R v Wilson HC Hamilton CRI-2011-419-000010

[2011] NZHC 1978

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000010

THE QUEEN

v

JAMES KOTI WILSON

MATHEW JAMES EMILLE GEORGE RAHARAHA

Hearing:         29 August - 7 September 2011

Counsel:         L Dunn and J M O'Sullivan for the Crown

M Robb for the Accused Wilson
G Boot for the Accused Raharaha

Judgment:      9 December 2011

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Hamilton

M Robb, Hamilton

Gavin Boot Law, PO Box 19043, Hamilton

R V WILSON & RAHARAHA HC HAM CRI-2011-419-000010 9 December 2011

[1]      James Koti Wilson and Mathew James Emille George Raharaha were found guilty following trial of one count of unlawfully taking a motor vehicle and one count of aggravated robbery in relation to a robbery at the Post Shop and Kiwibank Chartwell branch on 5 December 2009.  Unlawfully taking a motor vehicle carries a maximum penalty of 7 years imprisonment while aggravated robbery carries a maximum penalty of 14 years imprisonment.

[2]      Mr  Wilson  and  Mr  Raharaha  together  with  a  co-offender  Robbie  Hemi Pakinga made plans to rob the Chartwell branch of the Post Shop and Kiwibank. They drove past the premises noting the location, parking area and points of access. They also went to Donny Park in Hamilton to determine the best location to dump a getaway car.

[3]      At some stage on the afternoon or evening of Friday 4 December 2009, the offenders went to the Hillcrest Warehouse car park, stole a car and hid it away overnight.

[4]      At approximately 10:15 am on 5 December 2009, the three offenders took the stolen car and drove it to the Westfield Shopping Centre parking near to the Post Shop and Kiwibank.

[5]      Mr Pakinga remained in the car while Mr Wilson and Mr Raharaha entered the Post Shop and Kiwibank premises wearing dark coloured clothing.  Their faces were  concealed.    Mr  Wilson  was  in  possession  of  a  cut  down  single  barrelled firearm.

[6]      Upon entering the bank, Mr Wilson and Mr Raharaha began yelling at the 11 customers and 4 staff inside the bank and pointed the firearm directly at customers. Plastic shopping bags were given to the tellers by Mr Raharaha, who demanded money. The tellers emptied their tills into the bags provided.

[7]      The  time  spent  inside  the  Post  Shop  and  Kiwibank  by  Mr  Wilson  and Mr Raharaha was a period of approximately one minute.  They then left and ran to the waiting car which was driven by Mr Pakinga to Donny Park.   The car was

abandoned in the park and the offenders fled on foot to another car nearby driven by an associate.   The three offenders then drove to Huntly and spent the night at a motel.

[8]      The stolen money was shared out amongst the co-offenders.  The total sum stolen was approximately $7,181.90 cash.

[9]      Mr Pakinga admitted being involved in the aggravated robbery and stated that he and Mr Wilson were responsible for the unlawful taking of the getaway car.  He admitted he was driver of the getaway car and told Police that it was Mr Wilson and Mr Raharaha who had entered the bank and committed the robbery.  Mr Wilson and Mr Raharaha denied the offending.

[10]     In addition, Mr Wilson has pleaded guilty to two further counts of unlawfully taking a motor vehicle and two further counts of aggravated robbery.  These are in relation to two other aggravated robberies of the Happy Days Bar and Restaurant in Manurewa  on  14  December  2009,  and  the  Trident  Tavern  in  Onehunga  on

26 January 2010.

[11]     During each robbery stolen cars were again used with getaway drivers.  A number  of  offenders  entered  each  premises  and  firearms  were  used.    On  each occasion there were several patrons present who were held at gunpoint and ordered to get on the ground.

