IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-003858 [2015] NZHC 1224

THE QUEEN

v

DUNCAN KEREAMA WATTS

Hearing:	4 June 2015	

Appearances:	
M J Robb for Crown
M Bates for Defendant	

Judgment:	
4 June 2015	

SENTENCING NOTES OF ANDREWS J

R v WATTS [2015] NZHC 1224 [4 June 2015]

Charges

[1]       Mr Watts, you appear for sentencing today having pleaded guilty on 6 May

2015 to one charge of aggravated robbery, which carries a maximum penalty of

14 years’ imprisonment, and one charge of participation in an organised criminal group, for which the maximum sentence is ten years’ imprisonment.

Relevant facts

[2]       You and a co-offender Mr Mark, who is also to be sentenced shortly, are both associated with the Westside Outlaws gang which operates in Hamilton.

[3]       Shortly before 10 o’clock on the night of 12 April 2014, you and Mr Mark, together with a third offender, went to the Frankton TAB.  You were all disguised and wearing gloves.  You and the third offender were armed, you with a knife, and the third offender with a rifle.  You all entered the premises at around 5 to 10, it was a Saturday evening.

[4]       At that time, two staff members were working and there were patrons present. You and the third offender jumped over the counter and demanded that the staff members open the safe.  Mr Mark remained in the customer area of the building and, although he was unarmed, he detained the patrons there.

[5]       In the rear area of the shop, which is the staff area, the manager entered the combination to open the safe and explained to you and the third offender that the safe would not open immediately because it had a time delay setting.  At this point, the third offender pointed his rifle at the two staff members.  When one of them tried to push the gun away, there was a scuffle and the staff member was punched and subdued.  The third offender then repeatedly tried to shoot that staff member in the head, but the rifle would not fire.

[6]       In the meantime, you stole cash from the counter drawers and also took personal property from the manager.  After your group became frustrated with the delay in opening the safe, you all fled through the front door.   Vouchers and cash

totalling about $3,200 was taken, as was cash and a cellphone owned by the TAB

manager, in the order of about $1,500, and none of that has been recovered.

[7]       The offending was planned by way of text messaging, and the offending relied on the use of a firearm which had earlier been stolen from a private address.  It is evident that there was planning, by text, of other crimes but these do not appear to have come to fruition.

Victim impact statements

[8]       Today I have read two victim impact statements.  You have heard one of the victims, Mr Cunneen, speaking in Court and he spoke as to the extreme impact of this offending and that impact was primarily, he said, the greatest harm was the emotional harm caused to him and his staff.  The staff and their families have lost confidence in being at the TAB.  They are concerned for their safety.  He also spoke of the financial costs: first, to the TAB itself.  He says the entire atmosphere of the Frankton TAB has gone.  It was a welcoming atmosphere where people could gather to watch sport, but that has gone.  It has lost significantly financially.

[9]       Mr Cunneen himself has suffered as you know, personally, but he has also lost considerably in having lost an item of considerable sentimental value to him.  It had been given to him previously by an elderly aunt and had been owned by an older relative.    Mr Watts,  Mr  Cunneen  spoke  eloquently  of  the  consequences  of  this offending.

[10]     I have also read a victim impact statement from the staff member who was the person against whose neck the rifle was held, and the trigger pulled, and fortunately it was unable to fire.  He has had his life invaded by people, he has been threatened at knife and gun point.  It has given him a sense of helplessness such as he understandably had never experienced before.  He says that as a consequence he has become a more aggressive individual; he is more selfish and impatient towards other people.

[11]     Since the robbery, he has become paranoid, on edge, and on guard at the possibility that this might happen to him again.  He constantly has in mind what he

would have to do as a strategy if this was to happen again at any time.   He has changed his work practices since the robbery and he now locks doors at night when he is working alone.

[12]     Again, this just sets out an example of the consequences of this offending.

