IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-202-245 [2013] NZHC 1434

THE QUEEN

v

TEARIKI MARSTERS

Hearing:	14 June 2013

Counsel:	G Kayes for the Crown
W M Ryan for Mr Marsters

Sentencing:	14 June 2013

SENTENCE OF WOODHOUSE J

Counsel / Solicitors:
Mr G Kayes, Meredith Connell, Office of the Crown Solicitor, Auckland
Mr W M Ryan, Barrister, Auckland

R v MARSTERS [2013] NZHC 1434 [14 June 2013]

[1]       Mr Marsters, you may remain seated while I explain the sentence.

[2]       You appear for sentence for four offences of aggravated robbery and eight offences of car conversion.  The maximum penalty for aggravated robbery – and that is for one robbery – is 14 years imprisonment.   You need to reflect on that.   The maximum penalty for car conversion is 7 years imprisonment.

Summary of sentence

[3]       I need to summarise the facts of the offences, summarise matters relating to you personally, and explain the sentence that I am going to impose.  That is not just for your benefit but for the benefit of others in the Court, including your family; and we have waited – and quite properly – for them to be present.   And it is also to explain it to the wider community.

[4]       But I think it is important before I go into the detail to tell you that the sentence I am going to impose is 10 years imprisonment.  That in fact – although I have approached it differently from both counsel to an extent – is the sort of sentence that  Mr  Ryan  has  submitted  on  your  behalf  should  be  imposed.    I  have  also concluded that this is not a case where there should be a minimum non-parole period or what is called in the Act a minimum period of imprisonment.  I need to explain.

Summary of facts

[5]       Dealing  with  the  facts  of  the  offences  in  summary.    There  were  four aggravated robberies of commercial premises between 27 June and 25 July 2011. Having presided at the trial I am satisfied that you were a principal offender in two of these robberies and a party to the other two.  All but one of the car conversions was carried out for the purposes of one or more of the robberies.  One of the cars converted by you – on 22 June 2011 – count 3 – was used in two robberies, on 22
June and 23 June, but you were found not guilty of charges of being involved in those robberies as a party.

[6]       I will now summarise the facts, mainly of the robberies.

Grace’s Place, Otahuhu, 27 June 2011

[7]       The first was Grace’s Place, Otahuhu, on 27 June.   This is a bar.   This aggravated robbery occurred at approximately 7:00 pm.  Three robbers entered the premises, including a friend of yours.  The men were wearing hoodies and had their faces covered.  One was armed with an inoperable Lee-Enfield rifle.  The rifle was pointed at the head of the bar manager.  She fell or was pushed to the ground.  The man held the barrel of the rifle to her cheek.  Approximately $23,500 in cash was stolen.

[8]       You were a party to that offence and you were found guilty by the jury of being a party.  You assisted by stealing or helping to steal the getaway car and that makes you involved as a party in that robbery.

The Strand Tavern, Parnell, 11 July 2011

[9]       The second robbery was the Strand Tavern in Parnell on 11 July.  This is one of the two robberies where I am satisfied the jury found you guilty as one of the robbers directly involved.  The case was put to the jury by the Crown on that basis, and there was evidence linking you directly to the robbery.

[10]     The  robbery  occurred  at  approximately  7:15  pm.    You  and  three  others entered the tavern.  You and the other men were wearing hoodies and you all had your faces covered.  One man was carrying what appeared to be a black pistol.  One of the men threatened the duty manager stating that he would “bash her” and “knock her out” if she did not comply.  You and the others took approximately $5,300 in cash. You were the getaway driver in another stolen car.

Junction Sports Bar, East Tamaki, 14 July 2011

[11]     The third robbery was of Junction Sports Bar in East Tamaki on 14 July.  I am satisfied the jury found you guilty as a party because you were a member of a group  that  intended  to  commit  an  aggravated  robbery,  or  in  fact  a  series  of aggravated robberies, and also use stolen cars for that purpose.   You were found guilty of conversion of two cars used in this robbery.

[12]     The robbery occurred at approximately 11:25 am.  Three robbers entered the premises.  They were wearing stolen St John’s uniforms and had their faces covered. One of the men was armed with a pistol.  A second man was armed with a large knife.  One witness also recalled a small axe being carried.  Approximately $25,000 in cash was stolen.

Panmure Historic Hotel, Panmure, 25 July 2011

[13]     The fourth and final robbery – and this is what I will take as the lead offence

– was a robbery of the Panmure Historic Hotel on 25 July.   This is, as I say, the second aggravated robbery in which you were directly involved, as well as stealing, or being involved in stealing, two cars used in the robbery.

