REMUS PETERS AND THE KING

[2024] NZHC 3980

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000587

[2024] NZHC 3980

BETWEEN

REMUS PETERS

Appellant

AND

THE KING

Respondent

Hearing:	2 December 2024
Counsel:	MJ English and KR Borich for Appellant EH Barnes for Respondent
Judgment:	20 December 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 20 December 2024 at 2 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland.

Public Defence Service, Waitākere.

PETERS v R [2024] NZHC 3980 [20 December 2024]

The appeal

[1]                Remus Peters received a sentence of four years and seven months’ imprisonment for serious offending, including two aggravated robberies.1 Mr Peters appeals that sentence. The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The overarching concern is whether the sentence is manifestly excessive rather than the way the sentence is composed.3

Background

[2]                The facts were helpfully  captured  by  Judge  P  J  Sinclair  at  sentencing  (on 27 September 2024):

[3]            The summary of facts are as follows. For the first aggravated robbery, you and Dios Katoa and another unknown person, arrived outside the West Liquor Store in a stolen motor vehicle, on 15 April 2023 at around 8.35 pm. The three of you got out of the car and entered the store. All of you were wearing face coverings, you were wielding a large butcher’s knife. You approached Mr Finau, the shopkeeper who was in the store, pointing the knife towards him, in the vicinity of his face, from approximately one to two metres away and yelled: “Open up the cigs and give me all the money.”

[4]            Dios and the other male followed closely behind you. Customers moved away from the door and into the corner of the store.  You  followed Mr Finau over to the cigarette cabinet, while Ms O’Connor, who was also assisting in the store, opened the cash register. You grabbed a tray containing approximately $2,000 worth of cigarettes from the cabinet and handed it to the third male. Dios took $965 cash from the cash register. You and Dios then took $1,500 worth of alcohol from the alcohol shelf. You all three left in the stolen motor vehicle.

[5]            The second aggravated robbery offending occurred on 12 May 2023 at about 8.15. You and Dios arrived at the commercial address of Vapey’s Vape Store in Henderson, along with a third associate in a stolen car. The three of you went into the store through the main entrance. You pushed four people, Mr Shah, Mr Muneef, Mr Murugarajan and [R], who were customers at the store, into the back office. You were armed with a screwdriver in one hand and vice grips in the other. You shouted at the four people and continued to move them backwards, until they entered a separate kitchen area.

[6]            One of them managed to go upstairs and hide from you, the remaining three complainants attempted to follow him upstairs. However, you shouted at them and threatened them with violence so they returned to the kitchen area. You demanded that they shut the door behind them and stood in the doorway, preventing them from leaving. You remained in the confined kitchen area with

1      R v Peters [2024] NZDC 23806.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

them and demanded they hand over personal property. You demanded [R] give her cellphone to you. When she said she did not have her cellphone on her, you grabbed her buttocks and thighs. She resisted and pushed your arms away, but you continued to grope her.

[7]            Mr Muneef’s phone dropped on the floor at the time, which caught your attention. You picked it up and put it in your pocket. While you were holding the complainants in the kitchen area, Dios and the third male collected a large number of vape products from the shelves, took them outside and put them in the stolen vehicle. They made more than one trip, removing a minimum of 165 boxes of vape products with an estimated value of $15,000. Dios entered the kitchen area with a hammer and raised it in the direction of the three complainants. Both you and Dios ran from the store, you grabbed a number of items from the counter as you left.

[8]            For the possession of instruments for conversion, on 12 March 2023 at about 10.25 pm, you and an associate were on Duncan Avenue, where you were located by police. Police observed you had tools in plain sight. For the unlawful using a motor vehicle charge, sometime between 4 April and 5 April 2023, you stole a Toyota Vitz car from an address on Blacklock Avenue in Henderson. Police ascertained you had taken the car from forensic evidence, including fingerprint evidence recovered from the inside of the car.

[9]            For the unlawfully takes a motor vehicle charge and attempted unlawful taking of a motor vehicle charge, on 11 April 2023 at about 5.45, you were at Swanson Park & Ride in Swanson with three other associates. You were driving a stolen Mazda car. You and your associates approached a blue Toyota Vitz. Your associate smashed the rear quarter window on the passenger side and used tools to remove the ignition barrel and start the car. You attempted to drive the car away but you were unable to do so. You returned to the other stolen vehicle and drove away.

[10]And finally, for the charge of burglary, sometime between 4.15 am and

4.45 am on 14 April 2023, you were at Dollar Savers on Great North Road, Henderson. You drove a moped scooter into the front door, then proceeded to repeatedly kick a locked glass sliding door located on the front of the building, damaging the glass. You climbed through the smashed glass window and entered the building. You took a number of items from behind the shop’s counter and left the building with those items. You re-entered the building a second time, taking further items. The items stolen had a total value of $638. A forensic examination of the damaged sliding door identified you through DNA analysis.