[12]     According  to  the  Crown,  in  the  robbery  of  the  Happy  Days  Bar  and Restaurant in Manurewa, Mr Wilson was again masked.  He wore a dark coloured Puma t-shirt and was armed with a shortened firearm.   Mr Wilson presented the firearm at the restaurant manager who was working behind the bar, which she had just opened along with the gaming lounge.  Mr Wilson presented the firearm at the manager and demanded money.   The total sum stolen was approximately $3,000 cash.

[13]     In an interview with the pre-sentence report writer, Mr Wilson said he did not remember many of the details relating to the aggravated robberies but said he was just the driver in the Happy Days robbery and did not enter the bar and restaurant.

[14]     In his submissions today, on his behalf, Mr Robb refers to evidence from the undercover police officer given in this trial which does suggest that he was the getaway driver rather than the one who entered the premises.

[15]     For the purposes of this sentencing, however, it matters little whether he was the getaway driver or the person who entered the bar and restaurant.

[16]     As far as the robbery of the Trident Tavern in Onehunga was concerned, Mr Wilson was one of three offenders who entered the tavern.  Mr Wilson again had a firearm.   The offenders yelled at everyone to get on the floor and stay down demanding to know where the money was.   The offenders then proceeded to take cash from the three tills in the premises.

[17]     While one offender was taking the cash from the TAB till, Mr Wilson held a gun at the bar manager telling her to stay down.  Once the cash had been taken from the TAB till Mr Wilson demanded that the manager open the bar till.  She complied. Mr Wilson then turned to the gaming till, once again demanding that the manager open it.  Mr Wilson pointed the gun at the manager throughout.

[18]     A number of customers were also present at the time, one of whom recalls being told to get down “or I‟ll blow your fucking head off”.  The total sum stolen was approximately $3,675.00 in cash.

[19]     The  Crown  has  provided  victim  impact  statements  from  the  following victims:

(a)       Margaret   Tauranga    (former    customer    service    representative   at

Kiwibank, Chartwell);

(b)      Rana Tauranga (Margaret‟s husband of 47 years);

(c)       Shane Mulcahy (owner of stolen car used in Happy Days robbery); (d)         Marlene Kingi (Restaurant manager at Happy Days);

(e)       Allen Gyde (owner of stolen car used in Trident Tavern robbery); (f) Neang Mao (co-owner of Trident Tavern);

(g)      Faaea Purcell (Bar Manager at Trident Tavern).

Purposes and principles of sentencing

[20]     In  deciding  what  sentence  should  be  imposed  the  Court  must  take  into account  established  sentencing  principles.1    These  include  the  gravity  of  the offending and the degree of culpability.  The sentence imposed must be consistent in kind and in length with those imposed on others who have offended in a similar way. The Court must also look to ways to assist offenders‟ rehabilitation and reintegration into the community.

[21]     The  sentencing  approach  involves  setting  a  „starting point‟ sentence  that reflects  the  culpability  of  the  offending  itself;  then  adjusting  that  provisional sentence for personal factors; finally, adopting a discount for guilty pleas (where relevant).2

Raharaha:  culpability of offending

[22]     R v Mako3  is the tariff case for the lead offence of aggravated robbery.  At

[36]–[51] the Court of Appeal listed a number of factors relevant to assessing the seriousness of the offending.

1      Sentencing Act 2002, ss 7 and 8.

2      R v Clifford [2011] NZCA 360 at [60].

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

[23]     The following aggravating factors identified in Mako were present in the

Chartwell robbery:

(a)      The degree of planning and preparation was reasonably high.  The day before the robbery the offenders scoped out the target and their escape route.   They stole and stashed a car to use as a getaway car.   They assigned and performed specific roles in the robbery.

(b)The   number   of   participants   and   their   deployment   reflected sophistication  and  increased  the  degree  of  intimidation  and  fear. There were three offenders with Mr Pakinga the driver, Mr Wilson crowd control with the gun while Mr Raharaha gathered the money.

