R v Bolt HC Rotorua CRI-2009-077-1497

[2010] NZHC 2335

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-077-1497
CRI-2009-077-1516
CRI-2009-077-1521

CRI-2009-077-1524

THE QUEEN

v

DION BOLT

Hearing:         28 October 2010

Counsel:         F Pilditch for the Crown

R Laybourn for the Prisoner

Judgment:      28 October 2010

SENTENCING NOTES OF WYLIE J

Solicitors:          Crown Solicitor, P O Box 740, Rotorua 3040

Mr R Laybourn, P O Box 936, Waikato Mail Centre, Hamilton 3240 for the Prisoner

R V BOLT HC ROT CRI-2009-077-1497  28 October 2010

[1]      Mr Bolt, you may remain seated until I ask you to stand.   You appear for sentence today having pleaded guilty to a charge of attempted murder.  That is an offence pursuant to s 173 of the Crimes Act 1961.  The maximum penalty is one of

14 years imprisonment.

[2]      You  pleaded   guilty  when   you  were  rearraigned  at   your  request  on

10 September  2010.    You  had  earlier  pleaded  guilty  to  a  second  count  in  the indictment - injuring with intent to cause grievous bodily harm.  That count had been laid as an alternative to the count of attempted murder.  Your guilty plea in relation to that count was entered at the initial arraignment on 14 March 2010 but, at the Crown’s request, no conviction was then entered.

Background facts

[3]      I now turn to the background facts.   On Saturday, 12 September 2009, at around  3.40  a.m.  you  were  driving  an  Isuzu  MU  truck  along  Bridge  Street  in Tokoroa.  There were three others with you – they were passengers in the vehicle and they also face various charges.   You stopped the vehicle when you saw four male youths sitting on a bench.  One of those youths was the victim, Seth Tera.  He was aged 15 years at the time.  You leaned out the driver’s window, yelled abuse and made intimidating gestures.  One of the comments attributed to you in the summary of facts is, “Hey, you niggers, do you want a fight?”

[4]      You and your co-offenders got out of the vehicle.   The summary of facts records that you were carrying a baseball bat.

[5]      Mr Tera and his friends ran off down the alleyway between Bridge Street and Swanson Street.   You began to chase them.   At the time you were brandishing weapons and yelling Mongrel Mob slogans.

[6]      You soon abandoned the chase and returned to your vehicle.  You then drove around in an attempt to locate the youths.

[7]      Mr Tera and one of his friends believed they were no long being pursued, so they stopped running.   The other two youths continued to run and they hid in a nearby property.   You and your co-accused spotted Mr Tera and his friend.   You quickly stopped, reversed, and then pursued them in the vehicle into a reserve area.

[8]      Mr Tera and his friend separated.   You and your associates continued to pursue Mr Tera in the vehicle over the reserve to Currie Street.

[9]      Mr Tera attempted to evade you by cutting through a property.  His jersey caught in a fence.  At that point you drove your vehicle into the fence, and Mr Tera fell under the truck’s front wheels.   You then leapt out of the truck with a claw hammer and you struck Mr Tera in the head while he was lying on the grass.  You then returned to the truck, freed it from the fence with the assistance of one of your associates, and drove out onto the street.  You picked up the co-accused.  You then drove towards Mangakeno.  You stopped at the address of a friend of one of the co- accused.  You and some of your associates endeavoured to persuade that person to hide the vehicle in his shed.   You boasted to him that you had run over a young male.  As you boasted you were using Mongrel Mob slogans.

[10]     When spoken to by the police, you admitted that you were the driver.  You also admitted that it was your intention to hit Mr Tera when you directed the vehicle straight at the fence where he was caught.   You also admitted walking over to Mr Tera and hitting him in the head with the claw hammer before driving off.

[11]     Mr  Tera  received  a  depressed  fractured  skull,  multiple  broken  ribs,  a punctured lung and other serious chest injuries.   He required extensive treatment including treatment in an intensive care unit.

