R v Turipa HC Auckland CRI 2006-044-5276

[2007] NZHC 1954

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-044-005276

THE QUEEN

v

JOSEPH WIREMU TURIPA

Hearing:         27 July 2007

Appearances: D Hauer for the Crown

P Brock for the prisoner

Sentencing:     27 July 2007

SENTENCING REMARKS OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

P Brock, PO Box 32 462, Devonport, Auckland

R V TURIPA HC AK CRI 2006-044-005276  27 July 2007

[1]      Joseph Wiremu Turipa, you have pleaded guilty to one charge of aggravated robbery, which is an offence under the Crimes Act 1961 and carries a maximum sentence of 14 years’ imprisonment.  It is a serious offence.

[2]      For the purposes of your sentencing today, I have been assisted by helpful written submissions from the Crown and from your own counsel.  They were very good submissions, as supplemented by the oral submissions which you heard in Court today.  There was also a pre-sentence report from the Probation Officer but no victim impact statement is available.

Facts

[3]      You and your co-offender, who is your cousin Mr Baker, along with two others, offered to take the victim home from a party in Glenfield in the early hours of

8 April 2006.  He lived in Beach Haven and on the way there you stopped at the Beach Haven wharf reserve to play touch rugby.  During the game, Mr Baker tackled the victim to the ground.  You both held him down while you searched through his pockets.  Mr Baker held a knife to the victim’s face and threatened him with words to the effect of “stop moving or I will stab you”.  You took his wallet and a packet of loose tobacco, to a total value of around $100.  He struggled as you took these items and eventually freed himself.

[4]      As the victim ran away, Mr Baker chased him and actually stabbed him in the back.  The victim managed to escape to got help from a passerby.  Meanwhile, you and Mr Baker fled the scene, dumping the knife.  When the Police spoke to you the next day, to your credit, you admitted your part in the offending and told the Police that Mr Baker had pressured you into it.  Your counsel has elaborated on some of the threats that lay behind that pressure, but again to your credit, you helped the Police to find the knife.

[5]      In terms of your personal circumstances, you are 19 years of age.  You are of Maori descent and the youngest of five children.  The Probation Office report tells of a childhood that has been unfortunate, because you have experienced significant levels of poverty and violence.   One of your brothers is affiliated with the Black Power and another with the Mongrel Mob.  You had pressure placed on you from an early age by family members to participate in criminal activities.  It seems that your last burglary offence was motivated by the fact that you were having to rely on your brother for support and needed food.  That is a dreadful situation to be in, but no excuse for criminal activity.   You do, however, have some positive role models within your family, mainly the older female members of the family.

[6]      You have a three-year-old child with a former partner.   They live in Mt Maunganui and your partner has expressed the wish that you remain away from them.  You seem to have resigned yourself to the fact that your child will grow up without knowing you, which again is unfortunate.

[7]      You have health problems with your chest because you are an asthmatic. You have ongoing problems with your leg, caused by a prison accident.   But, the report suggests, and this is the good bit, that you are doing well in prison.  You have been elevated to kitchen duties, which tells me that you are motivated, respectful and capable of hard work.  This has been confirmed by the prison authorities.  You did express some concern about your safety in prison and I hope that those matters have been addressed.

[8]      You say that this offending was motivated by the fear of your co-offender and I can understand the basis for that because I have read the sentencing notes of Harrison J regarding your co-offender’s part in this incident.  You were under the influence of alcohol at the time and you say that made you feel as if you could not stop what you were doing.  Well, alcohol is no excuse.  The Probation Officer was initially worried that you did not seem willing to take responsibility for your offending.  However, you have expressed remorse and made a positive request for help to change your life and that is promising.   I am sure you must know in your

heart what it feels like to be set upon by four people, including one carrying a knife. Just think what the victim was going through.  But, and again this is another good bit, you have requested counselling for alcohol and drug abuse, anger management. I hope that you will take full advantage of the programmes that are available for you in prison.

