R v Blom

[2017] NZHC 827

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-044-1785 [2017] NZHC 827

THE QUEEN

v

MICHELLE BLOM

CAMERON TE HAU KARETI TAUTAU HAKEKE

Hearing:	28 April 2017
Counsel	B Dickey and H Steele for Crown JA Kincade for Blom G Newell for Hakeke
Judgment:	28 April 2017

[REDACTED] SENTENCING NOTES OF WHATA J

Solicitors:           Meredith Connell, Auckland

R v BLOM AND  HAKEKE [2017] NZHC 827 [28 April 2017]

[1]      Before I get underway, I just confirm that there are suppression orders in relation to N and in relation to a Mr E, permanent suppression orders.   All other interim orders are otherwise at an end.

[2]      Mr Hakeke, Ms Blom, please stand.  Mr Hakeke, you have been found guilty on  one  charge  of  kidnapping  and  one  charge  of  assault  with  a  weapon.    This offending took place in April 2016.  Ms Blom, you were found guilty of one charge of kidnapping.  This offending took place in May 2016.  You both face a maximum sentence on a lead charge of kidnapping of 14 years imprisonment.

[3]      Your offending formed part of two separate episodes of serious abuse levelled at N, the victim.  In order to properly understand your offending, it is necessary to set out the full circumstances.

[4]      Before I go further, I wish to acknowledge the victims of this offending.  It must have been a harrowing experience for N, causing her great physical and emotional distress.  I also know that she and her family have been and continue to be deeply affected by it.

[5]      I also wish to apologise to the victim and to her family for the additional delay  in  sentencing  the  co-offenders  in  this  matter.  Unfortunately,  the  reports required for their sentencing were not completed in time.

[6]      Mr Hakeke and Ms Blom, you may sit until I ask you to stand again.

The facts

[7]      The victim, N, was 19 years old at the time of the offending.

[8]      She was known to both of you through your association with Ms Jones, a co- offender.  Mr Hakeke, you also came to know N as you both worked as prostitutes and N lived with you for a time.

[9]      In early 2016, Ms Jones became very angry with N because she had heard that N had slept with her boyfriend and reported her to CYFS. Ms Torrance, another

of your co-offenders and known to Ms Jones as “mumma”, was also angry with N. She thought that N had stolen some of her recently deceased daughter’s jewellery. This set the scene for the events that followed.

The April kidnapping

[10]     Turning then to you, Mr Hakeke, late in the evening of 22 April 2016, you lured N to your address in Green Bay under the pretence of wanting to buy methamphetamine.   Ms Jones and Ms Torrance were waiting at the address, and upon N arriving they attacked her. She was tasered by them and they cut her hair. They then forced N to sign over her car and took her out to the Bombay Hills and left her there, telling her not to return to Auckland. They kept her iPad and other personal items that were in the car.

[11]     Mr Hakeke, you were not there in waiting when N arrived; rather you had gone to see a client. But at some point you returned home and also cut N’s hair. I know from the evidence that within the prostitution industry that this was a demeaning act designed to show that she was less feminine.

The May offending

[12]     Turning to your offending, Ms Blom.

[13]     On the evening of 7 May 2016, N was working as a prostitute on a side street off Karangahape Road.   Ms Blom, you, together with Ms Torrance, Ms Jones and Ms Keates (your friend) were in Central Auckland, having spent the early part of the evening at your home celebrating a flatmate’s birthday.

[14]     At about 11pm, you chanced upon N.  Ms Jones forced her into the car.  N was seated between you, Ms Blom, and Ms Jones.  Ms Torrance was driving. You played a role in restraining N and there is evidence that you struck her. But there is insufficient evidence to suggest you intentionally placed yourself in the back seat, as the Crown contended, in order to abuse her. I also reject the Crown’s submission that the texts to your boyfriend, Mr Martin, give insight into your attitude. Those texts, which state among other things, that “I am in a bad mood. I’m in town and some

cunts are gonna get fucked up” must be read in context, including a desire to make

quick money through prostitution.

[15]     From  Karangahape Road  you  all  then returned  to  your home address  in Kelston.  On arriving at your home, you immediately went upstairs. It appears you got changed and then travelled with Ms Jones and Ms Keates to pick up Mr Martin, your then boyfriend.   Having picked him up and returned home, you immediately returned upstairs, where you spent most of the night and morning with him.

