R v White
[2019] NZHC 3101
•26 November 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2017-088-1600
[2019] NZHC 3101
THE QUEEN v
ROCKY WHITE
Hearing: 26 November 2019 Appearances:
K J G Macneil for Crown
J B Wickliffe for Defendant
Sentence:
26 November 2019
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Whangarei
R v ROCKY WHITE [2019] NZHC 3101 [26 November 2019]
Introduction
[1] Rocky White you appear for sentence today having pleaded guilty to a charge of aggravated robbery.1 You have pleaded guilty on the basis of an agreed summary of facts which describes the actions of yourself and three other co-offenders, first planning and then carrying out a robbery of the Warehouse retail store at Dargaville on 28 May 2017. The three other offenders have previously admitted their involvement and they have already been sentenced to terms of imprisonment.
[2] Following you entering your plea of guilty, the Crown sought leave to withdraw the five charges of kidnapping you also faced arising from your involvement in the events at the Dargaville Warehouse that night.2 Leave is granted to the Crown to withdraw those charges.
Background
[3] I shall begin by reviewing what occurred at the Dargaville Warehouse on 28 May 2017, and your role in those events. As I noted, you have pleaded guilty based on an agreed summary of facts. I am required to sentence you on the basis of the contents of that summary. Accordingly the following account of your offending is drawn from that agreed summary.
[4] Between August 2010 and April 2014, you worked at the Warehouse. During your time at the Warehouse you held several roles, including working in the storeroom and on the night-fill shift. Your supervisor on the night-fill shift was Ms Stallworthy who was to be one of the five Warehouse staff who were victims of your offending.
[5] Around January 2017, you and one of your relations, Mr Thomas Nathan, set about planning to commit an aggravated robbery at the Warehouse at Dargaville. As part of that planning, you provided Mr Nathan with a floor plan of the Warehouse.
[6] The plans and preparations for the robbery were put into action several months later on 28 May 2017. At about 8:15 pm that night you were parked in your vehicle
1 Contrary to ss 66 and 235(b) of the Crimes Act 1961: maximum penalty 14 years’ imprisonment.
2 Pursuant to s 146(1) of the Criminal Procedure Act 2011.
outside 157 Victoria Street, Dargaville a short distance along the road from a Warehouse entrance driveway. Your role was to act as a lookout, and you were maintaining communication with Thomas Nathan by phone and text. At 8.44pm you sent a text to Mr Nathan asking him what was happening and several minutes later at 8:47pm you texted him again reporting that a police vehicle had just driven past. Mr Nathan replied asking you to tell him if you saw anything else.
[7] It appears that you were becoming impatient as shortly after that text exchange you told Mr Nathan that you were thinking of leaving as it was all taking too long. Mr Nathan encouraged you to stay put. Then at 9.45pm you sent a text to Mr Nathan saying that you could see a vehicle parked at the Warehouse carpark with its engine idling. In fact, that was the car that Mr Nathan was in and was driving.
[8] Sometime before 11:00 pm, Mr Nathan drove your other two co-offenders, Daniel Cameron and Kaipara Anderson, to Victoria Street and parked just along the road from where you were sitting in your car. Mr Cameron and Mr Anderson then went through a private residential property that you were parked outside, which took them to a fence at the rear of that property and adjacent to the Warehouse premises. The two men were both disguised with balaclavas over their heads and faces and both wore black clothing and shoes. They were wearing latex gloves and Mr Cameron was armed with a cut down .22 calibre rifle.
[9] Once at the fence, they removed two fence palings to gain access into an enclosed fenced area at the rear of the administration area where the Warehouse staff would sit outside to smoke cigarettes. I understand that a crow bar was left at that site. A ranch slider door leading into the administration area had been left unsecured, and the two men entered the building through that ranch slider door. Once inside, Mr Anderson armed himself with a screwdriver and a pair of scissors that he located in an office in the Warehouse. They then made their way to the manager’s office, there using the CCTV monitors to observe the night-fill staff going about their work in the main retail area of the store. During this time they went to where the workers’ lockers were located and each donned a Warehouse branded red vest over their black clothing. Mr Cameron found and took Ms Stallworthy’s cell-phone from her locker.
