R v Warren

[2017] NZHC 2889

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2016-091-002629 [2017] NZHC 2889

THE QUEEN

v

TONY RICHARD WARREN

Counsel:

E M FitzHerbert for Crown

E A Hall for Defendant

Sentence:

23 November 2017

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Warren, you appear for sentencing having pleaded guilty to three charges of aggravated robbery.1  This morning I shall:

(1)       summarise your offending;

(2)       explain the starting point I have adopted;

(3)       explain the adjustments that I will make to the starting point; and

(5)       explain the sentence I will impose.

1      Crimes Act 1961, s 235(c). Maximum penalty of 14 years’ imprisonment.

R v WARREN [2017] NZHC 2889 [23 November 2017]

Your offending

Tairangi Dairy

[2]      On   2   September   2015   at   approximately  7.47   pm   your   co-offenders

Mr Ah Young and another person picked you up in a stolen Subaru vehicle and you drove to the Tairangi Dairy in Porirua. Two of you entered the dairy while one of your co-offenders waited in the vehicle outside.   You went into the dairy wearing balaclavas, bright orange high visibility jackets, dark trousers and gloves in an attempt to conceal your identities.  The owner of the dairy, Mr Cheung, was standing behind the counter.  Your co-offender pointed a pistol at his head.  Before the victim could walk to the cash register he picked it up off the counter and broke it from the power cable to which it was attached. You left the dairy with the cash register and its contents of approximately $50.00. You were driven away in the stolen Subaru.

Clockwork Gold Bar

[3]      On the same day at about 11.15 pm you and Mr Ulutupu entered Clockwork Gold Bar in Tawa. Two of the staff members had closed the bar to the public and were about to leave.  One staff member was met by Mr Ulutupu at the back door, who was holding a pistol. Mr Ulutupu pushed the staff member back into the bar. You entered the bar around the same time and both staff members were marched back inside the bar area.  You asked the staff members to take out their phones and put them on the bar. They were then forced to lie down on the floor.

[4]      Mr Ulutupu ordered one of the staff members to open up the safe in the office. When the safe was opened he was pushed and kicked to the ground by Mr Ulutupu. You emptied the safe of approximately $42,726. You and Mr Ulutupu took one of the staff member’s keys for a Ford Falcon vehicle, their wallet, and two bottles of alcohol from the bar fridge.  It appears you also stole a cell phone.  You left the bar in the stolen Ford Falcon and your co-offender Mr Ah Young followed you in the stolen Subaru.

[5]      The Ford Falcon was subsequently located by police and a black imitation firearm was located inside it.   The Subaru was also subsequently located with an orange high visibility jacket and a single rubber glove inside.

Sandbar Pub

[6]      On 27 September 2015 at approximately 11.45 am, you and Mr Ulutupu and an unidentified associate went to the Sandbar Pub in Porirua.  You all entered the Sandbar and locked the entry door behind you.  Mr Ulutupu had a black pistol.  You were carrying a green bag and the unknown associate was carrying a large machete type weapon. You all dispersed through the bar and kitchen area. Mr Ulutupu and the associate demanded one of the staff members to show them where the safe was and at one stage the machete was held to a victim’s neck.  The staff member was made to open the safe in the rear of the bar. You loaded the contents of the safe into the green bag. You left the bar with $16,654.90.

[7]      When spoken to by police you made a full admission of your involvement in the offending.

Personal circumstances

[8]      You are 33 years old and currently unemployed, although you have worked previously in Wellington.  Ms Hall, your counsel, has commented on your difficult upbringing which I acknowledge, and in recent times your homelessness and your drug addiction issues, which I am advised you have substantially addressed. You have the support of your father.

[9]      You have previous convictions, including two dishonesty offences and various breaches of community work and conditions of supervision. You have one conviction for possessing an offensive weapon. The aggravated robbery charges are however the most serious charges that you have faced.

Victim impact statements

[10]     I have read and considered seven victim impact statements. The emotional and psychological trauma you have inflicted is clearly evident in a number of the victim

impact statements.  I will not single out any one victim for special mention.  Suffice to say your actions terrified and deeply affected a number of the victims.  In addition, financial losses have been incurred through uninsured losses and ongoing  counselling costs. I have previously when sentencing Mr Ah Young referred to four specific victim impact statements and those impact statements relate also to your offending.

Starting point

[11]     Your  offending  involves  three  separate  instances  of  aggravated  robbery. New Zealand society treats aggravated robbery very seriously and each charge carries a maximum penalty of 14 years’ imprisonment. A starting point for all three charges needs to be reached, with an adjustment for totality.

[12]     The leading case for aggravated robbery is R v Mako.2    There the Court of Appeal noted the range of conduct that can constitute aggravated robbery varies, and in each case there will be features which will contribute to, or detract from the seriousness of the conduct.3

[13]     I have identified the following aggravating features of your offending:

(1)Multiple offenders.4   On all three occasions there were three offenders involved with the aggravated robberies either by way of actual participation or in acting as the getaway driver.

(2)Planning and premeditation.5  The use of disguises and a stolen vehicle demonstrates there was planning and premeditation involved.

(3)Use of disguises.6  You were wearing a balaclava and other clothing in an  attempt  to  conceal  your  identity  and  to  increase  the  level  of

intimidation.