[13]     I neglected to comment, but I will record it too, that the financial cost to the TAB has been significant in the requirement to install additional security measures and lighting, costing many thousands of dollars.

Pre-sentence report

[14]     I turn now to the pre-sentence report.  You are 33 years old, and you were born and raised in Hamilton.  You told the report writer that your upbringing was at times unsettled, but you were raised with a high degree of love and nurturing.   You left school at 15 to start work, and you have trade training in gib stopping and worked in that area for some years.

[15]     You  told  the  report  writer  that  during  your  teenage  years  you  started associating with people who were themselves associating with gangs.  In particular, you maintained, however, that you are not a core member of the Westside Outlaws. You said that you are not a patched or core member of any gang, but you accepted that you moved in circles where people are associated with gangs.

[16]     You said that the offending which brought you before the Court happened when you were in (what you called) a “bad head space”, because of difficulties in your relationship with your partner.    At that time you started using methamphetamine, and began associating with people you now identify as negative. The combination of these factors led to your involvement.

[17]     The report writer, however, said you presented as having insight into the factors behind your offending, and that you presented as holding a high level of remorse and regret, both in terms of the effect of your actions on the victims, and the impact that there will now be on your family – especially your former partner and your five children.  I note that while the relationship with your partner has ended, she

is said to remain supportive of you.  You want to move away from offending but to supporting your family by legitimate means.  You said to the report writer that you want to engage in rehabilitative programmes while in prison.

[18]     You  have  an  extensive  history  of  criminal  convictions  dating  back  to November 1999.   In the main, these appear to involve property and dishonesty offending, and driving offences.  You have previously served terms of imprisonment. Your most recent conviction was in June 2014, on charges of unlawfully taking a motor vehicle and driving while disqualified, in respect of which you were sentenced to concurrent terms of imprisonment for eleven months.

Sentencing process

[19]     The first step in the sentencing process is to establish what is to be the starting point, and that is the sentence that would be imposed on the most serious of the charges on which you have been convicted, in this case that is the charge of aggravated robbery, if you had been convicted after a trial in court.  The second step is to adjust the starting point to arrive at what is the appropriate sentence is for your offending, and for you.  I do this by considering whether there is anything about your offending that makes it more or less serious, and I also consider matters relating to you, personally, because they may also  lead me to adjust your final sentence.

[20]     When I sentence you I have to take into account the purposes and principles of sentencing.  As to the purposes of sentencing, I have to hold you accountable – I make you responsible for your own offending, not anybody else, your offending is yours alone.   I have to consider deterring you and others, and protecting the community.  I also have to denounce your offending – what that means is that I have to tell you, so that you understand, that your offending is not acceptable.   At the same time, the purpose of sentencing any offender is to help the offender to get back into the community and to be a useful member of it.

[21]     In your case the relevant principles of sentencing are to consider the gravity of  your  offending  including  your  own  culpability  in  the  offending,  and  the seriousness of your offending in comparison with other types of offences.  I consider any information I am given as to the effect of your offending on the victims.  I also

take into account that it is generally desirable to keep consistency in sentencing levels. Also, I am directed to impose the least restrictive outcome that is appropriate in the circumstances.

[22]     While it is desirable to keep offenders in the community if that is practicable with regard to the offending and the safety of the community, in your case it is accepted that a sentence of imprisonment is inevitable.

Starting point

[23]   For the Crown, Mr Robb identified several features which indicate the seriousness of this offending, and he referred to a significant level of planning, the fact that there were three offenders, disguises were used, and dangerous weapons were used.  Commercial premises were targeted, they were open to the public, and in this case members of the staff and the public were detained during the robbery.
There was the use of threats and the use of actual violence.1   Mr Robb referred to the

fact that the money and items taken have not been recovered.   He referred to the significant impact on the victims, and the fact that this was gang offending.

[24]     While  Mr  Robb  accepted  that  the  amount  taken  could  be  described  as relatively small, he submitted that this was only because of the time delay safe in the premises.   In his written submissions he submitted that you should not receive a benefit because of that.

