Ekeroma v R
[2021] NZCA 250
•16 June 2021 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA493/2020 [2021] NZCA 250 |
| BETWEEN | DON EKEROMA |
| AND | THE QUEEN |
| Hearing: | 18 May 2021 |
Court: | Goddard, Venning and Peters JJ |
Counsel: | L B Cordwell for Appellant |
Judgment: | 16 June 2021 at 11.30 am |
JUDGMENT OF THE COURT
AAn extension of time to bring the appeal is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
On 11 December 2018, Don Ekeroma and an associate, Benny Fatu, broke into Shannon Baker’s home. They severely beat and robbed Mr Baker. They left him face down on a mattress, “hog-tied”, with a pair of shorts tied over his nose and mouth. Mr Baker died as a result.
Following a jury trial, Mr Ekeroma and Mr Fatu were found guilty of aggravated robbery and manslaughter. Jagose J sentenced Mr Ekeroma to 10 years’ imprisonment, with a minimum period of imprisonment (MPI) of 40 per cent.[1] Mr Ekeroma appeals against the sentence.
[1]R v Fatu [2020] NZHC 1893.
Mr Ekeroma’s appeal was filed four working days out of time. The delay is minor, and has not caused any prejudice. The Crown does not oppose an extension of time. We grant an extension of time to bring this appeal.
Background
Mr Ekeroma and his co-accused, Mr Fatu, were both methamphetamine users. They planned to target Mr Baker for methamphetamine and money. They entered Mr Baker’s home late at night, violently assaulted Mr Baker, and took a quantity of methamphetamine, a wallet containing $600 in cash, and car keys. In the course of the aggravated robbery, they administered a severe beating to Mr Baker, during which he sustained 26 abrasions, eight contusions, and facial injuries consistent with multiple significant blunt force impact. Mr Baker suffered a fractured nose, and a fractured left eye socket. The impact to his eye socket ruptured his left eyeball, permanently blinding him in that eye. The pathologist described the force required to inflict these injuries as quite significant.
Mr Ekeroma and Mr Fatu left Mr Baker face down on a bed in a prone and “hog-tied” position. They had placed a pair of shorts on his face, securing them using a shoe-lace. The shorts most likely covered his nose and mouth. A portion of the shorts became saturated with fluid. The pathologist considered that if the portion had been covering Mr Baker’s mouth it would have made his breathing more difficult; if it was inside his mouth it would have contributed to his asphyxiation.
High Court sentence
The Judge took a starting point of 12 years’ imprisonment for sentence. He considered, but did not apply, an uplift for Mr Ekeroma’s previous convictions for violence. The Judge then assessed the discount for mitigating factors in the round. He took into account Mr Ekeroma’s offer at a relatively early stage to plead guilty to manslaughter, his letters in which he accepted responsibility for the consequences of his actions and the fact Mr Ekeroma had spent nearly one year on electronically‑monitored bail (EM bail) with only two minor breaches. In the round the Judge allowed a 16⅔ per cent reduction for those considerations to arrive at the end sentence of 10 years’ imprisonment. He then imposed an MPI of 40 per cent as he considered a release after one-third of his sentence would be an inadequate response to Mr Ekeroma’s violent offending which had caused Mr Baker’s death.
Submissions on appeal
Mr Cordwell, counsel for Mr Ekeroma, confirmed that Mr Ekeroma took no issue with the starting point of 12 years nor with the imposition of the 40 per cent MPI. His focus was on the Judge’s approach to Mr Ekeroma’s mitigating factors.
Mr Cordwell submitted the Judge fell into error and failed to give Mr Ekeroma sufficient credit for his personal circumstances.
Mr Cordwell also submitted that the offer to plead guilty to manslaughter and his responsible approach to the trial process on its own would have supported a reduction of 16 per cent (or perhaps even more).
Next, Mr Cordwell submitted that a further reduction of five per cent should have been given for Mr Ekeroma’s attempts at rehabilitation. He referred in particular to the courses undertaken by Mr Ekeroma, including the Man Up course he had undertaken while on EM bail.
Mr Cordwell also submitted that a further five per cent should have been allocated for Mr Ekeroma’s remorse.
He also submitted that the sentence should have been further reduced by 10 per cent to take account of Mr Ekeroma’s addiction to methamphetamine which was a contributing factor to his offending.
Finally, he submitted that a discount of three to four per cent should have been allowed for the almost 12 months Mr Ekeroma spent on EM bail (with a 24-hour curfew).[2]
[2]Mr Cordwell also initially suggested that a discount for good character could have been applied. When his attention was drawn to Mr Ekeroma’s past record, particularly of violent offending, Mr Cordwell did not pursue it.
Aggregating those mitigating factors, but recognising the need for the final sentence to reflect the seriousness of the offending in this case, Mr Cordwell arrived at a figure of 30 to 35 per cent as being the appropriate reduction from the starting point. That would have led to an end sentence of seven and a half to eight and a half years’ imprisonment. Mr Cordwell submitted that the sentence of 10 years’ imprisonment imposed by the Judge was in error. It should be quashed and replaced with a sentence of eight and a half years’ imprisonment.