[10] At 10:44pm Mr Cameron used Ms Stallworthy’s cellphone to ring Mr Nathan on his cell-phone. At that time Mr Nathan was still waiting in his car for Mr Cameron and Mr Anderson to return.
[11] Around 11:00 pm, Ms Stallworthy used the store’s public address system to advise the other four staff working in the Warehouse that it was time for them to take a break. Shortly thereafter, two of the staff, an 18-year woman and a 68-year-old man, entered the administration area where they were immediately confronted by Mr Cameron and Mr Anderson and directed to a toilet area where their hands were bound with an electrical extension cord.
[12] A shortwhile later, Ms Stallworthy and the other two staff, a 41-year-old woman and a 63-year-old woman, also entered the administration area where they too were confronted by Mr Cameron and Mr Anderson. Mr Cameron asked which of them was the shift manager. Ms Stallworthy, who was aged 44, identified herself. The defendants then bound the hands of the other two staff members. Mr Anderson then watched over the four bound staff who were held together in the toilet area, while the armed Mr Cameron demanded that Ms Stallworthy show him where the money on the premises was located. Ms Stallworthy led him to the store’s safe and was directed at gunpoint to open it. Once the safe was opened, Mr Cameron directed Ms Stallworthy to place all the cash from the safe into a bag, together with all the jewellery contained in the safe, some 300 items approximately.
[13] Mr Cameron then bound Ms Stallworthy’s arms and hands with adhesive tape and took her back to the toilet area where she too was bound with electrical cord and all five staff were then bound back-to-back with electrical cord and made to sit on the toilet floor.
[14] Mr Cameron then rifled through the staff’s personal property and in particular Ms Stallworthy’s handbag. Mr Cameron also asked Ms Stallworthy if she wanted him to phone someone to tell them of the robbery so that she and the other staff could be released. Ms Stallworthy responded saying that she simply wanted the two men to leave.
[15] Mr Cameron and Mr Anderson then left, taking with them Ms Stallworthy’s handbag and its contents valued at $800. Shortly before midnight the staff managed to free themselves from their bindings and contacted the Police. None of the Warehouse staff were physically injured, except for minor lacerations to one staff member’s arm resulting from being bound.
[16] The total amount of cash and cheques stolen in the robbery was $27,612. The jewellery taken, comprising approximately 300 items, had a retail value of $242,805.
[17] Mr White when you were interviewed by police you acknowledged you had sent the text messages that night and had been parked outside 157 Victoria Street in Dargaville. You said, however, that you had been parked there for an hour and a half to deal a $20 tinnie of cannabis to an unknown person.
Victim Impact Statements
[18] While the five staff members did not suffer physical injury, apart from the minor physical injury I have just mentioned, it is clear that they were severely traumatised by what happened and how they were treated. The sudden appearance of balaclava clad men in black clothing, one being armed with a cut down rifle which was then used to intimidate and coerce them to cooperate, then being tied up and stood over, and in Ms Stallworthy’s case being forced at gunpoint to open the safe, would have been intensely frightening and traumatising to them.
[19] They have prepared and I have received and read their victim impact statements. I assume that you have been provided with these victim impact statements and you have read them. If you have not, then you should do so. They describe the effects of the robbery and what it has done to them and the enduring effect it has had on their lives. The robbery is described as an ordeal. It has caused some of them to suffer nightmares, sleepless nights, anxiety, to experience flashbacks, and to no longer have any sense of personal safety and security. In one case, one of the staff could not return to work at the Warehouse, such was their level of fear, and they had to quit their job. Others have had counselling. Some find that they cannot go out at night. Any sound, any sudden noise, makes them anxious and uncertain and fearful and their lives have been affected in an enduring and profound way.
