R v Follas HC Rotorua CRI- 2009-077-1497
[2011] NZHC 84
•4 February 2011
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
SEAN HEMI FOLLAS PATRICK LIAM WILSON HARLEY DAVID ROBERTSON
Appearances: C H Macklin for the Crown
M A Simpkins for Follas
K J Ewen for Wilson
AMM Schulze for Robertson
Judgment: 4 February 2011
SENTENCING NOTES OF PRIESTLEY J
Counsel:
C H Macklin, Gordon Pilditch, P O Box 740, Rotorua 3040. Fax: 07 349 3985
Email: [email protected]M A Simpkins, P O Box 2279, Rotorua 3040. Fax: 07 349 3179. Email: [email protected]
K J Ewen, P O Box 2193, Taupo 2730. Fax: 07 386 6575. Email: [email protected]
AMM Schulze, P O Box 2279, Rotorua 3040. Fax: 07 349 3179. Email: [email protected]
R V FOLLAS AND ORS HC ROT CRI- 2009-077-1497 4 February 2011
Overview
[1] The sentencing exercise facing me this morning is difficult. The three prisoners are to be sentenced in relation to offending which had extremely serious consequences for the victim. They are all young men. They were undoubtedly caught up in the bravado of the evening and have become responsible, in part, as parties to the offending of one Dion Bolt, who for his part in the offending was sentenced to a term of seven and a half years imprisonment for attempted murder.
[2] I accept at the outset that the three prisoners’ involvement was not premeditated. Their overall culpability is significantly less than that of Mr Bolt. I also accept that in large measure the offending of the prisoners was out of character, although none of them have a conviction free record. Certainly none of them foresaw the consequences of their stupidity that evening.
[3] As I shall develop when describing the offending, what occurred in Tokoroa that night was a deliberate hunt for the victim and others. That hunt was sustained and took place in a motor vehicle. It was, as far as I can see, a hunt which was unprovoked, involved violence, and is the type of conduct on the streets of a provincial town at night which cannot be tolerated.
[4] The tragedy, from a sentencing point of view, is that in general terms, all three prisoners have been gainfully employed; they have supportive family and whanau; they are young.
[5] All three prisoners have been well served by their counsel who have properly urged on me the least restrictive outcome. It was the submission of counsel, particularly that of Mr Schulze and Ms Ewen, that I should impose sentences which fell short of imprisonment. I have given, over the last 24 hours, submissions of that type long and anxious thought. Certainly I have no desire to ruin the lives of three young men who, although not blemish-free, are now remorseful and fully appreciative of the consequences of their participation, which clearly escaped them on the night in question. However, given the nature of the offending to which they were parties and their individual participation on that night, and in particular given
the phenomenon of the group dynamic which was operating that evening, I am unable to accede to counsel’s request that I should reject imprisonment as a sentencing option.
The offences
[6] All three prisoners appear for sentence on the charge of wounding with intent to injure, laid under s 188(2) of the Crimes Act 1961. That carries a maximum of seven years imprisonment. Until the morning of the trial all three faced the more serious charge, under s 188(1), of intending to cause grievous bodily harm, the maximum for which is double.
[7] The prisoner, Mr Follas, in addition is to be sentenced on a charge under s 312 of being an accessory after the fact to attempted murder. That offence relates to the prisoner’s disposal of a claw hammer with which Mr Bolt inflicted serious injuries on the victim.