[14]     At around 1:00 pm you and two others entered the hotel. All of you had your faces covered.  One of the other men was armed with a shotgun.  When one of the getaway cars was recovered the shotgun was found in a bag which also contained shotgun cartridges.   However, there is insufficient evidence for me to be satisfied that the shotgun was loaded when you and the other men were in the hotel. Approximately $27,000 in cash was stolen.

Assessing a starting point and uplift for the other offences

[15]     I come to the assessment of a starting point which Mr Ryan has discussed on your behalf.  Mr Ryan submitted – and I will come to this again – a starting point of
6 years imprisonment.  A starting point needs to be fixed for what is called the lead offence.  The starting point is based on the seriousness of the offence, without at this point considering the other offences or any factors personal to you, which might justify an increase or a decrease in a sentence.   As I say, the lead offence is the robbery of the Panmure Hotel.  Mr Ryan and Mr Kayes, for the Crown, agree that it is the lead offence.

[16]     The starting point is to be fixed having regard to the relevant provisions of the Sentencing Act and the guidelines provided by a Court of Appeal case called Mako.

[17]     The Crown submits that the starting point, for the Panmure robbery, should be  7  to  8  years  imprisonment.    I  will  take  into  account  the  reasons  for  that submission when I discuss the starting point.  Mr Kayes, for the Crown, submitted that the starting point of 7 to 8 years should be increased by 4 years to take account of all of the other offences resulting in an uplifted starting point of between 11 and
12 years imprisonment.

[18]     As  I have already mentioned,  Mr Ryan  submitted that the starting point should be 6 years imprisonment with an uplift for the other robberies of around 3 years.   That would be 9 years, although he has acknowledged that the end result could be 9 to 10 years imprisonment.   Again, I will take account of Mr Ryan’s further submissions in support of this when setting out my reasons for fixing a starting point.  Mr Ryan also submitted there should be no further increase for the eight car conversions.

[19]     The Crown submitted that there are eight aggravating features of the Panmure Hotel robbery – or around eight – and that all of these apply to the other robberies to a greater or lesser extent.  Mr Ryan did not take issue to any great extent with the Crown’s submission, but I have taken account of the qualifications that Mr Ryan has expressed on your behalf.  I agree in broad terms with the Crown’s submission and taking account of what Mr Ryan said.  Making due allowance for factors which are inherent in an aggravated robbery, I am satisfied that there are the following aggravating factors of the Panmure Hotel robbery – and indeed, as I have said, these generally applied to the other robberies: there was a reasonable degree of planning and premeditation; there was targeting of commercial premises to try and maximise the gain; this put staff and members of the public at risk; three robbers were involved in the hotel and a fourth waiting in the car; disguises were used; weapons were carried,  and  these  were  seriously  threatening  weapons  but,  as  I  say,  there  is
insufficient evidence to conclude with the Panmure robbery that the shotgun was

loaded; a substantial sum of money was stolen and overall very large sums of money were stolen; the adverse impact on people in the bar would have been significant.

[20]     In relation to the adverse impact on people I have received and taken account of a victim impact statement from the Panmure Hotel office manager, aged 65, and a bartender at that hotel aged 25.   Both of them were badly affected for some time, including emotionally.  The bar attendant had a gun pointed at her, although not by you as best as can be judged from the evidence.  There was no direct violence at the Panmure Hotel in the sense of physical force being directly applied to anyone, but there were certainly threats of violence.  Some direct force was used in some of the other robberies although this was no more than pushing or things of that nature.

[21]     At paragraph [54] of that Court of Appeal case called Mako – and I am bound by the Court of Appeal  – an example is provided of an aggravated robbery of commercial premises.  The example is very similar to the facts of the Panmure Hotel case.   The Court said that the starting point should be 6 or perhaps more years. Based on this, and some other matters I will come to in a moment, I am satisfied that the aggravating factors I have referred to justify a starting point of around 7 years for the Panmure robbery.  In coming to that conclusion I have also taken account of the fact that the starting point for a co-accused, Mr Rewi, in the Junction Tavern robbery
was 6 years imprisonment.    That was on the basis that he was a party and not a

person in the bar.   I have also taken account of another case referred to by the Crown, called Wilson, three other cases discussed by the Judge on the sentencing of Mr Rewi and, as a more serious case for the purposes of comparison, a case called Renata  where the starting point was 8 years imprisonment but where there was some direct violence to a person.

