R v Toetoe HC Napier CRI 2010-041-1646

[2010] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-041-1646

THE QUEEN

v

STANLEY RANGI TOETOE

Charges:Aggravated robbery; Aggravated wounding; Aggravated burglary (3); Burglary (2); Breach of Parole Board release conditions

Plea:               Guilty

Appearances: R J Collins for Crown

A Malik for Prisoner

Sentenced:     22 November 2010

Aggravated wounding  -  Preventive  detention;  ordered  to  serve minimum term of 6 years imprisonment

Aggravated robbery - 6 years imprisonment Aggravated burglary - 18 months imprisonment Burglary - 12 months imprisonment

Breach of release conditions - 6 months imprisonment

SENTENCING NOTES OF BREWER J

SOLICITORS

Elvidge & Partners (Napier) for Crown

Amit Malik (Hastings) for Prisoner

R V TOETOE HC NAP CRI-2010-041-1646  22 November 2010

Offences

[1]      Mr Toetoe,  you appear for sentence having pleaded  guilty to aggravated robbery, aggravated wounding, three charges of aggravated burglary, two charges of burglary, and breach of Parole Board release conditions.  The maximum penalty for aggravated  robbery,  aggravated  wounding  and  aggravated  burglary  is  14 years' imprisonment.  For burglary it is 10 years' imprisonment and for breach of release conditions, one years' imprisonment.

Factual background

[2]      I turn first to a summary of the events which gave rise to these charges.

[3]      On 12 May 2010 you were released on parole from Hawke's Bay Prison after having completed a sentence of one year two months' imprisonment for injuring with intent to injure.   12 days later, on the morning of 24 May 2010, you drove to the Marewa area of Napier where you committed the offences for which you are now being sentenced.

[4]      You began by stealing a steak knife that you found around the back of a private residence in McDonald Street.  You then walked to a house in Morse Street and stole a bicycle.

[5]      Initially,  you  had  gone  to  Marewa  with  the  intention  of  committing burglaries, but having obtained the knife you decided that it would be easier to use it to commit a robbery.  With that purpose in mind, you rode the stolen bicycle to the Carlyle Street Store and considered whether to rob that.  However, you decided there was too much traffic nearby and so you rode on to the Vigor Brown Store and decided to rob that instead. You went into the store.  You were wearing a hooded sweatshirt, a beanie and gloves, and you were armed with the steak knife.   You pulled out the knife and walked to a till which you tried to open.  As you did so the female proprietor, Ms Guo, saw you and asked you what you were doing.   You waved the knife at her and you walked to a second till and you managed to open that. You took $115 from the till and you started to leave the store.

[6]      Ms Guo's husband, Mr Chen, appeared while you were leaving.   Ms Guo handed her husband an item which was probably in the nature of a small baseball bat.   A physical struggle then developed and  you had the knife.   You stabbed Mr Chen a number of times in the upper body.   You also brought the knife down upon  him,  stabbing  him  in  the  head  and  in  the  shoulder  area  with  powerful downward stabs.  Mr Chen collapsed to the ground and you fled on foot, dropping the knife.

[7]      Mr Chen suffered six or seven stab wounds, some of them serious.  One went right through his left cheek into his mouth.   One of the chest wounds was five centimetres deep and another four centimetres deep.

[8]      Having run from the dairy you stole another bicycle from a house in Georges Drive and abandoned it on a property in Nuffield Avenue.  There you managed to evade the police by escaping over a number of fences.

[9]      You then entered a house at Bedford Road and picked up a large steel knife you found in the kitchen in case you needed it to threaten the occupants.  At that time the only occupant of the house, a male, was having a shower.  When you realised that the house was empty apart from the man in the shower you began to feel safe and so you hid $95 from the robbery under the living room carpet and you put the knife under a cushion in the same room.  You then hid under a bed where you took off your gloves and beanie.  You were found there by the male occupant but you left without further incident.

[10]     You made your way to a property at Barker Road and hid in a laundry room attached to the house.   The female occupant of that house eventually found you, called the police and you were arrested.

