R v Wellington

[2014] NZHC 2993

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-055-001321 [2014] NZHC 2993

THE QUEEN

v

TRENT WELLINGTON BOWEN MARTIN

Hearing:	27 November 2014
Appearances:	S McColgan for the Crown I Jayanandan for the Defendant Wellington M Mason for the Defendant Martin
Date:	27 November 2014

SENTENCING NOTES OF WYLIE J

R v WELLINGTON & ANOR [2014] NZHC 2993 [27 November 2014]

Introduction

[1]      Mr Wellington and Mr Martin, you may remain seated until I ask you to stand.

[2]      You appear for sentence today, having been found guilty by a jury of a number of charges arising out of the aggravated robbery of the Whitehouse Tavern in Papakura in May 2013.

[3]      You have both been found guilty of the following:

(a)      One charge of aggravated robbery.   That is an offence pursuant to s 235(b) of the Crimes Act 1961.  The maximum penalty is 14 years’ imprisonment.

(b)Five charges of kidnapping.   Kidnapping is an offence pursuant to s 209(b)  of  the  Act.  The  maximum  penalty  is  one  of  14 years’ imprisonment on each charge.

(c)      Two charges of threatening to kill.   This is an offence pursuant to s 306 of the Act, and the maximum penalty is one of seven years’ imprisonment on each charge.

(d)Two charges of conversion.  This is an offence pursuant to s 226(1)(b) of the Act and the maximum penalty is one of seven years’ imprisonment, again on each charge.

[4]      Mr Wellington, you have also been found guilty of one charge of aggravated injury.   Aggravated injury is an offence pursuant to s 191(2) of the Act and the maximum penalty is one of three years’ imprisonment.

Background Facts

[5]      On the afternoon of 25 May 2013, the two of you, along with four others, met at an address in Manurewa.  At that meeting, the six of you discussed robbing the Whitehouse Tavern.  Three members of the group then set out to Remuera to steal

two motor vehicles to use as transport in the robbery.   When the members of the group returned to Manurewa with the stolen vehicles, you armed yourselves with a range of weapons, including a loaded sawn-off pump-action shotgun, a crowbar, large screwdrivers and a large drill bit.  You put on heavy clothing, including hooded sweatshirts, and caps.  You took face masks and balaclavas with you and also some plastic cable ties that you could use to restrain any people you might find at the tavern.

[6]      You  then  travelled  to  the  tavern  in  the  two  stolen  vehicles.    When  you arrived, the tavern was crowded, because there was a quiz evening on.  You spent some  time  waiting  in  the  carpark  until  the  tavern  cleared.    At  approximately

10.45 pm, you burst into the tavern brandishing your weapons. You were all wearing masks or balaclavas to conceal your identities.

[7]      There   were   three   staff   present,   and   a   small   number   of   customers. Unbeknown to you, one of the staff – the duty manager – managed to flee.  He went to a neighbour to make a 111 call to the police.  One of your number jumped over the bar in the tavern. You ordered customers onto the floor in an area where there were a number of pokie machines.  You restrained them with cable ties.  You got one of the staff members to show you around the premises.  You found the safe.  It was locked. You tried to coerce that staff member into unlocking the safe.  He did not know how to do so.   He was punched, kicked and his life was threatened in the process. Ultimately,  his  injuries  required  hospitalisation.     Another  staff  member  was threatened with a shotgun, and told that she would have her head blown off if she did not comply with the demands being made by you.   You took cellphones off the various victims.  You also broke into and took money from cash registers.  You took till trays.

[8]      As you and your co-offenders were leaving the premises, you were observed by police who were responding to the 111 call made by the bar manager.  You took off in one of the stolen vehicles.  The police pursued you.   Eventually, the police chase was called off due to concerns for public safety.   A short time later, you crashed the stolen vehicle into a trampoline at the back of a house in Manurewa. You then made off on foot.  The police by this stage had thrown a cordon around the

general area. A police handler and his dog started to follow your trail.  You split into two groups, one of four persons and the other of two persons. The group of two tried to exit the area in a taxi.  They were apprehended by the police and arrested.  They were in possession of the shotgun, the shotgun cartridges and the various items from the tavern, including the cash that was taken.  Two of your group, Mr Inamata and you, Mr Wellington, were apprehended in a park by the police dog handler and his dog.  Mr Martin, you and another offender managed to flee the scene and get through the cordon. You were apprehended at a later stage.

[9]      The sixth offender has not yet been dealt with by the courts.  His identity was only disclosed during the course of the trial.