[9]      The Probation Officer indicates that you are at a high risk of re-offending, but you are genuine in your motives to change.  I am going to deal with you as leniently as I can under the limits of sentencing guidelines that are placed upon me.   The Probation Officer considers that you need extensive intervention to help you get back into society.  It was for that reason that I mentioned to your counsel that it may be that the Parole Board will look to ways in which that can be done when the time comes for your release.

[10]     There is a real need for you to have some good role models.  The Probation Officer acknowledges that you do have the potential to improve your life, if you are given the necessary tools to do so.  It has been suggested you should receive help from the prison authorities and that will go some way to assist you when the time comes for you to come back into the community.

Prior convictions

[11]     In terms of your previous convictions, there are 40 of them - you are only 19 years old - so that is a lot.  I appreciate that all but seven of those were in the Youth Court but they involve burglary, theft and other dishonesty offences, as well as escaping from Police custody and failing to answer bail and one violence offence of assault with intent to rob in 2003.   Since you have come into the Courts’ general jurisdiction, you have received short sentences of imprisonment.   The last was a sentence of one years’ imprisonment for receiving property.

[12]     The Crown has submitted that I should have regard to the guidelines in the case of R v Mako [2000] 2 NZLR 170 (CA). The appropriate starting point for street robbery is 18 months to three years imprisonment, so that is how seriously the Courts regard this type of offending. The Crown submits that this street robbery can be characterised as a joint enterprise planned and executed by you and Mr Baker. The Crown submits there are a number of the aggravating features as identified in Mako and refer to a degree of planning, the number of participants, the use of a weapon, the vulnerability of the victim and the actual violence that was involved.

[13]     It is acknowledged that you should receive a discount for your guilty pleas and for your co-operation with the Police in admitting the offending and helping to discover the knife.  As a result, the Crown submits the final sentence should be in the range of 18 to 24 months’ imprisonment.

Submissions for the defence

[14]     On your behalf, your counsel in clear and focused submissions fleshed out the summary of facts, which you accept generally.  It was said on your behalf that there is evidence to the effect that Mr Baker made threats to you.  Counsel submits there was not quite so much pre-planning and that there was lack of clarity over what was going to happen to the victim.

[15]     Your counsel accepts that the aggravating feature of several people being involved in the robbery exists, but that you were not the one who wielded the knife, which is relevant.  Also, the actual violence was at a relatively low level, the value of the property was modest and you were not involved in the second part when the victim was stabbed.  So again, those parts are in your favour.  The main submission is that you participated in the robbery because of threats by Mr Baker.  But at the end of the day, Mr Brock accepts imprisonment is inevitable under the authorities and submits that it should be two years or less.

[16]     There are a number of purposes and principles in the Sentencing Act 2002 that I am required to keep in mind.  I refer to the need to hold you accountable for the harm done to the community and to promote a sense of responsibility in you for that harm.  On behalf of the community, as sentencing Judge, I must also denounce your conduct and reflect the need to deter you and others from committing the same or a similar offence.

[17]     In terms of the principles, I need to take into account the gravity of the offending and your degree of culpability, the seriousness of your offending, and bear in mind the maximum penalties prescribed.   Then I must take into account the desirability of consistency in sentencing and impose the least restrictive outcome.

Statutory aggravating and mitigating factors

[18]     Section 9 of the Sentencing Act 2002 requires me to consider mitigating and aggravating features.  In your case, the applicable aggravating features are the actual or threatened violence, the actual or threatened use of the knife, and the fact that there were four people involved.  Some of those factors are inherent in the offence of aggravated robbery.  Also, the offence was committed while you were still subject to another sentence.

[19]     In terms of mitigating features under s 9(2), I am able to take into account your youth, but your youth is running out.  I can take into account your guilty plea and your remorse.   I am also able to take into account other mitigating features including the co-operation with the Police by locating the knife and your early acknowledgement of the offending.