[16]     At some stage N had been forced into the boot of the car.  It appears that she was still in there while you went to collect your boyfriend. In any event, whether before or after the trip to get Mr Martin, Ms Jones and/or Ms Torrance, took N down to your basement. At the time Ms Jones lived in that part of your home.

[17]     Once N was in the basement, she was stripped naked and bound with plastic cable ties around her wrist and ankles. She was forced to the floor in a bent over position. Ms Keates then stomped on N’s hand, breaking two of N’s fingers.   Ms Jones and Ms Torrance also struck N with hard objects causing bruising in multiple places. They also roughly cut her hair. Ms Keates was a party to this offending.

[18]     The abuse did not stop there. At some point during N’s detention, Ms Keates inserted a cricket wicket into N’s anus and N was forced to eat the faeces off the end of the wicket.

[19]     In total, the kidnapping in the car and at your home spanned approximately

20 hours.

[20]     I mention the full offending for context only. The jury found that you had no involvement in the abuse and, consistent with the jury’s acquittals, I am not satisfied on the evidence that you either passively or actively encouraged any of the abuse.

[21]     However, it is clear that you were aware that N was being held downstairs against her will. This is confirmed in a text message to your flatmate in which you said “Text me oi your baby sitting the dog I left downstairs” – which in context could

only, in my view, have referred to N. In addition, Mr Martin placed you in the room with N at one stage and gave evidence that you together witnessed some of the abuse.  I also note, the evidence is that you in fact vomited at the sight of Ms Keates with the faeces on the wicket.

[22]     While I am prepared to accept that this does not mean that you knew exactly what happened, you were plainly aware of N’s vulnerability throughout the episode of the detention.

[23]     While not relevant to your sentence, I note that N was subsequently taken to Dome Valley by Mr Blackett, Ms Jones and Ms Torrance where they attempted to murder her in a brutal fashion by, among other things, striking her several times to the head with a hammer.

Victim impact statements

[24]     I have considered the victim impact statements of N, her mother and father. N has, understandably, been deeply affected physically and emotionally by the offending.  N has described the ongoing recovery from her head injuries, which have included surgery, a lengthy period of therapy, counselling, and sleep medication. She also refers to emotional harm, especially at having her hair cut, which she described as her pride and joy.

[25]     N’s parents also, understandably, refer to the significant emotional harm they have suffered as a consequence of the offending. It has come at a financial cost too – with N’s father having to forgo work to support N through the trial process. N’s mother has also taken time off to provide full time care for N.

PAC Reports

[26]     I now turn to your personal backgrounds.

Mr Hakeke

[27]     Mr Hakeke,  you  are 34,  from  Ngati  Porou. You  are transgender,  having identified so from a young age. You had a good upbringing. You are also a qualified

hairdresser. You have convictions for prior offending, but that was some time ago and not for violent offending.

[28]     You  moved  to  Auckland  in  2015  to  find  new  opportunities  and  began working as a prostitute to support your lifestyle. You say that during this time you became a regular user of methamphetamine.

[29]     Your PAC report says you continue to deny your role in the offending, stating that you lured N to your address out of concern for N, and deny assaulting N. The report says you show little remorse.

[30]     The report also notes that given the seriousness of the offending, you present a high risk to the community, but that your risk of reoffending is low.   A sentence of imprisonment is recommended.

[31]     An address for home detention could not be confirmed at the time of the PAC

report, though your sister’s address is available and may be suitable.

Ms Blom

[32]     Ms Blom, you are 30, from Tuwharetoa.   You are a mother of two young children. They currently reside with their father. You had only regained custody of them in 2014, having lost custody in 2012 due to drug abuse and a suicide attempt. This was your third suicide attempt, having also attempted to take your life in 2006 and 2007. The report also records your long history of self harm, dating back to when you were 11 years old.

[33]     You have a number of convictions, including for assaulting a police officer and possession of an offensive weapon. You also have been drug abuser for some time, particularly in the period 2011-2013 and at the time of the offending. But the report notes that you have previously tried to give up methamphetamine, having completed five weeks of an eight week course that you ended due to relationship issues. You are proud of the fact that since you have been taken into custody, you have abstained from drug use.

