of weapons. After leaving school you have never held down any form of permanent employment.
[40] You have no connection with your iwi and indeed have no knowledge of anything about your cultural background. It seems that you identified more with gang culture in recent years than Maori culture. This led to you becoming a patched member of the Killer Beez and Tribesmen groups. The psychiatrist notes that you have now relinquished your gang affiliations.
[41] You began using alcohol at an early age and commenced using cannabis when you were nine or ten years of age. By the age of 13 or 14 years you were using cannabis regularly. You then moved on to experimenting with methamphetamine and by the time you were 16 or 17 years of age you were using this drug regularly. You told the psychiatrist this had ruined your life and you had no intention of using it in the future. You reported selling both cannabis and methamphetamine in the past and said that you were able to obtain drugs without difficulty in your capacity as a patched gang member.
[42] There is a suggestion that you may be affected by ADHD although this is by no means certain at this stage. The psychiatrist observes that any such disorder may be related to your lengthy history of substance abuse. Whilst in prison you have had numerous instances of becoming involved in threatening or violent incidents with other prisoners. This recently resulted in you being sent to Auckland Prison at Paremoremo. These issues are likely to be related to your difficulties with anger management.
[43] You now have two children who are aged three years and one year respectively. It appears that you have little if anything to do with them or their mother. Encouragingly, you told the psychiatrist that if given the chance you would spend your time trying to be a father to your children.
[44] The psychiatrist considers your prolonged periods of incarceration are likely to have interfered with your ability to establish normal patterns of living, including interpersonal relationships and occupations, and your previous relationships with gang members is likely to have reinforced your pro-violent attitudes. Your background leads the psychiatrist to suggest that you fall within a category of offenders who have
an increased chance of recidivism in the future. One of the concluding observations in the report is that:
On balance, given Mr Thomson’s constellation of risk factors, his history of violent offending and the repetitive nature of this, without intervention he would likely represent a moderate to high risk of future offending.
Conclusion
[45] Several factors suggest to me that the psychiatrist’s conclusion is likely to be correct. First, you have become increasingly involved in violent criminal activity and this has escalated in seriousness with the present offending. You have been in prison for all but one of the last four years and you offended quickly after being released from prison.
[46] Secondly, you have no support networks available to you such as stable employment, family relationships or pro-social friends and associates.
[47] Thirdly, substance abuse, both in the form of alcohol and drug use, has clearly been an issue in the past. It is noteworthy that you suggested to the psychiatrist and the writer of the pre-sentence report that you had consumed a considerable quantity of alcohol before committing the present offences.
[48] All of these factors mean I consider you to be at high risk of reoffending in a similar way in the future. This suggests it may not be manifestly unjust for you to serve the sentence without parole.
[49] On the other hand, at 23 years of age you are still a young person. I consider a sentence of 14 years imprisonment served without parole would amount to a crushing sentence for a person of your age. Furthermore, even taking into account the recent escalation in seriousness of your offending, a sentence of 14 years imprisonment is substantially greater than any sentence you have served in the past. It is also considerably greater than the sentence you would have received but for the “three strikes” regime.
[50] Taking these factors into account I am satisfied it would be manifestly unjust to require you to serve the whole of the sentence without parole. Such an outcome would amount to a grossly disproportionate response not only to the present offending but also to your Stage 1 and Stage 2 offending.
Sentence
[51] On each of the charges of aggravated robbery you are sentenced to 14 years imprisonment. I am satisfied under s 86D(3) of the Sentencing Act 2002 that it would be manifestly unjust for you to serve the whole of that sentence without parole. I therefore decline to make an order that you must serve the entire sentence without parole. You will be eligible for parole in the usual way after serving one-third, or four years eight months, of your sentence. This is just five months longer than you would have been required to serve before applying for parole if you had not been subject to the three strikes regime.
[52] On the charge of being in unlawful possession of a firearm you are sentenced to 18 months imprisonment. On the charges of dangerous driving you are sentenced to two months imprisonment and you are disqualified from holding or obtaining a driver’s licence for a period of six months after your release from prison. On the charge of failing to stop you are convicted and discharged.
[53] All sentences are to be served concurrently. This means the effective sentence is one of 14 years imprisonment.
[54]Stand down.
Lang J