Pre-sentence report

[12]     I have received a helpful pre-sentence report.

[13]     You are now 19 years old.  You were born in Tokoroa.  You normally live with your mother, but she has moved away from the area following your offending.

You were subsequently bailed to your father’s property in Temuka, but you absconded  and  your  bail  was  revoked.    You  were  subsequently  arrested  and remanded in custody.

[14]     Your parents separated when you were in your early teens and, according to your mother, you went downhill after the separation.  You left school at the age of

15 with no formal qualifications.  While you have expressed a desire to drive heavy machinery for a living, you have been unemployed for various periods, and you have lived an unstructured lifestyle.

[15]     You report that you are close to both your parents, your three brothers, and three half-brothers.  Your father is deeply disappointed in you, but believes you to be truly repentant.  He has offered you his unconditional support and, as I understand it, he is in Court to support you today.

[16]     You stated that you used to drink regularly, but that you have not consumed alcohol over the past  year because of bail  conditions.   You nevertheless report smoking cannabis three to four times a day, and also smoking methamphetamine four times a week over the past few years.  It is not clear how you funded this drug abuse.

[17]     You knew your co-accused from various places – one from working on the same farm, another from school, and the third used to date your sister.  You were driving your mother’s vehicle at the time of the offending, and  you were on a restricted driver’s licence.  You did not know Mr Tera, or his friends.

[18]     To the probation officer you denied leaning out the driver’s window, making intimidating gestures, taunts or challenging the youths to a fight.  You also denied threatening the youths with a baseball bat.  You stated that it was one of your co- offenders who wanted to attack the youths, and that you were encouraged by the others.   Further, you denied driving the truck into Mr Tera, claiming that he was already lying on the ground.  Nevertheless, you admitted striking him once with the hammer, although you stated that you intended to hit him around the shoulders.  You have stated that prior to the incident, you and your co-accused had been drinking,

and probably smoking cannabis, but that you were not that drunk.   The probation officer described the event as resulting from a pack mentality, whereby you and your co-offenders decided “to advance the Mongrel Mob profile”, faced with youths who were wearing blue, which is apparently associated with another gang, the Crips.  The report does not state what, if any, affiliation you have with the Mongrel Mob, or any other gang.   The report does not state what, if any, affiliation you have with the Mongrel Mob or any other gang.

[19]     You told the probation officer that you were not thinking, and that it was a stupid thing to do.  You expressed remorse.  I am also told that you have spoken to the prison chaplain and that you have started attending church services, and that you have said you wanted to be a better person.

[20]     The probation officer identified a propensity for violence, risk-taking arousal, offending associates, use of alcohol and drugs, a sense of entitlement, and an unbalanced, indolent lifestyle as contributing to your offending.  She also noted that while you have taken partial responsibility for your offending, you relate the events as if you had little choice.  She assessed you to be at a high risk of reoffending, and as having low to medium motivation to change, given your denial of pivotal aspects of the offending.  She has recommended imprisonment.

[21]     At the time of the report, you owed approximately $1,600 in reparation, along with a $100 enforcement fee.  You have four previous convictions dating back to 2008, including a conviction for threatening to kill or to do grievous bodily harm, and behaving threateningly.

Submissions

[22]     I now turn to the submissions I have received.  I have received submissions from Mr Pilditch, for the Crown, and from Mr Laybourn, on your behalf.

[23]     Mr Pilditch submits that I should adopt the starting point of 10 to 12 years imprisonment.   He submits that your offending is aggravated by various factors, including that the violence you inflicted involved the use of weapons, the impact on

the victim, the victim’s vulnerability and your attempted concealment of your offending.  He submits that an uplift should be given for the fact that the offending was committed while you were on bail, and possibly for your previous convictions. He accepts that you are entitled to a reduction for your age, and because of other circumstances particular to you that I do not need to detail.  He also accepts that a

20 per cent discount should be given for your guilty plea.  Finally, he submitted that a minimum period of imprisonment of 50 per cent of the final term should be imposed.