[25]     As you heard this morning, Mr Robb submitted that the starting point for your offending should be eight to eight and a half years’ imprisonment for both you and indeed for Mr Mark.  While he acknowledged that each of you played a different role in the offending, he did not seek to distinguish between you in terms of the starting point.

[26]     On  your  behalf,  Mr  Bates  submitted  that  the  authorities  referred  to  by
Mr Robb in his written submissions related to more serious offending than yours.  In particular, he submitted in his written submission that the rifle was not loaded, and

1	See R v Mako [2000] 2 NZLR 170 (CA); Tukaki v R [2013] NZCA 411; Mata v R [2012] NZCA
593.

he submitted that you did not expect it to be presented in the way it was, and you did not encourage the rifle being pointed at the heads of various people.  He said that you had no idea that the trigger would be pulled.    Mr Bates repeated in his oral submissions today that you were so shocked and dismayed by the third offender’s behaviour that you actively tried to distance yourself from the other offenders after the robbery, left the area and had no further contact.  He said you wanted no part in further activity with them.

[27]     Mr Bates also pointed to the amount of money taken and suggested that the fact that the offending occurred in the late evening reduced the risk of members of the public being present.  He also submitted that the planning was not particularly detailed.   On the basis of those submissions, Mr Bates submitted that the starting point for your sentence should be around six to six and a half years’ imprisonment.

[28]     You may have heard the two lawyers talking about a case called Mako.2

Mako is, what we call, a tariff case, it is a decision of the Court of Appeal which sets out certain fact scenarios and suggests what is the appropriate starting point for sentencing in such cases.   In doing that, the Court of Appeal set out in detail the aggravating factors which can apply to a case of aggravated robbery.   I have read through the counsel’s submissions and the judgment in Mako and I have concluded that the relevant factors in your offending include:3

(a)	The extent of planning and premeditation; (b)	The number of participants (three);
(c)	The use of disguises;

(d)	The number, type and use of weapons; (e)	The nature of the targeted premises;
(f)	The presence of members of the public;

2	R v Mako, above n 1.
3	At [34]-[50]

(g)	The use of actual violence;

(h)	The amount of property stolen and whether it is recovered; (i)	The impact on victims; and
(j)	The element of gang involvement.

[29]      I have concluded that the robbery of the Frankton TAB is similar to the example given by the Court of Appeal of a 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, the use of disguises and other indications of preparation.4    The Court of Appeal said that such a robbery should attract a starting point of six or perhaps more years.  Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more.

[30]     I do not accept the submission in Mr Bates’ written submissions that it could not have been expected that members of the public would have been at the TAB. The TAB is a commercial premises, it was open for business at the time, and as you heard Mr Cunneen say in his victim impact statement, members of the public were encouraged to congregate there to watch sport on TV.  Nor do I accept that I should apply a starting point that is relevant where there is only one offender, and there is no use of actual violence.   Further, I do not consider it appropriate to take into account the fact that the gun did not fire.  Certainly, it appears from the summary of facts that the third offender expected it to fire.  However, I do bear in mind that in your case, the amount of money taken from the commercial premises was around $3,200 together with approximately $1,500 worth of items taken from Mr Cunneen.

[31]     I have considered, carefully, whether I should make a distinction between you and Mr Mark, in relation to setting a starting point and if so what that distinction should be.  Mr Robb did not do so, and this was because while you were armed with
a knife, and you were present when the third offender attempted to fire the rifle, and

4	At [54].

you joined him in seeking the money, Mr Mark was directly involved in planning the robbery, he entered the premises with you and the third offender, and he was present throughout the robbery.   In the end, I have concluded that I should make a small distinction  between  you  because,  albeit  in  different  ways,  your  culpability  was similar, but not entirely equal.

[32]     I have concluded that the appropriate starting point for your sentence is seven

years’ and three months imprisonment.