Features of the offending

[20]   The Court of Appeal established guidelines for sentencing offenders in aggravated robbery cases in R v Mako [2000] 2 NZLR 170. At [70] the Court said

that its judgment was to supersede the previous guidelines laid out in R v Moananui [1983] NZLR 537 (CA). In establishing these guidelines, Gault J, giving the judgment of the Court, noted at [34] that a wide range of conduct can constitute aggravated robbery, saying that the particular combination of the variable features present in any case requires individual assessment. At [36]-[51] the Court listed a number of relevant factors in assessing the seriousness of the offending. In this case, I consider that the following features from Mako appear:

a)       The fact that some four people were involved in this offending, which suggests that (in terms of Mako at [37]) the degree of intimidation was serious;

b)       The use of a knife by the prisoner’s co-offender; and

c)       There was some actual violence in the form of holding the prisoner down and struggling with him.   I consider this to be fairly minimal and I think that the chase and stabbing is not relevant to the violence inherent in the aggravated robbery, which was complete and I believe had ended by the point at which the victim was stabbed.

[21]     In  terms  of  the  aggravating  features  advanced  by  the  Crown,  I  am  not prepared to give significant weight to the notion of pre-planning.  I do not consider that there is reliable evidence to support that in this case.

[22]     The Crown also submitted that the victim was vulnerable, and that of course is true.  But any vulnerability on the part of the victim is reflected in terms of the fact that there were four offenders attacking a single person being an aggravating factor that has already been taken into account.

Victim impact statement

[23]     I do not have a victim impact statement in this case so that is not something that I take into account in this case.

Starting point and mitigating features

[24]     I have already indicated that I take into account your youth and prospects of rehabilitation.    Having  said  that,  I consider  that  a  sentence  of  imprisonment  is appropriate rather than a community based sentence.   I understand that you have already been in custody for some time on the other matters.  In Mako, the Court of Appeal said that there needed to be some flexibility in the starting point.

[25]     I note that your co-offender Mr Baker was sentenced for his involvement (R v Baker HC AK CRI 2006-044-005276 15 December 2006, Harrison J) to two years’ imprisonment.   A starting point in respect of his part was not identified, merely a final sentence concurrent of two years, as he was sentenced at the same time for other more serious offending.   Given that two years was considered appropriate as a final sentence for Mr Baker (who was plainly the lead offender and instigator), I consider that a starting point for your offending should be two years and three months.  So that is the start point.  In setting that, I accept that you played a secondary role to that of Mr Baker and were to some extent pressured into the offending.

[26]     You  are  entitled  to  a  significant  discount  for  mitigating  factors  that  I mentioned earlier, and I propose to reduce your sentence by one-third for those factors, meaning that your final sentence would be one of 18 months’ imprisonment.

Home detention

[27]     In terms of home detention, because your sentence is less than two years, I am required to consider whether you should be granted leave to apply for home detention.  Section 97(3) of the Sentencing Act allows the Court to grant leave where appropriate given:

(a)      the nature and seriousness of the offence; and

(b)      the circumstances and background of the offender; and

(c)      any relevant matters in the victim impact statement in the case.

[28]     I do not consider it is appropriate to grant you leave to apply for home detention.  Your family support in the past has not been strong and there has been nothing presented to me today to show that you would have a stable and supportive environment in which you could serve a home detention sentence.  Further, while I believe that you are genuinely motivated to make changes in your life, and I encourage you to continue that course, I am not satisfied that home detention would at present be the environment best designed to help you make those changes.  So, in terms of the statute, I consider that the circumstances are such that leave to apply for home detention is not appropriate.

Conditions on release

[29]     In terms of your release under s 93 of the Sentencing Act, I am able to impose special conditions on your release.  Subsection (3) of that section provides that I must not impose a special condition unless it is designed to:

(a)      reduce the risk of re-offending by the offender; or

(b)facilitate  or  promote  the  rehabilitation  and  reintegration  of  the offender; or

(c)      provide for the reasonable concerns of victims of the offender.

[30]     Therefore, I sentence you to a term of imprisonment of 18 months for this offending.  I direct that upon release you attend any programmes as directed by your Probation   Officer   directed   at   reducing   your   risk   of   re-offending   through rehabilitation and reintegration.  I also direct that you undertake any programmes to assist you with drug and alcohol abuse as directed by the Probation Officer.

[31]     You may stand down.

Stevens J