[24]     Mr Laybourn, on your behalf, submitted that a starting point of around nine years should be adopted.   He disagreed with the Crown’s submission that the concealment of weapons and gang involvement should be regarded as aggravating features.  He emphasised mitigating features, in particular your youth, the prospects of your rehabilitation, your strong family support, and the special features which I have already mentioned.  He also submitted that you always intended to plead guilty and he suggests that a discount greater than 20 per cent should be given to you.  He has  told  me  this  morning  that  you  fully  accept  the  summary  of  facts  and  has suggested that your comments reported by the probation officer were not intending to minimise your offending and that they were contrary to instructions that you had earlier given to him as counsel.

[25]     Mr Laybourn has also attached to his submissions a number of references. These include references from your father, your grandparents, your former teacher and your employer.  I have read all of the references.  They generally refer to your hardworking nature, and your good attitude.  Some mention the difficulties you had when your parents separated and the subsequent negative social influences on you. Your father states that you are truly remorseful for your behaviour and that you want to change things.

Purposes and principles of sentencing

[26]     Turning  to  the  purposes  and  principles  of  sentencing,  I  have  taken  into account a number of the purposes of sentencing set out in s 7 of the Sentencing Act

2002.  In particular, I must hold you accountable for the harm that you have done to

the victim, Mr Tera, and the community.  I must hold you responsible for the harm that you have caused.  I need to denounce the conduct in which you were involved, and seek to deter you and others from committing the same or similar offences. Moreover, I have to protect the community from you, while endeavouring to assist in your rehabilitation and reintegration insofar as I am able to do so.

[27]     The relevant principles of sentencing are set out in s 8.  I am required to take into account the gravity of your offending and your culpability, the seriousness of this type of offending, and to ensure that such sentence that I pass is generally consistent with appropriate sentencing levels for other similar offenders committing similar offences.  I am mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.

[28]     Section 9 of the Act also requires me to consider various aggravating features of your offending and I turn to these shortly.

Victim impact statement

[29]     I have received a victim impact statement from Mr Tera’s parents.  Parts of that statement have been read in Court this morning by Mrs Tera.   The statement makes harrowing reading.  Mr and Mrs Tera describe their son’s injuries, his fight for life and the emotional turmoil your actions have put their family through.  The statement also details the ongoing difficulties Mr Tera now faces as a result of these injuries which you inflicted.

Analysis

[30]     I now turn to analyse this material.  There is no tariff for attempted murder cases, largely because the nature and circumstances of this crime vary significantly.

[31]     The crime of attempted murder is a very serious one, because an element of the  crime  is  the  formation  of  an  actual  intention  to  kill.    A  number  of  cases concerning attempted murder have referred to the decision of the Court of Appeal in

R v Taueki[1]  for guidance.   That case deals with wounding with intent to cause grievous bodily harm but the Court acknowledged that the guidelines there discussed can be applied more widely.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[32]     Taueki is of assistance in dealing with your case.  The maximum penalties for causing grievous bodily harm, and for attempted murder, are the same.  Moreover, Mr Tera suffered serious injuries, and the aggravating features listed in Taueki assist in assessing the seriousness of your offending.

[33]     Taueki  grouped  such  offending  in  three  bands.     Band  2  is  generally appropriate for offending featuring two or three aggravating features.   Band 3 encompasses serious offending with three or more aggravating features, where the combination of aggravating features is particularly grave.

[34]     Here, in my view, there are a large number of aggravating features to your offending:

a)       First,  there  is  the  impact  on  the  victim,  Mr  Tera.    He  suffered significant and life threatening injuries as a result of your attack.  As I have noted above, these included a depressed and fractured skull, multiple broken ribs, a punctured lung, and chest injuries.

b)Secondly, you used weapons to inflict the violence.   You used the motor vehicle to run Mr Tera over, and to knock him to the ground. You then struck him in the head with a claw hammer.  The combined use of both weapons seriously aggravates the offending, and the level of violence inflicted by you on Mr Tera was close to the extreme end of the scale.

c)       Thirdly, you attacked Mr Tera’s head with the claw hammer.   The head is, of course, a vital body part.   Again, an attack to the head aggravates your offending.

d)        Fourthly,  Mr  Tera  was  vulnerable  at  the  time  you  attacked  him.