Pre-sentence Reports

[10]     Mr Wellington, your pre-sentence report noted that you were expelled from school at a young age.  Your parents separated when you were young.  You have had no real contact with your father.  Your mother’s new partner is a gang member and he has been the only adult male in your life.  You have expressed an interest in the building trade, and you have completed a welding course in pursuit of that goal. You do, however, have a criminal record, particularly in the Youth Court.   Your prior offending includes both aggravated and common assault and multiple burglaries. You drink frequently and you are a user of illicit drugs.   You are in an unstable situation. As a result, you are regarded as posing a medium risk of reoffending.  The probation officer did suggest that this assessment might be able to be modified, if you can keep away from associates, including relatives, who have been shown to be a bad influence on you, and if you can moderate your use of alcohol and abstain from the use of illicit drugs.  For your part, you have indicated that you would be prepared to do anything, and accept any help that is available to keep you from reoffending.

[11]     Mr Martin, you also had an unsettled and troubled childhood.  You have not been in employment for three to four years.  You continue to protest your innocence. You have accrued 11 convictions in total for violence, driving, and non-compliance- related  offending.   The  present  offending  represents  a marked  escalation  in  the

seriousness  of  your  offending.     The  probation  officer  reported  that  you  are remorseful for what the victims endured on 25 May 2013, but that you maintain that you were not present, and that you do not take responsibility for personally causing harm to any of the victims.  The probation officer considered that there are three key factors which have contributed to your offending – first, your antisocial peer associates, secondly your propensity for violence, and thirdly your use of cannabis. You are considered as posing a moderate risk in the future.

[12]     The probation officers recommended a sentence of imprisonment for both of you.

Victim Impact Statements

[13]     I have received three victim impact statements.

[14]     It is clear that your actions had a very major effect, particularly on the staff members you assaulted and threatened.

[15]     One of the staff members still has physical scarring.  She has been affected psychologically by the events which occurred.   She described those psychological effects.   She still suffers from anxiety attacks, and has flashbacks.   She does not leave her house unless she has to, and her enjoyment of life has significantly diminished.  She is no longer a social or outgoing person.  She no longer has a job. Your offending has had a very real effect on her family relationships.  The victim feels that her life is on hold.

[16]     Another of the victims says  that, for a time after the offending, he was paranoid, and became stressed and irritable.  He has returned to work, but he remains nervous when in his work environment even today.

[17]     The third victim, the manager of the tavern, has noticed a significant loss of takings.   He says that it is hard to employ staff.   His sleep patterns were initially disturbed and he had flashbacks. The incident is still at the back of his mind, and has made him “over cautious”.

Prior Sentencing

[18]     Two of your co-offenders have already been sentenced for their involvement in this aggravated robbery after they pleaded guilty to one charge of aggravated robbery.

[19]     The first offender, N, was sentenced by Ellis J.1   She had regard to the use of a weapon, the degree of planning, the effort that went into stealing the cars and the disguises used, in setting the starting point.  She considered the number of offenders and the fact that the target was a busy tavern were aggravating features.  She adopted a starting point of eight years’ imprisonment, before making deductions for N’s guilty plea, and his youth.

[20]     In sentencing the second offender, Mr Tuku-Inamata, Ellis J relied on her earlier decision.2     Again, she set the starting point at eight years’ imprisonment. Reductions were made for Mr Tuku-Inamata’s guilty plea, his youth and the fact that he had engaged in the restorative justice process.

Submissions

[21]     Mr McColgan for the Crown submitted that there are various aggravating features applicable to the offending.   He referred to premeditation, the number of offenders involved, the use of disguises, the use of weapons, the number of victims, and the threats and use of violence, the value of the property stolen, and the degree of harm to the victims.

[22]     The Crown argued, Mr Wellington, that you were more culpable than your co-offender, N, because you have been found guilty in relation to the aggravated injuring charge.   Mr McColgan sought a starting point of eight and a half years’ imprisonment.   He accepted that a discount should be made available to you to reflect your youth.  At the time of your offending, you were only 17 years’ old.  He also accepted that it is appropriate to make an allowance for the fact that you were on

restrictive bail conditions pending trial.

1      R v N [2014] NZHC 2236.

2      R v Tuku-Inamata [2014] NZHC 2654.

[23]     In relation to you, Mr Martin, the Crown accepted that you should receive a lighter sentence, because you were not found guilty in relation to the aggravating injuring.   It recommended a starting point of between seven and eight years’ imprisonment.  It did not seek an uplift for your prior offending, but submitted that your previous record prevents any deduction being made available for your relative youth. You were 21 years’ old, almost 22 years’ old, at the time of the offending.

[24]    Mr Wellington, Ms Jayanandan made submissions on your behalf.   She submitted  that  the  appropriate  starting  point  is  one  of  six  years’ imprisonment, having  regard  to  the  sentences  already  passed  on  your  co-offenders,  and  the comments made by the Court of Appeal in the guideline judgment which I will refer to shortly.  She submitted that a discount should be made available to you for your youth, for the restrictive bail which you were subject to while awaiting trial, and for the fact that you spared the victims the need to give evidence at trial.  She suggested that a final sentence imposed in respect of you should be between four and a half and five years’ imprisonment.

