R v NATHAN [2018] NZHC 3111

R v NATHAN [2018] NZHC 3111 [29 November 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2017-088-1600[2018] NZHC 3111THE QUEENvTHOMAS SUBRITZKY NATHANHearing: 29 November 2018Appearances: J P R Scott for the CrownS Thode and B A Harris for the DefendantSentencing: 29 November 2018SENTENCING BY PALMER JSolicitors:Marsden Woods Inskip Smith, Crown Solicitor, WhangareiThode Utting & Co, AucklandIntroduction[1] Mr Thomas Nathan, a 39-year-old of Māori descent, has pleaded guilty toaggravated robbery of The Warehouse in Dargaville on 28 May 2017. The offencecarries a maximum sentence of 14 years' imprisonment.1 I sentence him today.Approach to sentencing[2] Sentencing is conducted for the purposes, and according to the principles, setout in ss 7 and 8 of the Sentencing Act 2002. In this case, I have particular regard tothe purposes of holding Mr Nathan accountable for the harm done to the victim andcommunity; promoting in him a sense of responsibility for, and acknowledgement of,that harm; providing for the interests of the victim; denouncing Mr Nathan's actions;deterring future such actions; protecting the community from him; and assisting in hisrehabilitation and reintegration.[3] I take into account, in particular: the gravity of the offending and the degree ofMr Nathan's culpability; the desirability of consistency with sentences for similaroffending; the effect of the offending on the victim; Mr Nathan's personal and whanaubackground; and I impose the least restrictive outcome that is appropriate in thecircumstances.What happened?[4] Mr Nathan, you pleaded guilty on the basis of a summary of facts which statesyou were the driver in the offending. On the evening of 28 May 2017, you drove twoco-offenders, Mr Daniel Cameron and Mr Kaipara Anderson, to an address near thedriveway of The Warehouse in Dargaville. They were there, as you knew, to carry outa robbery. They wore gloves and balaclavas and black clothing and shoes. You didnot know until afterwards that one of them carried a cut-down .22 rifle and the otherwas to acquire a screwdriver and pair of scissors once inside.[5] You waited in the car while they entered the manager's office in TheWarehouse and they watched five workers on CCTV. They confronted them, tied them1 Crimes Act 1961, s 235.up and put them in a bathroom and required one of them to give $27,612 in cash and300 items of jewellery worth $242,805 from a safe. They also stole items from ahandbag belonging to one of the victims. While they were inside, a lookout nearbytexted you with concerns. You reassured him and encouraged him to remain inposition. Mr Cameron and Mr Anderson left The Warehouse and returned to your car.You drove them away in the car.[6] The victims were not physically injured other than one suffering some minorlacerations. The Crown and the defendant agree only one victim was affected by theaggravated robbery. She has had many nights of sleep deprivation, has to remindherself she is safe when at work at night and feels uneasy in uniform, like a target.[7] On 3 August 2017, the Police found 30 gold and silver rings at your house andin your car. You were charged on 4 August 2017 and pleaded guilty on 1 November2018, four days before your trial was due to commence. You received a first-strikewarning. Mr Anderson and Mr Cameron also pleaded guilty.Starting point[8] Mr Nathan, in sentencing you, I first set a starting point to reflect theseriousness of the offending. The starting point set for Mr Anderson in the DistrictCourt in January 2018 was nine years and for Mr Cameron in the High Court inOctober 2018 was seven years.2Submissions[9] Mr Scott, for the Crown, departs from the starting point advocated for in hiswritten submissions. Mr Scott submits the starting point should be six years on thebasis there is nothing to distinguish your culpability from that of Mr Cameron's. Herefers to the guideline judgment of R v Mako, your co-offenders' sentences and othercases of aggravated robbery.3 He submits that, while your role was different from thatof your co-offenders, it was still essential and should not be treated as lesser than2 R v Anderson [2018] NZDC 1305; R v Cameron [2018] NZHC 2046.3 R v Mako [2000] 2 NZLR 170 (CA); R v Anderson, above n 2; R v Cameron, above n 2; Te Ruki vR [2018] NZCA 319.theirs. He submits that their detention of five victims, for which your co-offenderswere charged with kidnapping, was foreseeable – in the written submissions. Hesubmits that is an aggravating factor as is the loss to The Warehouse. Heacknowledges you did not know of the firearm which, he says, modestly mitigatesyour culpability.