R v Hemana
[2024] NZHC 2492
•30 August 2024
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2022-042-1430
[2024] NZHC 2492
THE KING v
DYLAN GLEN HEMANA
Hearing: 30 August 2024 Counsel:
J M Webber for Crown J Seton for Defendant
Sentencing:
30 August 2024
SENTENCING REMARKS OF GRAU J
Introduction
[1] Mr Hemana, you appear for sentencing today having pleaded guilty to charges of:
(a)kidnapping.1 I note the kidnapping charge is one that encompasses what were previously three kidnapping charges relating to three victims;
(b)wounding with intent to cause grievous bodily harm.2 The facts of what was previously a threatening to kill charge are within this charge;
1 Crimes Act 1961, s 209(b); maximum penalty 14 years’ imprisonment.
2 Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment.
R v HEMANA [Sentencing Remarks] [2024] NZHC 2492 [30 August 2024]
(c)possession of methamphetamine for supply3; and
(d)corruptly offering a bribe.4
[2] You accepted a sentence indication from Justice Isac on 19 April 2024. Your convictions were not entered at the time you pleaded guilty. They do need to be entered today, and will be.
[3] Justice Isac indicated a starting point of 13 years for all of the offending. That was made up of a starting point of 11 years’ imprisonment for the most serious charges of wounding and kidnapping; and with two years added on for the rest of the offending. Justice Isac also indicated an additional two months to reflect your previous convictions, and there would be a reduction of 25 per cent for a guilty pleas.
[4] Four other co-offenders were involved with you in this offending. I sentenced them all in July. I granted you an adjournment of sentencing so that you could obtain a report under s 27 of the Sentencing Act.
[5] It is usual for the Judge who gives the sentence indication to carry on to do the sentencing. That is not inevitable though. Justice Isac’s indication is not binding on me, but I am conducting the sentencing on the basis that I agree with the sentence that Justice Isac indicated and so I am not departing from his starting point or the other matters that he indicated.
[6] What I need to decide today is the question of additional reductions to reflect your personal circumstances, and what level is available to you. That is in dispute here. The Crown says that it should be no more than a 10 per cent reduction, but Mr Seton says it should be at a level of 25 per cent. The other matter I need to decide is whether or not to impose a minimum period of imprisonment that is longer than the ordinary non-parole period.
3 Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2), maximum penalty life imprisonment.
4 Crimes Act 1961, s 104, maximum penalty seven years’ imprisonment.
[7] First, I need to describe the offending which I have taken from the agreed summary of facts that was the basis of the sentence indication, and from Justice Isac’s summary.
The offending
[8] You Mr Hemana, and your younger associate Mr Tangirā, were members of the Head Hunters gang in Auckland. In 2022, you had been supplying methamphetamine to a dealer based in Nelson. Police executed a search warrant at that Nelson dealer’s home in early September 2022. You were present at that time. Police found a significant sum of cash, 39 grams of methamphetamine, and some of your gang clothing. But they did not find all of the methamphetamine because you and the Nelson-based drug dealer had visited the primary victim (who I am going to refer to as Mr H) and you had left with him a bag containing a significant quantity of methamphetamine that he was told to look after. The value of this methamphetamine was said to be at around $200,000. You then returned to the North Island.
[9] Mr H initially kept the methamphetamine in the boot of a car at his address. He was contacted a few days later and told to bury the bag. He did so. But he found that it contained pottles and containers of methamphetamine. He later dug up the bag at the suggestion of a person who was staying with him. They took the bag to a motel. The other person then disappeared with it, or at least most of it. Police later found over 71 grams of methamphetamine at the motel where Mr H had told them to look. It is the theft of this methamphetamine that led to the very serious offending that followed.
