R v Enoka

[2017] NZHC 2032

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-001603 [2017] NZHC 2032

THE QUEEN

v

ALBERT ENOKA

Hearing:	23 August 2017
Appearances:	C J Lange for the Crown A J D Bamford for the Defendant
Judgment:	23 August 2017

SENTENCING REMARKS OF NATION J

[1]      Mr Enoka, you are to be sentenced today as a result of events that occurred between 14 and 17 February 2015.  You were arrested on a number of charges and first appeared in Court on those charges on 18 February 2015.

[2]      On  7  August  2015,  you  pleaded  guilty  to  a  charge  of  driving  while disqualified, a charge of providing false details as to your identity and a charge of unlawfully removing an impounded vehicle.  You continued to plead not guilty on a number of other charges.

[3]      On 19 February 2016, you pleaded guilty to charges of possession of a class

A drug methamphetamine for supply, possession of class C cannabis for supply and unlawful possession of a firearm.

R v ENOKA [2017] NZHC 2032 [23 August 2017]

[4]      On 3 June 2016, shortly before you were to go to trial on the remaining charges, you pleaded guilty to a charge that on 15 February 2015, together with Lindsay Trevor Francis, you entered a building at 39 Kibblewhite Street without authority and with intent to commit an imprisonable offence therein, namely assault, and you had with you a knife.   You also pleaded guilty to a charge that on 15

February 2015 at Christchurch, with intent to injure Simon Ferenc Kovacs, you wounded Simon Ferenc Kovacs. You also pleaded guilty to a charge that on or about

15 February 2015, together with Mr Francis, you unlawfully detained Toni Neho with her consent obtained by duress, with intent to cause her to be confined.  You were to be sentenced on 12 July 2016.

[5]      On  8  July  2016,  through  your  new  lawyer,  you  filed  an  application  to withdraw your guilty pleas on those three last charges.  And, on 26 August 2016, again through your counsel, you limited your application to change a plea to just the kidnapping or unlawful detainment charge.  After a hearing on 5 December 2016, in a judgment of 16 January 2017, I declined your application and remanded you for sentence on 16 February 2017.  Just prior to that scheduled sentencing, your counsel indicated that you wanted to have a disputed facts hearing over certain matters that had been set out in the summary of facts relating to the charges to which you had pleaded guilty.

[6]      That disputed facts hearing took place on 10 April 2017.  My judgment of 11

April 2017 records the conclusions I came to on the matters which were in dispute.

[7]      The facts of the offending on which you must be sentenced thus emerge from the summary of facts and the evidence from the disputed facts hearing.

[8]      At the time of this offending, you were a member of the Rebels Gang and president of its Christchurch chapter.  Mr Francis was a prospect for that gang.

[9]      On 5 February 2015, you were disqualified from holding or obtaining a driver licence for a period of six months.  At about 5.15 am on Saturday 14 February, you were the driver of a motorcycle on Brougham Street when you were stopped by the Police. When asked for identification, you gave a false name and address.

[10]     You were then in a relationship of some sort with Anne Johnston.  Between

8.00 and 8.30 pm on 15 February, Anne Johnston went to Kibblewhite Street to visit a friend called Simon Kovacs.  Also at the address were Kovacs’ partner Toni Neho and his flatmate Kyle Morgan.  Around 10.00 to 10.30 pm, Ms Johnston telephoned you.  You were angry that she was not at home and thought she was with another man.  It was arranged that you would pick her up.  Ms Johnston arranged to meet you on the corner of Kibblewhite and Union Streets.  She went to that place with Ms Neho.   You were there with Mr Francis and a third unknown person.   You were wearing your Rebels vest and a balaclava.  Mr Francis had not concealed his face in any way. You and Mr Francis were both carrying knives.

[11]     You went with Ms Neho back to the Kibblewhite Street address.  The door to the house had been left ajar for Ms Neho to come back in.  Mr Kovacs was in bed in his bedroom.  His flatmate, Mr Morgan, was in his bedroom on his Playstation.  You went into Mr Kovacs’ room, holding a knife about 18 centimetres long.  You swore at Mr Kovacs, abusing him and accusing him of having sex with Ms Johnston.  You held the knife against his throat and punched him in the face with a closed fist at least once.   As a result, one tooth was completely dislodged from his mouth and another tooth was broken.  His lip was pierced and he required more than 20 stitches to the inside of his mouth.  He began bleeding profusely.  He described you as acting hysterically towards him.