[3]    The Judge adopted a seven-year starting point for the aggravated robberies. She added 10 months for the burglary and another 10 months for all other offending. From the global starting point of eight years and eight months’ imprisonment, the Judge deducted 20 percent for Mr Peters’ guilty pleas; 15 percent in recognition of the “causative nexus” between the offending and his formative experiences and substance use;4 and an additional 10 percent for youth. Mr Peters was 20 years old when he

4      R v Peters, above n 1, at [29].

committed the offences. The Judge added four months because of Mr Peters’ criminal history, and because some of the offending was committed while he was on bail.

[4]    Astute readers will discern this produces a sentence of a little more than five years’ imprisonment, but that is not the sentence the Judge imposed. The sentence is, as observed at the outset, four years and seven months’ imprisonment. What follows, therefore, is with reference to that figure.

A précis of the case for Mr Peters

[5]    On behalf of Mr Peters, Mr English contends the global starting point is “much too high”. Mr English advances two contentions. First, the aggravated robberies should have attracted a starting point of not more than six years’ imprisonment. Second, all remaining offending should  have attracted  an uplift of not  more than  12 months’ imprisonment. While Mr English does not contend the Judge erred in relation to the discounts she afforded Mr Peters, he describes these as parsimonious (my term, not his). Consequently, Mr English contends the sentence is manifestly excessive.

Analysis

The starting point for the aggravated robberies

[6]    The Full Court decision of the Court of Appeal in R v Mako is a convenient entry point.5 In offering sentencing guidance for the offence of aggravated robbery, the Court said this:6

A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

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

6 At [56].

[7]    Mr English accepted each aggravated robbery warranted a starting point of or about five years’ imprisonment, had each stood alone. It follows Mr English’s contention is that a notional starting point of approximately 10 years’ imprisonment should have been ameliorated to six years’ imprisonment on the basis  of  the  totality principle.

[8]    The totality principle conventionally requires the amelioration of an otherwise disproportionately severe starting point to ensure a sentence is not crushing. However, the same principle also requires the sentence to reflect the overall gravity of the offending. That a notional starting point of or about 10 years’ imprisonment should be reduced to six may be thought to give inadequate recognition to this second aspect of the principle.

[9]    This leads to Matkovich v Police,7 on which Mr English placed considerable reliance.8 Reuben Matkovich committed two aggravated robberies and a host of other offending on a single day. Mr Matkovich’s aggravated robberies were not dissimilar to Mr Peters’, albeit they were a little less serious because (a) they involved fewer victims and (b) Mr Matkovich committed all his offending during a one-off spree.

[10]   The sentencing Judge adopted a starting point of five years’ imprisonment for the first aggravated robbery  and  added  14  months  for  the  second.  On  appeal, Mr Matkovich argued the uplift should have been 12 months, not 14. Gault J rejected the argument. His Honour considered the uplift of 14 months “well within range having regard to totality”.9 The balance of Matkovich was directed at points not germane to those here. So, Matkovich does not support a six-year or six-year something starting point.

7      Matkovich v Police [2021] NZHC 1660.

8      Counsel cited various decisions, including Maiko v R [2020] NZHC 2958; Anderson v R [2019] NZCA 294; R v Ah Young [2017] NZHC 2890; R v Redshaw [2022] NZHC 1175; and R v Warren [2017] NZHC 2889. As is so often the position, no case is directly on point.

9      At [20] (emphasis added).

[11]   I return to the second aspect of the totality principle, about which the Full Court in Mako said:10

Multiple offending involving separate incidents, which is all too common, gives the criminality an added dimension which must be accorded full response on totality principles. In this respect, maximum sentences (against which all sentences must be kept in perspective) apply for each offence.

[12]   It follows the Judge did not err in adopting a starting point of seven years’ imprisonment for both aggravated robberies. Indeed, that figure presents as about right given the notional starting point of approximately 10 years’ imprisonment for both (which is not to suggest only one figure was correct, orthodox sentencing law recognises there will be a range of potential legitimate outcomes).

The starting point for the rest of the offending

[13]   Mr English contends Waenga v Police demonstrates the Judge erred in adopting a 10-month starting point for the Dollar Saver burglary.11 Waenga is an unusual case:

[2]     Mr Waenga found himself at 5 am on the main street of Mosgiel. Using a workman’s pickaxe, he smashed the window of a dairy and gained access. He unsuccessfully tried to open a cash register before forcing a cigarette cabinet and taking a packet of cigarettes and a small lighter.

[3]     Mr Waenga then went to a nearby bank. He threw the pickaxe at the front window and entered the premises. After going through various drawers looking for money, he took a phone and exited the building. He used the phone to alert the police and then walked to the local police station to await their arrival.

[4]     Mr Waenga had been released from prison the previous day. His explanation for committing the offences was that he did not have any money or place to sleep and he wanted to be arrested and returned to custody. Inquiries revealed that Mr Waenga had declined to cooperate with the Probation Service and no preparations had been able to be made regarding arrangements for his release.

