R v Borland HC Wellington CRI 2006-032-1663

[2007] NZHC 2008

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-032-1663

THE QUEEN

v

JAYDON RUSSELL BORLAND JASON GEORGE GREGORY BENJAMIN PETER MCPADDEN

Appearances: Mr Burston for the Crown

Mr Gill for Mr Borland

Mr Fulton for Mr Gregory

Mr Antunovic for Mr McPadden

Sentencing:     17 August 2007

SENTENCING REMARKS OF MALLON J

Mr Borland

Charges

[1]      Mr Borland, I am going to start with you.  You appear for sentencing having been found guilty of:

a)       Causing grievous bodily harm with intent to rob (s 236(1)(a) of the Crimes  Act  1961)  which  carries  a  maximum penalty  of 14  years imprisonment;

R V JAYDON RUSSELL BORLAND AND ORS HC WN CRI 2006-032-1663  17 August 2007

b)       Aggravated robbery (s 235(b) of the Crimes Act 1961) which carries a maximum penalty of 14 years imprisonment;

c)        Kidnapping  (s  209(b)  of  the  Crimes  Act  1961)  which  carries  a maximum penalty of 14 years imprisonment.

Circumstances of the offending

[2]      The victim of the offending was a Canadian tourist – Mr Kawerninski.   He had been in New Zealand a few months.   Mr Kawerninski had hitchhiked  from Auckland to Wellington and spent his first night in Wellington at the flat of the person who had driven him from Auckland to Wellington.  Early in the afternoon the next day Mr Kawerninski was in the Courtney Place area of Wellington having been in search of backpack accommodation and a place to store his bags.

[3]      He  struck  up  a  conversation  with  you,  Mr  Borland.     You  were  with Mr Gregory and others.  Your group had recently driven in from Wainuiomata and the  Hutt  Valley  to  spend  the  afternoon  in  Wellington.    Mr Borland,  you  were surprised that Mr Kawerninski approached you.  You are, in your own words to the police, “not an approachable guy”.   I gather this to refer to your physically strong and tough appearance which includes the tattoos that are visible on your head and face – and which include the word “nazi” under  your  eye.    Mr Kawerninski  in contrast is more slightly built, is a native Canadian – of the Cowichan tribe – and looks, to someone not familiar with native Canadians, Asian.

[4]      Mr Kawerninski offered to buy your group some drinks.  Your group agreed with his suggestion and in the course of the afternoon he bought your group several rounds of alcohol in a couple of bars in Courtenay Place.  He also bought a box of Tui beer at the Chaffers New World Supermarket a good portion of which he and your group drank in an area near the boatsheds at Chaffers marina.   It seems that Mr Kawerninski was enjoying being in the company of tough guys.   He made up some outlandish stories about himself including that  he was a gangster of some description.

[5]      Because   Wellington’s   backpack   accommodation   was   full   that   night Mr Kawerninski was looking for somewhere to sleep for the night.  Your group were heading back to the Hutt Valley and Mr Kawerninski invited himself along or you or someone in your group offered for him to come along for a bed for the night.  By this stage your group, and certainly Mr Kawerninski, were intoxicated.

[6]      On the  drive  back  to  the  Hutt  Valley  your  group  picked  up  a  bottle  of bourbon and bought some coke and decided to visit a friend at his place in Naenae. The friend was with his two flatmates.  They were drinking beer and watching TV when your group arrived.   One of those flatmates was Mr McPadden.   Drinking continued at the flat and cannabis was also consumed.  Mr Kawerninski participated in this and was soon outside nearly passing out.  There was some concern shown for him by someone at the flat and he was taken inside to sleep on Mr McPadden’s bed in Mr McPadden’s bedroom.

