R v Young

[2017] NZHC 2890

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 2890

THE QUEEN

v

MIKE JUNIOR AH YOUNG

Counsel:

E M FitzHerbert for Crown

P A C Foster for Defendant

Sentence:

23 November 2017

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Ah Young, you appear for sentencing having pleaded guilty to two charges of aggravated robbery1  and one charge of unlawfully taking a motor vehicle.2   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

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

2      Section 226(1). Maximum penalty of 7 years’ imprisonment.

R v AH YOUNG [2017] NZHC 2890 [23 November 2017]

(4)       explain the sentence that I will impose.

Your offending

Unlawful taking of a motor vehicle

[2]      On 2 September 2015, you stole a green Subaru motor vehicle from outside the

Arlington  apartments  in Wellington.   That  vehicle was  valued  at  approximately

$1,500.   Using the stolen vehicle, you collected Mr Warren and another person at approximately 7.47 pm and drove to the Tairangi Dairy in Porirua.

Aggravated robbery – Tairangi Dairy

[3]      You and Mr Warren entered the dairy while your other co-offender, waited outside in the vehicle outside.   You were wearing balaclavas, bright orange high visibility jackets, dark trousers and gloves in an attempt to conceal your identities.

[4]      You pointed a black pistol at the owner of the dairy’s head and said “Give me the money”.   Before the victim could walk to the cash register, you and your co- offender pulled the cash register off the counter.  The cash register containing approximately $50 was taken. You were driven away in the stolen vehicle.

Aggravated robbery – Clockwork Gold Bar

[5]      At about 11.15 pm on 2 September 2015, you and your co-offenders arrived at the Clockwork Gold Bar in Tawa. Two staff had closed the bar to the public and were about to leave.  One staff member opened the back door and was met by your co- offender Mr Ulutupu, who was holding a black pistol.  He pushed the staff member and said “back inside old man”.   Mr Warren also entered the bar.  The staff were marched to the bar area and your co-offenders asked them to take out their phones. Both staff members were forced to lay down on the floor.  Mr Ulutupu ordered a staff member to open a nearby safe and he was pushed and kicked to the ground. Mr Warren emptied the safe of approximately $42,726.

[6]      Your co-offenders took one of the staff member’s keys, his wallet and two bottles of alcohol from the bar. They left in a stolen grey Ford Falcon. You followed

in the stolen Subaru vehicle.  Police later located inside the vehicles a black imitation firearm, an orange high visibility jacket and a single rubber glove.

[7]      Reparation is sought for the money stolen and the damage to various goods.

Victim impact statements

[8]      Four  victim  impact  statements  have  been  received.    The  first  is  from

Mr Cheung, who is the owner of the Tairangi Dairy. He says he is now nervous when people wearing high visibility vests enter his shop, and that his wife was frightened from the offending.  He says the new till that they purchased has cost $580.

[9]      The second statement is from Mr Hathaway, the owner and operator of the Clockwork Gold Bar.  He says the robbery has had a significant effect on him.  He says the financial stress has been “overwhelming” and that he has had to deal with insurance and installing extra security measures.

[10]     The third statement is from Mr McKay, one of the staff members working the night of the aggravated robbery at the Clockwork Gold Bar.  He said the incident was frightening and describes being pushed hard into a concrete wall by your co-offender, resulting in a bump to his head, a scrape on his ear and broken glasses, costing him about $1,200 to fix.

[11]     The fourth victim impact statement is from the manager of the Clockwork Gold Bar.  He says that being kicked in the ribs was “really painful”, that he was petrified seeing a gun in his face and he says that the phone cost him about $400 and his wallet contained credit cards and about $40.  It was his Ford Falcon car that was stolen.  He has had to undergo counselling due to the stress and anxiety from the aggravated robbery and he is concerned about the safety of the community.

Personal circumstances

[12]     You came to New Zealand at the age of 12 from Samoa.  Your use of alcohol and drugs accelerated when you moved here.  Your counsel, Mr Foster, submits I

should take into account your unfavourable upbringing.  I will come back to that in a few moments.

[13]     You were sentenced in June 2016 to three years’ imprisonment for another instance of aggravated robbery, which occurred after this offending.3  You have a total of nine previous convictions for various forms of unlawful interference with motor vehicles.

Starting point

[14]     Your  offending  involved  two  separate  instances  of  aggravated  robbery. New Zealand society treats aggravated robbery very seriously and each charge carries a maximum penalty of 14 years’ imprisonment.  The leading case is R v Mako,4  in which the Court of Appeal noted that cases involving the range of conduct such as yours will vary, and that in each case there will be features which contribute to, or detract from the seriousness of the conduct.5

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

(1)Planning and premeditation.6  The use of disguises and a stolen vehicle demonstrates there was planning and premeditation involved.

(2)Multiple offenders.7     On both occasions there were three offenders involved with the aggravated robberies either by way of actual participation or in acting as the getaway driver.

(3)Use of disguises.8   You were wearing a balaclava and other clothing in an  attempt  to  conceal  your  identity  and  to  increase  the  level  of

intimidation.