[14]   Mander J concluded Mr Waenga’s first burglary warranted a starting point of 12 months’ imprisonment and the second an uplift of six “taking into account the

10     R v Mako, above n 5, at [51] (emphasis added).

11     Waenga v Police [2019] NZHC 2922.

principle of totality”.12 But as Ms Barnes for the respondent observes, Mr Peters offending is more serious than Mr Waenga’s:

In the present case, Mr Peters took multiple items from the Dollar Saver and then re-entered the premises for a second time to take additional items. The total value of items stolen in the present case was $638.00, which is significantly higher than in Waenga v Police.

[15]   Another feature is important. Mr Waenga committed the offending to be returned to custody. Unsurprisingly, Mr Peters does not suggest that was his intention in burgling Dollar Saver.

[16]   Mr English also contends the 10-month uplift for the unlawful taking and unlawful use of motorcars was too severe as it is “not uncommon for unlawfully taking or using motor vehicle charges ... to be associated with aggravated robbery charges”. But as Ms Barnes again observes, Mr Peters’ motorcar offending was distinct from his commission of the aggravated robberies and serious in its own right.

[17]   The global uplift of 20 months’ imprisonment was, therefore, not marred by error.

Discounts for personal circumstances

[18]   While Mr English does not contend for error in relation to this aspect of the case, his observation that the deductions for personal circumstances were ungenerous is not correct. The Judge said this:13

[26]   I turn to your personal and mitigating factors. In decisions such as Zhang and Berkland, the Court of Appeal provides guidance on the impact of adverse personal circumstances and addiction, which may be a relevant mitigating factor, where those circumstances are causative of the offending and could make sentences of imprisonment more punitive. I have received a pre-sentence report prepared by probation and also a report that was prepared as part of your Youth Court proceedings in August 2021. The report addresses your personal, family, whānau, community and cultural background and has provided some considerable insight into your offending.

[27]   Some of the incidents and circumstances of your childhood, which you have disclosed to the report writer and the probation officer, clearly had a profound and adverse negative impact and effect on your growing up and

12 At [22].

13     Footnotes omitted.

developing as a young person and developing relationships with people around you. You are now 21 years old, you descend from Ngapuhi, you grew up with your mother and stepfather and four of your 11 siblings in West Auckland. You do not have a relationship with your biological father. Your stepfather had a serious drinking problem and you witnessed him seriously assaulting your mother on a number of occasions and you also witnessed other relatives assaulting family members. You were also subjected to physical violence by your stepfather.

[28]   You experienced several other traumatic incidents in your childhood, including your stepfather taking his own life which had a significant impact on you. However, you have a close relationship with your mother and I am aware that some of your whānau are in court this afternoon supporting you, in relation to this sentence. You and “missing her a lot” during this time in custody. You had minimal education at high school. You started drinking alcohol when you were nine years old and were drinking heavily by the time you were 14 years old. You have smoked cannabis daily since the age of 14. The report writer is of the view you use drugs and alcohol to numb your childhood trauma.

[29]   I am satisfied there is a causative nexus between these childhood and teenage experiences and your use of substances in relation to your offending. You advise you were using drugs at the time of your offending to pay back a drug debt to the Crips Gang. While alcohol and drug use in itself cannot reduce culpability, the causative nexus between your alcohol and drug use, as a result of your adverse childhood experiences can provide a discount in relation to this offending. I consider a discount of 15 per cent for those factors is warranted.

[30]   You state that you wish to address these issues and make better choices. You advise that you applied to Odyssey House and you were accepted in the programme. However, you acknowledge that because you will not be living in the community in the near future, it is likely you will have to deal with this as part of your parole conditions.

[31]   As mentioned, you are now 21 years old, you were 20 at the time of your offending. The Higher Courts have held that age and youth is relevant in sentencing, acknowledging that there are age related neurological differences between young people and adults and young people may be more impulsive than adults. Young people also have a greater capacity for rehabilitation. Given your young age and prospects for rehabilitation, I consider a discount is appropriate. However, that discount must be modest because of your previous engagements both in the Adult and Youth Courts. I allow a discount of 10 per cent for that factor.

[19]   As will be evident, the Judge grappled with Mr Peters personal circumstances. Her discount of 15 percent for Mr Peters “childhood and teenage experiences” in combination with his substance use was fair, as was the Judge’s approach in relation to youth given Mr Peters “previous engagements both in the Adult and Youth Courts”.

Standing back

[20]   The ultimate concern in a sentence appeal is whether the sentence is manifestly excessive. A four-year, seven-month sentence is a substantial one for a 21-year-old. However, Mr Peters committed two aggravated robberies almost four weeks apart; unlawfully took a car, attempted to take another, and unlawfully used a third. He also committed an unrelated burglary and possessed instruments for conversion. In other words, the sentence is commensurate with the gravity of Mr Peters’ offending.

Result

[21]The appeal is dismissed.

[22]I thank counsel for their excellent written and oral submissions.

……………………………..

Downs J