[10] You and Mr Tangirā flew to Nelson on 18 September 2022 using false names. Your goal was to recover the stolen drugs. You took a taxi to Mr H’s address, ransacked his house, and then persuaded him to leave the motel where he was effectively hiding. Mr H returned home. There, you and Mr Tangirā detained him, his mother, and his 15-year-old brother. You told Mr H that you were there to get what was yours, and if they didn’t return it then you would do what needed to be done to his family. Mr H was told he had 24 hours. You and Mr Tangirā stayed at his home and would not let him or his whānau leave.
[11] The next day, 19 September 2022 and overnight into the early hours of 20 September, Mr H was taken on a number of journeys to locations around the Nelson area. This is the time when the other three co-offenders, Ms Alford, Mr Welsh and Mr Wilson, had joined the group, and they were assisting in the detention of Mr H, his mother and younger brother. The summary of facts indicated that Mr Welsh was afraid of you and was acting under your direction and that of Mr Tangirā. When he joined the group he was told to hand his phone over to you, and did so.
[12] You told Mr H he would be taken up north, and some inquiries were made online about flights and ferries. Some of these inquiries were made on Ms Alford’s phone.
[13] Early in the morning of Tuesday 20 September, and in anticipation of taking the ferry from Picton to Wellington, Mr H was instructed to drive Mr Tangirā and Ms Alford to Blenheim. You stayed behind at Mr H’s address with his mother and younger brother. You had Mr H’s phone. You were using it to communicate with people, including Ms Alford. You were still trying to find the person who had taken the methamphetamine, and as part of that, Ms Alford was used as a lure on your instructions by sending him intimate images of herself and suggesting the prospect of an encounter with her.
[14] In the meantime, Mr H, Ms Alford and Mr Tangirā had gone to Blenheim. They went to various locations there. They also went to Picton, but then Mr Tangirā was instructed by you that they were to return back to Nelson. Mr Tangirā was in contact with you throughout this trip, and you were also in contact with Ms Alford, giving instructions and receiving updates.
[15] When this group returned, Mr Tangirā told Mr H to wait in the garage with Ms Alford. Mr H’s younger brother was also in the garage. Mr Welsh and Mr Wilson were also at the address and they were taking it in turns to guard Mr H and his brother in the garage.
[16] You and Mr Tangirā were with Mr H’s mother in the lounge interrogating her. It appears you thought she had been involved with the person who took the
methamphetamine and that she had something to do with it. She was denying this. At this stage Mr Tangirā took her cell phone and a pin for her banking app and made payments from her account to Ms Alford’s account.
[17] You told Mr H’s mother that you would make her watch you hurt her children and you would have sex with her daughter. Mr H was then brought in. You were calling his mother a liar and you were saying she was going to tell you everything or you would kill her son and then make your way through the rest of her children.
[18] You told Mr H he had a 12 o’clock deadline and you told him to sit on the couch. When he was denying knowing anything about the location of the methamphetamine, you began to inflict serious injuries on him in front of his mother. You applied pliers to his toes. You squeezed and wrenched them while you continued to question him. You hit Mr H with a hammer on the knees and legs, fracturing his tibia bone. You hit him in the face with the hammer, fracturing his jaw. The hammer caused wounds to the skin of Mr H’s face and legs. Mr H was said to have described thinking that he must have lost consciousness for a period due to the extreme pain.
[19] During this time, Mr H’s mother was kept in the lounge, and Mr Tangirā was present as well.
[20] The other three co-offenders were not present. Mr Welsh had taken Mr H’s younger brother out to get food and he had given Ms Alford and Mr Wilson a ride to another address in Nelson. They all returned, and Mr H was instructed to clean up his blood from the tools that he had been hit with. The summary of facts says he was falling over as he attempted to walk on his broken leg. At some stage, Ms Alford was also assisting with cleaning up the house, and during this time, Mr H’s sister also arrived. She saw her brother looking pale and terrified, her mother screamed at her to leave, and she fled. You told Mr H he had until midnight to get everything back or he was going to die.