[12]     You then dragged Mr Kovacs into Mr Morgan’s room, lunging at Mr Morgan with the knife and punching him.  Mr Morgan was curled up in a foetal position on the bed.  Mr Francis was also in the room with Ms Neho.  You and Mr Francis then started going through the room, ransacking it and taking items that you wanted.  At one point, Mr Francis was brandishing a machete.  Mr Kovacs heard Mr Francis say that they were lucky because you had done worse things to others.

[13]     I am satisfied from the evidence I heard in the disputed facts hearing that, while you were in Mr Morgan’s room, you told Mr Francis to keep an eye on them and, if they moved, to stab them. You took Mr Morgan’s watch, a Panasonic Blueray player, Hewlett Packard laptop, a machete, swords that had been on display were taken from the wall.  You and Mr Francis then forced Mr Morgan and Mr Kovacs

back to Mr Kovacs room.  Mr Morgan was made to sit in a chair in your room while you and Mr Francis ransacked Mr Kovacs room, forcing Ms Neho to pack things you were taking.  You went through drawers, took expensive electronic equipment, jewellery, an air pistol you found in a drawer.  Mr Kovacs again described you as being hysterical.  At one point, you stabbed your knife beside his leg, puncturing his mattress and duvet. You also threatened to kill a little dog that was there.

[14]     You and Mr Francis made Ms Neho assist with loading various items of property into bags and then carrying those bags out to the car.

[15]     When that was finished, you told them not to telephone the Police and made various threats about what you would do if they did that.

[16]     You unloaded the stolen property into the car, made Ms Neho get into the car and kept her in the car when you drove off to an unknown address where you stayed that  night.    The  next  day,  you  were  driving  around  areas  outside  Christchurch looking to find a motel to stay in.  At one point, Ms Neho looked under the seat and saw there were two firearms there.

[17]     In the afternoon of that second day, you went to an Addington address where your Harley Davidson motorcycle was stored, having been earlier impounded.  You and Mr Francis were able to start the motorcycle and take it from the yard, despite being told you could not do so because it had been impounded.

[18]     After that, you went to your mother-in-law’s address in Poulson Street.  You had a satchel with Rebels Gang insignia on it.  You asked if she could look after the bag as it had money in it.  Once you had left, your mother-in-law and granddaughter looked through the bag and found containers and zip-lock bags containing 28 grams of methamphetamine and 35 grams of cannabis plant.  As a result, the Police were called and the drugs were seized.

[19]     Later that night, you went to another address at Parade Court.  As you pulled into that house, the occupants happened to be returning home.  You started yelling at them, saying “where’s my stuff”.  They reversed their vehicle out of the driveway

and drove off.  You started to follow them on foot.  Shortly after that, a gunshot was heard.  Later that day, the same vehicle you had been in when you went to Parade Court was observed on Milton Street.  You parked the vehicle and left on foot with a firearm.

[20]     When you were apprehended, you denied any knowledge of or involvement in the events at Kibblewhite Street.  You admitted dropping drugs at Poulson Street for safe-keeping and said the cannabis was yours.  You claimed to be looking after the methamphetamine for someone else.

[21]     On 19 February 2016, Mr Francis pleaded guilty to a charge of aggravated burglary and the charge of unlawful detention of Ms Neho.   He had also pleaded guilty to the charge of unlawfully removing an impounded vehicle.   The starting point sentence I adopted for his offending, before dealing with matters relating to him personally, was eight years’ imprisonment.

[22]     So, that is the background and I must now fix the appropriate sentence for you.

[23]     You know that, after the disputed facts hearing, I said the Court would have to  consider  a  possible  sentence  of  preventive  detention.     I  called  for  two psychological reports to help me make a decision over that.  I did that because of all the circumstances and the seriousness of the attacks that occurred at Kibblewhite Street but also because of what appeared to be your complete lack of remorse or any acceptance of responsibility for the harm you had done, as became evident during the various  steps  you  took  after initially pleading guilty and  as  a result  of the evidence you gave during the disputed facts hearing.

