R v Nathan [2017] NZHC 806

R v Nathan [2017] NZHC 806 [27 April 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-029-351[2017] NZHC 806THE QUEENvMARK NATHANHearing: 27 April 2017Appearances: NJ Dore for CrownN Town for DefendantSentence: 27 April 2017SENTENCING NOTES OF TOOGOOD J[1] Mark Nathan, you appear for sentence on two charges of aggravated robbery, having pleaded guilty after you received a sentence indication on 16 March 2017.First strike warning[2] Given aggravated robbery is a qualifying offence under s 86A of the Sentencing Act, you are now subject to what is known as the "three strikes regime".I must warn you, therefore, that if you are convicted of further serious violent offences, excluding murder, you will be required to serve the full sentence of imprisonment you receive without parole or early release.[3] If you are convicted of murder after this warning, you will receive a life sentence of imprisonment without parole unless that would be manifestly unjust. You will be given that warning in a written notice which will be fuller than this brief description and Ms Town will explain that to you.Sentencing approach[4] In approaching the determination of the sentence to be imposed, I will set out first the circumstances of your offending and the effect on your two victims. Then I will address the part you played in the offending and set an initial sentence starting point appropriate to your culpability or blameworthiness; that is, to the extent to which you personally are considered to have been guilty of the offending. I will then make such adjustments to the sentence as are appropriate to reflect relevant factors which are personal to you before imposing the end sentence which I have determined you should receive.[5] As you know, I sentenced one of your co-offenders, Mr Williams, yesterday, and you will also know that I do not propose to treat you both in the same way. That is because you were involved in the offending in very different ways; Mr Williams is older than you; unlike Mr Williams, you have no relevant criminal history, and you have shown insight into your role in this offending and expressed, what I accept as, genuine remorse.The circumstances of the offending[6] At around 4.00 am on Friday, 25 March 2016, you arrived with companions at a public carpark situated on the foreshore at Ahipara. The three of you who were proved to be involved in the offending got out of your vehicle and approached a parked campervan in which the male and female occupants were spending the night. They were overseas tourists.[7] All three of you began to rock the van violently almost to the point of tipping it over. The victims, who were alarmed, opened the sliding door of the van to see what was happening and the 29 year old male victim yelled out, asking what was going on. He was immediately punched in the face with a closed fist, a blow which caused a cut to his chin which later required stitches.[8] Money was demanded and when the victims denied they had any, the male victim was punched to the ground with multiple blows to the head by more than one of you. Once he was on the ground he was kicked a number of times. The 30 year old female victim put up no resistance at all but she was punched in the face twice, causing her to fall to the ground and bleed heavily from the nose.[9] There were continued demands for money. When none was forthcoming, one of the offenders opened the sliding door of the van and removed a plastic storage drawer containing grocery and food items. That drawer was placed in your vehicle.[10] Although the victims called out for help they were not heard in that remote location. The female victim managed to run away from the scene towards a house approximately 50 to 100 metres away, where she raised the alarm with the occupants. The male also managed to escape and you and your associates returned to your vehicle and drove off.[11] Both victims were admitted to hospital for treatment. The male victim suffered a fractured rib and serious bruising to his face, chin and torso as well as the cut to the chin. The female victim suffered serious bruising to her face and a blackeye. It is fortunate that despite the attacks being to the heads of your victims, neither of them has suffered long-lasting effects.[12] The female victim says she was terrified and shocked by the attack on her partner and her. The male victim, who was also frightened, was unable to work for a period because of the pain from his injuries. They observe, justifiably, that you arean embarrassment to yourself, your culture and your country. To that I add, "and to your family", and I understand you appreciate that.Culpability and initial starting point[13] For the Crown, Ms Dore has submitted that a starting point which reflects the seriousness of your offending would be one of around four-and-a-half years' imprisonment. She draws parallels between this case and the example given by the Court of Appeal in the guideline judgment of attacks on taxi-drivers. 1 The aggravating features, which suggest some similarity with that type of offending, are:(a) there were three of you involved in the attack;(b) the offending was at night;(c) the victims were in a vehicle in which they were living at the time;(d) the time of night, the relative isolation and the element of surprise meant the victims were vulnerable to a degree;(e) although there was no weapon involved, actual physical violence was used; and(f) while the injuries were not life-threatening, both victims were attacked to the head and the male victim was struck and kicked repeatedly to the extent that he suffered a fractured rib.1 R v Mako [2000] 2 NZLR 170 (CA) at [57].[14] Bearing in mind the requirement for consistency in sentencing, I agree with counsel that there are useful parallels in another case involving the violent robbery of tourists near Gisborne.2 In that case one of the offenders had a knife with which the victims were threatened and I accept that the presence of a knife increased the trauma for the victims and the risk of really serious harm occurring in the confrontation. The injuries suffered by the male victim in this case, however, were greater than those suffered by the victims in the Gisborne case. The victims in both cases were vulnerable and there is here, as there was in that case, a need for deterrence, denunciation and accountability. This was a concerted attack on tourists enjoying a recognised holiday spot and the damaging effect this type of violent offending has on New Zealand's reputation and its tourist business are similar factors in both cases. Bearing in mind all of those considerations, I adopt an initial starting point to reflect the seriousness of the offending generally of four years and three months' imprisonment as appropriate.