[21] Just after midnight, the younger brother was in his bedroom. He had been given his phone back. He hid in a wardrobe and called 111. Police were dispatched to the address. When they arrived, all of your group of five were there, and the three
kidnapping victims were also present. You had told the mother and younger brother to get into a bedroom, and Mr Welsh, on your instructions, had gone there to guard them, turned the lights off and told them to be quiet. Mr H was on the couch bleeding and in pain with visible injuries to his face and leg. You said he had fallen over, and so did Mr H initially. Police did not believe that and started checking rooms—where the other family members were found.
[22] You were able to leave the address when Police were there, but you returned a short while later, hid in the back seat of a car, and sent another person in to check what was going on. Police found you shortly afterwards, then you gave a false name to them and offered them $10,000 to let you go.
Aggravating factors of the offending
[23] You pleaded guilty to a summary of facts that has put you as the principal offender who directed the actions of the other defendants. As Justice Isac set out in his sentencing indication, and with which I agree, the features of the offending that contribute to its seriousness were:
(a)first, the serious injury caused to the primary victim. He received a fractured jaw and a fractured left tibia. These required surgery to insert a metal plate and wiring into his jaw and a metal rod into his leg;
(b)second, was the use of weapons—a plier used on toes and a hammer to strike the legs and face;
(c)third, the attack involved the use of a hammer to strike his head, breaking his jaw;
(d)fourth, is the extreme level of violence. As the Crown has submitted, it was in the nature of torture designed to extract information through the application of pain, including forcing the victim to walk on a broken leg and to wash his blood off the tools that had been used to inflict the injuries on him;
(e)fifth, is the involvement of a gang when you were seeking the return of a commercial quantity of methamphetamine on behalf of the Head Hunters gang;
(f)sixth, that this involved offending of kidnapping and violence within the home of the victims; and
(g)seventh, is premeditation—having travelled from Auckland to Nelson for the purpose of confronting the victim and using violence to obtain information and the return of the methamphetamine.
[24]The other aggravating factors that Justice Isac recorded were:
(a)the prolonged detention over two days of the primary victim, with his mother and brother also being detained for significant periods of time, and the detention ending only when the 15-year-old younger brother was able to call the Police;
(b)the callousness of the offending and the violence in front of family members, with the mother in the room when you inflicted this violence that she was forced to witness. The younger brother did not witness the violence but he saw the immediate aftermath and cruelty of making his brother walk on a broken leg; and
(c)the additional threats to family members, with the mother subjected to threats that her children would be killed and her daughter raped if she did not disclose the whereabouts of the missing methamphetamine.
Information at sentencing
[25]For sentencing today, I now have further information about you:
(a)a pre-sentence report dated 21 May 2024;
(b)a report by a psychologist, Dr Lokesh, dated 20 August 2024;
(c)a number of certificates relating to programmes you have completed while you have been in custody on remand before your sentencing; and
(d)a cultural report prepared under s 27 of the Sentencing act that was filed yesterday.
The pre-sentence report
[26] The pre-sentence report notes that your charges are more serious than your previous history of offending—which contains multiple violent offences but of a less serious nature. It records that you said you were just doing as you were told, and that deep down that’s not really you. You also claimed you were told to do this by the Head Hunter gang that you were prospecting for. You reported that you were sorry for hurting your victim, but you went on to say that the people you offended against were drug dealers and scumbags, and they were not innocent people. The report writer considered that these statements contradicted previous statements of remorse that you had made. You had explained that you were addicted to methamphetamine and using approximately two grams daily at the time.
[27] This report assessed your risk of reoffending and your risk to others as high, given your offending history, the static risk factors that apply to you, the violent nature of the charges, and what the report considered was a lack of genuine remorse.
[28] You did tell the report writer you had ceased contact with the gang and that the gang would not feature in your life upon release.
[29] You described what you said was a “Once Were Warriors” childhood, including physical violence that you had witnessed, and that had been inflicted on you. The writer of the pre-sentence report contacted your younger brother who offered his support to you including with employment and housing when you are released. He was described as a positive person who would be a good role model, and he also described you in positive terms with regard to your work ethic. He did not support what you had done but he is supportive of you as your brother.