[7]      Soon after Mr Kawerninski had fallen asleep he was awoken by a group at the  door.    The  light  in  the  bedroom  had  been  switched  on.     According  to Mr Kawerninski there were four or perhaps five in that group and at least two of that group – which included you Mr Borland – began to slap, kick, hit and stomp him repeatedly in the area of his head and ribs.  According to Mr Kawerninski everyone in the group was demanding money.  His wallet was taken from him.  A pillowcase was secured over his head and he was forced into the back of a car.  His feet were tied with his belt.   You Mr Borland stayed at the flat while he was driven to the Naenae cement works – a drive of about 5 minutes from the flat.  By this time it was dark. There are only a few houses located in the vicinity of the cement works.

[8]      Mr Kawerninski was left there on the wet and cold grass, by this time clothed only in his jeans and, I think, one of his boots.  His shirt, jacket and socks had been taken off him.  In addition to his clothing and his wallet in which there was NZ$45, Mr Kawerninski’s 15 carat gold ring (which he had purchased for about CAN$500) and his ID had been taken from him. Mr Kawerninski blacked out but after a period he came to.  He managed to collect himself and walk to a house at around 4.30 in the morning where help was summonsed for him.   He was taken to hospital where he spent the next eight days.

Mr Kawerninski’s injuries

[9]      The expert evidence at trial from the doctor who examined Mr Kawerninski in the hospital was that Mr Kawerninski had a broken rib on his left side, air around the lung and chest, a mild head injury and grazes to his face.  A tube was inserted into his chest to drain the air around the lung and chest.  He also required pain relief and physiotherapy during this time.  The expert evidence was that the rib and lung injury could have been caused by a single blow.   There were no skull or other fractures to any of Mr Kawerninski’s head or face.

[10]     Mr Kawerninski’s description of the attack described considerably more hits, kicks and punches than a single blow.  But the jury verdicts do not mean that they necessarily accepted the full extent of Mr Kawerninski’s description of the attack. The evidence at trial was that Mr Kawerninski was highly intoxicated and stoned. He was unable to remember  much of the  journey out to  the  Hutt  Valley.    His evidence as to his level of intoxication was inconsistent with the evidence of the Crown witnesses who were with him or saw him at that time.   He was unable to recall clearly the number of people at the door when he was awoken and, other than his descriptions of you Mr Borland and you Mr Gregory, he was unclear about who else was there.

[11]     On all the evidence I am not satisfied beyond reasonable doubt that the attack was necessarily as sustained  as Mr Kawerninski’s description –  although  it  was nevertheless a violent and painful attack and involved more than the single blow given the head injury and the grazes.  In these circumstances I sentence you on the basis of the expert evidence of the injuries and give you the benefit of the doubt as to the level of violence involved.

[12]     I also sentence you on the basis that the attack on Mr Kawerninski was not a plan  you  had   from  the  outset.     Rather   it  occurred  opportunistically  when Mr Kawerninski had invited himself along, drank to considerable excess and had fallen asleep at the flat.  Mr Kawerninski had money because he had been lavish with his generosity earlier in the day in buying you all drinks.  You thought he still had money on him.  You decided to take whatever he had left on him by force if need be.

A plan was then formed to take Mr Kawerninski to somewhere where it would be hard for him to remember where he had been and it would take some time for him to get help.

Victim impact statement

[13]     I accept that Mr Kawerninski quite genuinely feared for his life when he was confronted by the group at the door, attacked so that he sustained injuries the doctor described, had his belongings forcibly taken from him, had a pillowcase secured over his head and was dropped in the middle of nowhere in a new town in a country in which he was visiting.  He was injured and in pain, and was disoriented and clothed only in a pair of jeans, and was left to find help somewhere or with someone.  It is obvious that this would have been a terrifying ordeal for Mr Kawerninski.

[14]     This is confirmed by the victim impact statement from Mr Kawerninski.  He describes his depression and lack of self-esteem, fear he has experienced from loud noises or people approaching him from behind and generally the difficulties he has had in getting his life on track after the attack.

