R v Edwards

[2013] NZHC 2569

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-263-000091 [2013] NZHC 2569

THE QUEEN

v

WILLIAM KARAUNA EDWARDS LESLIE McKay GLEN

Counsel:

A J Gordon and A D Hill for Crown J Bergseng for Prisoner Edwards

M A Simpkins (acting on instructions from A M Simperingham) for Prisoner Glen

Sentence:

4 October 2013

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]   Mr Edwards, you have pleaded guilty to causing grievous bodily harm to Mr Skorek with intent to cause grievous bodily harm to him. Mr Glen, you have pleaded guilty to being a party to the same offence.

[2] I will sentence you together. However, I am not going to be imposing the same sentence on each of you because in my assessment Mr Glen is less culpable than Mr Edwards.

[3]      In sentencing you I shall:

(1)explain your respective roles in the offending;

(2)describe your personal circumstances;

R v EDWARDS [2013] NZHC 2569 [4 October 2013]

(3)explain the starting point for your sentence;

(4)explain the adjustments I am making to that starting point;  and

(5)explain your overall sentence.

Your role in the offending

[4]   I have previously explained this terrible crime when sentencing Mr Herewini for the murder of Mr Skorek.

[5] In summary, both of you together with Rawiri Samuels and Simon Herewini attacked Mr Skorek at Kuirau Park, Rotorua on 23 January 2012.

[6] Earlier that day all of you went to a supermarket in Fenton Street, where alcohol was obtained. You all then went to Kuirau Park and started drinking.

[7] Mr Skorek, a 64 year old man who was visiting Rotorua, approached your group. He was offered some wine and after accepting this offer sat down with you and your friends and had a lengthy discussion with you all.

[8] At some point Mr Skorek was seen to be looking at Mr Herewini’s crotch. This so incensed Mr Herewini that he let loose a tirade of verbal abuse. Mr Skorek left your group and headed towards the centre of Rotorua.

[9] After this all four of you returned to the supermarket on Fenton Street and stole another cask of wine and returned to the park.

[10] By this time Mr Skorek had returned to the park and met up with your group again. At some point Mr Skorek asked Mr Herewini to go for a walk with him away from the rest of your group. Mr Herewini did this but was followed by Rawiri Samuels who, after a short period of time ran up to Mr Skorek and hit him several times about the head.  Both of you then joined in the assault.

[11] Rawiri Samuels took Mr Skorek’s backpack and your group went to the hospital grounds where, after rummaging through Mr Skorek’s possessions a knife was found.

[12] Members of your group had a discussion about the fact Mr Skorek could identify each of you. An agreement was reached which involved all of you returning to the park. When you arrived back at the park Mr Skorek was lying on the ground where he had been left by your group. He was unconscious. Rawiri Samuels stabbed Mr Skorek in the face and  chest.  He  then  handed  the  knife  to Simon Herewini who in turn stabbed Mr Skorek in the head and upper chest and inflicted a cut to his throat.

[13] Mr Skorek’s death was likely caused by one of the stab wounds to his chest which severed his carotid artery.

[14] The summary of facts says that in relation to the first attack, you Mr Edwards aggressively kicked Mr Skorek on numerous occasions on his body and head as he lay on the ground. You were present and witnessed the stabbing during the second attack on Mr Skorek.

[15] The summary of facts states that you Mr Glen were initially reluctant to become involved and that you started crying before the first attack. However, you did ultimately take part in the attack and kicked Mr Skorek in his legs and chest and stood on him when he was on the ground. You were present during the second attack and resisted pressures that were put on you by Simon Herewini and Rawiri Samuels to use the knife.

[16] The summary of facts leads me to understand that  neither  of  you  were directly involved in the fatal attacks that caused Mr Skorek’s death. I also understand Mr Glen’s involvement was as a party and that he was less culpable than Mr Edwards.

[17] Rawiri Samuels pleaded guilty to murdering Mr Skorek on 29 March 2012. On 6 December 2012 he was sentenced by Peters J to life imprisonment with a

minimum period of 12 years’ imprisonment. Simon Herewini pleaded guilty to murdering Mr Skorek on 26 August 2013. I have this morning sentenced him to life imprisonment with a minimum period of 14 years’ imprisonment.

Your personal circumstances

Mr Edwards

[18] Mr Edwards you are now 16. At the time of your offending you were 15. You left school at 14 with no formal qualifications. You have difficulty with literacy and since being remanded you have taken the opportunities provided to you to gain formal qualifications and to improve your literacy.

[19] A report prepared by two psychologists notes that you are a vulnerable young person who suffers from emotional immaturity. Your cognitive and functioning skills are below normal.

[20] You have eight previous convictions for offending, including one for possession of an offensive weapon.

[21] You reported drug and alcohol use at the time of the offending and you were severely intoxicated when this terrible crime occurred.

[22] The pre-sentence report notes that you were genuinely remorseful and you have shown considerable empathy to your victim and family.  That  was demonstrated by you again today when you read the letter of apology to the victim’s daughter in an effort to make amends.

[23] You have shown motivation to address the driving of your offending but the pre-sentence reporter assesses your likelihood of reoffending as high given your age and the number of offences that you have committed over a short period.

[24] The probation service says that given the serious nature of your offending, you are aware that the only realistic sentence is a long term of imprisonment.

Mr Glen’s personal circumstances

[25]     Mr Glen, you are now 15. At the time of your offending you were 14.

[26] You lived in Waipukurau until you were six and when your father was killed you moved with your mother and older siblings to Rotorua. You have lived in central Rotorua with few parental boundaries and you have been associated with negative influences and become very susceptible to peer pressure.