[33]     I go on to consider whether there should be an adjustment to reflect the fact that you are also being sentenced on the charge of participation in an organised criminal group.

[34]     Mr Robb did not seek any increase to the starting point to take account of that charge.  Nor, in the light of his submission that the starting point should be, at least, eight years, did he seek any increase to the starting point for your previous convictions.  But in giving careful consideration to both matters, I have concluded that no increase is required, for either of those factors.

Personal factors

[35]     I look first at the letter that I have read in Court this morning, from you.  I note that in your letter you say you take full responsibility for your foolish offending and for your selfish actions; you say you are deeply remorseful and so very sorry to the victims of your offending.  You note in your letter that you asked to engage in person in a restorative justice process to express your remorse, and you understand the reasons why the victims did not want to go through that process.

[36]     You say that, having been in custody for almost a year, you have had time to reflect on the situation which you have landed yourself in.  You say that you have completed courses while you have been in remand that will help you with skills to stop offending and how to identify high risk situations.   You hold your own self accountable for your actions.  You note the effect that your sentence is going to have on your five children whom you say you absolutely love.  You understand that as a result of your stupidity, they will be the ones who will suffer.  You say that this is

really motivating you and giving you the drive to be a better man, not only for your family, but for yourself.  You repeat, again, your apologies and your remorse for this offending.

[37]     Mr Bates submitted that I should make a reduction to the starting point to reflect your genuine regret and remorse for the impact of your offending on the victims.  He submitted to me that your offending was completely out of character, and Mr Bates also stressed your wish to engage in a restorative process.   I have concluded that I should allow a discount and that will be a discount of five months from the starting point.

[38]     I turn to the guilty pleas.  They came late in the proceeding, during the week before your trial was due to start.  But the pleas meant that there did not have to be a two-week  trial,  and  the  people  from  the  TAB  did  not  have  to  come  and  give evidence.   They do not have to re-live the dreadful experience by having to give evidence about it.  So I accept that you may be given a discount for the guilty pleas.

[39]     Mr Bates submitted that you had given an early indication that you were willing to plead guilty to the charge of aggravated robbery.  Also relevant to this, in my view, is your advice as to having begun the rehabilitative process.

[40]     Although Mr Bates submitted that the discount should be in the range of 20 per cent, I have concluded that I should apply more or less the same discount as I have allowed for the other offenders who entered guilty pleas at the same time as you did, which is the order of 15 per cent.

[41]     Would you please stand.

Sentence

[42]     On the charge of aggravated robbery you are sentenced to imprisonment for five years and ten months.  On the charge of participation in a criminal group you are sentenced  to  four  months’ imprisonment.    The  two  sentences  are  to  be  served concurrently.

[43]     Mr Robb submitted that I should impose a minimum period of imprisonment of 50 per cent, that means that that would be the period before you could be considered by the Parole Board for release on parole.  A minimum period may be imposed if the Court considers it is necessary to hold you accountable for the harm done by your offending to the victims and the community, denouncing the offending in which you were involved, deterring you or other persons from committing this sort of offence, or protecting the community.  Mr Robb submitted that if you were to be released on parole when you are first eligible for parole (which would be after one-third of your sentence), that would not be appropriate to meet the need to deter serious gang-related offending, or to denounce such offending.

[44]     I have concluded that I should not order you to serve a minimum period of imprisonment.  Release on parole is a matter for the Parole Board, and the issue of when you may released will depend very much on the Parole Board’s assessment of what you do from now on, and how you respond to your prison sentence.   It is, indeed, up to you.

[45]     Finally,  Mr  Watts,  in  the  light  of  your  plea,  your  conviction,  and  your sentence on these charges which were charges 4 and 10 in the Charge Sheet, the Crown has offered no evidence on the other charges against you which were charges
1, 2 and 3 and you are discharged on those charges.

[46]     Please stand down.

Andrews J