Probation report

[15]     Mr Borland, you are now 32 years old.  The information in the pre-sentence report is limited because you did not wish to participate in the interview.  Although you had previously spent time in prison, at the time of this offending you were on the unemployment benefit and had almost no disposable income.   It is said that you excessively use alcohol and drugs including morphine.

[16]     You regret the incident – I take it this is because you did not want to go back in to prison – and as the oldest in the group you accept that you should have been more responsible and taken steps to have avoided this incident.   This is consistent with what you said to the police when you were interviewed.

[17]     You say in the pre-sentence report, however, that you are not sorry for what happened to Mr Kawerninski because he was an idiot and deserved what happened to him.   However, even if he was making a nuisance of himself and was rather foolishly hanging out with your group he most certainly did not deserve what happened to him.

[18]     You are assessed as being a high risk  of re-offending.    Imprisonment  is recommended.

Your letter to me

[19]     I have read your letter which was handed up to me this morning by your counsel.  Brief as it is, it makes better reading than your pre-sentence report and I thank you for it.  In that you do say you are sorry but that it is too late and that it has all happened now.  Can I just say Mr Borland it is never too late to be sorry.

Sentencing Act principles

[20]     In sentencing you today I am required to take into account certain principles and purposes of sentencing in criminal offending.  The Crown have identified certain of those principles and purposes which I take into account.  The ones I emphasise are the need to denounce and deter violent offending and the need for consistency in sentencing levels for similar offending by other offenders.

Starting point for nature of offending

[21]     Although there are three distinct charges, the offending can be considered together given its similar nature and that it occurred as part of one course of conduct. This  means I  am going to  impose  concurrent  rather  than  cumulative  sentences. Counsel are agreed that I should take the causing grievous bodily harm with intent to rob as the lead charge for the purposes of sentencing you.  I will impose a sentence on this charge which reflects the overall seriousness of the offending.   I will then

impose concurrent sentences on the remaining charges that reflects the seriousness of those individual offences.

[22]     The Crown and your counsel agree that a sentence of imprisonment is the only possible sentence.  They differ as to the appropriate starting point.

[23]     The guideline case is the Court of Appeal’s decision in R v Taueki [2005] 3

NZLR 372.   That  sets out three  sentencing  bands  that  apply depending  on the seriousness of the offending.   The Crown says that  band  three applies and that therefore a sentence on this first charge starting in the range of nine to 10 years’ imprisonment is appropriate.  Your counsel submits that your offending falls within band two.

[24]     I consider that on the first charge your offending was not at the least serious end and nor near or at the top of the range.  The violence was quite swift, forceful vicious and callous but was not extreme or prolonged.  This makes it quite different from R v Simon HC HAM TO 14191 19 March 2003 which the Crown has referred to.  The violence was more opportunistic than pre-meditated and weapons were not used.  This makes it quite different from R v Hall & Tolkin CA 296/05, CA 308/05

28 February 2006 also relied on by the Crown.   The injuries were serious in that Mr Kawerninski was hospitalised for eight days but they were not potentially fatal nor of a nature to cause permanent or long lasting physical effect.  Mr Kawerninski’s head was attacked but the evidence was that he suffered a mild head injury and grazes  to  his  face.    The  attack  was  to  facilitate  the  aggravated  robbery  which occurred and that robbery and the number of attackers is an aggravating factor.

[25]     The facts are closer to the case of R v Moffat [2001] BCL 57 where a starting point of six years imprisonment was imposed.  The Court of Appeal regarded this as stern although that case was decided prior to Taueki.   In that case a member of a supremacist gang hit and kicked and then forced a person who wanted to leave the gang into a car with others and, during a 20 minute drive, hit and kicked him around the head with steel capped boots.  At the gang’s headquarters he was again beaten and robbed of his shirt and boots and a small amount of cash and tobacco.  Only his

escape brought an end to his frightening experience during which he reasonably feared for his life.