[34]     The PAC report records that you wanted to plead guilty to the kidnapping from the outset, but with the associated charges unresolved, you were advised to plead  not  guilty. You  say  that  at  the  time  of  the  kidnapping,  you  thought  that Ms Jones  had  a  low  level  disagreement  with  N  only,  and  you  admit  that  you assaulted N in the car.

[35]     You  have  described  the  other  offending  and  the  behaviour  of  your  co- defendants during trial as disgusting to the probation officer, and said that the offending has brought shame to your family.

[36]     [Suppressed] The events disclosed to the probation officer are consistent with the events disclosed to your psychologist. The psychologist also advises that you suffer from complex post traumatic stress disorder (PTSD) and depression. [Suppressed]

[37]     The report also mentions that you expressed what appeared to be genuine remorse for your role in what developed into a vicious and prolonged assault on the victim. You have sought a restorative justice conference to express your remorse directly.

[38]     Your likelihood of re-offending is assessed as moderate and your risk of harm to  others  is  also  considered  to  be  moderate,  but  it  is  expected  that  any  future offending will be of a less serious nature.

[39]     Notably, the report also records that while not convicted of any other matters following the kidnapping, you recognise in hindsight that you were in a position to intervene or to mitigate the events that subsequently occurred.

Assessment

Sentencing purposes and principles

[40]     Turning to my assessment, in the first part of my assessment, I am going to describe the principles that guide sentencing.

[41]     I have to take into account the purposes and principles of sentencing outlined in the Sentencing Act 2002. There is a need to denounce your offending and to hold you  accountable  for the  harm  that  you  have done. The sentence is  intended  to promote a sense of responsibility in  both of  you for that harm. There must be deterrence, both against future offending by you and against others who might similarly offend and I also have to consider the protection of the public.

[42]     The sentence I impose upon you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your personal culpability. I must take into account any circumstances that might otherwise make an appropriate sentence disproportionately severe and any effects that the offending has had upon you. I must also consider your rehabilitation and impose the least restrictive sentence possible.

Guidance

[43]     In terms of guidance from the authorities, recently, in R v Paea1  I observed, having reviewed a number of sentences, that kidnapping with high levels of intimidation, involving multiple defendants and/or physical violence and/or other serious offending will often attract starting points in the range of two and a half years to three and a half years.2  I also noted that there were instances of substantially higher and lesser starting points adopted in the authorities.

[44]     None of the authorities cited to me by counsel cause me to change my view. Rather though, it is important to recognise the particular features of each kidnapping in order to determine the appropriate start point.

April offending

[45]     Dealing first with the April offending, it involved premeditation, multiple offenders, physical intimidation and abuse, though for a relatively limited duration.

That  combination  of  features  suggests  a  start  point  of  two  to  three  years  is

1      R v Paea [2015] NZHC 1705.

2 At [31].

appropriate, though if the full extent of harm done to N and the robbery is factored in, then a much higher starting point would be justified.

[46]     In this regard, Mr Hakeke, while you have been found guilty of kidnapping and of cutting N’s hair, overall you had relatively minor role only. You did not otherwise physically harm her and there is insufficient evidence, as the jury properly found, to link you to any of the other abuse or the robbery. Furthermore, while you must have known that Ms Jones and Ms Torrance were going to confront N in a potentially harmful way, I am not satisfied you knew about or could have anticipated the full extent of the offending.

[47]     All factors considered; I fix a start point for your role in the kidnapping at

two years and six months, with a further three month uplift for cutting N’s hair.

[48]     For completeness, your counsel submitted that your offending in this case is similar to the offending in  Paea. But the offending by Paea did not involve a vulnerable young woman and there was no physical violence, though there were threats of violence. Rather, it involved a kidnapping of a very large body builder, who was taken from a Burger King and driven to a solicitor’s office where he was forced to sign some documents, and then taken back to the Burger King. In addition, Mr Paea did not play an active role in luring the victim into the kidnapping. Rather, he played the enforcer role.

[49]     Mr  Hakeke,  your  starting  point  for  the  full  extent  of  your  involvement therefore is justifiably higher than the start point in Paea, bearing in mind also the assault, which caused, and which you knew would cause, great distress to N.