[24]     In particular, I noted that, in denying some of the evidence that Mr Kovacs gave and which I accepted, you said in response to a question from counsel for the Crown “if I was there to stab or hurt anyone in that way, it would have happened mate.  You know, I wouldn’t just give some guy two whacks in the mouth and leave if I was there to hurt him.” You said you were there for money which you claimed to be owed in a drug debt.   I reject that explanation.   I am satisfied you were there,

under the influence of methamphetamine, angry and jealous and you were there to hurt the man or men who you thought, irrationally and wrongly, had been having sex with Ms Johnston who you then considered your girlfriend.

[25]     The Sentencing Act 2002 requires me to impose a sentence which holds you accountable for the harm you have done to the victims of your offending, promote in you a sense of responsibility and acknowledgement of the harm that you have done and  the  serious  wrongfulness  and  criminality  of  your  actions  and  to  impose  a sentence which deters others from doing what you did.   I must have regard to the seriousness of this offending, your culpability, the seriousness of the offence relative to other types of offences and sentencing consistency.  With the drug offending, the principles are denunciation and deterrence with personal factors being secondary to that.

[26]     I deal first with the charges of aggravated burglary, wounding with intent, unlawful detainment and the unlawful removal of the impounded vehicle.  These all relate to the same events that Mr Francis has been sentenced for although he was not charged with wounding with intent.  It was you who struck the blows to Mr Kovacs’ face, causing him significant injury.

[27]     The aggravating features of this offending included the home invasion at night, the fact two of you were involved, the extent of the violence you meted out and  the  extent  of  the  injuries  you  caused.    There  were  three  victims  of  your offending.  Given the account from Mr Kovacs as to what happened at the house, I appreciate that Ms Neho would have been deeply afraid at what might happen to her, both when she was in the house and being forced to package up the property you were taking and also when she was forced into the car and driven off into the night with you and Mr Francis.  Your use of a disguise through wearing the balaclava is also an aggravating feature and indicative of the premeditated way you went about this attack.

[28]     The Crown submitted that an appropriated starting point for the aggravated burglary would be eight years, having regard to their suggested starting point for Francis of between seven and eight years’ imprisonment.  The starting point I arrived

at for him was in fact eight years.  The evidence I heard through the disputed facts hearing confirmed that you were the instigator of this offending and the lead participant, although Mr Francis was actively assisting you and knew well what might happen with the state you were in.  You were the one who struck Mr Kovacs so forcefully and threatened him so seriously, holding a knife to his throat. You were the one wearing a balaclava.

[29]     Your counsel suggested a starting point for this offending of eight and a half years.  The starting point sentence I adopt for you for the wounding with intent and aggravated burglary is nine years’ imprisonment.   The unlawful detainment of Ms Neho in the car and her being driven away under duress from Kibblewhite Street and her unlawful detainment in the car requires an uplift on that starting point of one year.

[30]     On the charge of moving an impounded vehicle, the maximum penalty is a fine.

[31]     The charges of possession of the methamphetamine for supply and possession of cannabis for sale are serious offences.  Having regard to the quantities involved, this offending is within band 2 of the guideline judgment in R v Fatu.1    The possession of a firearm in conjunction with the possession of methamphetamine and cannabis  is  an  aggravating  feature.    The  starting  point  I  would  adopt  for  this offending is five and a half years’ imprisonment.

[32]     You have a number of previous convictions for driving while disqualified. On that charge, you are liable for a sentence of two years’ imprisonment.  In all the circumstances, I would deal with that by way of a concurrent sentence.   On the charge of giving a false name and address to an enforcement officer, you are liable for a fine.

[33]     So, the starting point for this offending is 15 and a half years’ imprisonment.

1      R v Fatu CA 415/04.

[34]      I need to make an adjustment for the totality of the offending, recognising that this offending all occurred over a short span of time, probably a time when you were under the influence of methamphetamine, somewhat paranoid and certainly irrational.

[35]     On a totality basis, I will adjust the starting point for all this offending to 13 years.

[36]     I then  have to  consider  whether there  are  any aggravating  or  mitigating features relating to you personally.

[37]     The aggravating features are your number of previous convictions for serious assaults.  You have 69 prior convictions, beginning from the age of 17.  Your first serious offending was an aggravated robbery committed just after you were 17 in

2001 when you robbed a victim using a metal bar.  In 2004 you were sentenced to imprisonment  for  charges  of  causing  bodily  injury  and  carrying  a  pistol.    In November 2004 you received a concurrent sentence of imprisonment for common assault and male assaults female.   In January 2008 you committed the offence of assault with intent to injure and were sentenced to home detention.  That offending related to an assault on your partner.  Then, in 2009 you committed an aggravated robbery and were sentenced to three years’ imprisonment in 2010.  That involved an assault on a victim to obtain his wallet.  Your release date from that sentence was September 2013 and it was after that sentence that this further offending occurred.