Brief description of offending
[8] The offending was part and parcel of incidents in Tokoroa in mid-September
2009. There had been previous drinking involving Mr Bolt. There was some suggestion by Mr Bolt that the parties should go to Tokoroa to “get some niggers”. I accept, having listened to counsel, that that degree of premeditation cannot properly be sheeted home to these three prisoners. The stated reason for going to Tokoroa was to acquire money from a money machine with which, so Ms Ewen submits, the parties intended to purchase drugs. In the vicinity of the money machine the victim and three others were seen. Mr Bolt and the prisoner Mr Follas got out of the vehicle to challenge the four youths to a fight. Mr Robertson, for his part, went to the money machine. Mr Wilson, who I accept had a day or two beforehand injured his arm and foot, both which parts of his anatomy were in a plaster cas, and who needed crutches, stayed in the vehicle. The victim and his friends ran away, being understandably fearful of being attacked. After a short chase on foot, which involved Mr Follas alone of these three, the chase was abandoned. The group then
drove around Tokoroa in an attempt to find the four they were pursuing. They were spotted . There was a deliberate change in the direction of the vehicle driven by Mr Bolt. The pursued group broke up. The victim, who at this stage was running across a reserve, attempted to climb a residential fence but his jersey was caught. The vehicle drove into and over the victim, colliding with the fence with some force. The vehicle in question was no mere saloon car but a four wheel drive vehicle. At that point all three prisoners got out of the vehicle. Mr Wilson, because of his disabilities, was not able to leave the scene with any speed. In part, what seems to have led to the three leaving the vehicle were the dreadful actions of Mr Bolt who produced a claw hammer and began to hit the prone victim around his head.
[9] Subsequently the vehicle was extracted from the fence. All four then left the scene and drove to Mangakino. En route Mr Follas sent a text to a friend and having found the friend was there, to his house they all repaired. At some subsequent stage, as I have stated, Mr Follas flung the hammer into the hydro-electric lake.
Victim impact statement
[10] I acknowledge the presence in court today of the parents of the victim, Seth
Tera. At the time of these events their son was 15.
[11] The victim impact statement is extremely detailed and well constructed. It was, so I am told, read out at the sentencing of Mr Bolt. I do not intend to incorporate that statement in my sentencing notes. However, the statement sets out what can only be described as the effect on their son of the escalating violence that night. There were track marks left on his thigh and lower back. The youth had to be hospitalised for a lengthy period and for a while, undoubtedly as a result of the head injuries he sustained, his survival was problematic. As a result of being run over, fractured ribs punctured his lungs. He needed a tracheotomy.
[12] As a result of the sustained assault on him he is scarred both physically and, more importantly, emotionally. It is very clear that the victim Seth Tera was a gentle and talented young man who was performing very well at school. His motivation and drive was to some extent impeded by the accident. I note for instance that he
was a regular and very good chess player and was extremely good at mathematics. The victim needed to spend at least a fortnight in a high dependence unit and an intensive care unit at Waikato hospital. He suffered pain. Undoubtedly the rehabilitation of Seth Tera will take some time. To some extent the family have been assisted by huge support from the local Tokoroa community and from their family and friends. The parents describe the attack as being a brutal, cowardly, and ugly attack on an innocent person.
[13] I accept that statement. One of the requirements for me is to hold the three of you accountable for the effect of your offending on your victim and on those near and dear to him.
[14] Having said all that, I accept that the most grievous offending, the attack on a defenceless young man, on the ground, with a hammer to his skull, was not something which the three of you premeditated or indeed, as your immediate reactions showed, anticipated. Counsel, I think, are on firm ground when they say in assessing your culpability I should limit it somewhat to your being parties to the initial chase, the subsequent hunt in a vehicle, and of course the running over of your victim by the vehicle driven by Mr Bolt. That for me is a quite difficult exercise, but clearly you must be dealt with in a much more lenient fashion, because of your overall culpability and given certain distinctions between the three of you, than the court dealt with with Mr Bolt.
Personal factors and presentence report
[15] I deal with you in the same order that you were arraigned.
Follas
[16] You, Mr Follas, are currently aged 20. You live with your parents in Mangakino. You are currently employed. Although you are a timber worker you have had dairy farming experience. You are currently working towards a qualification as a hard wood manufacturer. You are in a stable long-term
relationship. Your partner is supportive of you. Both your partner and your mother say, and I am sure they are correct, that your offending that night was out of character. The probation officer who interviewed you has identified remorse. You have endeavoured to apologise to the victim and his family. The probation officer believes, and he is correct, that the contributing features that night were alcohol and peer pressure or, if you like, the dynamic of pack mentality. I accept that that was operating on all three of you, as I have said, that evening. Your risk of re-offending is assessed as being low. You are well motivated. The probation report suggests imprisonment and further suggests release conditions, for some reason, to deal with alcohol and anger management. Home detention, if that was an option, would have been available to you.