[25]     Mr Martin, Ms Mason made submissions on your behalf.  She suggested that a starting point of between six and seven years’ imprisonment is appropriate.  She sought a discount of 20 percent for personal mitigating factors, namely your relative youth and your desire to improve yourself.  She also submitted that a deduction is appropriate, given the restrictive bail conditions which applied to you prior to the trial.

Principles and Purposes of Sentencing

[26]     In considering both of you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.  In particular, I have had regard to the need to hold both of you accountable for your offending, the need to promote in each of you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.  This is a primary factor in this type of offending.  I have taken into account the gravity of the offending with which you were involved, including your respective degrees of culpability.  I have

considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with your co-offenders and with similar offenders committing similar offences.   I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[27]     The relevant tariff case for offending of this kind is the decision of the Court of Appeal in R v Mako.3

[28]     In this decision, the Court gave a number of examples of typical aggravated robberies and set out starting points for each.  The Court made it clear that the that the  identified  starting  points  are  to  be  used  flexibly,  and  that  where  there  are particular features, or combinations of features which have an unusual character, the starting point should be adjusted to reflect that.   Relevantly, the Court noted as follows:

[54] Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels. 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. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of eight years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least nine years for the overall offending.

[55] As we said in Tukuafu for very serious armed robberies (even without multiple or repeat offending) a starting point of around 10 years will be appropriate.

[29]     These remarks are helpful in considering this case.

[30]    The Court in Mako identified a number of aggravating features to such offending.  Many of those are present in the case of your offending.  I note them as follows:

(a)      There was clearly premeditation.  You met earlier in the day to plan the robbery.  In order to carry it out, you stole two cars to facilitate your travel to, and escape from the tavern.  You armed yourselves and got together clothing and gear to conceal your appearances.   In my view, there was significant premeditation in this case.

(b)The  number  of  offenders.     Six  offenders  were  involved  in  the aggravated robbery.   Either all or most of  you were armed.   The number of offenders involved and the fact that a number of you were armed would have had a very significant impact on victims.  I bear in mind, however, that the number of offenders involved is an element of the offence of aggravated robbery, and that the mere presence of more than one offender is not, of itself, an aggravating feature.

(c)      The use of disguises. All of you concealed your identities by covering your faces.  One of you wore a clown mask.  Others used bandanas. The effect on victims would have been terrifying.

(d)The use of weapons.   I have already noted that you were carrying weapons.  The most serious weapon was a sawn-off shotgun.  It was loaded, and there were spare cartridges in the magazine.  Introducing a loaded firearm into a situation such as this substantially increases the danger for all involved.   In my view, it is a serious aggravating

feature.4   Other weapons included screwdrivers, a crowbar and a drill

bit.

(e)      The  number  of  victims.    The  target  premises  were  commercial premises.  They were a busy tavern.  I accept that you waited in the carpark until the tavern had largely cleared.  Nevertheless, you did not

know how many people were in the tavern when you burst into it. You must have known that it was likely that members of the public would be present.

(f)      The use of violence.  Robbery requires a threat of violence.  However, in this case, actual violence was used.  Further, you threatened to kill the two members of staff.  One of the members of staff was kicked, punched and beaten up.  The violence inflicted on him was captured on CCTV.  It was gratuitous and at the high end.  There was a kick to the head.5

(g)The value of the property stolen.  The property stolen was of modest value.   It was just under $3,000 and much of it was recovered. However, this was because you could not get into the safe.  I have no doubt that you would have taken more, had you been able to do so.

(h)The degree of harm to the victims.   The victim impact statements make it clear that some of the victims of the offending suffered both physically and mentally as a result of your offending.   In my view, this increases the seriousness of the offending, although I accept it is important not to double count this factor with the degree of violence used.

[31]     On any account, this was serious offending of its type.

[32]     It is necessary for me to have regard to other decisions, which assist in setting the appropriate starting point.  I refer in particular to R v Campbell6 and Anderson v R7.   In the first case, the sentencing judge adopted a starting point of nine years’ imprisonment for an aggravated robbery involving multiple aggravating features, including the use of a loaded firearm, violence, premeditation and the like.  A total sum of $31,500 was taken.  The sentence was upheld on appeal.  In the latter case,

Anderson v R, the offender was armed with a single-barrelled firearm.   He was

5      Compare R v Taueki [2005] 3 NZLR 372 (CA) at [31(e)].

6      R v Campbell [2007] NZCA 121.

7      Anderson v R [2014] NZCA 410.

wearing dark-coloured clothing, balaclava and gloves.   He broke into a jeweller’s store  and  stole  property  worth  approximately  $20,000.    The  sentencing  judge adopted a starting point  for the aggravated robbery of six  years’ imprisonment, before applying an uplift of one year for additional motor vehicle and theft-related charges.   A further uplift of six months’ imprisonment was applied for previous convictions. Again, the sentence was upheld on appeal.