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

3 At [34].

4 At [37].

5      Sentencing Act 2002, s 9(1)(i); R v Mako, above n 2, at [36].

6      R v Mako, above n 2, at [38].

(4)Use of weapons.7     On all three occasions a pistol was used at the robbery of the Tairangi Dairy.   At the Tairangi Dairy a pistol was pointed at the victim’s head.  In the robbery of the Sandbar, a machete was held to a victim’s neck.  I note that there were no physical injuries in this case. While no shots were fired and the firearm that was located was an imitation firearm, the Court of Appeal has said that imitation firearms should be regarded as “offensive weapons”.8

(5)Targeting of premises.9  You targeted a dairy and two bars, which were commercial premises that posed increased risks.  The time of day the robbery was committed at the Sandbar is particularly concerning as there was a real risk members of the public would have been affected.

(6)       Property stolen.10    The total value of the cash stolen was just under

$60,000 in your case. You stole two vehicles, a cell phone and caused damage to property in carrying out your actions.

(7)Victim  impact  statements.11     As  I have already said,  although  the victims did not suffer physical injuries the emotional and psychological harm to the victims has been very considerable.

[14]     Ms FitzHerbert, for the Crown, submits the robberies of the two bars are the most serious and would attract starting points of seven years in isolation. Taking into account the totality of your offending, it is the Crown’s position that a starting point of  twelve years’  imprisonment   is   appropriate.      Ms   Hall   submits   the  fairly unsophisticated nature of the aggravated robberies and the lack of violence involved

would bring a starting point down to no more than nine years’ imprisonment.

7      R v Mako, above n 2, at [39].

8      At [33] and [39].

9 At [40].

10 At [44].

[15]     I have previously cited R v Mako. In that judgment, the Court of Appeal said:12

The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years …

[16]     I consider that passage to be also apt to describe your offending.  I have also referred to comparable authorities.13   In Anderson v R the Court of Appeal upheld a starting point of seven years’ imprisonment for very similar instances of aggravated robbery of a jewellery store.  That case did not however involve an element of actual violence.14   In R v Collett,15 there were four aggravated robberies of pharmacies and four instances  of  unlawfully taking  a motor  vehicle.   The offending in  Collett, similarly, did not involve physical harm and although members of the public were not involved,  a  number  of  staff  were  terrorised.16   The  Court  of Appeal  in  Collett considered a starting point of 11 years’ imprisonment for the totality of the offending would be appropriate.17

[17]     In your circumstances, the two most serious aggravated robberies of the bars would attract a starting point of at least six years in isolation, and the robbery of the dairy at least five years.  Taking into account the totality of your offending, in my assessment the appropriate starting point is ten years’ imprisonment.

Adjustments to the starting point

Previous offending

[18]     The Crown properly concedes that none of your previous convictions are such that would warrant any recognition by way of an uplift to the starting point that I have

adopted.

12     R v Mako, above n 2, at [54].

13     Anderson v R [2014] NZCA 410; Falwasser v R [2015] NZCA 502; R v Wilson HC Napier CRI-

2008-041-1326, 31 July 2009; Dearman v R [2016] NZCA 143 and R v Collett CA83/04,

30 August 2004.

14     Anderson v R, above n 13.

15     R v Collett, above n 13.

16 At [4].

Personal mitigating factors

[19]     Ms Hall has referred to various personal mitigating factors, which she submits should be taken into account. Those factors are:

(1)       your engagement in restorative justice; (2)      your remorse;

(3)       your efforts at addressing your addiction issues; and

(4)the fact that prison is likely to be more difficult for you due to the health issues associated with your father.

[20]     The Sentencing Act requires me to take into account any engagement in restorative justice.18   On 11 October 2017, you attended a restorative justice meeting with two of the victims from the Sandbar robbery.  The report details an honest and productive conversation between you, your father, two victims and their support persons.  It does appear to have been a worthwhile experience for all involved.

[21]     You gave the victims an apology letter and read this out.  I accept the apology was genuine and warrants a further discrete discount.

[22]     I have read the alcohol and drug assessment report written on 27 October 2017 on your behalf.    You have had drug addiction issues, particularly with methamphetamine. To your credit, you have stopped using methamphetamine and you have been sober for approximately 12 months.  You did this on your own accord without professional assistance, although your father’s support has been instrumental. Your rehabilitation prospects are good and you have agreed to access treatment as

recommended by your alcohol and drug assessment report writer.

18     Sentencing Act 2002, ss 8(j) and 10.

[23]     Ms Hall refers to authorities allowing reductions in sentence where an offender successfully deals with drug addiction.19     I consider your extraordinary efforts at becoming drug free can be recognised by an additional discount.

[24]     Overall, I am willing to allow a discount of about 20 per cent for your personal mitigating factors.   While Ms Hall has encouraged me to consider an additional discount for the impact your sentence will have on your father, the impact your sentence will not in my assessment be so “disproportionately severe” that a further discount would be justified in relation to that particular item.20    Personal or family hardship is unfortunately an inevitable consequence of a sentence of imprisonment.

Guilty plea

[25]     I also allow a further discount of 20 per cent for your guilty plea.

[26]     Mr Warren, please stand.

Result

[27]     The result is a sentence of six years and five months’ imprisonment in relation to all three charges. Those sentences are concurrent.

[28]     Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

19     For example, Heke v Police HC Whangarei, CRI-2006-488-60, 3 April 2007 and R v Hudson HC Auckland CRI-2005-092-5581, 29 September 2006.

20     Sentencing Act 2002, s 8(h); Zheng v R [2015] NZCA 451.