Victim impact statements

[11]     Mr Chen received very deep cuts to his head, face and chest.   He is now permanently physically scarred from your attack.  His self-esteem has been deeply affected and at the time of his victim impact statement, 19 July 2010, one of the deep

wounds to Mr Chen's chest was still very sore and causing him a great deal of discomfort.    You  could  easily have killed  him.    Your  explanation  for  stabbing Mr Chen was that you were still a bit "jail hard" and you did it because Mr Chen had tried to fight you off.

[12]     Mr Chen and Ms Guo  have suffered  a significant financial cost to their business.  They have felt compelled to employ another staff member and they now close earlier in the evening because of their fear of another attack.   They can no longer conduct their business as they used to.   Customers have been turned away because of the incident.  They no longer feel safe in their shop or in their home and they fear for the safety of their two young children.

[13]     The other victims of your offending were not so affected, but their concerns lie with Mr Chen and Ms Guo.

Sentencing principles

[14]     In deciding what sentence should be imposed on you I have to take into account the established sentencing principles.  In these circumstances I particularly emphasise the need adequately to denounce your offending and to hold you accountable to the community.  There must be an element of deterrence against both future offending by you and by others who might be minded to follow your example. And I have to look to the protection of the public.

[15]     The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way and, finally, to the extent that I can, I have to look to how you will be eventually reintegrated into the community.

Personal circumstances

[16]     Mr Toetoe, you are a 30 year old male of Nga Pohe descent.  You were born in Napier and raised by your mother and stepfather until the age of eight years. Subsequently you were adopted out to your brother-in-law's parents.

[17]     Your childhood, I accept, was not a settled or happy time for you and you began antisocial behaviour from an early age.  In your early teens you were expelled from your school and became a member of the Cripps gang.  You have continued your affiliation with the gang which you describe as "like a family".

[18]     You have spent a considerable period of your life in jail and you do not have a history of employment.  When you were younger your offending was fuelled by a pattern of alcohol and cannabis abuse, although you say that you no longer depend on these substances.

[19]     In relation to your current offending, you say that on release from prison

12 days earlier you found yourself with no accommodation.  Your arrangements with the supported accommodation scheme had fallen through due a lack of available beds.  This made you frustrated and angry and you were living out of your car.  You came into town with the purpose of getting money by committing crimes.

Offending history

[20]     You have an extensive criminal history.   You have served 10 individual sentences of imprisonment since 1997.  Aside from the current charges, your most recent  conviction is for injuring with intent to  injure and on that occasion  you inflicted very serious harm on the person you assaulted.   You have two previous convictions for aggravated robbery, 11 convictions for burglary, and 38 for dishonesty related offending.

[21]     You  received  your  first  aggravated  robbery  conviction  in  2000.    This occurred when you robbed a Post Shop with a co-offender.  The owner was punched in  the  face  and  you  escaped  with  $250.    You  were  sentenced  to  four  years'

imprisonment.   Upon release you reoffended and you were again sentenced to imprisonment.

[22]     In  March  2005  you  were  released  from  prison.    Four  days  later  you committed an aggravated robbery of a dairy with a co-offender.  During the robbery you punched the storekeeper with a closed fist and stole $500 in cash and a gold watch.  You also stole a vehicle and used it to ram passing motorists who tried to prevent you from escaping.   You were sentenced to a further term of four years' imprisonment.

[23]     In 2006 while you were a sentenced prisoner at Mt Eden Prison you attacked another inmate.  As I have already said, you caused that person serious damage; in fact, multiple fractures to his eye sockets, cheeks and upper jaw.  For this incident you received the injuring with intent to injure conviction and a further sentence of one year and two months' imprisonment.

Finite sentence

[24]     In  deciding the  sentence that  you  receive  today  I must  first  look  at  the features of your offending to determine the appropriate starting point for a sentence. Once I determine the appropriate starting point I then look at the aggravating and mitigating factors relevant to you personally to determine the appropriate end sentence that you should receive.   In this case the Crown seeks a sentence of preventive detention and I will also have to deal with that application.

Starting point

[25]     I  take  the  aggravated  wounding  of  Mr Chen  as  the  lead  charge  in  your offending, although it is closely linked to the aggravated robbery charge, and so I will first calculate a starting point for those two charges combined.