[20] Ms Stallworthy, in her victim impact statement, says that you were being trained as a supervisor before you left the Warehouse and you had worked with her, that you had yourself run the night-fill team on her days off work as part of your work training and development. So you well knew how the system worked and what times things would be done and where people would be and how many people would be there. She says that after the robbery you spoke to her several times and asked whether the Police had any leads on who was responsible. You socialised with Warehouse staff after the robbery and even drove Ms Stallworthy home, she says, on one occasion from a work function. She says that when you were later arrested and charged with the robbery she describes having the strongest sense of hurt, betrayal and disgust she has ever experienced.
[21] The effects of the robbery have clearly been profoundly traumatising and enduring on each of those victims and, as I have said, their sense of personal safety and security has been affected and they now live their lives with an ever present sense that something traumatic could happen to them at any time. That is the effect of this offending. So although you were not one of those who entered the Warehouse and treated the staff in that threatening and intimidatory manner, you were nevertheless an essential part of the plan and you obviously carried out your role in the criminal enterprise with the knowledge of what roles the others would be playing, that a firearm was to be taken into the Warehouse premises, and knowing that there would be night- fill staff on duty that night who would be confronted by your balaclava masked co-offenders.
Approach to Sentencing
[22] The offence of aggravated robbery to which you have pleaded guilty carries a maximum sentence of 14 years’ imprisonment. You were not one of the principal offenders in the crime. You acted as a lookout. You nevertheless still bear significant culpability for what happened that night, and it is my responsibility to impose a sentence on you that reflects your culpability.
[23] I shall determine the sentence to be imposed on you as follows. First, I will identify the relevant purposes and principles of sentencing. Second, I will identify the
aggravating and mitigating features of your offending. Third, I will consider other cases and sentences where offenders have been sentenced for similar offending, including in particular your co-offenders. Then, taking all of those matters into account, I will set a starting point. Having determined that starting point, I will then adjust the starting point by taking into consideration any aggravating or mitigating factors personal to you and finally apply a discount in recognition of your guilty plea, and thereby reach the final sentence to be imposed on you.
Purposes and Principles of Sentencing
[24] In sentencing you I shall apply the purposes and principles contained is ss 7 and 8 of the Sentencing Act 2002. The particular sentencing purposes which I shall take into account when sentencing you today are:3
(a)holding you accountable for the harm done to the victims and to the community by your offending;
(b)promoting in you a sense of responsibility for and acknowledgment of that harm;
(c)denouncing the conduct in which you were involved;
(d)deterring both yourself and others from committing the same or similar offences; and
(e)assisting your rehabilitation and reintegration into the community.
[25] The principles of sentencing which I must apply and take into account when sentencing you today are:4
(a)the gravity of your offending including the degree of your respective culpability in relation to your co-offenders; and
3 Sentencing Act 2002, s 7.
4 Section 8.
(b)the seriousness of this type of offending compared with other types of criminal offending;
(c)the general desirability of consistency with appropriate sentencing levels and other sentences imposed on similar offenders committing similar offences in similar circumstances.
[26] I am also required to impose the least restrictive sentencing outcome that is appropriate in the circumstances, and I must also take your personal, family and whanau background into account.
Co-Offenders’ Sentences
[27] Because of the importance of consistency in sentencing, I commence by noting the sentencing starting points that were adopted in respect of each of your co-offenders when they were sentenced. These will inform my sentencing of you today.
[28] Mr Cameron was the first of your co-offenders to be sentenced. He was sentenced by van Bohemen J on 9 October 2018.5 The Judge identified the aggravating features of the offending as being:6
(a)a moderate degree of planning and premeditation, even if it was not well-thought through;
(b)the presence of a lethal weapon, even though the Judge accepted it was unloaded;
(c)the use of threats of violence and intimidation, if not actual violence;
(d)the terrifying and traumatic nature of the immobilising of the staff members;
5 R v Cameron [2018] NZHC 2046.
6 At [31].
(e)the entry of commercial premises where a reasonably high potential gain was likely available, though the premises were entered when the general public was not likely to be present; and
(f)the substantial value of the property that was taken, and which had not been recovered.
