R v Hepana
[2014] NZHC 504
•18 March 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-044-5796 [2014] NZHC 504
THE QUEEN
v
GENE HEPANA
Hearing: 18 March 2014
Appearances: N Walker and B J Thompson for Crown
M Levett for Prisoner
Sentence: 18 March 2014
SENTENCING REMARKS OF LANG J
R v HEPANA [2014] NZHC 504 [18 March 2014]
[1] Mr Hepana, you appear for sentence today having pleaded guilty to a charge of murdering Jasmine Cooper. The only possible sentence that can be imposed on you is one of life imprisonment, and I now impose that sentence. The real issue today is to determine the length of minimum term of imprisonment that the Court should impose upon you.
[2] Before considering that issue, I wish to acknowledge immediately the presence in Court today of the family, whanau and friends of Ms Cooper. Several of you have travelled from some distance away to be here today. It is an important day for you, because so far as the legal system is concerned, this is the end of the process. I know, however, from the heartfelt yet measured victim impact statements that I have read that this is far from the end of the road in terms of you all coming to terms with your loss. You were robbed at a young age of a treasured, loved member of your family. That loss has left a huge hole in all of your lives that I know you are all struggling to come to terms with.
[3] I appreciate the measured way in which you prepared your victim impact statements and also, in two cases, have read them to the Court today. They help to give the Court some understanding of the extent to which offending like this can wreak havoc on the lives of those who are left behind. The Court’s sympathy is obviously with you. I recognise that nothing I say or do today can bring back the loved member of your family that was Jasmine Cooper. Nothing I can say or do can really help to sooth the sense of loss and bereavement that you suffer, but nevertheless the Court’s sympathies are with you.
The facts
[4] The first stage of the sentencing exercise is to set out the factual basis on which you, Mr Hepana, fall to be sentenced. These are contained in the summary of facts, to which you take no exception.
[5] You and Ms Cooper had been in a relationship and living together since about July 2013. This came to an end in or about November 2013, when an argument ensued. This ended in a degree of violence in which I am told you placed your hands around her neck. She then remained living in the house in which you had both been
living and you left to live elsewhere. During the period between November and December, you continued to send text messages to her and, I infer, visit her at her address on occasion. This prompted her to serve a trespass notice on you. The legal effect of that notice was to prevent you from entering her property without her express permission.
[6] On the evening of 22 December 2013, you were socialising and drinking at another address in Te Hana. You sent text messages during this evening to Ms Cooper. At about 1 am, you asked your father to drop you off outside her address, the address where you had both formerly been living. At that point, Ms Cooper saw you there and sent you a text message saying to go away. You went away and walked around the area for a while before returning to her property. she saw you outside and sent another text message telling you to leave. She also sent a text message to one of her relatives asking her to send along some male relatives because she felt she might need protection with you creeping around her property.
[7] At some stage you returned to the property and went up onto a small porch outside her front door. You may have knocked on the door but, for whatever reason, she came out of the door onto that porch area. You say there was then a short argument, but you accept that a short time later you began to strangle her to the point where she lapsed into a state of semi-consciousness or unconsciousness and fell to the ground. Rather than leave the property at that point, you instead dragged her round the side of the house to an area where you could not be seen from the road. You had picked up a rock by this stage, and you proceeded to use that rock to strike Ms Cooper’s face and throat area to the point where you killed her.
[8] You pleaded guilty at a stage prior to the preparation of a full pathological report, so it is not possible to tell precisely how many blows you landed around the area of her face and neck. Nevertheless, based on your own admissions and the fact that it caused Ms Cooper’s death, I proceed on the basis that you must have struck her in a very vulnerable part of her body on several occasions.
Minimum term of imprisonment
[9] As I have said, the function of the Court today is to not only impose a sentence of life imprisonment, but also to determine the minimum term of imprisonment that you must serve before being permitted to apply for parole. I emphasise that the minimum term of imprisonment is not the sentence that you will serve. The sentence you will serve is one of life imprisonment. It will be for the parole authorities, and them alone, to determine precisely when, or if, you are to be released back into the community and if so, on what conditions.
[10] The Court is bound to impose a minimum term of imprisonment of at least ten years, but it is not restricted to that term. First, it is required by s 103(2) of the Sentencing Act 2002 (“the Act”) to impose a minimum term of imprisonment that satisfies all of the following purposes:
(a) Holding you accountable for the harm done to the victim and the community by your offending;
(b) Denouncing your conduct;
(c) Deterring you and others from engaging in like conduct in the future;
and
(d) Protecting the community from you.
[11] I need to assess the gravity of your offending, coupled with your personal circumstances in order to ascertain what minimum term of imprisonment properly satisfies all of those objectives.
Aggravating factors
[12] There are obviously a number of aggravating aspects to your offending. The first is that you attacked a vulnerable woman living on her own in the area of her house. Secondly, this occurred in the middle of the night when help might be expected to be some way away. Thirdly, you went to the property when you knew
that you had no legal right to be there. Fourthly, you went to the property when you knew that she did not want you to be there, and had sent you several messages to that effect.
[13] You then killed her using the brutal method that I have described. First, you strangled her to the point of semi-consciousness or unconsciousness. Then, when you could have left her still alive, you instead dragged her round the side of the house where you hit her head with the rock. As I have said, that must have occurred on a number of occasions to produce the consequences that it did. All of those factors are serious matters. Taken on their own and putting aside the need to deter you and others and to protect the community, I consider that it would be sufficient to justify a minimum term of at least 15 years imprisonment.
[14] I need to consider, however, the other factors personal to you in order to select a starting point that will deter you from acting in a similar way in the future, and that will protect the community in the future from you.
