Ekeroma v R - [2021] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA493/2020
[2021] NZCA 250

BETWEEN	DON EKEROMA Appellant
AND	THE QUEEN Respondent

Hearing:	18 May 2021
Court:	Goddard, Venning and Peters JJ
Counsel:	L B Cordwell for Appellant J A Eng for Respondent
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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ekeroma v R

Details

AGLC: Ekeroma v R [2021] NZCA 250
Case: [2021] NZCA 250
Decision Date: 16 June 2021 at 11.30 am

CaseChat Overview and Summary

Don Ekeroma appeals against his sentence of 10 years' imprisonment with a 40 per cent minimum period of imprisonment (MPI) imposed by the High Court. Ekeroma and an associate, Benny Fatu, broke into Shannon Baker's home, severely beat and robbed him, and left him hog-tied on a mattress with a pair of shorts tied over his nose and mouth, leading to his death. Ekeroma and Fatu were found guilty of aggravated robbery and manslaughter. The appeal was filed four working days out of time, but no prejudice was caused and the Crown does not oppose an extension of time.

Ekeroma's counsel argued that the sentence should be reduced, claiming the Judge did not sufficiently credit Ekeroma's personal circumstances, offer to plead guilty, rehabilitation attempts, remorse, and methamphetamine addiction. The Crown countered that the Judge's sentence was within the appropriate range considering the strength of the prosecution case, the violent nature of the offence, and the lack of a causal connection between Ekeroma's addiction and the offending.

The Court found that it was open to the Judge to allow an aggregate discount of 12.5 per cent to 23.5 per cent for all relevant factors, including time spent on electronically monitored bail. The Judge's overall discount of 16⅔ per cent came within that range, albeit towards its lower end. The Court also noted that the maximum sentence for manslaughter is life imprisonment and that the Judge would have been entitled to take a starting point of 13 or more years given the aggravating features of the offending. Therefore, Ekeroma has not persuaded the Court that the sentence imposed was wrong.

The Court granted an extension of time to bring the appeal and dismissed the appeal against sentence.

Orders