R v Heke

[2018] NZHC 3168

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PERMANENTLY PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-063-003068

[2018] NZHC 3168

THE QUEEN

v

ROLLIE JAMES HEKE

Hearing:

4 December 2018

Counsel:

R Douch for Crown

W Lawson for Defendant

Judgment:

4 December 2018

SENTENCING NOTES OF WHATA J

Solicitors:           Almao Douch, Hamilton

Lance Lawson, Rotorua South

R v HEKE [2018] NZHC 3168 [4 December 2018]

[1]    Mr Heke, you appear for sentence on one representative charge of using a firearm against law enforcement officers. The maximum sentence for that charge is 14 years.

The facts

[2]    Mr Heke, you were seen driving at speed by a police officer. The police officer signalled for you to stop. You failed to do so. The officer pursued you. You drove erratically for a period but ultimately pulled over to the side of the road. The officer also stopped his vehicle about 70 metres from your car. You stepped out of the car with a military-style semi-automatic rifle. The officer put his car into reverse, but you began firing the weapon at him. A bullet struck the officer’s vehicle. It entered the interior of the vehicle. Two other police officers then arrived at the scene. Their vehicle stopped about 20 metres in front of your vehicle. They immediately came under fire and returned fire. They abandoned their vehicle, while still under fire. Seven rounds struck the patrol car, with two of the bullets entering the interior.

The methamphetamine offending and bail breach

[3]    At the time of the offending, you were supposed to be on EM bail pending trial on charges for methamphetamine importation. However, you cut your EM bracelet and absconded. You had avoided arrest for some time prior to the present events unfolding.

Sentence on methamphetamine offending

[4]    You were sentenced on the methamphetamine offending on 8 September 2017 to five years, five months imprisonment. The sentencing notes record you were a serving prisoner at the time of the offending. No consideration was given to the present offending at the time of that sentencing.

Personal circumstances

[5]    I turn now to your personal circumstances. Mr Heke, you did not complete an interview with a PAC report writer; instead, information as to your personal

circumstances comes from a report produced by Tane Cook of WERA Consultants Limited.

[6]    You are aged 38. You have two children, aged 13 and 1, as well as several adult whāngai children. You had a “turbulent upbringing”. Your father was a member of the Black Power gang, you moved about a lot, and you were exposed to domestic violence from a young age. Your mother left your father when you were seven, and you went with her to Greymouth for a time. Your father’s attempt at reconciling with your mother failed, and so you moved between your parents over the next few years.

[7]    From your early teens, you became difficult for your mother to handle, and at 13 you found yourself in Youth Court for serious violence offending. You then gravitated to gangs, first a teenage gang when your father refused to allow you to join the Black Power and then with Black Power after you had established a name for yourself, at about the age of 16. At 18, you left the Black Power and joined the Nomads.

[8]    You were convicted for aggravated robbery at 19 and received a three-year prison sentence. During this prison sentence, you became exposed to tikanga Māori and on release you started a kapa haka group and formed a team to perform at the Aotea Regional Kapa Haka festival. The following few years marked a period of stability in your life, including a relationship for several years with the mother of one of your children, immersion in all things Māori and gainful employment.

[9]    However, at the age of 30 and I understand shortly after your relationship breakup, you became involved in the manufacture of methamphetamine. At 31 you were sentenced to five years’ imprisonment for the supply of methamphetamine. Toward the end of this sentence you were bailed to a drug rehabilitation unit, but absconded and were at large when arrested.

[10]   Mr Cook’s report also examines your wellbeing at considerable length in mātauranga Māori terms. I am only able to provide a brief overview of the key points of most relevance to your sentence.

[11]   On your father’s side, your waka is Tainui and your hapu are Ngāti Hauā and Ngāti Wairere. On your mother’s side, your waka is Te Arawa and your iwi is Ngāti Tuwharetoa. Mr Cook identifies that you have a strong connection to your Māori dimension, you are now fluent in Māori and a confident kapa haka performer.

[12]   However, that has not always been the case, and Mr Cook says you partially consider your disconnectedness from your culture and your unsettled upbringing as causative of your current offending. He also notes that you view the Māori world, and mātauranga Māori, as providing a positive model for your children, and that you are keen to help them become immersed in that world. He observes also that you see whānau as extremely important, that you understand the impacts of your behaviour on them, and that you are remorseful about that impact. Because of this, you want to remove gang influences from your life. He says that you want to engage and complete training in tikanga Māori as part also of a pathway to mental health and oranga or wellbeing.