[15] Two issues, or factors, are important in this context. The first of these relates to your past conduct. As counsel for the Crown points out, and your counsel acknowledges, you have a reasonably significant number of previous convictions for offending involving violence. In particular, you have several previous convictions for assaulting females. The most disturbing factor about your past, however, is the fact that on 20 February 2001 you were sentenced to a term of ten years imprisonment on two charges of wounding with intent to cause grievous bodily harm and one charge of aggravated burglary.
[16] I have now received the summary of facts in relation to that offending. It reveals that on 9 December 2000, you became aware that your half brother may have struck your mother. You travelled around to your half brother’s address with your sister. She begged you not to do anything, but you entered the house carrying a tomahawk. You then took to your half brother, striking him on the head on numerous occasions with the tomahawk. This left him with reasonably significant injuries. You then left the address and went back to another address, where you began drinking.
[17] Later in the evening, you went back to your parent’s address where you were living at the time. One of the other persons that had been at your half brother’s address arrived at your parent’s address. He obviously wanted to know why you had struck your half brother with the tomahawk in the way that you did. You quickly became angry with this person. You pushed him away and told him to leave the property. You then went to a caravan and got a knife. When you came back, you said to this person that you were going to kill him. You then stabbed him in the abdomen on several occasions with the knife. This punctured the visitor’s lung and caused very serious injuries. The fact that a sentence of ten years imprisonment was imposed reflects the seriousness of your offending on that occasion.
[18] You frankly accepted when you spoke to the probation officer who prepared the pre-sentence report that you have a serious issue with anger and with violence. You acknowledge that when you become angry nobody can stop you. You indicated that you had nothing to fear from killing anybody in prison because you had nothing to lose. All of those factors are obviously matters that the prison authorities need to be concerned about over the next several years. They are also matters of concern today for the Court, because they indicate that you are person who has no hesitation in resorting to violence when you become angry.
[19] I consider that the minimum term of imprisonment that the Court must impose on you needs to take those factors into account. It needs to take them into account for two reasons. First, in order to deter you from engaging in similar conduct in the future. Secondly, it needs to reflect the fact that the community will remain at risk from you if and when you are released. That likelihood is explicitly acknowledged in the probation report. It will also no doubt be given full weight if and when the parole authorities come to consider any application by you for parole. Having regard to those factors, I consider that an uplift of three years is required so that a minimum term of imprisonment of 18 years would ordinarily be justified.
[20] This effectively deals with one of the issues that has been the subject of discussion today. The Crown submits that your offending fits within that described in s 104 of the Act. That section provides that where certain criteria are satisfied, the
Court must impose a minimum term of 17 years imprisonment unless it would be manifestly unjust to impose that minimum term.
[21] The two factors that the Crown relies on in the present case are that the offending involved entry into a dwelling place, and that the offending involved brutality or callous characteristics. Had it been necessary to do so, I would have held that this offending did involve activity that occurred in a dwelling place. I consider that the porch of the address where you incapacitated Ms Cooper by strangling her effectively formed part of the living quarters. I draw this conclusion from the fact that chairs can be seen on the deck. It was clearly an adjunct to the living areas of the address.
[22] This Court1 and the Court of Appeal2 have held that the words “dwelling place” extend to areas around a dwelling place that form part of the sanctuary of the dwelling place itself. If it had been necessary to do so, I would have held that the porch formed part of the dwelling place so that your offending occurred, at least in part, in a dwelling place.
[23] It is a little more difficult to assess whether or not the way in which you killed Ms Cooper using the rock has the necessary degree of brutality to satisfy the criteria in s 104. At first sight, however, it would appear to do so, because you must have struck her in the face and throat area on several occasions using considerable force.
[24] As I say, it is not necessary for me to embark on any further consideration of s 104, because I am satisfied that a minimum term of imprisonment of greater than
17 years is warranted. For that reason, it could not either have been manifestly unjust to impose a minimum term of 17 years imprisonment.
Mitigating factors
[25] The only issue I need to determine is whether I should give you credit for the fact that you have pleaded guilty to the charge at a very early stage.
1 R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010 at [20].
2 Pahau v R [2011] NZCA 147 at [74].
[26] Two factors suggest that little credit should be given. The first of these is that you show little or no remorse for what you have done. Even when it was put to you that you have left a nine year old boy without his mother, you simply said “he’s young”. Implying, I infer, that he was young and he would get over it. That shows a startling lack of insight into the type of damage that your offending has done.
[27] Secondly, the case against you was extremely strong, if not overwhelming. You frankly acknowledged to the police that you had killed Ms Cooper. Conviction would always have been inevitable.
[28] There are, however, factors that indicate that a reduction should be made to reflect your guilty plea. The first, and most important, of these is that it is a frank acknowledgement of your responsibility for your offending. In entering a guilty plea at a very early stage, you have also spared this family the ordeal of reliving their loved relative’s death through the means of a Court trial. That is a matter of great importance and cannot be underestimated. The family may now have closure so far as the legal process is concerned at a far earlier stage than would have been the case if you had defended the charge and gone to trial.
[29] Secondly, you do not try to minimise your actions. You have not tried to shirk responsibility for what you did. You have accepted at a very early stage your responsibility for taking Ms Cooper’s life.
[30] Those factors persuade me that I should make some limited allowance for the fact that you have pleaded at such an early stage. As counsel for the Crown points out, allowances for guilty pleas in this context count for less than they would in terms of a traditional sentence. Generally speaking, deductions of one to two years are made to reflect guilty pleas. In your case, I consider that an appropriate balance will be struck if a deduction of one year is made to reflect your guilty plea.
Sentence
[31] Mr Hepana, on the charge of murder to which you have pleaded guilty you are sentenced to life imprisonment. You are ordered to serve a minimum term of imprisonment of 17 years before being eligible to apply for parole.
[32] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
M Levett
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