[10] Ms Thode, your counsel, submits it is important to assess your culpabilityindependently from that of your co-offenders. She submits she is instructed that youonly became aware of the plan the day of the offending so there was low or moderateplanning and premeditation on your part. She accepts the multiple offenders, value ofthe property taken and harm suffered by the victim are aggravated factors. She submitsthat, while your co-offenders used a firearm, you have offered to assist in recoveringit. Ms Thode submits you did not know or foresee there would be a kidnapping, theCrown withdrew kidnapping charges against you and they should not be treated asaggravating factors for your sentencing. She also submits your limited involvementin the offending is a relevant mitigating factor. She points to the High Court case ofMahia v R where the starting point for the getaway driver was five years' imprisonmentcompared with six years' for two principal offenders in what she submits is moreserious aggravated robbery.4 She submits your culpability was much less than MrCameron and the starting point for your sentence should be in the region of four and ahalf to five years' imprisonment.Decision on starting point[11] As counsel submit, the Court of Appeal's judgment in R v Mako is the guidelinejudgment for sentencing for aggravated robbery. It sets a starting point of four years'imprisonment for robbery of a small sum of money from a small retail store underthreat of use of knife by one person whose face is covered, after ensuring no customersare present, with or without a lookout or getaway accomplice.5 Confining or assaultingthe shopkeeper or multiple offenders or more money or property being taken wouldraise it to five years and, in bad cases, six years. Forced entry at night by a number of4 R v Mahia [2014] NZHC 1396.5 R v Mako, above n 3, at [56].offenders, brandishing weapons where there was actual violence, would require sevenyears.6[12] In R v Cameron, van Bohemen J carefully set a starting point of seven yearsfor Mr Cameron's offending with reference to Mako, pointing out the offending waspremeditated but not sophisticated, a lethal weapon was present but not loaded, therewere threats of violence towards staff members but no actual violence, and there wasproperty of considerable value stolen and not recovered. He added this was targetingof a commercial premise, though at night when the general public were not present,and that binding and immobilising the staff members was terrifying and traumatic.7He considered the offending was more serious than the Mako example for a six-yearstarting point because of the detention of employees, and the starting point of sevenyears could be expressed as a starting point of six years' imprisonment for theaggravated robbery with a one-year uplift for kidnapping.8[13] The Court of Appeal has found, as a general principle, defendants cannot relyon their role being only a driver to reduce their culpability in aggravated robberies.9But this depends upon the driver being a full participant in the offending.10Distinctions are possible.11 Here, you were an important and willing participant andyou texted the lookout. But you did not plan the robbery. You did not know about thefirearm or about any intention to tie up the victims. You were not as full a participantas Mr Cameron or Mr Anderson. I consider your culpability is less than theirs.Mr Cameron's starting point, which I consider correct, was six years for theaggravated robbery. I consider yours should be five years' imprisonment.Adjustments[14] Now I consider what adjustments to make to the starting point. Mr Nathan,you have written me a letter, which accords with what Ms Thode has told me in6 At [58].7 R v Cameron, above n 2, at [31].8 At [34].9 R v Royal [2009] NZCA 65 at [20].10 R v Mako, above n 3, at [64].11 O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [35].submissions and with what the Department of Corrections report-writer records youtold them.[15] You were brought up in Dargaville, without your father who died when youwere a baby, in a world of gangs, alcohol, drugs and crime. You won a scholarship toa school in Auckland but you were expelled. Eventually, you were imprisoned.[16] Around the age of 21 you got a job and your boss became your mentor. Yousuccessfully achieved a drain-laying certificate and set up a construction business andsettled in Auckland. But the business collapsed after not being paid for several largecontracts. Your partner left with the children, your mother died. You moved back toDargaville for family reasons. You have two children, aged 8 and 10 years old, whowere in your full-time custody before your arrest. You say you were barely able to putfood on the table for them and your nephew offered you money if you would help withthe robbery. You say what you agreed to was foolish enough but that if you had knownit would involve firearms and tying people up you would never have agreed to drivethe car for him. The offending occurred when you were at a very low point in yourlife. You say, at the time, you felt like your life was disintegrating before your eyesand spiralling out of control. You say it is the worst mistake you have ever made.