(c)      Disguises were worn by Mr Wilson and Mr Raharaha.   They wore dark  clothing,  including  gloves  and  garments  partially  concealing their faces.   This allowed for concealment of their identity and facilitated flight.

(d)A sawn-off single barrel firearm was wielded by Mr Wilson.   The evidence suggests it was loaded.  Whether it was loaded or unloaded does not matter much as the offenders still intended to convince victims that the weapon was loaded which created the potential for fear and/or dangerous reactions on the part of victims.

(e)      The targeted premises were a Post Shop and Kiwibank where the potential gain was high.

(f)      There were 11 customers and 4 staff present, which increased the risk of injury and/or psychological distress.

(g)Although there was no actual violence, Mr Wilson pointed the firearm directly at customers repeatedly telling them to get on the floor and threatening to kill them.  He was extremely aggressive.

(h)The sum of $7,181.90 was stolen from the Post Shop and Kiwibank, which is a substantial sum of money.

(i)There was associated offending inasmuch as a car was stolen for use as a getaway vehicle.

(j)The effect on the victims was enormous.   Their continuing distress was obvious when they gave evidence.  The ongoing emotional and financial burden is described in the victim impact statements.

[24]     In Mako, the Court set out broad bands of offending, based on combinations of the features above, which should be applied flexibly “to inform the assessment the sentencer is required to make” (at [60]). The relevant bands are:

(a)      Very serious armed robberies or where a private home is entered - a starting point of 10 years.

(b)Loaded firearm, danger increased in other ways, or actual violence – a starting point of 8+ years.

(c)      Forced entry of premises at night, multiple offenders, seeking money or drugs or property, violence against victims, weapons brandished (even if no serious injuries) – a starting point of 7 – 10 years.

(d)Group robbery of commercial premises,  expected public presence, lethal weapon, disguises indicating preparation, substantial sums of money targeted – a starting point of 6+ years.

(e)      Robbery of small retail shop by one person (however there may be outside assistance), whose face is covered, demanding money under threat of use of weapon, for example, knife, after making sure that no customers are present, no actual violence, small sum of money taken but shopkeeper is assaulted or there are multiple offenders or more than small amount of money/property is taken – a starting point of 4 –

6 years.

(f)      Street robbery for small amounts without actual violence – a starting point of 1 and a half - 3 years.

[25]     The indicated starting points should be used flexibly.

Starting point

[26]     This  offending  falls  within  the  Mako  category  of  group  robbery  of commercial premises where a loaded firearm is used.  It attracts a starting point of at least eight years imprisonment.

[27]     The co-offender in this robbery, Mr Pakinga, who was the getaway driver, was sentenced for aggravated robbery on 1 October 2010 by Heath J.  A starting point of 8 and a half years imprisonment was adopted (increased by 1 year in light of his previous convictions).

[28]     Co-offenders should be sentenced consistently.  In general, those who plan to commit a crime together should not be treated differently based on the different roles

they are assigned, unless the offender(s) are “truly less than full participants”.4   The

Court of Appeal expanded upon this principle in R v Kohey, stating:5

[20] Whilst it is vital for a sentencing court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offenders culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[29]     In  this  case,  it  appears  that  the  three  offenders  acted  as  a  group  when planning and carrying out the robbery.  On the charge of aggravated robbery of the Chartwell Post Shop and Kiwibank, I therefore adopt the same starting point as adopted by Heath J, namely 8 and a half years imprisonment.

[30]     Although ordinarily an uplift might be appropriate to take into account the additional charge of unlawfully taking a motor vehicle, in this case I do not consider an uplift is appropriate.  That is because the end sentence needs to be consistent with other co-offenders (discussed below) and the context of the starting point adopted by Heath J when sentencing Mr Pakinga would have taken into account the fact that a stolen car was used in the robbery.