[50]     So, I consider that a start point of two years and nine months (or 33 months)

to be appropriate for both the kidnapping and the assault with a weapon.

May kidnapping

[51]     Turning to the May kidnapping, the objective seriousness of this offending is worse, given the nature and duration of the kidnapping. As the Crown says, the period that N was held in captivity was 24 hours or about that and about 20 hours of

that would have been in the car and at your residence, Ms Blom. A starting point in the order of three and a half years is appropriate, given N’s vulnerability and, as Ms Blom you now accept, your failure to intervene throughout this very lengthy detention.

[52]     I accept that it might be fairly said that the offending in a case cited to me by your counsel, R v Snowdon,3  involved more lead charges (kidnapping, aggravated robbery  and  blackmail),  yet  the  same  starting  point  was  adopted.  In  that  case, Ms Snowdon knew that the victim had been kidnapped, and was aware that violence was being done to him over an eight hour period, though she did not actually see the violence. She also prepared a document for him to be signed and cashed one of his

cheques for $2,500.

[53]     But while you were not aware of the full extent of the violence, Ms Blom, you were aware of N’s vulnerability and the ill feelings that Ms Jones had towards her.   Yet you did nothing to intervene.   To my mind, this places you in a similar category to Ms Snowdon.

[54]     I also do not consider that the case of R v Kaka,4 cited by Ms Kincade, helps you.  In  that  case,  three  offenders  abducted  the  victim  and  sought  a  ransom  of

$30,000. She was tied up, and punched in the face. A start point of two years six months was adopted in respect of Mr Kaka, given that he played a lesser role and was not party to any specific ill treatment or ransom demands. In my view, this start point was lenient on the facts. A much higher start point on the authorities could have been justified.

Mitigating factors

[55]     Turning to mitigating factors, regrettably, Mr Hakeke, you are not remorseful so you cannot receive a discount for this. I can identify no other personal factors that might qualify for a discount. Mr Newell suggests a good character discount, but given your admitted drug use and previous convictions, I am not prepared to allow a

discount on this basis.

3      R v Snowdon HC Auckland, CRI-2008-004-23774, 28 April 2009.

4      R v Kaka [2013] NZHC 2151.

[56]     You are entitled, however, to a discount for time spent on Electronically

Monitored Bail (EM Bail).

[57]     Mr  Newell  submits  that  you  spent  nine  months  on  EM  Bail,  which  is equivalent to 20 months’ imprisonment (presumably on the basis that sentences of home detention are usually half the period of the equivalent term of imprisonment). He modified his position today to suggest that a discount between 4.5 months to nine months is appropriate.

[58]     By contrast, the Crown submits that a discount of five percent could be available, noting that you were on EM Bail for approximately eight months, of which only three months were on 24 hour curfew.  This, they say, was later relaxed to enable you, Mr Hakeke, to go to the gym and to shop, it appears for one hour on a week on a week on each.

[59]     In terms of the authorities, fixing a discount for this factor is a discretionary exercise and no  arithmetical formula is to be applied. Nevertheless,  I think the approach  taken  by  the  Court  of  Appeal  in  Schuster  v  R5   provides  a  useful comparison.  A discount of about ten percent on sentence was given for a defendant who spent eight months on EM Bail and only left his house nine times during this period.

[60]     In the present case, I assess the period on EM Bail at nine months, and given that you were only subject to a 24 hour curfew for three months, a ten percent discount is sufficient to account for your time spent on EM Bail.

[61]     Accordingly, Mr Hakeke, assuming a start point of 33 months, less a discount of ten percent, your end sentence would fall between two years five months and two years six months. I prefer to fix your end sentence at two years five months.

Ms Blom

[62]     Ms Blom, turning to mitigating factors in your case.

5      Schuster v R [2011] NZCA 343.

[63]     Ms Kincade identifies the following mitigating factors. Your remorse and your offer to participate in restorative justice.  She refers to an offer to resolve the charges as early as 13 December 2016: that is, an offer to plead guilty to kidnapping on the basis that the other charges be withdrawn.   She refers to your prospects of rehabilitation. In this regard, Ms Kincade noted that you have admitted to drug dependency,  you  have  been  off drugs  for 10  months,  and  have  actively sought assistance on this while in custody.  She refers to your psychological and personal factors.  She notes, in particular, your history of abuse, and the diagnoses of complex post-traumatic stress disorder and depression.