[38]     All this offending would justify an uplift on that starting point sentence of 18 and a half months, getting the starting point for all offending back up to 14 and a half years.

[39]     There are mitigating circumstances relating to you personally which I will deal with when dealing with the potential sentence of preventive detention.  You are also entitled to credit for your guilty pleas on the charges to which you pleaded guilty at an earlier stage, the drugs and firearms charges.   You would have been entitled to some credit for your guilty pleas on the charges relating to events at Kibblewhite  Street  and  the  unlawful  detainment  of  Ms  Neho,  although  less  so

because those pleas were entered close to trial.  People who plead guilty at an early stage can receive significant credit for their guilty pleas in recognition of the way that avoids the costs and burdens of a trial on those charges and significantly because of  the  way  it  spares  the  victims  having  to  give  evidence  in  Court  about  what happened to them.

[40]     In this case, most of the benefit that might have been obtained through your guilty pleas has been undone through your attempt to change your pleas and then your insistence on having a disputed facts hearing at which Mr Kovacs and Mr Morgan had to give evidence.

[41]     You are however entitled to some credit for the guilty pleas you did enter early on and the attempts you have made to deal with personal issues that have been a significant factor in your offending and the extent to which you put yourself and others at risk.  The credit I will give you for all such matters is almost 30 per cent. This will reduce your sentence to ten years for all the offending.  That is the sentence I would impose if you are not going to face a sentence of preventive detention.

[42]     Dealing with the possibility of preventive detention, under s 87(4) of the

Sentencing Act, I must consider:

(a)  the pattern of serious offending disclosed by your history;

(b)  the seriousness of the harm to the community caused by your offending; (c)  information  indicating  a  tendency to  commit  serious  offences  in  the

future;

(d)  the absence of or failure of efforts by you to address the cause or causes of your offending; and

(e)  the  principle  that  a  lengthy  deterrent  sentence  is  preferable  if  this provides adequate protection for society.

[43]     The harm you have done to the community is apparent from what occurred in this case at Kibblewhite Street but there has been a pattern of violence towards

individuals with an increase in seriousness.    Nevertheless, as the Crown acknowledges, your offending has been at the lower end of the spectrum in terms of seriousness where recidivism creates a real risk of harm to the community.

[44]     Of most importance in this regard, are the detailed reports I have received from the psychologist Dr Aitchison and the forensic psychiatrist Dr Williams.   Dr Aitchison interviewed you in two separate sessions over a total of nine hours.  Like Dr Williams, she has also considered a significant amount of other information providing detail as to your previous offending and reports that have been prepared at various stages for the Parole Board and for the Courts as well as information from others who have been dealing with you, both in and out of prison.  Dr Williams met with you on three occasions for a total of approximately five hours.

[45]     Mr Enoka you are to be commended for the way you engaged with these two people, the information you disclosed as to your background, the state you have been in and the circumstances that have existed when you have offended.   The reports provided to me are detailed, thorough and careful.

[46]     Dr Aitchison concluded, when:

… all the factors are considered, Mr Enoka’s risk of violent offending is considered high.   If he violently reoffends, this is likely to occur in the context of what previously has been a chronic anti-social lifestyle, as well as him feeling disrespected, worthless, rejected or abandoned.   Should he violently reoffend, it would most likely occur in the context of him returning to substance abuse and reconnecting with gang culture, and could involve the use of weapons.  His violence could be either impulsive and occur within or against rival gang members, or it could be retaliatory in nature, occurring against any individual who he considers has disrespected him or his family.

[47]     Dr Aitchison is of the opinion that your “risk of violent reoffending compared to that of other violent offenders is estimated as high in the long term”.