While he was not inherently vulnerable, he was vulnerable at the time you hit him with the motor vehicle because he was stuck on the fence. After he was struck by the motor vehicle, he was effectively defenceless.  He was badly injured, and he was lying on the ground. You continued the attack with the hammer.

e)        Fifthly, your attack was random and unprovoked.  Mr Tera was only

15 years old.   At no stage during the offending did you show any sympathy for, or offer to assist Mr Tera.   Mr Tera and his friends were simply not known to you and they had done nothing to offend you.

f)        Sixthly,  there  are  gang-related  implications  to  your  offending.

Mr Tera and his friends were wearing the colour blue.   As I have noted already, that is a colour apparently worn by members of the Cryps gang.  You and your co-offenders gave the impression that you had gang affiliations by yelling out Mongrel Mob slogans.   In the event, there is nothing to suggest that you had any association with the Mongrel Mob, but it is clear you were trying to suggest that there was some gang link.   This is, to my mind, an aggravating feature, albeit not one of great moment.

g)       Finally,  following  the  attack,  you  and  your  co-accused  tried  to persuade a third party to hide the vehicle in his shed.  One of your co- accused hid and later disposed of the claw hammer.   These were actions taken to avoid detection from the authorities.   I accept that you were not involved in the actions to hide and dispose of the claw hammer.  You were, however, directly involved in the attempt to hide the vehicle.

[35]     I have considered whether there was premeditation.  While there is nothing to suggest that your attack as pre-planned as such, it was prolonged.  You pursued the victim in your truck for some time and you assaulted him with the hammer.   The

attack  was  not  a  wholly impulsive  one.    There  was  a  degree of  premeditation. Moreover, multiple attackers were involved, although on the summary of facts you were the only person who directly inflicted violence on Mr Tera.

[36]     In my view, there are a significant number of aggravating features to your offending.  It falls within Band 3 in Taueki.

[37]     I  have  considered  the  comparable  cases  referred  to  me  by  the  Crown. Mr Laybourn did not refer me specifically to any authorities.  Rather, he submitted that some of the cases that the Crown has cited deal with more serious facts and with sentencing following a trial.  I accept his submission that each case is rather different on its facts, but nevertheless all assist in a broad sense.  The starting points imposed in those cases range have ranged from 10 years to 13 years.

[38]     The case I considered to be of greatest assistance is the decision in R v Donnan.[2]    In that case Courtney J adopted a starting point of nine years, where the prisoner and another drove past a group of teenager, pulled up, got out of the car, and started an altercation.  The prisoner chased a 15-year-old, stabbed him many times causing deep cuts to the back of his head and continued until friends came to the youth’s aid.   Her Honour adopted a starting point of nine years but uplifted that starting point to 10 years to take into account the totality of the prisoner’s offending, which included an attack on another youth.

[2] R v Donnan HC Auckland CRI-2006-044-8749, 22 August 2008.

[39]     While  your  case  is  comparable  to  the  situation  in  Donnan,  there  are, however,  significant  differences.     In   your  case,  the  attack  was  completely unprovoked.  I have already noted you did not know Mr Tera in any way.  He had done nothing to anger or inflame you.  Mr Tera was a youth, and the injuries you inflicted on him, both with the motor vehicle and with the hammer, were very significant indeed.   There is also the subtext of gang involvement, although, as I have noted, the attack was not actually gang-related.

[40]     In my view, a starting point of 10 years and 6 months is appropriate in your case.