[30] This report also noted that you had outstanding fines and costs of $6,730, and asked the Court to consider incorporating this debt into your sentence. Your sentence will be a lengthy one and there is no realistic possibility of you repaying this money. I do intend to remit those outstanding fines and costs. I am not going to add to your sentence to reflect that because it is already a lengthy one.
Psychological report
[31] I have read a very detailed and lengthy psychological report about you. It sets out that you encountered significant physical abuse and were exposed to family violence from a very young age which had a traumatic impact on your future, as a result of which you began abusing cannabis and alcohol at a young age which moved to methamphetamine use in your teenage years.
[32] The psychologist considers that you used substance abuse as a coping mechanism and that it appeared you were significantly intoxicated with methamphetamine at the time of this offending.
[33] The report also refers to you functioning well at times in the community when you were employed, and in a stable relationship with your ex-partner. It says you were able to stay away from the criminal justice system but when your business was affected around the time of the COVID lockdowns, you lapsed back into substance abuse.
[34] This report considers you at a moderate risk prediction for similar future offending.
Cultural report
[35] The cultural report filed yesterday by Dr Gilbert describes the same difficulties and far from ideal childhood as in the psychologist report. Dr Gilbert spoke to your grandmother and aunt, so he got what is essentially the same information that the psychologist obtained from you and your mother.
[36] In summary, Dr Gilbert states that factors likely contributing to your offending are:
(a)the normalisation of violence during childhood;
(b)the instability of your care and poverty, limited education, and the death people close to you during childhood and adulthood; and
(c)the gang connections and problem gambling.
[37] In common with what you said to the psychologist, you said you were following orders and were not the ringleader. Also, you repeated that you have left the gang and want nothing to do with them in the future. Dr Gilbert has recorded that you have a close connection to your siblings and they are said to be there for you. And you want to address your childhood trauma and anger issues through counselling.
Victim impact statements
[38] What I do not have is victim impact statements from the three victims of the kidnapping, and the primary victim of the violence. I am not surprised by that. I expect they remain fearful. I acknowledge that the effects on them must have been very significant and will remain so. It is self-evident from the injuries inflicted on the principal victim that there would be ongoing physical effects. It is also self-evident that psychological effects would be lasting, perhaps for a very long time.
Reduction for personal factors
[39] The first matter that I need to decide is additional reductions for the personal matters that I have read about you in these reports.
[40] As you have heard, the Crown’s position is that the seriousness of this offending should reduce the level of any extra discount that might otherwise be available. The Crown accepts that an allowance of 10 per cent could be made but says it should be no more.
[41] For you, it is said that your exposure to serious violence and trauma in your upbringing, and the inevitable descent into substance abuse and gang membership, demonstrate a connection to the offending. A 15 per cent reduction had been asked for, but as of yesterday, with the receipt of Dr Gilbert’s report, it is now said the reduction should be 25 per cent.
[42] A reduction for remorse has also been sought on the basis that you agreed to restorative justice which did not take place, you pleaded guilty, you have expressed remorse to Dr Lokesh, and in particular you have expressed your shame for your part in this offending.
[43] Today though, Mr Seton has accepted that the reduction of 25 per cent that is now sought for you would include remorse, and also the steps you have taken towards rehabilitation which is demonstrated by a number of certificates of courses you have completed while you have been in custody. You also reported to Dr Lokesh that you have maintained your sobriety in custody, and you have sought medical treatment for mental health issues.
Discussion
[44]I agree that a reduction for your personal matters is available.
[45] I do have some reservations however, about some aspects of the psychologist report. The first, is the assessment of risk, which is assessed at moderate. That appeared to me to be based on an acceptance of your account of the offending. But that account disagrees with the summary of facts that you pleaded guilty to. In particular, you suggest that you were being directed, but the reality was that you were directing other people. I accept it may be the case that you had orders from further up the gang hierarchy, but you were the person on the ground in Nelson who was in charge. You directed the other four people in the group who were assisting you, and you were the only person who inflicted this serious violence on the primary victim. The other person who was present, Mr Tangirā, was a much younger gang associate, and the other three appeared to have been acting, at least in part, in fear of you.