Decision
Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if this Court is satisfied that there is an error in the sentence and a different sentence should be imposed.
This Court has, however, confirmed that an appellate court does not start afresh nor simply substitute its own opinion. It must be shown that there was an error which requires the imposition of a different sentence. The focus is on whether the sentence imposed is within range rather than the process by which it has been reached.[3] That said, it is important for the sentencing Judge to set out the process by which the sentence has been reached: in this case, we would have been assisted by a breakdown of the overall discount of 16⅔ per cent allowed by the Judge.
The offer to plead guilty to manslaughter
[3]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
The Judge took into account the offer to plead guilty and the responsible approach taken by Mr Cordwell on Mr Ekeroma’s behalf at trial in arriving at his final sentence. Mr Cordwell argues that the Judge did not give sufficient credit for the offer.
Mr Cordwell submitted that the offer to plead guilty itself warranted the 15 per cent discount he argued for. A discount at that level would have been at the upper end of the appropriate range in this case. The Crown case against Mr Ekeroma and Mr Fatu in relation to the aggravated robbery and manslaughter was overwhelming. The Supreme Court has confirmed that the strength of the prosecution case is a relevant factor: a guilty plea merits less recognition where conviction was inevitable.[4] We consider that a discount in the range of 10 per cent to 15 per cent would have been appropriate on the facts of this case, to recognise Mr Ekeroma’s offer to plead to manslaughter and his counsel’s responsible approach to the trial process.
Rehabilitation and reintegration
[4]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
Mr Cordwell next emphasised the steps Mr Ekeroma had taken to rehabilitate himself. Mr Cordwell referred to the report requested under s 27 of the Sentencing Act 2002 and submitted that it disclosed Mr Ekeroma’s desire to turn his life around. He also referred to the certificates Mr Ekeroma had obtained for his participation in various rehabilitative programmes and particularly emphasised his completion of the Man Up course while on EM bail.
We acknowledge that Mr Ekeroma has undertaken rehabilitation programmes since his arrest. His attempts at rehabilitation will be particularly relevant in relation to parole. For the purposes of sentencing in this case, they must be considered in the context of his past record and the circumstances of his present offending.
Although the Judge did not express himself this way, he would have been entitled to take the view that, in Mr Ekeroma’s case, the purposes of denunciation and deterrence outweighed considerations of his rehabilitation and reintegration. This is particularly so, given the nature of the offending against Mr Baker and the length of time before Mr Ekeroma will be eligible for parole.
A discount of five per cent could have been justified by reference to the steps taken by Mr Ekeroma to rehabilitate himself. But it was also open to the Judge to proceed on the basis that no additional discount was required.
Remorse
Mr Ekeroma offered to attend a restorative justice conference. He also wrote two letters to the Court. In the first he expressed sorrow for the harm he had caused and the horrific way Mr Baker had “passed away”. But this is to be contrasted with the pre-sentence report where the probation officer noted Mr Ekeroma sought to shift blame onto his co-offender who he said was responsible for the violent attack on Mr Baker. Mr Ekeroma was reported as saying that he considered it would only be a “quick visit to collect money owed, I wanted to flee the scene, but my co-offender refused. He became irate and didn’t want to waste his time nor leave empty handed. I felt that I had no choice, but to proceed with the plan.” That report prompted a second letter from Mr Ekeroma to the Court in which he sought to explain the comments the probation officer had attributed to him.
Mr Eng, counsel for the Crown, also referred to a communication between Mr Ekeroma and his partner shortly after he was arrested. After the hearing, Mr Eng provided a transcript of the communication. It confirms that Mr Ekeroma attacked the character of Mr Baker and was not remorseful at that time. Mr Cordwell filed a memorandum in response. He made the point that the conversation was shortly after Mr Ekeroma’s arrest and before he was released on EM bail and able to attend the Man Up programme.
As the Supreme Court said in Hessell v R, sentencing judges can properly be sceptical of expressions of remorse that may well be no more than the self-pity of an offender who is conscious of his predicament.[5] In the circumstances of this case, the Judge was entitled to give only a modest discount for Mr Ekeroma’s expressions of remorse in his letters and the offer to attend a restorative justice conference. In homicide cases, the suggestion of a restorative justice conference can be particularly challenging and difficult for the victim’s family.
Addiction to methamphetamine
[5]At [64].
The last issue is whether the Judge ought to have given a further discount for Mr Ekeroma’s reported addiction to methamphetamine. Mr Cordwell submitted that the Judge was wrong to characterise Mr Ekeroma’s methamphetamine use as recreational.
Mr Cordwell argued that Mr Ekeroma’s offending was of the result of an addiction to methamphetamine, and that he had been under the influence of methamphetamine during the robbery and while making the decisions which led to the death of Mr Baker. That submission needs to be considered in light of s 9(3) of the Sentencing Act:
(3)Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).