[64]     Mr Dickey accepts that you are remorseful and that this is a factor to be considered.  As to the offer to plead guilty, Mr Dickey says you still pleaded not guilty and the Crown was put to proof.   He says that the offer to participate in a restorative justice process is, in short, too little too late.

[65]     For my part, I accept you are genuinely remorseful.  This is recorded in the PAC  report  and  shown  by  your  acceptance  that  you  should  have  intervened  to prevent the abuse the eventually unfolded.   I think this is particularly significant because the jury found you are not guilty of this additional offending. To my mind, it shows a genuine appreciation of the harm done as a consequence of the kidnapping, even though you are not legally culpable for it. Your letter also expresses genuine remorse and acceptance of the harm flowing from your offending.   Your offer to participate in the restorative justice process is further evidence of your remorse and your accepting of your responsibility.

[66]      In addition, the fact that you were prepared to plead guilty for the kidnapping as early as December 2016, is evidence that you accepted responsibility for your part in the offending well before trial.   I note for completeness it cannot, in my view, attract a further separate discount as an equivalent to a guilty plea, because you elected to go to trial. But it is relevant to the credibility of your acceptance of responsibility and remorse.

[67]     I also agree that you are a very strong candidate for rehabilitation, based on the information supplied in your PAC report and the clear positive steps you have

taken to address your drug addiction. In addition, I consider that your whanau, who have been present throughout the trial, provide a supportive network which will assist you in your rehabilitation.   You also have an offer of employment and completed courses while in prison.

[68]     Finally, your background and mental health condition means that a lengthy sentence of imprisonment may be disproportionately harsh for you. While it appears that you have maintained a positive focus while in prison, I consider the risk of relapse in terms of your depression, particularly in light of your traumatic upbringing and PTSD, is a strong factor to be considered.

[69]     Taken  together,  I  consider,  as  suggested  by  Ms  Kincade,  a  20  percent discount for these factors is appropriate. I note that in relation to Ms Keates, Moore J reduced the sentence by ten percent for her psychological factors, background and remorse.  But, in my view, having had the benefit of all of the evidence at trial, and now having a very clear appreciation of your relative involvement, I consider your culpability is significantly less than hers and your capacity to rehabilitate materially greater. The distance you must travel to leading a normal positive life is, in my view, well within your reach. The discount should reflect this fact.

[70]     Accordingly,  Ms  Blom, assuming a starting point of three  years and  six months (or 42 months), less a discount of 20 percent, would leave an end sentence of between two years nine months and two years ten months’ imprisonment. I prefer to fix your sentence at two years nine months’.

Final comment

[71]     Before imposing an end sentence for you both, I want to make it clear that I am sentencing you only for your offending. The heinous acts committed by others, for which you were both not aware and were not party to, cannot form part of your sentencing. Indeed, to impute greater culpability to you by mere association would be grossly unfair.

Outcome

[72]     Please stand.

[73]     In  the  result,  Mr  Hakeke  you  are  sentenced  two  years  five  months’

imprisonment.

[74]     Ms Blom, you are sentenced to two years nine months’ imprisonment.

[75]     As neither of you qualify for home detention, I do not consider this aspect further.

[76]     For completeness, I should address Ms Kincade’s submission that given you, Ms Blom, have served 345 days, I should consider placement with Odyssey House as an appropriate approach at this time. But that could only occur if I was satisfied that an end sentence of 24 months’ imprisonment was appropriate.    Had that been the end sentence, then I record I would have been inclined to pursue this suggestion given  your  genuine  remorse  and  capacity  for  rehabilitation.  But  given  the seriousness of your offending, it is not available to me.

[77]     Please stand down.

Suppression

[78]     Now, just for completeness, in relation to suppression, for obvious reasons, N,  all  identifying  particulars  are  statutorily suppressed.    In  relation  to  Mr  E,  I suppress his details on the basis that, as a witness, he would suffer undue hardship if his name were to be published.  [Suppressed]