[27] Since you were released on bail in April 2012 you have returned to Waipukurau under the care of your grandparents. You have been electronically monitored and the six affidavits that have been sworn and presented to me attest to the positive developments that you have undertaken in areas of physical, spiritual, educational and whānau participation and development.

[28]  The probation service notes that a sentence of imprisonment would normally be imposed for someone who offends in the way you did. However, the probation service asks that I consider a community based sentence and your counsel has urged me to consider a sentence that would ultimately result in you receiving home detention.

Starting point

[29]  In setting the starting point for you Mr Edwards, I have had particular regard to:

(1)The level of violence used in the first assault, which you were both involved in and that that involved a substantial and brutal attack.

(2)The attack, in your case Mr Edwards, was to Mr Skorek’s head.

(3)The injuries caused to Mr Skorek were serious and rendered him unconscious.

(4)Mr Skorek was attacked by four of you.   That was a considerable disparity between attackers and victim.

[30]    In these circumstances I am driven to the conclusion Mr Edwards’ offending is within band three of R v Taueki1 and that the lowest starting point I can realistically adopt is one of 11 years’ imprisonment. Although there are more than three aggravating features which would normally make your offending well within band three, I am adopting a starting which I believe accurately reflects your culpability.2

[31]  Mr Glen, you kicked Mr Skorek on his legs and body and stood on him while he was on the ground during the initial assaults. You have pleaded guilty as a party to causing Mr Skorek grievous bodily harm with intent to cause him grievous bodily harm. Although you were not directly responsible for the grievous bodily harm, I nevertheless regard you as being a party to the infliction of grievous bodily harm, which I treat as being within band three of Taueki, but due to your significantly lesser role I am willing to adopt a lower starting point in your case of six years.

Adjustment to starting points

[32] Both of you have offended previously. However, in the circumstances of this case it is not necessary to increase the starting point to reflect your previous offending. You were both dealt with in the Youth Court on previous occasions.

Adjustments to reflect your youth

[33] An offender’s age is a factor that can be taken into account as a mitigating factor in assessing the appropriate sentence.3

[34]     An offender’s youth is said to be relevant to sentencing in three ways:4

(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

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

2 At [31].

3       Sentencing Act 2002, s 9(2)(a).

4       Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not well as formed as that of an adult.

[35] In certain circumstances the youth of an offender can justify a substantial discount.  In R v Mako the Court of Appeal said:5

Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. ... In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and unlikelihood of re-offending.

... where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[36]     Similarly, in Pouwhare v R the Court of Appeal said:6

... the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed.

[37] I consider all of the factors which I mentioned earlier are relevant to your offending. You both admit to being susceptible to peer pressure from other members of the group. Mr Edwards, you described yourself as following the others like a sheep and there is evidence Mr Glen was reluctant to become involved and was crying at the time of the initial assault. Mr Glen appears to have felt under considerable pressure to become involved.

[38] Both of you have shown efforts at rehabilitation since the  offending  in differing degrees. You are both of an age in respect of which long-term prison sentences are likely to crush your future hopes of reform.

5       R v Mako [2000] 2 NZLR 170 (CA) at [65]-[66].

6       Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].

[39] In both your cases I am prepared to give significant discounts to the starting point to reflect your youth. In particular, Mr Glen your age and your rehabilitative prospects justify me taking a lenient approach, particularly in view of the role that you played in this terrible affair appears to have been the least culpable of all concerned.

[40] For you, Mr Edwards, I propose to give you a discount of 50 per cent to reflect your age, your genuine remorse and your rehabilitative prospects. Mr Glen, I propose also to give you a discount of 50 per cent to reflect your youth, your genuine remorse and your rehabilitative prospects.

Guilty pleas

[41] Both of you have pleaded guilty to the crimes that I am sentencing you for. That occurred after the Crown agreed to withdraw the murder charge against you. This came at a relatively late stage in the process. Your guilty pleas were not entered until 26 August this year.

[42] In Hessell v R the Supreme Court has said that in considering the size of a discount for a guilty plea all of the circumstances need to be taken into account, not just the time when the plea was entered.7

[43] Mr Edwards, I will give you a discount which is very close to 23 per cent just under the maximum that could be allowed because your guilty plea was entered soon after your fitness to plead was determined. Mr Glen, you were entitled to dispute the Crown summary of facts and your level of culpability and although your pleas were entered late in the process, I believe you are entitled to a discount that is close to 12 per cent.

Overall assessment

[44] I have reflected on the overall appropriateness of the sentences I am about to impose. In particular, I have considered whether or not the differences in your sentences properly reflects your differing levels of culpability and the fact that Mr

7       Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Glen is charged only as a party. In my assessment, the sentences I am about to impose best meet the principles of sentencing and the differences in your culpability.

End sentence

[45] Mr Edwards, can you please stand. On the charge of wounding with intent to cause grievous bodily harm you are sentenced to four years three months’ imprisonment.

[46] Mr Glen, can you please stand. On the charge of being a party to wounding with intent to cause grievous bodily harm you are sentenced to two years six months’ imprisonment.

[47] I appreciate Mr Glen the sentence that I have imposed means that you will not be eligible for home detention and it is distressing that I cannot give you a sentence that would make you eligible for home detention. However, it is the sentence which is the most fairest, humane and lowest sentence that I can, in good conscience, impose upon you.

[48] I sincerely hope that both of you will do all you can to put this terrible crime behind you. You have both shown considerable abilities to make something of your lives and I hope that you will be able to continue to do so, because if you do not both of you will be destined for very grim futures.

[49]     You may now both stand down.

D B Collins J

Solicitors:

Crown Solicitor, Rotorua

Bergseng & Co, Auckland for Prisoner Edwards Lance Lawson, Rotorua for Prisoner Glen