[29] Against these features, the Judge identified the seriousness of the offending as mitigated by some degree of empathy shown to the victims by Mr Cameron offering to call someone to ensure the victims would be released promptly.7 Taking these factors into account, and referring to the relevant case law,8 the Judge adopted a starting point of seven years’ imprisonment as appropriate.9 He noted this could be viewed as either a six year starting point for the aggravated robbery, with a one year uplift for the kidnapping charges, or a global starting point of seven years, accounting for the detention of the staff as an aggravating feature of the armed robbery.10
[30] In June of this year, Mr Anderson successfully appealed his sentence to the Court of Appeal. In January 2018, Judge de Ridder had sentenced Mr Anderson to five years, 10 months’ imprisonment, having adopted a starting point of nine years’ imprisonment.11 The Court of Appeal accepted that there was “a gross and irreconcilable discrepancy between the respective starting points”12 which could not be explained in terms of Mr Cameron and Mr Anderson’s respective levels of culpability. Although the Court of Appeal found Mr Cameron to have a more serious role in the offending than Mr Anderson, and that his sentence was “entirely appropriate”,13 it concluded that the proper course was to reduce Mr Anderson’s starting point to seven years, notwithstanding the Court’s view that Mr Anderson’s offending was less serious than Mr Cameron’s.14
7 At [32].
8 At [34] and [35] referring to R v Mako [2000] 2 NZLR 170 (CA); Anderson v R [2014] NZCA 410; R v Marsters [2013] NZHC 1434; Tukaki v R [2013] NZCA 411; R v Tuku-Inamata [2014] NZHC 2654; R v N [2014] NZHC 2236; R v Wellington [2014] NZHC 2993; R v Inamata [2015] NZHC 284; and Martin v R [2016] NZCA 213.
9 At [34].
10 At [34].
11 R v Anderson [2018] NZDC 1305.
12 R v Anderson [2019] NZCA 294 at [40].
13 At [42].
14 At [48].
[31] Mr Nathan was sentenced by Palmer J in November 2018. Palmer J referred to van Bohemen J’s sentencing of Mr Cameron, and agreed with van Bohemen J’s identification of the aggravating features of the offending.15 Evaluating the degree of Mr Nathan’s involvement in the offending, Palmer J considered that Mr Nathan was “an important and willing participant” in the robbery, but accepted that: he had not planned the robbery, did not know about the firearm, or any intention to tie up the victims. While noting that only being a driver or lookout cannot reduce a defendant’s culpability in an aggravated robbery if they were still a full participant,16 Palmer J accepted that these distinctions made Mr Nathan less of a participant in the robbery than were Mr Cameron or Mr Anderson. Accordingly, he considered that an appropriate starting point for Mr Nathan’s role in the offending was five years’ imprisonment.
Statutory Aggravating and Mitigating Features of the Offending
[32] As I have said, the starting points adopted by those other Judges who sentenced your co-offenders informs my sentencing of you today. Nevertheless, I am still required to undertake my own evaluation of your culpability in respect of this offending.
[33] The Crown identifies two of the aggravating features listed in the Sentencing Act 2002 as being engaged. These are the extent of loss and harm caused by the offending,17 and the premeditated nature of the offending.18
[34] I agree with the Crown submission that the offending involved premeditation and planning. You and Mr Nathan began to plan the robbery several months in advance. With your inside knowledge as a former employee you were able to supply a floor plan for the Warehouse premises that assisted Mr Cameron and Mr Anderson to enter the building undetected, and know the layout of the premises, access the administration area when the night-fill staff could be expected to be working in the retail part of the store and be in a location ready to confront and subdue the staff and
15 R v Nathan [2018] NZHC 3111.
16 At [13], referring to R v Mako [2000] 2 NZLR 170 (CA) at [64] and R v Royal [2009] NZCA 65 at [20].
17 Sentencing Act 2002, s 9(1)(d).
18 Section 9(1)(i).
then detain them while forcing the shift manager to open the safe while cash and jewellery was stolen. The allocation of roles in the offending including the positioning of a getaway car, your role as a lookout, the use of balaclavas for masks, the carrying of a weapon to intimidate the Warehouse staff, the wearing of latex gloves to prevent finger-prints being left at the scene, are all aspects of the offending which show a significant amount of pre-planning was involved.