[26]     I think overall you are at the top of band one/bottom of band two of Taueki.  I therefore adopt a starting point range of four and a half to five years.   Because of your previous convictions, however, and the need for both individual deterrence and public safety I take five  years within that  range.   I then need to  consider what increase I should make to this starting point for the aggravated robbery and the kidnapping.     I  think  the  aggravated  robbery  is  really  subsumed  within  the aggravating features that have led me to the five year starting point on the first charge.  But the kidnapping increases the seriousness of the offending.  I increase the starting point by a further year.

[27]     That gives an overall starting point of six years for the offending.   This is consistent  with your counsel’s submissions of six to  seven  years’  imprisonment although  I  have  given  you  the  benefit  and  taken  the  bottom  end  of  the  range submitted on your behalf.

[28]     To that starting point I need to consider whether there are aggravating or mitigating factors that relate to you personally.  In your case there are no mitigating factors and I have already taken into account your previous convictions in setting the term of six years’ imprisonment.

Minimum parole period

[29]     The Crown seeks a minimum parole period.   The issue is whether I should deprive you of the opportunity to seek parole after you have served one third of your sentence.  I am to do that if I am satisfied that one third of your sentence would be insufficient for the purposes of accountability, denunciation and deterrence and to protect the community.   I am so satisfied in your case.   If you were eligible for release at the end of one third of your sentence I think that does not sufficiently denounce the conduct and nor sufficiently protect the community.  I think this is so because of the group nature of the offending, your lead role in it and your criminal

history.  I consider that the minimum non-parole period should be one half of your sentence.

Sentence

[30]     This means that your effective final sentence is a term of imprisonment of six years.  You will not be eligible to be considered for parole until you have served half of that sentence.   I need to set out the terms of imprisonment appropriate to each charge.  I do so as follows:

a)        First  count (grievous bodily harm with intent to rob)  –  six  years’

imprisonment;

b)       Second  count  –  (aggravated  robbery)  –  three  and  a  half  years’

imprisonment; (concurrent)

c)        Third count – (kidnapping) – three years’ imprisonment (concurrent). [31]  Stand down Mr Borland.

Mr Gregory

[32]     Mr Gregory, you appear for sentencing having been found guilty of:

a)        Aggravated robbery (s 235(b) of the Crimes Act 1961) which carries a maximum penalty of 14 years’ imprisonment; and

b)       Kidnapping  (s  209(b)  of  the  Crimes  Act  1961)  which  carries  a maximum penalty of 14 years’ imprisonment.

Circumstances/principles

[33]     You have heard me outline the circumstances of the offending, they apply to you also.   As does the Sentencing Act principles and purposes I need to take into account and the approach I take to sentencing you.

Pre-sentence report

[34]     Mr Gregory you are 20 years old.  You were 19 at the time of the offending. You too were unemployed at the time, have also  spent time in prison and owe

$37,940 in outstanding fines and court costs and a further $1,380 in reparation.  In your  interview  with  the  probation  officer  you  accept  that  your  consumption  of alcohol was excessive in this period leading up to the offence.   You acknowledge you would benefit from alcohol and drug counselling.

[35]     You say you wished the offending had never happened and that you feel sorry for Mr Kawerninski and hope he is doing fine now.  However you attempt to minimise your role in the offending by saying that you were not in the room when Mr Kawerninski was beaten and robbed and you say you were not in the car when Mr Kawerninski was taken away.  The latter is not consistent with the other evidence and I do not accept it.  The jury verdict means that you were knowingly involved in both the aggravated robbery and the kidnapping.

[36]     You  are  assessed  by  the  probation  officer  as  having  a  high  risk  of  re- offending.  Imprisonment is recommended.

Starting point

[37]     I am going to take the aggravated robbery charge as the lead charge in your sentencing.  The guideline judgment in this area is R v Mako [2000] 2 NZLR 170.