[48]     Dr Aitchison’s conclusion was:

In the writer’s opinion, the prognosis for effective, risk-reducing intervention is  mixed at this time.   Mr  Enoka  is aware his  behaviour, thoughts  and attitudes are problematic and he is, on the face of it, open to offence-related treatment.    However,  his  entrenched  personal  traits  will  be  difficult  to reliably and meaningfully address with awareness of his past poor response to treatment and a long-term approach would be needed.  Furthermore, it is

respectfully remarked that even were Mr Enoka to satisfactorily complete the above mentioned treatment options, then he would optimally still require a lengthy period of close and careful supervision to ascertain whether any apparent treatment gains generalise outside of the treatment context.  He will need to display settled, safe behaviour within a prison context, including in a low security context to evidence that he may be able to manage himself in the community.   In the writer’s opinion, successful treatment would also need to be accompanied by close support and monitoring in the community.

[49]     Dr Williams concluded that he was not convinced you required preventive detention to manage the risk you posed to the community.   He highlighted in the report  the need  for  you  to  receive specific treatment  to  address  your  substance misuse issues.  However, he pointed to particular circumstances that had caused you to re-engage with the gang environment, become involved again with drugs and then the offending for which you now have to be sentenced.  You told Dr Williams that a lot of your criminal offending has come through your association with anti-social peers and anti-social sub-cultures.

[50]     Mr Enoka, there will be significant risks for you and the public if you do not address and have treatment for the particular issues that have been identified in these two reports, particularly that of Dr Aitchison.  Dr Aitchison’s report tells me that this is most likely to be achieved while you are within the prison environment.  I have been provided with some information which suggests that you have already, while on remand, made some progress in this regard and that your conduct as a prisoner has gradually begun to improve.

[51]     I must consider the desirability of having a finite term of imprisonment if that can provide adequate protection for society.  I think it can, given that, if you do not make the progress which you need to while you undergo your prison sentence, it will be possible for the Department of Corrections to seek an extended supervision order which would enable them to monitor and control, to a significant degree, the associations you make when you are away from the prison and also to ensure that you are not involved in the substance abuse which has been such a significant factor in your offending.

[52]     I am therefore not going to impose a sentence of preventive detention.

[53]     The report which Mr Bamford provided from the Salisbury Street Foundation refers to the significant progress you made through being there although it also refers to certain matters that still meant there were concerns as to how you would do when you were away from that environment.   While you were at the Salisbury Street Foundation, you showed you had some insight into the real harm that could be done through violence and the way that was unacceptable.   You demonstrated a commitment to wanting to be a father to your son and also the value of being in employment and having the means to support others lawfully.

[54]     It is apparent from all the information provided to me that, in the past when you have felt under pressure or in some way demeaned, you have thought the way to respond was to show how strong and violent you could be.  You are going to have to serve a significant prison sentence but, with the help of those who will engage with you while you are in prison, you are going to have the opportunity to earn respect in the future through turning your life around and avoiding all the circumstances that have caused so much trouble for yourself, those who care about you and also the victims of your offending.  I hope you can take advantage of that opportunity.  The information in the two reports indicates that you have the potential to do so if you have the will and the strength.

[55]     Mr Enoka, please stand.

[56]     On  the  charge  of  driving  while  disqualified,  you  are  convicted  and disqualified from driving for 12 months from today.   On the charges of providing false details as to your identity and unlawfully removing an impounded vehicle, you are convicted and discharged.

[57]     On  the  charges  of  possession  of  a  class A drug,  you  are  convicted  and sentenced to imprisonment for four years.  On the charge of possession of a class C drug, you are convicted and sentenced to imprisonment for two years.

[58]     On the charge of possession of a firearm, you are convicted and sentenced to imprisonment for one year.

[59]     On the aggravated burglary charge, you are sentenced to imprisonment for four years.   On the charge of wounding with intent, you are sentenced to imprisonment for five years.   On the charge of unlawful detainment, you are sentenced to imprisonment for one year.

[60]     The sentences for aggravated burglary, wounding with intent to injure and unlawful detainment are all cumulative on each other, meaning that your total sentence for that offending is 10 years’ imprisonment.  The sentences on all other charges are concurrent with those sentences.

[61]     When you were last in Court on an earlier occasion, I had to give you a first strike warning because of  your conviction, and  I did so because  you  had been convicted of the charge of wounding with intent to injure.  But, on two other charges, I also have to give you that same first strike warning.  I am doing that now.  You are still subject to a first strike warning but it is on the basis of three charges rather than just one.

Solicitors:

Raymond Donnelly & Co., Christchurch

Bamford Law, Nelson.