[13]   Mr Cook also examines your spiritual health or te taha wairua. He says you appreciate things of a Māori spiritual nature, and that the absence of spirituality in your younger years contributed to negative approaches to life and living. He says you acknowledge now the importance of spirituality or wairuatanga. There is then a section of the report dealing with reconciliation, with whānau, drug users, your marae and the community you live in and observed that you are, for the most part, committed to taking positive steps to prevent further harm to these groups.

[14]   The balance of Mr Cook’s report is largely dedicated to setting out a detailed “action plan” for your rehabilitation and identifies “key performance indicators” for monitoring your progress towards 14 goals you have set. These goals include increasing knowledge of and connection to your Māori culture, increased connectedness with your whānau and partner, and engaging with rehabilitation programmes to support a drug-free lifestyle. The plan also identifies the whānau, hapu and the marae that will be available to you for the purposes of your rehabilitation. This sets a very positive frame, but the plan is unrealistic in that the key aspects of it cannot be implemented until your term of imprisonment has been served. For present purposes, I simply note your strong commitment to self-improvement through

enhancing your connectedness to your Māori dimension and working with your whānau, hapu and iwi.

Victim impact

[15]   I have read the victim impact reports. One officer speaks of the fear he felt for his life and the flood of emotions at being rescued, as well as the ongoing emotional harm caused by the offending. He also talks about anxiety attacks, changes in his temperament, and the toll the offending has had on his personal and professional life. He believes it was a contributor to the breakdown of his then relationship. A second officer says the most significant impact is how the potential loss of his life may have affected his wife and his family. He also notes that his wife is particularly nervous of his wellbeing now.

Sentencing

[16]   Turning to my sentencing, I have already provided you with a sentencing indication. I repeat the observations I made in that indication as they continue to set the frame for the sentence. I commence with a starting point for your sentence of imprisonment.

Start point

[17]   In fixing the starting point, I have had the benefit of several sentences for offending of the present kind. The start points for sentences range from eight years for two discharges at a police officer,1 to 14 years for offending which involved an extended police chase and the presentation of firearms on nine separate occasions with multiple shots at police.2 More commonly, start points of 10 to 12 years have been adopted in cases where there have been multiple shots fired at police and the likelihood of lethal harm is high.3 I settled on a range of 11 years six months to 12 years six months in your sentencing indication.

1      R v Kite [2018] NZHC 409.

2      R v McDonald HC Auckland CRI-2009-004-16897, 22 September 2009.

3      R v Shaw HC Timaru CRI-2009-045-0631, 16 December 2009; R v Samuels [2009] NZCA 153; R v Dixon [2017] NZHC 2279.

[18]   I have come to the view that a start point of 12 years six months is commensurate with the features of your offending in this case, namely:

(a)There were three victims; two of them, at very close range, were particularly vulnerable to lethal harm;

(b)You used a high-powered weapon, a military-style assault rifle, increasing the risk of lethal harm on discharge;

(c)Your possession of the weapon was incidental to a methamphetamine operation;

(d)Multiple shots were fired, two at the police officer first on the scene and 15 at the two officers who arrived subsequently;

(e)You were trying to avoid police arrest, having breached your EM bail; and

(f)There were two passengers in your car and your actions also placed their lives in danger.

[19]   This combination of aggravating features places the offending near in nature, severity and scale to the offending in Samuels, where multiple shots were fired during an extended police chase. A start point of 12 years was adopted in that case. While, in Samuels, the firing of the gun while under active pursuit, in an urban context, presented heightened risk to the police and public generally, the present offending involved more shots and more potential victims of lethal harm.

[20]   For completeness, however, I consider your offending overall to be less serious than the offending in McDonald4 where a 14-year starting point was imposed. The very extended period of pursuit in that case, as well as the broader context of the offending there, including unlawful entry into premises, presenting a firearm to

4      R v McDonald, above n 2.

occupants, and the death of a bystander, placed that offending into the most serious category.

Uplift

[21]   There must then be an uplift for personal aggravating factors, for example, your clear propensity to ignore the law, exemplified by the fact that you were in prison while carrying out the first set of offending. But, most relevant for present purposes, you were unlawfully at large and subject to charges for the first set of offending, when the present offending occurred. An uplift in the order of nine months is appropriate. This results in a combined starting point of 13 years three months.