The fact that the offending took place under the influence of methamphetamine is thus irrelevant. Rather, the question is whether Mr Ekeroma was addicted to methamphetamine, and whether this pre-existing state of addiction contributed to the offending in a way that mitigates his moral culpability for the offending, or is otherwise relevant to the sentence to be imposed — for example, because it calls into question the effectiveness of deterrence, engages the purpose of assisting his rehabilitation and reintegration, or would render a term of imprisonment more severe than for other offenders.[6] Non-causative addiction is of little mitigatory relevance, as this Court explained in Zhang v R.[7]
[6]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [143]–[147].
[7]At [147].
The starting point in this case is that there is no independent medical evidence to confirm Mr Ekeroma’s addiction to methamphetamine. Mr Cordwell’s submissions are based on the s 27 report in which Mr Ekeroma self-reports methamphetamine addiction. In Zhang, this Court confirmed that where addiction is relied on, the onus is on the defendant to establish the fact of addiction. Self-reporting will rarely be enough to discharge the evidential burden.[8] In the case of Herlund, this Court held that references in a s 27 report to Mr Herlund’s addiction, which he sought to rely on as a mitigating factor, were insufficient.[9] Again, the references in the report to his drug use was largely based on his self-reporting.
[8]At [148].
[9]Herlund v R [2021] NZCA 71 at [53].
Mr Cordwell referred to Carr v R and submitted that this Court had accepted a “credible account” was sufficient.[10] However, in Carr, the Court emphasised the assessment of an appropriate allowance to recognise matters from a s 27 report was a fact-specific exercise.[11] On addiction, the Court was not suggesting a different approach to that confirmed by Zhang.
[10]Carr v R [2020] NZCA 357 at [60].
[11]At [63], citing Whittaker v R [2020] NZCA 241 at [51].
Nor is there any evidence of a causal connection between addiction on the part of Mr Ekeroma, and the violent offending for which he was sentenced. When dealing with violent offending, the court requires proper evidence of a causal connection between drug use and the offending.[12] Again, apart from Mr Ekeroma’s self-reporting there is no evidence that an addiction caused or contributed to the offending in this case. The fact that Mr Ekeroma was aware Mr Baker had methamphetamine and money because of Mr Ekeroma’s own drug use does not establish that the offending resulted from addiction, nor does it provide a rational basis for a reduction in sentence based on addiction.
[12]Herlund v R, above n 9, at [54].
Cooper v R, also referred to by Mr Cordwell, does not assist Mr Ekeroma.[13] First, that case did not involve either violence or drug addiction. While self-reporting may be adequate in some cases, it depends on the circumstances and it is well‑established that drug addiction should be independently verified by evidence. Second, although the Court accepted self-reporting provided a factual foundation for mitigating features connected with Mr Cooper’s childhood, it went on to consider whether a link between those childhood experiences and the serious drug importation offences committed by him could be established. The Court held the content of the report did not provide a sufficient basis for establishing the necessary causative connection.[14]
[13]Cooper v R [2020] NZCA 510.
[14]At [26].
Mr Ekeroma’s use of methamphetamine may well have led him to act in a less inhibited way. However, that falls well short of finding that his offending was driven by his addiction and well short of justifying a further discount.
We therefore reject the submission that Mr Ekeroma was entitled to a further discount on the basis of an addiction to methamphetamine. We agree with the Judge’s approach.
Time spent on EM bail
Mr Ekeroma spent almost 12 months on EM bail (with a 24-hour curfew), with two minor breaches. We consider that an allowance in the range of three to four months (with rounding, 2.5 per cent to 3.5 per cent of the starting point of 12 years) would be appropriate to reflect the time spent on EM bail.
Overall assessment
We have concluded that it was open to the Judge to allow an aggregate discount in the range of 12.5 per cent to 23.5 per cent for all relevant factors, including time spent on EM bail. The Judge’s overall discount of 16⅔ per cent comes within that range, albeit towards its lower end. In those circumstances, Mr Ekeroma has not persuaded us that the sentence imposed by the Judge was wrong.
The matter can be tested another way. It must be borne in mind the maximum sentence for manslaughter is life imprisonment. There were a number of aggravating features to the offending in this case, including:
(a)pre-meditation;
(b)multiple offenders;
(c)extreme violence;
(d)attacks to the head;
(e)serious injuries;
(f)home invasion;
(g)the assaults were in the course of an aggravated robbery;
(h)Mr Baker was vulnerable; and
(i)the callousness and cruelty in leaving Mr Baker hog-tied with a gag or similar around his mouth.
Given those factors, and to properly account for both the manslaughter and the aggravated robbery charges, the Judge would have been entitled to take a starting point of 13 or even more years. A starting point of at least that length was readily open to the Judge. Even if the discount for mitigating factors was to be increased to be in the range of 20 to 25 per cent, if the starting point was 13 years, an end sentence of between nine years, nine months and 10 years, five months is the result.
For those reasons also, the appellant fails to satisfy this Court that the end sentence of 10 years’ imprisonment imposed in this case was in error.
Result
An extension of time to bring the appeal is granted.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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