[22]     I am satisfied that there should be an increase of 3 years for all of the other offending, including the car conversions.   If your direct involvement in the Strand
Tavern is looked at in isolation the uplift, Mr Marsters, could be more.  But I have to

take account of what is called totality; that is to say, the overall sentence.  Over 10 years in my judgment for you would be too much.  But having said that I need to make clear that there are reasonable arguments – and they have been advanced by the Crown – for what would be an end sentence in excess of 10 years, and possibly up to 12 years. You need to reflect on all of these things for the future.

Personal circumstances

[23]     I come to your personal circumstances.  You were 22 years old at the time of the offending. You are now aged close to 25 years.

[24]     You have 39 previous convictions and one matter dealt with in the Youth Court.   The 39 District Court convictions relate to offences starting in June 2005 when you were aged 16.  There are three earlier convictions for robbery by assault and assaults with intent to rob being offences committed in 2006. These resulted in a prison sentence of 2 years with leave to apply for home detention.  On the same date you   were   sentenced   for   those   offences   you   were   sentenced   to   9   months imprisonment  for  11  offences  of  unlawfully taking  motor  vehicles.    There  was another conviction for a robbery committed in October 2008 resulting in a sentence of 9 months imprisonment cumulative on sentences for unlawfully getting into a car and assault.  You were released from the most recent previous custody on 31 May
2011.  That is significant because the present offending began less than 1 month later on 22 June 2011 when the first of the car conversions occurred.

[25]     The pre-sentence report states that you began offending when you dropped out of school in the fifth form without any formal qualification.  You have a speech impediment and a hearing problem and  I expect this contributed to the lack of education and dropping out of school.  You began drinking alcohol and using drugs. You say you do not drink any more but you continue to use drugs on a regular basis. You have apparently never had lawful employment.  You told the probation officer that you get excited about stealing and driving cars and the more you can get away with it the more you want to commit the offending.   You said that you do not consider the consequences of the offending.  The probation officer considered that you  did  not  show any  signs  of  remorse.   You  are  assessed  at  high  risk  of re-

offending.  You said that you felt you were getting too old to continue your way of life.  Perhaps you mean that Mr Marsters.  But the probation officer says that needs to be taken with a good degree caution.

[26]     Mr Ryan submitted that there should be no increase for the previous offences. The Crown submits that there should be some increase but without putting a figure on it.

[27]     I have in fact decided – and this is being lenient Mr Marsters but also taking into account totality and looking at the overall sentence – I have decided there should be no increase for the previous offences.  There are perhaps two main reasons for this.  One is that the uplifted starting point of 10 years is a significant sentence in itself and substantially longer than any other sentence that has earlier been imposed on you.  The second is that, in some relevant respects, you display maturity less than your actual age – and age and maturity is a matter that needs to be taken into account.

[28]     You did plead guilty to some of the car conversion charges.  However, that occurred on the morning the trial started.  This related to four out of eight counts of car conversion.  And it related to the counts where the forensic evidence was fairly compelling.   These considerations, together with the fact that there has been no increase for past offences – and again looking at totality – persuade me that there should be no deduction for the guilty pleas.  In addition, the fact that you pleaded guilty really made no significant difference to the course of the trial.

Minimum period of imprisonment

[29]     The   Crown   submitted   that   there   should   be   a   minimum   period   of imprisonment – that is, a minimum period before parole can be considered.  Mr Ryan submitted that the circumstances do not justify this.  I am satisfied that this is not a case requiring a minimum period of imprisonment.

[30]     Before I impose the final sentence I do want to acknowledge that your family is here today and have come in support and we in fact delayed the sentencing for them to be here.  I have mentioned that because I hope you can take this into account

when you reflect while you are serving this sentence on the future for you if you continue with any offending in the future.

Formal sentence

[31]     You should now stand.

[32]     For the aggravated robbery of the Strand Tavern on 11 July 2011, count 9, and the aggravated robbery of the Panmure Historic Hotel on 25 July 2011, count 14, you are sentenced to imprisonment for 10 years.

[33]     For  the  aggravated  robberies  at  Grace’s  Place  on  27  June  2011  and  the Junction Sports Bar on 14 July 2011, where you were a party, you are sentenced to imprisonment for 5 years.

[34]     For   each   of   the   offences   of   car   conversion,   you   are   sentenced   to imprisonment for 1 year.

[35]     All of the sentences are to be served concurrently, meaning the total period of imprisonment is 10 years.   As I have said, there will be no minimum period of imprisonment.

[36]     You should now stand down Mr Marsters.

Woodhouse J