[35] The level of criminality and culpability of those involved is informed by the nature and extent of the planning of the offending which extended over a period of several months prior to the carrying out of the robbery. In my view, the planning involved in this offending places the level of criminality and culpability at a moderately serious level.
[36] As regards the harm caused by the offending, firstly there is the frightening and traumatising effect of the whole experience on the Warehouse staff. I have read their victim impact statements and mentioned them in the course of my earlier remarks. While all robberies necessarily involve some overbearing of the will of a victim,19 it is relevant to consider to what extent the offenders acted in a manner calculated to intimidate and cause fear. The harm done to the staff who were subjected to an armed stand-over and subjected to being tied up and detained is in my view a significant aggravating factor here.
[37] I do not consider that the gravity of the offending is more than marginally reduced, by Mr Cameron’s offer to contact someone so that the staff would be more promptly released. In the overall scheme of the offending, this is only a modest mitigating factor.
[38] As regards the extent of financial loss caused by the offending, I consider this to have been significant. The Warehouse lost cash and cheques to the value of
$27,612, and jewellery with a retail value of $242,805. Most of this cash and property has not been recovered. Added to this is the $800 worth of property stolen from Ms Stallworthy’s handbag. These sums are significant.
19 R v Mako [2000] 2 NZLR 170 (CA).
Case law on sentencing for aggravated robbery
[39] The Court of Appeal, in the case of R v Mako, has provided guidance on sentencing for aggravated robbery.20 The Judges who sentenced your co-offenders referred to this decision and I will do so as well. Mako identifies features of offending of the sort relevant to assessing an offender’s culpability. Some of these features overlap with the statutory features I have just discussed. Where that is the case, I will not double count those features. Rather, I will simply note where they coincide.
[40] The Court of Appeal said in Mako that the criminality in any aggravated robbery offence is to be assessed by reference to the particular combination of features of which it is composed. The Court observed that a starting point of six or perhaps more years’ imprisonment is warranted in cases of aggravated robbery that feature:21
(a)the robbery of commercial premises where members of the public can be expected to be present;
(b)the targeting of substantial sums in tills or a safe by a group;
(c)the use of a lethal weapon; and
(d)the use of disguises and other indications of preparation.
[41] The Court noted that the starting point should increase to eight years where the firearms are loaded, or the danger of harm is increased in other ways, or actual violence is used. Where, even more seriously, a firearm is presented to the police or the offending is a gang operation or otherwise associated with organised crime, a starting point of at least nine years’ is required.
[42] Another pertinent example given by the Court in Mako is the forced entry to premises at night by several offenders seeking money, involving violence against
20 At [46].
21 At [54].
victims, where weapons are brandished but no serious injuries are inflicted, which will require a starting point of seven years or more.22
[43] It was the Court of Appeal’s intention, in offering these examples, to promote consistency in sentencing and to provide sentencing courts with a convenient reference point of appropriate sentencing levels.23 However, the Court also emphasised the need to apply those starting points flexibly to properly reflect the seriousness of the offending in each case, which as I have said, is to be assessed by reference to and regard to the relevant features of the offending.24 The Court of Appeal has recently warned sentencing Judges against adopting an overly mechanical approach in applying guideline judgments.25
Starting point
[44] Having regard to and applying those guidelines I consider that this case falls between the six-year starting point and eight-year starting point examples given in Mako. In my view, the present offending is somewhere towards the lower end of that range. All the characteristics of the six-year starting point example given in Mako are present in this case. A number of these I have already addressed above.