[33]     I have also considered the two decisions of Ellis J which I have noted above in relation to two of your co-offenders.   I note that she was only sentencing in respect of the aggravated robbery charge, although I accept that she did take into account the various aggravated features which I have noted above, some of which reflect in the additional offending in respect of which you have been found guilty.  It is noteworthy, however, that neither N, nor Mr Tuku-Inamata, were being sentenced in regard to the aggravated injuring.

[34]     Mr Wellington, I accept that you were not the ringleader of this particular criminal enterprise.  However, you were involved in it.  You were also convicted of the aggravated injuring, and therefore, your culpability is higher than that of N and Mr Tuku-Inamata.   I therefore consider that a starting point above the eight years which applied in their cases is required.   I consider that the appropriate starting point, given your relative culpability and taking into account the totality of the offending in respect of which you have been found guilty, is one of eight years and six months’ imprisonment.

[35]     Mr Martin, I note that you were not convicted of the aggravated injuring or of the firearms offence.  As a result, your culpability is lower than that of others who were involved.   Your offending appears to be broadly in line with that of N and Mr Tuku-Inamata, who were sentenced on only one charge of aggravated robbery.  I do, however, accept that Ellis J did take into account the various aggravating features which I have noted.   The Crown proposed a starting point of between seven and eight years.   I cannot, however, see that there is any justification for adopting a markedly lower starting point than that applied by Ellis J in the other two cases.  I therefore take as my starting point in your case a sentence of seven years and six months’ imprisonment.  In my view, that reflects the totality of the offending with

which you were involved.   It also takes into account the fact that you were not convicted, in particular, of the aggravated injury charge.

Personal Aggravating and Mitigating Features

[36]     Mr Wellington, at the time of the offending, you were 17 years’ old.   The courts have recognised that youth can be relevant to sentencing, for a number of reasons.  First, there are age-related neurological differences, which mean that young people, and especially young men, tend to be more impulsive and more susceptible to negative influences and peer pressure.8   I accept that these factors may well have been present in your offending.   Secondly, the effect of imprisonment on a young person can be relatively more severe, and thirdly and most importantly, young people have a greater chance of rehabilitating themselves.  Here, I accept from the probation

officer’s  report  that  you  have  expressed  a  wish  to  rehabilitate  yourself.    I  am prepared to allow you a discount from the sentence I would otherwise have imposed, given your age.   I also accept that you were subject to restrictive bail conditions while awaiting trial and that you complied with those conditions.  In totality, I am prepared to allow you a discount of 21 months, to take into account these two factors.

[37]     Mr Martin, at the time of the offending, you were 21, almost 22 years’ old. While youth discounts can sometimes be available to offenders as old as 21 or 22, realistically, your age places you at the upper range where a youth discount would normally be available.   Further, I have considered your criminal history.   While a youth discount can be available for a young person where there is a realistic prospect of rehabilitation if he or she is exposed unduly to the criminal community whilst in prison, your record of offending makes that factor less persuasive in your case. Further, I note that you have continued to deny the offending.  I am not prepared to allow you a discount for youth.  I accept that you were also subject to restrict bail conditions while awaiting trial, although I am told that there were some breaches.  I do, however, note that there was no suggestion of any further offending while you were on bail.  I am prepared to allow you a discount of three months to recognise the

restrictive bail conditions.

8      See, Churchward v R [2011] NZCA 531, (2011) 25 CRAN 446 at [77]–[87].

Sentence

[38]     Will you both please stand.

[39]     Mr Wellington, in respect of the aggravated robbery charge, I sentence you to a term of imprisonment of six years and nine months.  In relation to each of the five charges of kidnapping, you are sentenced to a term of imprisonment of four years. In relation to each of the charges of threatening to kill, you are sentenced to a term of imprisonment of two years, and in relation to the two charges of conversion, you are sentenced to a term of imprisonment of one year.   In relation to the charge of aggravated injury, you are sentenced to a term of imprisonment of two years.  All of these sentences are to be served concurrently.

[40]     Mr Martin, in respect of the aggravated robbery, I sentence you to a term of imprisonment of seven years and three months.   In relation to each of the five charges of kidnapping, you are sentenced to a term of imprisonment of four years. In relation to each of the charges of threatening to kill, you are sentenced to a term of imprisonment of two years, and in relation to the two charges of conversion, you are sentenced to a term of imprisonment of one year.  Again, these sentences are to be served concurrently.

[41]     The Crown does not seek a minimum term of imprisonment and I do not consider that one is necessary.

[42]     You may both stand down.

Wylie J