R v A HC Napier CRI 2009-041-3156
[2010] NZHC 1873
•14 October 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2009-041-003156
QUEEN
v
A
Hearing: 14 October 2010
Counsel: R J Collins for Crown
E R Fairbrother and LPF Lafferty for Prisoner
Judgment: 14 October 2010
SENTENCING NOTES OF MILLER J
[1] Right Mr A , you have heard that exchange with counsel. You know that your sentence is going to be intensive supervision. You can remain seated if you like while I read my sentencing notes.
[2] You appear for sentence on one charge, that of unlawfully taking a motor vehicle which is a crime under s 226(1) of the Crimes Act 1961.
[3] The facts relevant to this charge are that on 30 September 2009 you rolled your car when leaving the village of Waikoau, where you lived at the time. An elderly couple who were out for a drive stopped to offer you assistance. You met
this kindness by producing a knife and taking their vehicle. You went bush for a
R V A HC NAP CRI 2009-041-003156 14 October 2010
short time but some hours later you surrendered yourself to the police. The vehicle was returned, apparently undamaged.
[4] I accept that you did not mean to harm the owners; indeed, you apologised at the time. Nonetheless, they were both very shaken. You acted from a sense of desperation when taking the vehicle, and you have expressed regret, which I accept is genuine, for your behaviour. You pleaded guilty to the charge at the beginning of your first trial.
[5] Having outlined the relevant facts, I return to the beginning of the narrative to record that you were fleeing the village because you had just shot and killed Layden Rameka, a near neighbour of yours, following a violent confrontation.
[6] Mr Rameka’s death was a tragedy, and very traumatic for his family who witnessed it. But I am not going to dwell on the events that led to his death. I take that approach not because I think it is unimportant, not because I mean to show his family any lack of respect, but because I am duty bound to impose a sentence that is compatible with the jury verdicts. You faced charges of murder, wounding with intent to cause grievous bodily harm, and aggravated burglary. The jury at your second trial acquitted you on those charges. They must have found that the Crown could not exclude the reasonable possibility that the killing was accidental. The consequence is that Mr Rameka’s death cannot influence the sentence. I have no doubt that this will be misrepresented as a lenient sentence for killing him. All I can do is to explain that I cannot sentence you for that.
[7] There was much evidence at the trial about your mental state at the time. You had been diagnosed as suffering several conditions over the years. Your condition is I think best described as anxiety disorder and social phobia with mood disturbance and substance dependence. Your longstanding mental conditions had led you to seek to live in isolation in the village, and they were much worsened by over-prescription of powerful medication and abuse of alcohol. In the weeks preceding the offence you had been drinking heavily and using cannabis, and those who knew you recognised that you were in a bad way. At the same time the Rameka family had come to the village and regrettably two of Mr Rameka’s children had
taken to tormenting you, causing you considerable stress. The events of 30
September were precipitated by your attempts to have him assert some control over the children.
[8] You have been in custody since your arrest, and while in prison your condition has much improved. You are still on some medicines but the doses have been much reduced and you are interacting regularly with other inmates and prison staff. That improvement supplies you with an opportunity to return to the community in a much healthier state than you were a year ago.
[9] You are aged 41. You do have convictions, some 20 in all. They include several for assault and two that involved firearms. You have four convictions for driving with excess alcohol. Against that you have genuine support from your family of origin and it appears that you have a fiancé with whom you intend to live in another city. Given your history you are assessed as having a moderate risk of reoffending but you also have a high motivation to address the factors that led to your offending. You have no history of breaching community-based sentences.
[10] Ordinarily an offence like this would earn you imprisonment, having regard to your record. There are no directly comparable cases, but I will mention some examples in my sentencing notes.[1] They suggest a starting point for you of two and a half years imprisonment having regard to the use of the knife to secure the victims submission. Although no seeking imprisonment today, Mr Collins properly drew my attention to cases in which longer sentences had been imposed. Those usually
involved calculated professional offending, often related to other dishonesty or vehicle related offences. When the offending was impulsive as in this case, it is considered a little less serious. The starting point would also be the final sentence, because your late guilty plea would be offset by your previous convictions.
[1] R v Gurnick CA286/05, 8 December 2005; Roberts v Police HC Tauranga CRI 2008-470-32, 13 November 2008; R v Borrell CA228/01, 31 October 2001; R v Taki HC Rotorua CRI 2010-470-25-26, 2 July 2010.
[11] As I have mentioned, however, you have been in custody on the murder charge since your arrest. That is now almost 13 months ago. You have already
passed the point at which you would be eligible for parole, were I to impose a sentence of imprisonment. In the circumstances, the better course is not to sentence you to imprisonment at all but rather to impose a long period of intensive supervision. I should explain that intensive supervision cannot be imposed in conjunction with imprisonment. In other words, I cannot imprison you and order that you undergo intensive supervision on release. But as matters have developed in this case, it is possible to sentence you to intensive supervision alone, recognising that you have already been remanded in custody for a long period.
[12] I am satisfied that intensive supervision is the right sentence. I have considered a psychological report and the pre-sentence report, both of which support it. As Dr Barry-Walsh noted, there is a period of heightened risk of relapse on return to the community, requiring stable accommodation, family and social support and the opportunity for employment. For these reasons, the principal object of sentencing should be that of ensuring that your mental illness and your addiction continue to receive treatment, so that you can maintain the good progress you have made in prison, and you must also undertake treatment for anger management.
[13] Accordingly, you are sentenced to intensive supervision for a period of two years, which is the maximum term available. The maximum is appropriate because the risk factors are deep-seated. I am satisfied that there is jurisdiction to impose special conditions under s 54G. The special conditions of the sentence will be as follows:
•You are to attend an assessment for alcohol and drug counselling as directed by your probation officer and you must complete any recommended programme, treatment, or counselling to the satisfaction of both the probation officer and the programme provider;
•You must attend an assessment with a Corrections Department psychologist as directed by your probation officer and complete any programme or treatment that the psychologist recommends, again to the satisfaction of the psychologist and the probation officer;
•Lastly, if any issues arise during the sentence that in the opinion of the probation officer need further intervention then you are to attend any other appointments or treatment as directed by the probation officer.
[14] Mr A you may stand down.
Miller J
Solicitors:
Elvide & Partners, Napier for Crown
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