Wilson
[17] You Mr Wilson are currently aged 20. I note you were 18 at the time of the offending. Your probation report is favourable. You do have previous convictions for driving and breaches of community work sentences but these do not strike me as being relevant. The key factor to your offending was regarded as again association with other members of the group. The report assesses you as having a medium risk of re-offending in the light of your age and your history. The report for you recommends community detention and community work.
[18] I note that you have written a letter to me (which because you suffer from dyslexia would not have been easy), in which you express remorse and concern. You are employed in the dairy industry. Again you seem to be in a stable relationship. I accept that you are remorseful and it may help the victim’s family to know that Mr Wilson has apologised and expresses regret for the hurt he has caused to you all. Your mother has also written to me. She describes you, understandably, as not being a bad person. She says you are adventurous and mischievous. She confirms that the months you have spent, in the wake of your offending, have been very difficult for you.
Robertson
[19] Mr Robertson, you are currently aged 19. You would have been only 18, I suspect, on the night of the offending. You, unfortunately, have a relevant criminal history for violence. You were convicted of the same offence under s 188(2) in August 2010 in respect of April 2009 offending. I accept what Mr Schulze has told me, however, that your involvement that night was in what could loosely be described as a family fight. Of the participants you were the lesser involved. That perhaps is reflected in the sentence imposed which is one of supervision and community work.
[20] What sets you apart Mr Robertson, unfortunately, is that you have been down this track before and having been involved in some sort of fight or group activity you clearly did not learn your lesson and you have done it again with much more serious consequences. That is something which I will have to weigh.
[21] You have had employment on a more or less constant basis since you left school in 2008. You too are currently employed as a farm worker. Your risk of re- offending is assessed as being low. The recommendation is for imprisonment. As with Mr Wilson and Mr Follas home detention would be available to you if it was an appropriate sentencing option.
Purposes and principles
[22] There is no real dispute about sentencing purposes and principles here. I accept counsel’s submissions that I should strive for the least restrictive sentencing outcome. You are young men and I have no desire to ruin your lives. However, you must be held accountable. The plight of your victim, for which you were in part responsible, cannot be read down or minimised and, as I have already said, appalling behaviour like this in a public place against an innocent member of the public must be denounced and deterred.
[23] I regard your youth as being a mitigating factor. I regard your guilty pleas to some extent as being a mitigating factor. It would seem that, what would have been
a logical outcome for you to plead out at the trial to a lesser charge laid under s 188(2) was available to you from approximately May 2010. In the event pleas were not entered until the morning of the trial and, so I am told, after the Crown’s opening at Lang J’s request.
[24] The sticking point, as I recall from a callover immediately before the trial, was that you Mr Wilson, for some reason, had difficulty in seeing your overall culpability and were not prepared to accept the proposal which was under discussion until very late in the day. I do not need to comment on your reasons for that but they were probably unrealistic reasons. Although I shall give you some small mitigating discount for your very late guilty plea it cannot be as great as that which I shall extend to Messrs Follas and Robertson. You are not able to pick up that option because of your stance. All three of you have expressed remorse and I intend to give you some credit for that.
[25] The aggravating features here, so far as you are concerned, were the injuries inflicted on the victim. Although there was an attack on the victim’s head I accept this was unforeseen by you. I have dealt with the victim impact statement. The victim’s vulnerability, being chased that evening, was high. The four of you were acting in concert and in the immediate wake of your offending you all took active steps to avoid detection and you, Mr Follas, as I have said, were responsible for hiding and disposing of the claw hammer.
Authorities
[26] The classic law in this situation is that with appropriate adjustments offending under s 188(2) should reflect the various bands set out in the guideline judgment of the Court of Appeal in R v Taueki.[1] In terms of the Taueki criteria, there being no real dispute about this so far as counsel are concerned, the offending would
probably sit in band 2.
[1] R v Taueki, [2005] 3 NZLR 372 (CA).
[27] Of course this is not a classic Taueki situation, the maximum here is seven years rather than 14.
[28] All counsel have responsibly referred to a similar banding exercise set out by the Court of Appeal in R v Harris.[2] Harris, as counsel have observed, related to offending under s 189(2) where the maximum is five years. Band 3 of Harris ([10]) contemplates a broad 18 month to five year band where serious injury results.