[38]     The Crown submits that the aggravated robbery falls squarely into band two in that case.  They propose a starting point of six/seven years’ imprisonment.  Your

counsel emphasises that the verdicts are not inconsistent with your claim that you did not administer  any  violence and that  there  was  not  any  lengthy  degree  of pre- meditation.  Your counsel does not propose the starting point but urges on me to take the lowest term open to me in view of those facts that he has emphasised.

[39]     I consider that the appropriate starting point is a term of three and a half years’ imprisonment.  I see it as broadly similar to the case of R v Geros HC AK CRI

2006-027-1485 12 December 2006 where a four year starting point was adopted and considerably less serious than R v Walker CA 510/04 6 July 2005 referred to by the Crown.  This aggravated robbery was not at the most serious end – such as a very serious armed robbery.  But nor was it a situation where no actual violence was used. I accept that the verdicts do not mean that the jury found that you used violence, but you were part of the team at the door that confronted Mr Kawerninski when violence was used on him and his wallet was forcibly removed.   Taking these matters into account I consider that a starting point of three and a half years’ imprisonment is appropriate.

[40]     Again, I need to consider what increase I should make to this starting point because of the kidnapping.  For this I increase the starting point by a year to bring it up to a four and a half year term of imprisonment.

[41]     Turning to the aggravating and mitigating factors that relate to you, there is your criminal history.  It is lengthy although most of it is Youth Court orders and/or relates to property offending and other miscellaneous matters.   For violence, you have two convictions (a threatening to kill charge in 2003 and an aggravated robbery conviction in 2004).   Your counsel has emphasised your youth.   Partly because of this I have decided not to increase the sentence because of your criminal history although it is very disappointing that you have offended so seriously so soon after your release from prison in February 2006.  However nor will I reduce the sentence because of your youth.  You are not a first offender and although you have indicated that you feel sorry for Mr Kawerninski there is nothing to indicate that you appear at this stage to be genuinely motivated to reform.

[42]     I therefore leave the term of imprisonment at four and a half years.  I consider an 18 months difference in this term as between you and Mr Borland is the right gap taking into account the different number of charges on which you were convicted and your respective culpability.

Minimum non-parole period

[43]     In your case I am not going to impose a minimum non-parole period – I am not going to do this because of your age, your lesser previous convictions, your acquittal on the first count, that you accepted to the probation officer that you have an alcohol problem and because you have at least said that you wished the offending had never happened and that you feel sorry for Mr Kawerninski.   The prospect of reform and rehabilitation is not completely out of the question.    In these circumstances I  think  your  suitability  for  release can  be assessed by the Parole Board.

Sentences

[44]     What  all this  means  is that  I  sentence  you to  an  effective  total term of imprisonment of four and a half years.  On the aggravated robbery count I sentence you to a term of imprisonment for four and a half years imprisonment.   On the kidnapping count I sentence you to three years.   That term is concurrent on the aggravated robbery count.

[45]     Stand down.

Mr McPadden

[46]   Mr McPadden, you appear for sentencing having been found guilty of kidnapping (s 209(b) of the Crimes Act 1961) which carries a maximum penalty of

14 years’ imprisonment.

[47]     At the time of the offending you were 17.  You are now 19.  You currently live with your mother pursuant to the bail conditions imposed on you for these charges.   You left school without formal qualifications and have had a number of jobs in various industries but have been unemployed for a lengthy period now.  You have not turned up to WINZ appointments and so have not received the unemployment benefit and have no income.  You have previously been sentenced to

200 hours community work for other offending but at the time of the report had completed only 19 hours of that sentence when you should have completed 128 hours.

[48]     You maintain that you were not really involved, that you acted under duress and  you  are  “innocent”.    By that  I  understand  you  to  maintain  that  your  only involvement in the offending was to drive the car and that you did that because you were threatened with a kicking if you did not.  You say that you have felt threatened since you made your statement to the police and are scared to leave home.

[49]     The probation officer recommends imprisonment because of your denial in the  offending  and  your  lack  of compliance with  your  current  community  based sentence.