Raharaha:  personal factors

[31]     Mr Raharaha has 36 previous convictions, including three assaults in 2009, possession of an offensive weapon and threatening with a firearm in 2005, theft, burglary and unlawfully taking a motor vehicle in 2003, injuring with intent to injure and unlawfully taking a motor vehicle in 2002, and two counts of burglary in 2001. This offending was also committed while he was on bail for the assaults in 2009.  I therefore adopt an uplift of 9 months imprisonment, Heath J imposed an uplift of 12 months imprisonment on Mr Pakinga, although the specific nature of his previous

convictions is not known.

4      R v Mako at [64].

5      R v Kohey (2003) 20 CRNZ 62 (CA) at [20].

[32]     Mr Raharaha continues to deny his role in the offending and did not wish to speak to the pre-sentence report writer about it.  He is assessed as at a high risk of reoffending.   I do not consider that there are any mitigating factors personal to Mr Raharaha that would warrant a reduction in sentence.

Minimum period of imprisonment

[33]     Section  86  of the Sentencing Act  governs the  imposition  of a minimum period of imprisonment.6  A minimum period of imprisonment may be imposed if the Court is satisfied that the normal one third7 non-parole period would be insufficient for all or any of the following purposes:8

(a)       holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved:

(c)       deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

[34]     I must consider first whether the default non-parole period of one third will satisfy the s 86(2)(a)–(d) criteria.   If not, I must consider how long the minimum period should be, and impose a sentence that would satisfy these principles.9

[35]    The central consideration is the offender‟s level of culpability, which is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.10     The sentencing

considerations in ss 7, 8 or 9, including the circumstances of the offender, are all

6      A MPI may not exceed the lesser of two-thirds of the sentence or 10 years: s 86(4).

7      Parole Act 2002, 84(1).

8      Sentencing Act 2002, s 86(2).

9      R v Brown [2002] 3 NZLR 670 (CA) at [35]; R v Taueki [2005] 3 NZLR 372 (CA) at [53]–[56].

10     R v Brown at [32].

relevant in fixing a minimum period of imprisonment to the extent that they relate to the purposes set out in s 86(2).11

[36]     The consideration of the offending should not be constrained by the particular charge and should not be considered in isolation from its context. The conduct of the accused both before and after the offence can be taken into account.12    If there is multiple offending, even if each offence on its own is not sufficiently serious to warrant  a  minimum  term,  the  totality  of  the  offending  may  take  it  over  the threshold.13

[37]     A minimum period of imprisonment may be imposed even where the case does not disclose any unusual or abnormal features for offending of the kind in question, although this may well remain relevant to the overall assessment required under s 86(2).14

[38]     The length of the minimum period of imprisonment will ordinarily fall short of the maximum two thirds of the finite sentence,15 although there is no presumption against the imposition of the two thirds maximum.16

[39]   Mr Raharaha, I therefore sentence you, Mr Raharaha, to the following concurrent sentences:

(a)       On the charge of aggravated robbery, you are sentenced to a period of imprisonment of 9 years 3 months;

(b)On the charge of unlawfully taking a motor vehicle, you are sentenced to  a  term  of  imprisonment  of  1  year,  which  is  to  be  served

concurrently with the sentence of aggravated robbery.

11     R v Nguyen [2009] NZCA 239 at [34]; R v Gordon [2009] NZCA 145 at [46].

12     R v Martin CA358/03, 1 March 2004 at [27]–[28].

13     R v Orchard CA123/03, 24 October 2003.

14     R v Wirangi [2007] NZCA 25 at [17].

15     R v Gordon at [48].

16     R v Wang [2009] NZCA 118 at [14].

[40]     However, I do not consider that the imposition of a minimum period of imprisonment is appropriate in your case, mainly because you are for sentence only on one charge of aggravated robbery.

Wilson:  culpability of offending

[41]     As far as Mr Wilson is concerned, on the charge of aggravated robbery of the Chartwell Post Shop and Kiwibank, I adopt the same starting point for Mr Wilson as his co-offenders: 8 and a half years imprisonment.