[46] Another matter that caused me some concern was a suggestion in that report that serious violence had not featured in your previous offending. That appears to have disregarded a previous conviction for an aggravated robbery involving a firearm, that you received a sentence of four years’ imprisonment for in 2016, as well as an assault on a person in a family relationship, combined with a breach of a protection order, that you received a sentence of imprisonment for in 2022.
[47] It is a little puzzling to me to read the statement in that report that you stayed away from the criminal justice system for five years. That does not account for the sentence of imprisonment on the aggravated robbery charge which seems to me an equally likely reason for a break in your conviction history. In addition, your statement that you had no option but to do as you were told, does not sit comfortably with the summary of facts.
[48] And there is your statement in the pre-sentence report that the people you offended against were drug dealers and scumbags. I have been asked to disregard it, but I cannot do so.
[49] But having said that, your history and your upbringing (which is very suboptimal) is corroborated by your mother and other whānau. The exposure to, and being a victim of, family violence, loss and trauma, which has been followed by substance abuse, and then entry into gang membership as a family substitute, do in my view, show a causal connection to the offending that followed.
[50] In my view, a reduction of 15 per cent is available to reflect those matters on your background, as well as taking into account that you do appear to have some prospects of rehabilitation. You have taken steps on remand, in particular addressing your issues with literacy, and you have family support. Those are important matters that will increase your prospects of rehabilitation.
[51] I do not agree that the additional report of Dr Gilbert means the reduction for personal factors should be increased, let alone to the level of 25 per cent. Dr Gilbert’s report contains the same information that is in the psychological report.
[52] I would have tended to agree with the Crown that a 10 per cent reduction could be appropriate, but I have raised that to 15 per cent because you should be encouraged by the efforts that you have made at rehabilitation so far. The Crown considers that you could have done more, but I accept that it is not altogether straightforward, or easy, to start rehabilitative steps in custody on remand.
[53] I do not consider that an additional reduction over that 15 per cent level is available.
(a)first, I am not satisfied there is genuine remorse to a level that deserves a further reduction; and
(b)second, I also consider this is a case where reductions for personal factors need to reach a limit so that the overall sentence is not inadequate. I agree with the Crown that a total level of discount of 50 per cent would be excessive. That is particularly so when you have had the benefit of a full 25 per cent guilty pleas discount despite the significant delay in seeking a sentencing indication and the guilty pleas being entered not particularly long before the trial was due to start.
[54] That means that the total reductions that will be made in this case add up to 40 per cent.5 When I stand back and look at that level, I consider it appropriate, having regard to all of the personal factors that apply to you, and to reflect your guilty pleas to the charges. It is a significant reduction. It is 63 months or five years and two months, but no more is warranted above that level.
[55] A 15 per cent reduction for your personal factors is in line with Court of Appeal authority in other cases involving very serious offending,6 and in my view, it is also consistent with the level of reduction in the Supreme Court case of Berkland v R7 where a 10 per cent reduction was available for causative factors and another 10 per cent for rehabilitation prospects. But in that case, the rehabilitative steps taken had
5 When added to the 25 per cent reduction for guilty plea.
6 See, for example, Carr v R [2020] NZCA 357, at [67].
7 Berkland v R [2022] 1 NZLR 509, at [151]–[163].
been described as ‘exceptional’. The steps you have taken are commendable, but they are not exceptional, and they do not warrant the same reduction of sentence.
End sentence
[56] That means from a 13-years starting point, with the reduction totalling five years and two months, but with the two months added for your criminal history, the end sentence in your case is eight years’ imprisonment.
Minimum period of imprisonment (MPI)
[57] The final matter is whether I should impose a minimum period of imprisonment. The Crown says I should because serving one-third of the sentence before you would be eligible for parole would be insufficient for the purposes of accountability, denunciation and deterrence.