[45] While the Warehouse was entered while it was closed to members of the public, I do not consider that reduces the gravity of the offending. The timing of the robbery was deliberately selected in the knowledge that a number of Warehouse staff would be present working a night shift repacking goods onto shelves. The intention was to confront and subdue the staff and force the shift manager to open the safe. There was always potential for someone to be seriously hurt. So in my view the fact that staff were known by the offenders to be at the premises, means that the present offending was no less serious than the type of offending referred to in Mako of a robbery of commercial premises where members of the public can be expected to be present.
22 At [58].
23 At [60].
24 At [52]-[53] and [60].
25 Orchard v R [2019] NZCA 529.
[46] The Warehouse premises are obviously commercial premises and the defendants were clearly expecting to obtain a large sum of money to be held on the premises and to be taken by them by means of the robbery.
[47] The seriousness of the offending is obviously increased by the fact that a firearm was used to intimidate the staff. The purpose of using a gun during an aggravated robbery is to convey the impression that it is loaded. Nothing before the Court establishes that the gun here was in fact loaded and I am prepared to accept and proceed on the basis that it was unloaded. However the Warehouse staff would not have known that. The fact that the firearm was not loaded and actual violence was not used, distinguishes the offending here from the circumstances described in Mako as justifying an eight year starting point. If these were the only factors of your offending, together with the use of disguise, I would have concluded that this present offending should attract a six year starting point.
[48] It is necessary, however, to take account of two further features of the offending. The first is the fact that the staff were bound together and made to sit on the floor while under armed guard. The degree to which they were rendered helpless is reinforced by the fact that, having refused the offer of a call for help, they took the better part of an hour to free themselves following the departure of the offenders. This feature aggravates the seriousness of the offending as does, to a very minor extent, the minor lacerations suffered by one staff member. In saying this, I bear in mind that you Mr White have not, unlike say Mr Cameron, been convicted of kidnapping, and the Crown has been given leave to withdraw those charges against you. In those circumstances, I consider it appropriate to treat the detention of the staff members, and the use of force and implied threat of violence as informing the degree of harm caused to those staff. That feature, in my view, takes the offending to a level of seriousness justifying a six year, three month starting point.
[49] This is consistent with the range of starting points in other cases identified by van Bohemen J in sentencing Mr Cameron, and the results in the cases noted by the Court of Appeal in reviewing Mr Anderson’s sentence.
[50] The remaining question is whether your individual culpability in relation to this offending is reduced by the fact that you were not a principal offender. Unlike Mr Cameron and Mr Anderson, you did not go into the Warehouse and directly deal with the staff. Your criminal liability for the aggravated robbery comes from you having assisted your co-offenders by providing them with information used to plan and carry out the robbery and also by acting as a lookout.
[51]As Palmer J noted when sentencing Mr Nathan, the Court of Appeal in Mako
emphasised that:26
there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.
[52] The Court has recently reaffirmed that statement of principle.27 The summary of facts on which I am required to sentence you states that you were involved with Mr Nathan in planning this robbery for some months in advance. You made information available concerning the layout and operation of the Warehouse at Dargaville that was of significant assistance to Mr Cameron and Mr Anderson in executing the robbery. The summary of facts is silent as to the extent, if any, of your role in deciding how they would act once they were inside the Warehouse. It appears from the summary you have pleaded to that Mr Nathan was more actively involved on the night of the offending than you were by transporting Mr Cameron and Mr Anderson to and from the Warehouse premises and by communicating with them and with you during the course of the robbery. While you planned and were involved in the planning of the robbery, and were thereby instrumental in it taking place, you do not appear to have been the ringleader or instigator.