[26]     The tariff case I have to consider for the aggravated wounding charge is R v Taueki.1   For the aggravated robbery charge it is R v Mako.2   I consider that for the  aggravated  wounding  of  Mr Chen  your  offending  falls  within  band 3  of R v Taueki.  Band 3 has a starting point range of nine to 14 years' imprisonment.

[27]     Although both the prosecuting counsel and your lawyer agree that a starting point of nine years' imprisonment would be appropriate, I consider that the starting point should be 10 years' imprisonment because I do not accept that your offending is at the lowest end of band 3.   I regard the aggravating factors relevant to your offending as: firstly, the actual and threatened violence and the extent of the violence that resulted; secondly, your use of a weapon - the knife; thirdly,  you attacked Mr Chen's head; and, fourthly, the serious injury to Mr Chen and the impact it has had on him.

[28]     I do not consider that Mr Chen's actions in trying to prevent you escaping with the money should result in a lowered starting point.

[29]     When considered with the interlinked charge of aggravated robbery (which was premeditated and which did involve a second victim), I take an overall starting point for these two charges of 12 years' imprisonment.

[30]     This starting point must be uplifted to take account of the totality of your offending.   The other charges you face are not minor.   They were committed beforehand pursuant to your intention to gain money by criminal conduct and afterwards mostly to help your escape.  However, the actual levels of your offending in respect of those charges, as Mr Malik says,  were not high (although on two occasions you did confront members of the public in their own homes) and the other victims have stated that they were not personally shaken by the experience.

[31]     Being mindful of the totality principle, I impose an uplift of one year.  That results in a total starting point of 13 years' imprisonment.

1        R v Taueki [2005] 3 NZLR 372 (CA) at [40].

2        R v Mako [2000] 2 NZLR 170 (CA) at [43], [54]-[56].

Factors relevant to you personally

[32]     I now have to turn to the factors that are relevant to you personally.

[33]     There are two serious aggravating factors which must increase the starting point.  First, there is the proximity in time of the present offending to your release from prison.   You were on parole and you had been released from prison only

12 days before the offending for which you are now being sentenced.   You had already breached the release conditions.  This is not the first occasion on which you have reoffended shortly after being released into the community.

[34]     Second, there are your two previous convictions for aggravated robbery in similar circumstances, which I have already discussed.

[35]     For these factors combined I impose an uplift of two years' imprisonment. This brings the total sentence to 15 years' imprisonment.

[36]     In terms of mitigation, I do not accept that you have shown remorse to an extent that justifies a reduction in sentence by reason of that factor alone.

[37]     You  are,  however,  entitled  to  recognition  for  your  pleas  of  guilty.    In assessing the appropriate discount I have to be guided by the recent decision of the Supreme Court in Hessell v R.3     I have listened to what Mr Malik has said and I accept that when you entered your plea of guilty you did so expecting to receive an automatic discount of one-third.  However, pursuant to the Supreme Court decision I have to give a discount tailored to the circumstances of your case.  I accept that you

pleaded guilty at the first reasonable opportunity and, among other benefits, this has saved the victims the pain of going through a trial and it demonstrates an acceptance by you of your wrongdoing.

[38]     However, I also keep in mind that the prosecution case against you is very strong and so pleading guilty may have effectively been your only option. Nevertheless, because of the date at which you entered the plea, being before the

3        Section 9(2)(b); Hessell v R [2010] NZSC 135.

decision of the Supreme Court in Hessell v R, I am not going to treat that as a factor that might reduce the benefit I should give you in relation to your guilty pleas and that is partly also because you obviously gave the police a full and frank account of what you did.

[39]     Taking these considerations into account, I grant you a discount of roughly

25% for your guilty pleas, which is the maximum available under Hessell v R.  This results in a finite period of imprisonment of 11-and-a-half years.

[40]     I  have  also  considered  whether  a  minimum  period  of  imprisonment  is necessary for the purposes set out in s 89(2) of the Sentencing Act.  I have decided that it is.  Having regard to the purposes and principles of sentencing I fix the length of the minimum period of imprisonment at six years.