[15] Mr Nathan, I accept that you are less blameworthy than Mr Williams in that there is no evidence that you were actually engaged in the violent attacks on the victims. In some cases of this kind, a co-offender not directly involved is treated in the same way as those who inflicted actual violence on the victim and that may be because they acted as a lookout or assisted with the planning.3 But I am satisfied this was spur-of-the-moment offending and there is no evidence that you knew or could have suspected that the victims would be physically attacked in the way they were, rather than merely threatened. You told the probation officer that you were heavily intoxicated at the time of the attack and you have since said that you were "sick to the stomach" and horrified by the treatment that the victims received.[16] Being drunk does not provide any excuse for what you did and, even if what you say about how much you had to drink is true, I am required by the law to disregard it.4 At most, I consider you to have been a party to the offence of aggravated robbery by rocking the vehicle to alarm the victims and procure their exit from the vehicle, and that your presence in the vicinity of the vehicle would have2 R v Gladstone HC Gisborne CRI-2003-016-006805, 5 August 2005.3 R v Mako, above n 1, at [64]; R v Kirk [2017] NZHC 673 at [70] – [71].4 Sentencing Act 2002, s 9(3).assisted those who actually assaulted them by both encouraging them and by intimidating the victims.[17] Bearing in mind that lower level of culpability, I take an initial starting point of three years' imprisonment for your part in the offending. You have no relevant history of prior offending which would justify an uplift before personal factors are considered.Relevant personal factors[18] Mr Nathan, you were only 18 years' old at the time of this offending. Youwill be 20 next month. You appear to come from a good home and since your mother died about eight years ago you have been brought up by your father. He seems to be a good man; despite what you did to bring you here, he continues to support you, and I understand that other family members also continue to support you. You must feel that you have let down your father and other members of the family, and you have let your mother down. I understand that her death and the equally sad death of your 24-year old brother a year ago, also from cancer, have affected you greatly.[19] You completed an Army Training Course after you left school and you have had some part-time employment, including in the tourist industry. Your ambition is to be a builder, but you were unable to make any plans for that because you stayed home to help care for your brother during his illness. You help your father around the house, including cooking dinner from time to time, and you are said to have a good group of school and rugby friends who are supportive and a positive influence on you.[20] You are assessed as being at a low-risk of reoffending, and I can understand that. You do not have a serious history of alcohol or drug abuse, although you admit that when you do consume alcohol you tend to be a binge-drinker. Your father does not allow alcohol in the house, and you have a lot to learn from him in that respect.[21] I accept that you are genuinely remorseful for effects of the attacks on the tourist victims and that you deeply regret your involvement which, I have held, was limited.[22] You are entitled to a discount for your youth on the recognised principles set out by the Court of Appeal.5 I said previously said I would grant you a 20 per cent discount on that basis but, now that I know more about you and your personal circumstances, and bearing in mind the degree of remorse that you have shown, I propose to allow a discount of around 30 per cent for your youth and another five per cent for remorse, which I hope will encourage you in your rehabilitation. Applying those discounts would take the sentence to one of just under two years' imprisonment. You should also have a further discount of 20 per cent to reflect your guilty pleas. That adjustment brings the sentence down further to one of around 19 months' imprisonment.[23] That makes you eligible for a sentence of home detention and the report writer recommends it and says that you should serve it at home with your father. You have agreed to abide by the associated conditions and curfews of an electronically monitored sentence. While at the time of writing the Probation report the Police had not submitted a report regarding any safety concerns, and I am not aware of any, Community Corrections have not identified any and that would seem to me to be the case.[24] The report writer also recommends post-detention conditions requiring you to attend rehabilitative programmes about drugs and alcohol, and violence prevention; training in basic work and living skills is recommended. I suggest you should continue to look for work notwithstanding that you will be serving a sentence of home detention, and apply for appropriate work leave.[25] I am moved by all of these considerations, the requirement that I must impose the least restrictive sentence appropriate to the circumstances,6 and the need to5 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.6 Sentencing Act, s 8(g).encourage your rehabilitation,7 to the view that a sentence of home detention is appropriate. In assessing the period you should serve, I acknowledge that an allowance should be made for the two months you spent in custody and the approximately seven months on stringent bail conditions, which I understand to include a 24-hour curfew (although you were permitted to leave the home for certain purposes in the company of responsible family members).[26] Unlike Mr Williams, whose time in custody will be counted towards the serving of his sentence, when serving your sentence of home detention you do not get an automatic discount for those periods of confinement on remand. I need to take it into account now and I have decided that a period of four months should be discounted from the sentence of home detention that I would otherwise impose. That would have been a sentence of nine months' home detention, but I reduce it on account of the custody and bail conditions to one of five months' home detention.[27] Would you stand please, Mr Nathan.[28] On each of the two charges of aggravated robbery to which you have pleaded guilty, I sentence you to a period of five months' home detention to be served concurrently at the address, and subject to the conditions, set out in the provision of advice to the Court. That will include both the conditions of your detention and the conditions set out in the report regarding the attendance at courses and other matters.[29] While there is an element of punishment involved in this sentence, Mr Nathan, I think all of us in this courtroom agree that you are a young man who has considerable prospects. You need to take advantage of the opportunities that are going to be provided for you by the Probation Service and by Community Corrections with the courses that are available.[30] You need to listen to your father and respect his views: he is a person who can be a role model for you. I understand you appreciate that and I understand also that you are a good contributor to the family and to the home and you should maintain that. I wish you well in the future.7 Section 7(h).[31] Please stand down......................................... Toogood J