[53] Having regard to the summary of facts on which your guilty plea was based and having reviewed all of the sentencing notes related to this offending, it is not however clear who the instigator or ringleader or ringleaders of the offending was or were, and to what extent you were a key participant in the events on the night in question beyond that which I have already mentioned. I note Palmer J’s finding that
26 At [64].
27 Te Ruki v R [2018] NZCA 319.
Mr Nathan had been less than a full participant in the robbery and the Judge accordingly adopted a lower starting point in his case. I also note your comments to Corrections regarding Mr Nathan, who you say had initially asked you to become involved and who you say manipulated you to secure your involvement in the planning of the robbery.
[54] Nonetheless, as I have said, I am required to sentence you on the basis of the agreed summary of facts. That summary does not provide much detail as to the extent of your role beyond you having acted in relation to the initial planning and as a lookout. You have told Corrections that you left Victoria Street, despite Mr Nathan having encouraged you to stay. I am prepared to give you the benefit of the doubt in that respect. However, if you did depart from Victoria Street during the course of the robbery, you did nothing to negate the earlier contributions you had made to your co-offenders’ criminal enterprise and which had already been instrumental in the planning of the robbery and in their ability to execute it.
[55] Overall, in my estimation, I consider your involvement and culpability to be greater than Palmer J considered Mr Nathan’s to have been. You were involved in the planning of the robbery from the outset in your discussions with Mr Nathan. You used your knowledge as a former Warehouse employee to provide a floor plan of the premises and it can be inferred that you provided other information as well. You knew the way into the premises via the rear ranch slider door that was accessed by Mr Cameron and Mr Anderson. You knew that the night shift staff would be working at that hour of the night. You knew how many staff were likely to be there. You knew a shift manager would be on duty. You knew where the intruders should go to get to the administration area where the staff could be observed on CCTV. Taken together the information you had and provided to the two men who entered the premises shows that your contributions to the planning of the robbery was a significant component and feature of the offending. In my view, your level of culpability was much higher than that of being just a lookout, and on the information before the Court, higher than the culpability of Mr Nathan.
[56] I note that your counsel accepts that a slightly higher starting point than that adopted in Mr Nathan’s case is appropriate in your case.
[57] However I consider you to be less culpable and to have been a lesser participant in the robbery than Mr Cameron and Mr Anderson. For these reasons, I shall adopt a starting point of five years, six months’ imprisonment.
Aggravating and mitigating features personal to the offender
[58] The Crown says that an uplift is not necessary to recognise any aggravating features personal to you. The Crown notes that you have a not insignificant number of previous convictions, but all but a few of these relate to traffic offences. The one conviction relevant to your current offending is for burglary. That relates to events in 1994. Due to the age of that conviction, the Crown does not seek any uplift in respect of your previous offending. I agree and consider that approach to be appropriate. Equally, I do not consider that any discount in respect of previous good character can be made in your favour in the circumstances.
[59] I have also considered the pre-sentence report prepared by a Corrections officer. The report’s author appears to have had a generally positive impression of your interaction, saying that you were calm and respectful during your interviews. He notes that many of the risk factors for reoffending commonly seen in those coming before the Courts for sentence are not present in your case. A cause for concern in this context is your occasional use of cannabis and methamphetamine, and your history of drink driving convictions. Nothing in the report, however, associates that behaviour with your involvement in this offending. You are assessed as being of a low risk of reoffending and having a lack of prior violent offending. In general terms, these comments in the pre-sentence report emphasise the importance of the Court bearing in mind the need to provide for your rehabilitation and reintegration into the community in imposing sentence upon you today.
[60] On the other hand, the report writer expresses concerns that you appear to be minimising your involvement in the offending. You have said that you did not receive any benefit from the offending and were manipulated into it by Mr Nathan. You say that you were “manipulated into doing it” through whānau relationships, and now accept that this was a “bad choice” that you made. In other words, you admit your involvement in the robbery, and identify it as having been a bad business to be caught
up in. However, you have continued to minimise your responsibility for what happened, and I am unable to find any indication in the material before the Court of you showing any real insight into your offending. You regret the effect of your offending on your family but you have not expressed any regret in a sincere and meaningful way for the effect of your offending upon the victims. The report writer said that you appeared in your interview, to be confused as to why you became involved. You are also said to have not displayed any appreciation of the harm and distress caused to the staff victimised by the robbery. This lack of insight increases your risk of your reoffending in the future, and precludes the Court giving you any discount in recognition of remorse.