Preventive detention

[41]     I  now  have  to  determine  whether  to  impose  a  sentence  of  preventive detention in place of this finite sentence.  The purpose of a sentence of preventive detention  is  not  the  same  as  the  purpose  for  which  a  minimum  period  of imprisonment is imposed.  The purpose of a sentence of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.   Its primary function is not to punish the offender; it is to protect the community.

[42]     Three preconditions  have to  be  satisfied  before  a  sentence of  preventive detention can be imposed:

(a)       You have to have been convicted of a qualifying violent offence;

(b)You have to have been 18 years of age or over at the time of the commission of the offence; and

(c)      The court has to be satisfied that you are likely to commit another qualifying violent offence if released at the expiry date of a finite sentence.

[43]     The first two preconditions are clearly established.  In determining whether the third condition is met, I have to take into account five factors.4   I am guided by the judgments of the Court of Appeal in R v C5 and R v Parahi6 in that regard.

(a)      Any pattern of serious offending disclosed by the offender's history

[44]     First, I must consider your past pattern of serious offending.  Mr Collins, in the Crown's written submissions, submits that your conviction history discloses a pattern of continuous criminal offending over the past 16 years.  You have served 10 separate sentences of imprisonment and you have tended to reoffend seriously within a short period of time after release.

[45]     Only 12 days after your last release from prison for injuring with intent to injure you committed the current violent offences.   In 2005 you committed an aggravated robbery only four days after your release from prison.

[46]   Mr Malik on your behalf submitted that your previous convictions for aggravated robbery did not involve the use of a weapon and that your use of a knife in this instance was only intended as a means to scare people.  But the knife was not a mere prop.  My concern is that the use of a knife discloses an escalation in your offending.  And despite having just used a knife to stab Mr Chen you again armed yourself with a knife at the Bedford Road address.  This is a relevant concern also when considering the seriousness of the harm to the community that your offending has caused.

[47]     Under this heading, I conclude that your life from your early teens to this point has been dominated by criminal offending with this, the most recent episode of

4        Section 87(4).

5        R v C [2003] 1 NZLR 30 (CA).

6        R v Parahi [2005] 3 NZLR 356 (CA).

serious offending, showing a significant escalation because of your willingness to acquire and use knives.

(b)      The seriousness of the harm to the community caused by the offending

[48]     The second factor is the seriousness of the harm to the community caused by the offending.

[49]     You have inflicted irreparable harm to your victims, Mr Chen and Ms Guo. You have heard of the pain  you have caused  them physically, emotionally and financially.   They are only the most recent of the various people who have been victims of your past offending.  Previous victims have been vulnerable due to their employment in shops.  You have also entered people's homes as a burglar.

(c)      Information indicating a tendency to commit serious offences in future

[50]     The third factor is probably the most significant.  It is information indicating a tendency to commit serious offences in the future.

[51]     I have had the benefit of a full pre-sentence report and two psychological reports compiled for the purposes of the preventive detention inquiry.   The pre- sentence report assesses your risk of reoffending as "high".  It says:

Mr Toetoe is a member of the Cripps gang, and shows no desire to distance himself from the gang.  It is assessed that his gang connections contribute to his sense of entitlement towards offending.  Mr Toetoe also has an inability to effectively manage his anger.

[52]     The psychiatric report says that you are clearly an intelligent man but that you appear to have resigned yourself to continue your current lifestyle.  The report concludes:

I could not, based on today's interview, give the opinion that he was ready to address his criminal offending; on the other hand, I could not rule out that he would come to that point in the future.

[53]     There  is  no  psychiatric  treatment  that  will  influence  the  risk  of  future offending.

[54]     The   psychological   assessment   report   contains   information   from   three assessment measures.  The report says:

33In summary, the three risk measures used in this assessment have a high level of convergence in predicting that Mr Toetoe is at very high risk of serious violent reoffending.  It is likely that should any further violent offending occur, it would be motivated by a desire to obtain financial  gain  and  could  involve  the  commission  of  aggravated robbery.  Given his previous responses to release in the community it is likely that any such reoffending could occur within a short time period of his release.