Aggravating and mitigating factors personal to you

[41]     I now look at aggravating and mitigating factors personal to you.  As I noted, you have four previous convictions dating back to 2008.  Two of those are relevant, namely threatening to kill or to do grievous bodily harm, and behaving threateningly. Those offences were committed on 30 May 2009, and you were sentenced to nine months suspended sentence on 15 April 2010.  At the time of the present offending, you  were on  bail  in  relation  to  those matters.    Clearly,  your  current  offending indicates a serious escalation in the level of violence you are prepared to use.

[42]     In my view, an uplift is appropriate given your prior offending.  Given your prior offending and the fact that you were breaching bail, I consider that the appropriate uplift is one of six months imprisonment.

[43]     Mr Laybourn has raised a number of mitigating factors he submits I should take into account.  The first is your age.  You are currently 19 years old.  You were

18 years old at the time of the offending.  While Mr Pilditch, for the Crown, suggests that youth should not necessarily justify a discount if there is little prospect of rehabilitation, it is a matter I am required to consider pursuant to s 9(2)(a) of the Act. In  my  view,  a  small  discount  of  three months  is  appropriate  to  recognise  your relative youth and immaturity, and the prospects of rehabilitation, albeit that the materials before me suggest your motivation to change is perhaps limited and not as high as some suggest on your behalf.

[44]     Mr Laybourn also referred me to your remorse.  He told me that it is genuine and that you are now disgusted by your actions.  While I accept that you now regret your stupidity, I am not persuaded that you have shown any great remorse.   As I have noted, you did not acknowledge your involvement in its totality when you were speaking to the probation officer.  She was left with the impression that you related the events as if you had little choice.   Although Mr Laybourn tells that you now resile from your comments to the probation officer and accept the summary of facts, this is very late in the day.

[45]     Counsel have also raised with me circumstances particular to you.  I need not detail those matters.  I accept that they are a relevant factor and Mr Pilditch accepts that you should be entitled to a further discount for them.

[46]     The guilty plea for the attempted murder charge was entered at a late stage. It was only entered once you were arrested after you failed to surrender your bail and after the trial was due to start.  However, you have pleaded guilty to the alternative charge of wounding with intent to cause grievous bodily harm on 4 March at the first callover.  The Crown suggests this justifies a 20 per cent discount to the sentence I would otherwise have imposed.  This is consistent with the decision of the Court of

Appeal in R v Hessel.[3]   Mr Laybourn sought a higher discount.

[3] R v Hessel [2009] NZCA 450

[47]   Having considered all the matters in the round, including the special circumstances I have referred to, I am satisfied that an overall discount of 30 per cent is appropriate in your case.

Sentence

[48]     Mr Bolt, will you please stand.  In respect of the charge of attempted murder, I sentence you to a term of imprisonment of 7 years and 6 months.

[49]     I now turn to consider whether or not I should impose a minimum term of imprisonment.   In terms of s 86 of the Sentencing Act, a minimum term of imprisonment is appropriate where the default non-parole period would be insufficient to meet the aims of accountability, denunciation, deterrence or protection of the community.

[50]     The ordinary one-third parole period would result in you being eligible for parole after you had served a third of your sentence.  In my view, such incidents of unprovoked, malicious, and pointless violence in the community need to be firmly denounced and deterred.  I also note the probation officer’s view that you present a high risk of reoffending.   In my view, the protection of the community is also a relevant issue.

[51]     On balance, I consider that a minimum term of imprisonment is appropriate. I impose a minimum term of imprisonment of 3 years and 9 months.

Conclusion

[52]     Mr Bolt, you were involved in appalling offending.  I am told that you have expressed remorse, and that you accept now that what you did was a “stupid thing to do”.  As I have already noted, you have spoken with the prison chaplain, and you have started attending church services.  You have stated that you want to be a better person.

[53]     Clearly, your father, your mother, and others support you.  You are fortunate in that regard.  I hope that you will succeed in turning your life around, and that you will carry through on your expressed willingness to undertake such rehabilitative programmes as are offered to  you in relation to violence, substance abuse, and

lifestyle issues.  You may stand down.

Wylie J