[61] For these reasons, I do not consider that any adjustment in respect of the five year, six months’ starting point I have just identified is required.
Guilty plea discount
[62] Finally, I must consider what discount is appropriate to reflect you having entered a plea of guilty. In the case of Hessell v R, the Supreme Court discussed discounts of this sort.28 The Court said that the appropriate level of guilty plea discount in any case is to be determined by reference to:29
(a)the degree to which the plea of guilty facilitates the administration of the […] criminal justice system; and
(b)the objective circumstances in which the plea of guilty was made, including whether the offender pled guilty at the first reasonable opportunity to do so […]
[63] The Court emphasised the importance of evaluating these two factors in conjunction, so that perverse incentives or arbitrary windfalls do not result.30 Significantly, remorse, or the lack thereof, is an entirely separate sentencing factor.31 Guilty pleas, as the Court recognised, can be prompted by several considerations. The
28 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
29 At [57].
30 At [60].
31 At [57] and [63]-[64].
discount that they should appropriately attract depends on all the circumstances of the case. Particularly relevant in the present context is the Court’s observation that:32
Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit.
[64] Based on these observations, the Crown submits that no more than a ten percent discount should be available in respect of your guilty plea. This is because, by pleading guilty to the aggravated robbery, you have avoided prosecution for kidnapping, and thus do not face the additional penalty that a conviction would have produced. The Crown says that in these circumstances to give you a greater discount would confer a double benefit upon you.
[65] Your counsel has said that a 20 percent discount for your guilty plea should be applied.
[66] I do not consider that the Crown’s concerns regarding double benefit are particularly pressing in the present case. I have uplifted the starting point I would have otherwise adopted in respect of the aggravated robbery, because the staff were detained as part of the robbery. Their detention was an aggravating feature of the offending to which you have pleaded guilty. The concern that you will escape all liability in respect of that particularly grave aspect of the offending is therefore not engaged.
[67] Accordingly, I do not feel constrained to afford you such a modest discount in respect of your guilty plea as the Crown suggests I should. Nevertheless, your plea was only entered this month, a week before your trial was scheduled to commence, when the charges had been before the Court since August 2017. The lateness of your plea, particularly given the strength of the Crown case, reduces the discount available to you. Nevertheless your plea has still facilitated the administration of the criminal justice system by avoiding the costs of a trial and the inconvenience and distress to witnesses that a trial can cause.
32 At [62].
[68] Bearing these factors in mind, together with the Supreme Court’s guidance and observations in Hessell, I consider that, in the present circumstances, a discount of 20 per cent in respect of your guilty plea is appropriate.
[69] Applying that discount results in an end sentence of four years, five months’ imprisonment.
Reparations
[70] One final matter before I pass sentence upon you. The Crown seeks an additional sentence of reparation in respect of the loss of property this offending has caused to the Warehouse and Ms Stallworthy. This would be in your case a sum of
$16,738.37. This is the equivalent of one quarter of the amount of cash and cheques stolen from the Warehouse, one quarter of the cost price to the Warehouse of the stolen jewellery, and one quarter of the value of Ms Stallworthy’s handbag and its contents.
[71] Each of the Judges who sentenced your co-offenders appear to have been of the view that there is no realistic prospect of you repaying the $16,538.37 of that amount; at least not without causing you and your family considerable and undue hardship.33 I share the view of those Judges. You are therefore ordered to pay reparation in the sum of $200.00 in respect of the loss caused to Ms Stallworthy.
Sentence
[72]Mr White, would you stand.
[73] On the charge of aggravated robbery, I sentence you to four years and five months’ imprisonment.
[74]You may stand down.
Paul Davison J
33 See Sentencing Act 2002, s 12(1).
0
15
0