3      The other charges were wilful damage, unlawful taking of a motor vehicle and driving over the breach alcohol limit.

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

5 At [34].

6      Sentencing Act 2002, s 9(1)(i); R v Mako, above n 4, at [36].

7 At [37].

8      R v Mako, above n 4, at [38].

(4)Use of weapons.9   At the robbery of the Tairangi Dairy, you pointed a pistol at the victim’s head.  While no shots were fired and the firearm located was an imitation firearm, the Court in Mako still held that imitation weapons should be regarded as “offensive weapons”.10  I note however there were no serious physical injuries in this case.

(5)Targeted premises.11    You targeted a dairy and a bar, which are commercial premises.   It was a matter of luck rather than good management that no members of the public were present.

(6)      Property stolen.12   The total amount of property stolen was extensive:

the cash register and $50 in cash from the Tairangi dairy, just short of

$43,000, two bottles of alcohol, a Ford Falcon, a phone and a wallet from the Clockwork Gold Bar.   The victims have noted additional expenses as a result of the offending.

(7)Victim impact statements.13   Although, as I have said the victims did not suffer significant physical injury, the emotional and psychological harm they suffered was very profound.

[16]     The two aggravated robberies are the lead charges and in R v Mako, the Court of Appeal explained:14

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 …

[17]     I consider this passage is an apt description of your offending.  I have also referred to comparable authorities,15 such as Anderson v R where the Court of Appeal

9 At [39].

10     R v Mako, above n 4, at [33] and [39].

11 At [40].

12 At [44].

13 At [46].

14 At [54].

15     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.

upheld  a  starting  point  of  seven  years’ imprisonment  for  a  similar  instance  of aggravated robbery of a jewellery store. That case however did not involve an element of actual violence.16

[18]     Under the Sentencing Act 2002, the Court is required to take into account the general desirability of consistency with sentences received by co-offenders who have committed similar offences.17    Your co-offender, Mr Warren, is also being sentenced. With respect to the Clockwork Gold Bar robbery, I held the appropriate starting point in a sentence indication was at least six years in isolation and the robbery of the dairy at least five years in isolation.

[19]     Mr Foster submits you were less culpable in the Clockwork Gold Bar robbery due to being the getaway driver. While the criminal responsibility of a getaway driver is not necessarily less than those who enter the premises,18 I consider your culpability to be slightly less than Mr Warren and Mr Ulutupu in relation to that particular aggravated robbery.19     Your culpability when I assess it in the round leads to a provisional starting point of 10 years and six months’ imprisonment.

Totality

[20]     The unlawful taking of a motor vehicle charge is an aggravating feature of your offending and requires an uplift of six months’ imprisonment.  Taking into account totality principles and the reduced starting point of your co-offender, I have reduced the starting point to seven years and six months’ imprisonment.

[21]     I will then reduce your sentence by nine months in recognition of the three year sentence you are currently serving.  That produces an end starting point of six years

and nine months’ imprisonment.

16     R v Collett, above n 15.

17     Sentencing Act 2002, s 8(e).

18     R v Royal [2009] NZCA 65 at [20].

19     In Tutaki v R [2013] NZCA 411, the Court of Appeal did not interfere with the different starting points for Ms Tutaki and Mr Te Rangi, accepting Ms Tutaki’s lesser involvement in the aggravated robbery.

Adjustments to the starting point

Previous offending

[22]     I think a modest uplift of  three months is appropriate to recognise  your numerous unlawful offences with motor vehicles.

Personal mitigating factors

[23]   Mr Foster submits you should receive a discount for your personal circumstances and your remorse.

[24]     I have read your pre-sentence report.  The writer says the factors contributing to your offending are criminal associates, lifestyle choices, lack of impulse control and a sense of entitlement.  I acknowledge your difficult upbringing.  In saying that, any potential discount for this factor is significantly outweighed by your assessment of having a high likelihood of re-offending and a high risk of harm to others.

[25]     I am however willing to give you a discrete discount for personal mitigating factors, particularly your remorse and willingness to take part in restorative justice, despite that not being able to progress.20   You are sorry for your offending and the victims’ distress, and you want to take responsibility for your offending.  Prison staff have positively commented on your behaviour and you are likely to be able to attend appropriate programmes once your security rating is changed.  I hope you make the most of this opportunity.  A discount of just over seven per cent is appropriate in my assessment.

Guilty plea

[26]     A discount of 20 per cent for a guilty plea is sought.  I am willing to give you a slightly lesser discount than Mr Warren who has already pleaded guilty, and that discount will be around about 17 per cent.

[27]     Can you now please stand.

20     Sentencing Act 2002, s 10.

Result

[28]     The result is a sentence of five years and four months’ imprisonment.

[29]     In relation to the charges of aggravated robbery, you are sentenced to five years and four months’ imprisonment.

[30]     In relation to the one charge of unlawfully taking a motor vehicle, you are sentenced to nine months’ imprisonment.

[31]     Those sentences are concurrent.

D B Collins J

Solicitors:

Crown Solicitor, Wellington