[42]     Mr  Wilson  has  however  also  pleaded  guilty  to  two  further  counts  of unlawfully taking a motor vehicle and two counts of aggravated robbery.  These are in relation to two other group aggravated robberies of the Happy Days Bar and Restaurant in Manurewa on 14 December 2009, and the Trident Tavern in Onehunga on 26 January 2010.

[43]     The robberies followed a very similar pattern to the Chartwell robbery.   In both, a vehicle was stolen within one day of the planned robbery to use as a getaway car.  The robberies occurred in daytime while patrons were present.  Patrons were held at gunpoint and ordered to the ground.   The premises targeted had pokie machines and the offenders demanded that the staff hand over the contents of the safes.   The offenders escaped to a waiting getaway car, abandoned it shortly afterwards, and then shared out the stolen money.

[44]     The offenders obtained approximately $3,000 in cash from the Happy Days robbery and $3,675 from the Trident Tavern.

Co-offender

[45]     On 17 March 2011, Judge Winter sentenced Mr Wilson‟s co-offender, Tawhai Theo Peeke, in the Manukau District Court on four counts of aggravated robbery, two counts of unlawfully taking a motor vehicle, and one count of unlawfully getting

into  a motor vehicle.17     These charges  were in  relation  to  Mr  Peeke being the ringleader of a group that robbed the Bellbird Tavern in Manurewa, the Hunters Inn and the TAB in Papatoetoe, and the Trident Tavern in Onehunga.

[46]     Judge Winter adopted a starting point of 9 years imprisonment to reflect the totality of the offending.  After taking into account personal mitigating factors, he reached an end sentence of 7 years imprisonment (concurrent) on the aggravated robberies and 1 year imprisonment (concurrent) on the vehicle offences.

Starting point

[47]     The Chartwell robbery is the lead charge and that attracts a starting point of

8 and a half years imprisonment.  I agree with the Crown that the two other robberies involved equally serious offending and could, individually, attract the same starting point.  The proper approach is to sentence concurrently on all charges and increase the lead charge to reflect the totality of the offending.

[48]     The  Crown  recommends  an  uplift  on  the  lead  charge  of  4–5  years imprisonment, resulting in a total starting point of 12 and a half – 13 and a half years imprisonment.  The Crown relies on the Court of Appeal‟s decision in Wilson v R.18

That case involved sentencing on two separate planned robberies, one of a Chubb security depot and the other of a Westpac branch.19  The aggravating factors included “the degree of planning and preparation, the size of the team, use of disguises, the nature of the target premises and the potential for gain, the vulnerability of the victims, the presence of threats and intimidation, the absence of recovery of the proceeds,  the  associated  offending  such  as  vehicle  conversion  and  the  fact  of

multiple offending”.20   The Court of Appeal commented that the global starting point

17     R  v  Peeke  DC Manukau CRI-2010-092-1269, 17  March 2011, Judge Winter.   A sentence indication was given on 25 November 2010.

18     Wilson v R [2010] NZCA 17.

19     The offences for which the appellant was convicted were three counts of aggravated robbery, attempted aggravated robbery, theft of a motor vehicle, conversion of a motor vehicle, and theft of registration plates.

20     R v Wilson HC Napier CRI-2008-041-1326, 31 July 2009, Dobson J at [12].

of 9  years imprisonment,  adopted by the High  Court Judge,  “could  be seen  as lenient”:21

Given the existence of a number of the features identified as aggravating in R v Mako, a starting point of up to 12 years could have been sustained in the case of the appellant.