[58] Mr Hemana, your lawyer say that a minimum period is unnecessary and that it should be left to the Parole Board in the usual way to determine whether to grant you parole after serving one-third of your sentence.
[59] In the Sentencing Act, s 86 provides for a minimum period of imprisonment that is longer than the period otherwise applicable, if the Court is satisfied that the ordinary period is insufficient for any of the following purposes:
(a)holding the offender accountable for the harm to the victim and the community by the offending;
(b)denouncing the conduct;
(c)deterring the offender or other people from committing the same or similar offending; and
(d)protecting the community.
[60] In this case, in the guideline decision that relates to the charge of wounding with intent to cause grievous bodily harm, R v Taueki, the Court of Appeal said:8
In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.
[61] Another matter that is relevant in this case where you are being sentenced for a number of offences, is when multiple offending is involved, the totality principle is engaged. That means the overall sentence for all of the offending is calculated, as Justice Isaac did, by adopting a starting point for the most serious offending, and then adding an uplift to that for other offending. That is done so that sentences are proportionate and because cumulative sentences would be pointless. But the consequence is that eligibility for parole after serving one-third of a sentence for all of the offending can be inadequate to reflect the appropriate level of punishment, deterrence and denunciation.
[62] I agree with the Crown that the ordinary minimum period would appear insufficient in this case. The end sentence I have reached is eight years. The minimum period of imprisonment that would ordinarily apply (eligibility for parole after serving a third) is 32 months or two years and eight months.
[63] The features of your offending are relevant to reflect on whether potential release after two years and eight months is sufficient to hold you accountable for the harm, denounce the conduct and deter you and others from similar offending. And in this case, I also consider protection of the community is a legitimate concern.
[64] I consider that eligibility for release after two years eight months would be inadequate to denounce the conduct for which you are being sentenced. It is extremely disturbing, and is an unusual level of violence in the nature of torture during a sustained period of detention of three people to extract information, or get back a commercial quantity of methamphetamine, on behalf of a gang. It would also be inadequate to hold you accountable for the harm done to these three victims, especially
8 R v Taueki [2005] 3 NZLR 372, at [57].
the primary victim, when the effects on them are likely to be enduring and possibly permanent. A longer period of imprisonment is also warranted for the purpose of deterrence of you personally, but more particularly, to deter other people in gangs from behaving in this way.
[65] The only matter that gave me pause for thought is that I do consider you have prospects of rehabilitation, which might suggest that protection of the community is not a factor engaged here. But I have taken those prospects into account already in the reduction of sentence for personal factors, and it is the case that only one of the factors in s 86 need to be satisfied.
[66] There is also an argument that a longer sentence should apply to protect the community from you, when, as I have said, I have some scepticism towards the moderate assessment of risk in the psychologist report. I think the pre-sentence report assessment of your risk at high is probably more accurate.
[67] A longer minimum period of 50 per cent will result in you serving four years’ imprisonment before becoming eligible for parole. That is an additional 16 months over the period that would normally apply. I do not consider that to be excessive in the circumstances of such extreme violence in the context of gang-related commercial drug offending. When I weigh up the personal mitigating factors that apply to you Mr Hemana, I do not consider they are sufficient to displace the other matters under s 86 of the Sentencing Act. That means that I will impose a minimum period of imprisonment of 50 per cent of the sentence, or four years.
[68]You will need to stand now please Mr Hemana.
Sentence
[69]Your sentence will be eight years’ imprisonment in total:
(a)eight years’ imprisonment will be imposed on the kidnapping and wounding charges;
(b)sentences of two years’ imprisonment on the other charges of possession of methamphetamine for supply and offering a bribe. Those are concurrent sentences. As I have said, the total sentence is eight years;
(c)you will be required to serve a minimum period of imprisonment of four years; and
(d)your outstanding fines and costs of $6,730 are remitted.
[70]Thank you, you can stand down.
Grau J
Solicitors:
Crown Solicitor, Nelson
0