[55]   The report concludes that, without successful completion of appropriate intensive specialised psychological treatment, there is a very high risk of further serious offending from you following future release from prison.   There is no indication that this risk is likely to be reduced within the short to medium term future.  For longer term risk management, everything would depend upon whether you would meaningfully engage in psychological intervention to address the issues that have led to your current offending and to develop a meaningful strategy that could reduce your risk of future offending.

[56]     Certainly, the significant terms of imprisonment that you have received in the past have not deterred you from further offending.

(d)      The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[57]     The fourth factor is the absence of, or failure of, efforts by the offender to address the cause or causes of offending.

[58]     I accept that you have expressed some remorse for your actions.  I also note that after the attack you were worried that Mr Chen might die from the wounds you inflicted.

[59]     I have also noted that you appear to have shown some insight into your current offending.  However, the medical and the pre-sentence report writers observe that you tended to minimise the seriousness of your previous offending.

[60]     It does appear that you have never engaged in any significant rehabilitative programmes to address prior offending and until you have a significant change in your attitude to your offending then you will not provide those whose job it is to assess how well you would function if you were released into the community any comfort that you would no longer be a danger to others.

[61]     I see that you expressed to the psychologist who interviewed you a desire to make changes in relation to your offending lifestyle.   If you do, it would require considerable effort on your part.   Unfortunately, the psychological report suggests that you are not really sure either way whether you should engage in psychological intervention to address your behaviour.

[62]    To your credit, you are beginning to express interest in the educational programmes offered in prison and you would like to learn vocational skills.  Again, if you do not then this pattern of offending is almost certainly going to continue.

(e)      The  principle  that  a  lengthy  determinate  sentence  is  preferable  if  this provides adequate protection for society

[63]     The final factor to consider is the principle that a lengthy finite sentence is preferable if this provides adequate protection for society.   The alternative to a sentence of preventive detention is the lengthy finite sentence which I have already discussed.  If that sentence is imposed there could be time within which you would be able to undertake any programme that would help you to rehabilitate.

[64]     Mr Collins has highlighted the concern that a lengthy finite sentence would still allow you to be released without having undergone any necessary treatment. The sentence of preventive detention, on the other hand, gives you the keys to your own release through engaging in programmes that will turn around your offending behaviour.

[65]     Mr Malik's submissions in this area say all that can be said on your behalf. He points to your dawning insight into the consequences of your actions and that you are beginning to realise that unless you acquire vocational skills your life will never be different to what it is now.  He submits that over a lengthy finite sentence these impulses of yours could be nurtured and that that would be preferable to having you sentenced to an indefinite period of imprisonment.

Sentence

[66]     Mr Toetoe, in my view it is the protection of the public that is the paramount consideration for me.

[67]     At the age of 30 there is nothing in your history that would give me any confidence that the serving of a finite sentence would result in you being less of a threat to the public than you are now.

[68]     There is nothing in the assessment reports or the pre-sentence report which gives me any real hope that further finite imprisonment would make any difference to you.

[69]     I  have  therefore  decided  to  sentence  you  to  preventive  detention.     A

minimum period of imprisonment of six years will apply.

[70]     Mr Toetoe, I am not doing this to throw away the key.   You will serve a sentence of six years' imprisonment and after that your release will be up to the Parole Board.  If you decide not to change then you can spend the rest of your life in prison.  But if the sparks of maturity of thought which are hinted at in the reports, if the hints that you are getting ready to address the needs that you have grow into something tangible, then you will be able to win your release.   Whether you now come out of prison and become a part of the community is very much in your hands. You are an intelligent man.  You are now 30 years old.  There are opportunities for you which I hope that you will grasp.   But if you do not, then the public will be protected from you.

[71]     Accordingly,  I  sentence  you  on  the  charge  of  aggravated  wounding  to preventive detention with a minimum period of imprisonment of six years.

[72]   On the charge of aggravated robbery, you are sentenced to a term of imprisonment of six years.  On each of the three counts of aggravated burglary, you are sentenced to a term of 18 months' imprisonment.  On each of the two counts of burglary, you are sentenced to terms of 12 months' imprisonment.  And for breach of Parole Board release conditions, you are sentenced to six months' imprisonment.

[73]     All sentences are to be served concurrently.  Stand down.

Brewer J