Letters and other information

[50]     I have read the letters from your family, your friend and also from you.  They refer to the difficulties you had at school and the heartbreak and anguish for your parents that you have caused.  They also say that you are not a violent person but have made poor decisions with whom you have associated.  They urge that you not go to prison.

[51]     Your letter to Mr Kawerninski apologises to him.  Your letter to me refers to your shame and your wish to never find yourself facing imprisonment again.

[52]     In order to assess your culpability I need to form a view on your involvement in the offending.  For you it is said that you should be sentenced on the basis that the jury was not  able to rule out as a reasonable possibility that  your 4 May 2006 statement to the police was the truthful position.  I agree that I cannot rule out that as a reasonable possibility.  I do not think that the matters that the Crown emphasises removes any reasonable doubt about that.

[53]     This means that I will proceed on the basis that your only involvement was to drive the car – which you did for only a short while – and to act as a lookout and that you did so because you were threatened with a kicking if you did not do so.  I also accept  that  you  had  cause  for  concern  about  that  threat  because  you  had  just witnessed the violence carried out on Mr Kawerninski.

[54]     I do not place any weight on the evidence of one witness that you had earlier in the evening shown concern for Mr Kawerninski when he was feeling unwell – there was other evidence that this concern came from one of the other flatmates and in any event it is minor in the scheme of things.   Nor that you may have tried to provide some support for Mr Kawerninski when you told him to co-operate and everything should be alright.   This support, if it was that, was very limited and of course you should not have become involved at all except, if you could, to help Mr Kawerninski.

[55]     I  accept  that  your  involvement  puts  you  at  the  less  serious  end  of  the kidnapping  offending.    It  is  still  offending  for  which  imprisonment  would  be justified.  However I agree with your counsel that I do not consider your culpability to be at anywhere near the level that would justify a term of imprisonment of five to six years as the Crown has submitted given the assessment I have made on your culpability.  The cases the Crown relied on involved far more serious facts.

[56]     There are no aggravating factors – your criminal history is limited and except for one assault charge in the Youth Court, I think, does not involve violence.  The mitigating factors referred to you by your counsel are the six weeks you have already spent in custody before you were granted bail, your youth and your remorse.  I do not accept that you have shown no remorse.   Your letter to me and your letter to Mr Kawerninski show otherwise.  Your counsel urges a non-custodial sentence.

[57]     The difficulty I have with the community based sentence is your poor record at compliance.  It is simply not good enough to say that you thought you had more time to complete it.  The fact is you haven’t ensured that you have complied with your community service obligations.   Further, you haven’t been in employment – when there is no real reason for you not to have been and you haven’t even met appointments to collect the unemployment benefit.

[58]     With some hesitation I have nevertheless decided to exercise my discretion and give you the chance you say you want to change.  Given your age, your family support and your remorse I think you can change your ways.   My concern is that prison will not enhance your rehabilitation prospects.  I have decided to order you to

18 months’ supervision.   That is subject to the standard conditions.   The standard conditions include approval as to your residence.  I note that you have said that you want to get away from the area and start  afresh at  another place that  you have discussed with your Aunt.  The conditions will ensure that you do, as you say you will, live somewhere suitable.

[59]     In addition,  and  concurrent  on supervision,  I  sentence  you  to  250  hours community work.  That is concurrent on your existing community work sentence.  If you do not do your community work Mr McPadden you will be back in court facing prison.  If you do your community work you can put all this behind you and move on with your life.

Mallon J

Solicitors:

G Burston, Luke Cunningham & Clere, PO Box 10357, Wellington (email: [email protected])

S Gill, Gill & McAsey, PO Box 30713, Lower Hutt (email: [email protected])

G Fulton, Barrister, PO Box 30776, Lower Hutt (email: [email protected]) M Antunovic, PO Box 54202, Mana, Wellington (email: [email protected])