[2] R v Harris [2008] NZCA 528.
[29] The Crown suggests a start point of between three and four years. Mr Schulze, who has devoted an important part of his submissions to this aspect, considers that for his client at least there should be a somewhat lower start point of between two and a half and three years.
[30] Given the various aggravating features, particularly the pack mentality, the use of a car as a weapon, the pursuit of the victim, and the injuries he sustained (for which purposes I do not include the injuries inflicted with the hammer), I consider an appropriate start point here is one of three and a half years. I accept, however, that there needs to be adjustments between the three of you to reflect your slightly different culpability.
[31] So far as you are concerned, Mr Follas, I intend to use the 188(2) charge as the lead sentence which inevitably, as Mr Simpkins accepts, will have to be uplifted somewhat to take up the totality of your offending and the fact that you are an accessory after the fact for attempted murder.
[32] I record that I have read the various cases submitted to me by counsel and as
I have indicated have given this matter long and anxious thought.
Sentences
[33] What I intend to do is to adopt a start point of three and a half years to reflect the s 188(2) offending. That start point obviously will reflect aspects of holding you
accountable for your victim, denunciation and deterrence, and also the joint dynamic
which was operating that evening. Although, for some extraordinary reason, at various stages during the pursuit you chose to pass yourselves off as gang members, with various shouts and barking noises, I accept, as does the Crown, that you were not gang members or associates. This, however, is absolutely ridiculous for three young men in your situation to try to emulate, or use as a role model, or indeed imitate gang members who are to some extent a curse on society and as you well know, are well entrenched in Tokoroa, Rotorua, and Southern Waikato. And if you thought you were being smart by doing that, or striking some degree of fear, as I am sure you did, into the hearts of those people you were pursuing, then it was a very very stupid action. However, I do not intend to add anything on your sentence I am imposing on you for that aspect of your stupidity that night.
[34] As I indicated earlier I intend to give appropriate credits. [35] At this stage I ask you three to stand up.
Follas
[36] Mr Follas. Starting, as I have indicated, at three and a half years I must uplift that by six months to reflect the accessory charge which you face. That brings me to four years. I intend to give you a credit of six months for your guilty plea which I accept you would have wanted to enter at an earlier stage. I also intend to reduce the sentence further by six months to reflect your remorse, which I see as genuine, your youth, and also to assist you in your rehabilitation.
[37] Therefore, on the charge under s 188(2) I sentence you to three years imprisonment.
[38] On the charge of being an accessory I sentence you to six months imprisonment.
[39] Those two terms are to be served concurrently.
Wilson
[40] Mr Wilson, from that three and a half year start point I intend to reduce it by seven months to reflect your lesser culpability. Clearly with crutches and casts there was not much you could do in an active way, and until very much the last moment you remained in the vehicle. I cannot accord you significant credit for your very late guilty plea but nonetheless I do give a credit of two months for that and for again your prospects, your youth, and your remorse I give you a further reduction of six months.
[41] So from the start point of three and a half years I reach an end sentence of two years and three months. I sentence you to a term of two years and three months imprisonment.
Robertson
[42] From a start point of three and a half years imprisonment I reduce that by two months to reflect your lesser culpability at the outset, referred to by your counsel. I must, however, uplift by three months to reflect the fact that in less serious but similar circumstances you have already been convicted for the same offence. I intend to give you a discount of six months to reflect your guilty plea. I also intend to extend further credits to you for your remorse and your youth.
[43] The end sentence, which I intend to impose on you is one of two years and seven months imprisonment.
[44] It is also my recommendation, which I make in strong terms to the prison authorities and the Parole Board, that all three of you should be released as soon as the policy of the Parole Act permits.
[45] I believe that all three of you will benefit from programmes, both pre and post-release, in terms of anger management and drug and alcohol abuse. I note that all three of you have been able to hold down good jobs. Every assistance should be afforded to you by the Parole Board and the Corrections Department after your
release to ensure you are given every opportunity and assistance to re-enter the workforce.
[46] Take them down please.
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Priestley J
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