[17] In your letter, you say all of that is explanation but no excuse for your actionsand you take full responsibility for your part in the offending. You apologise to thepeople at The Warehouse and hope that they are getting through this. Dargaville is asmall town. You are aware of the impact of the offending. You have requested toparticipate in restorative justice processes with them and offered to pay reparations.No restorative justice process has occurred because the victims have chosen not toparticipate. You are supported by your family, particularly your sister who has writtena letter of support, and by your brother. You tell me that you intend to get back on theright track when you are released and be a contributing member of society and a goodfather.Submissions on adjustments[18] Mr Scott, for the Crown, submits an uplift may be available for your criminalhistory. Ten of your 34 previous offences are for violence or dishonesty. He submitsit is seriously aggravating that this offending was committed two months afterreceiving a sentence to come up if called upon for behaving threateningly and commonassault. He submits some discount of five to ten per cent is available for your guiltyplea since it came late and you also received the benefit of withdrawal of thekidnapping charge.[19] Ms Thode, for you, submits an uplift for your criminal history is notappropriate given the low level of the 2017 offending and the lack of offending for 10years prior to that. She accepts your offending occurred while you were subject tosentence, but makes no submission on whether that justifies an uplift. She submits thebackground to your offending, together with your remorse, offer of assistance, andwillingness to engage in restorative justice and pay reparation justify a discount fromthe starting point. She adds that you have completed an alcohol and drug educationday programme. She submits your guilty pleas justify a discount of 20 per cent giventhat they came immediately after a resolution was agreed upon between counsel andthe Crown.Decisions on adjustments[20] I agree an uplift to your sentence is justified for offending while still subject tocome up for another sentence if called upon. I uplift your sentence by four months forthis. I do not consider the two offences in 2017 warrant a separate uplift nor yourprevious offending which was more than 10 years ago.[21] Your circumstances at the time help to explain your offending though, as youacknowledge, do not excuse it. But I accept that remorse that you have expressed isgenuine. You have offered to assist recovery of the firearm, to attend restorative justiceand to make reparations. You have also indicated genuine commitment torehabilitation and undertaken steps in that direction already. I consider this justifiesa discount to your sentence of around 15 per cent, or nine months. I make an additionaldiscount of three months, around five per cent, to recognise the effect that yoursentence will have on your children who were in your custody before your offendingand who need your ongoing support.12 Children need their fathers, as you know.12 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163; R v Harlen (2001) 18 CRNZ 582 at [22];[22] I understand your counsel's submission that you pleaded guilty as soon asresolution of both charges were agreed with the Crown. But the time that took meantit came only just before trial. And the Supreme Court has made clear that a doublebenefit of reduced charges and a full discount for an early plea may not properly reflectthe offending.13 Here, I do not consider the full 25 per cent discount is justified. Idiscount your adjusted sentence by eight months, around 15 per cent, for pleadingguilty.[23] That adds up to a sentence of three years and eight months' imprisonment,which I consider is appropriate for the totality of your offending.[24] Mr Nathan, it is important that you stay away from further offending. Youreceived your first strike warning on conviction. You will be required to serve anyfuture sentence for a strike offence, without parole. You may know that your nephew,Mr Cameron, has to serve his five years and two months' sentence without parole forthat reason. So, if there is a next time, the consequences will be more serious. Pleasemake sure there is not.[25] Ms Thode applies for remission of your outstanding fines and says from thebar that you are quite unable to pay them. Mr Scott agrees there is no way you canpay the fines. Given the amount of time you have spent in prison so far and theprospect of further time, your inability to pay the fines, and the desirability of enablingyou to have a fresh start to provide for your children, I remit the outstanding finesunder ss 88 and 88A(e) of the Summary Proceedings Act 1957 and s 19(12) of theCrimes Act 1961.[26] Mr Nathan, you have also offered to pay reparation. I order you pay reparationof $200 on your release.[27] Mr Nathan, finally, I do support you and urge you to hold to your intention toget your life back on track on release, and to be a good father. You have done it before,which cannot have been easy. I'm sure your children deserve that you do it again.R v Job [2018] NZHC 2543 at [14].13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].Sentence[28] Mr Thomas Nathan, please stand.[29] I sentence you to imprisonment for three years and eight months for the offenceof aggravated robbery. You may sit.Palmer J