[49]     Wilson v R is a relatively recent case and bears some factual similarity to the present offending.  It might suggest that Mr Peeke‟s sentence was too lenient, given that Mr Peeke was involved in four serious aggravated robberies.  If that is the case, then, while acknowledging the importance of parity with co-offenders, the flipside is that an inadequate sentence cannot justify additional inadequate sentences, and disparity should not, in itself, produce an unjustifiable sentence.22

[50]     In this case a substantial uplift is necessary in respect of totality.  However, in my view the Crown‟s recommendation is too high and would result in unjustified disparity with co-offenders.  I therefore adopt an uplift of 3 years imprisonment on the lead charge.   This takes into account Mr Wilson‟s guilty pleas on the further charges.

[51]     That results in a global starting point of 11 and a half years imprisonment for

Mr Wilson.

Wilson:  personal factors

[52]     Mr Wilson has 7 previous convictions for which he received non-custodial sentences.   Given that none involved theft or violence, I do not consider a further uplift is warranted.

[53]     Mr Wilson continues to deny any involvement in the robbery of the Chartwell Post Shop and Kiwibank although he claims he is remorseful for the two robberies of the Happy Days Bar and Restaurant and the Trident Tavern.  He is assessed as at a high  risk  of  reoffending,  having  demonstrated  a  serious  escalation  in  offending

behaviour.

21 At [11].

22     R v Feterika [2008] NZCA 127 at [47], leave to appeal dismissed in [2008] NZSC 67.

[54]     I have, however, today been provided with a large number of letters which Mr Wilson has written personally to the victims of his offences.   I have also been provided with a letter addressed to me personally in which Mr Wilson does express extreme remorse.  He recognises that he will be sentenced for a long period of time and recognises the effect that that will have on his family.

[55]     Given  that  indication  of  remorse,  I  consider  that  I  am  able  to  afford

Mr Wilson some consideration for this and I will therefore give him a reduction of

6 months imprisonment for the remorse shown.

[56]     He is entitled to a discount for his late guilty pleas on the Happy Days and Trident  Tavern  robberies,  although  not  on  the  Chartwell  robbery.    The  Crown submits that a discount of 5% is appropriate.23

[57]     I have no  information  about the reasons for the delay in  entering pleas. Because the discount applies only to the later offences, and not to the Chartwell robbery, I have dealt with it by factoring the guilty pleas into the uplift on the starting point; (that is, the 3 year uplift on the starting point would have been higher but for the guilty pleas).

[58]     Therefore, from the global starting point of 11 and a half years imprisonment for Mr Wilson, I have given him a 6 month discount for remorse.

[59]     Mr Wilson, I therefore sentence you to the following (concurrent) sentences:

(a)       On the lead offence of aggravated robbery of the Chartwell Post Shop and  Kiwibank,  you  are  sentenced  to  a  term  of  imprisonment  of

11 years;

(b)      On the two other aggravated robberies of the Happy Days Bar and

Restaurant and the Trident Tavern, you are sentenced to concurrent sentences of 8 years 6 months imprisonment;

23     Crown subs at [8.2].

(c)       On the three charges of unlawfully taking a motor vehicle, you are sentenced to a term of imprisonment of 1 year.

[60]     In  your  case  I  consider  that  the  imposition  of  a  minimum  period  of imprisonment is appropriate.  You were actively involved in a spree of aggravated robberies over a period of weeks in Hamilton and Auckland in which you wielded a firearm.   The pre-sentence report writer also assesses  you at a high risk of re- offending.  Accordingly, I direct that you serve a minimum period of imprisonment of 50% being 5 years 6 months imprisonment on the lead offence of aggravated robbery.

ADDENDUM

[61]     After  delivering  the  above  sentencing  remarks  it  has  been  drawn  to  my attention that Mr Wilson and Mr Raharaha were convicted only of one count of aggravated robbery in relation to the Chartwell robbery and not of unlawfully taking a motor vehicle as well.  The concurrent sentences imposed by me in respect of the unlawfully taking of a motor vehicle in connection with the Chartwell robbery are therefore void. The warrants of imprisonment I subsequently signed are correct.

……………………………….

Woolford J