Mitigating factors

[22]There are no mitigating factors to the offending.

[23]   Therefore, I would adopt a start point of 13 years three months on the charge you currently face.

Personal Mitigating Factors

[24]   I must now consider personal mitigating factors. Your difficult upbringing, exposure to gang culture from an early age, and cultural disconnection forms part of the background to your criminality. There is also an intergenerational dimension too, given your father’s involvement in gangs, suggesting systemic deprivation. You are also a person who has shown a capacity, when in the right environment, to be a productive member of society and a loving and caring father. It appears you are also committed to self-improvement through strengthening your connections to your Māori dimension.

[25]   I cannot ignore, however, that your decisions to engage in very serious criminal activity, including methamphetamine dealing, absconding from EM bail, and shooting at police officers whose duty is to protect the public, were made as a mature adult who had already reconnected to Te Ao Māori. I also note that nothing in the report prepared by Mr Cook refers to utu or reparation for the great harm you have done to those police officers who came under fire. This is a major deficiency. Your recent actions, and

lack of any express remorse and recognition of the harm done to the police officers and their families, severely strain the potential and credibility of this Court’s power to make discounts to account for personal factors.5

[26]   I also note that, while the report is detailed about your individual insights, aspirations, and action plan, te kōrero o tōu whānau provides the essence or te tino of who you are, from which meaningful and at times more powerful linkages can then be drawn. For my part, whānau information should, where possible, feature prominently in the s 27 process.

[27]   Nevertheless, having said all of that, I am satisfied that the impacts of a world immersed in gang culture as a young man, disconnected from tikanga Māori, together with the pernicious influence of drug addiction, shaped your recent decisions, making it more important to acknowledge and encourage your commitment to rehabilitation via tikanga Māori and with the support of whānau and hapu. I therefore discount the start point by 10 per cent for these factors. This brings the start point to 143 months or 11 years 11 months.

[28]   A 25 per cent discount for guilty plea results in a sentence of 107 months or eight years 11 months.

Cumulative sentence

[29]   I turn then to the issue of cumulative sentence. Mr Douch also seeks a sentence which is cumulative to the sentences handed down on the methamphetamine offending, to properly reflect and make you accountable for the full harm you have done. Mr Douch accepts, however, that some adjustment may nevertheless be needed on totality grounds. Mr Lawson also accepts that a cumulative sentence is appropriate in the circumstances. He submits, however, that I should effectively set a sentence that applies to all of the offending, that is, as if you were being sentenced on all of the offending at the same time. He also notes that I need to be aware that parole is fixed by reference to the combined minimum parole periods.

5      Keil v R [2017] NZCA 563 at [58].

[30]   For my part, I do not think there is a material difference between the two approaches. Ultimately, I must be satisfied that you face combined sentences for your offending that properly meet the purposes and principles of the Sentencing Act.

[31]   Arithmetically a combined sentence of 14 years four months would follow. That would, in my view, be disproportionate to the totality of the offending and your circumstances. A combined sentence of 12 years and four months is appropriate.

[32]   Accordingly, an end sentence of six years 11 months, to be served cumulatively with the existing sentence, is appropriate for the current offending.

Minimum term of imprisonment

[33]   I turn to minimum term of imprisonment. There are complications here, given you are currently serving a sentence. Parole will be fixed by reference to the time served under both sentences, with the starting point for a notional sentence commencing with the start of the first sentence. In the present case, were I to impose a minimum non-parole period of 50 per cent, that would equate to roughly three years five months. I am in no doubt that a minimum sentence has to be imposed. The requirement for deterrence, denunciation and protection of the public demands such a response. While there are strong reasons for optimism in light of the s 27 information tabled with me, regrettably, the absence of remorse for what is very serious, extremely dangerous offending strongly militates against a less restrictive sentence.

Outcome

[34]   Mr Heke, please stand. On the representative charge of using a firearm against law enforcement officers, I sentence you to six years and eleven months’ imprisonment. I impose a minimum period of imprisonment of 50 per cent. This sentence must be served cumulative to your existing sentence of five years five months, resulting in a total sentence of 12 years and four months.

[35]   The Crown otherwise withdraws all the charges relating to this episode of offending, except the present charge 4. I also make a permanent order for suppression of the victims of the offending, namely, the police officers.

[36]You may stand down, Mr Heke.