R v Heremaia

[2022] NZHC 443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-2204

[2022] NZHC 443

THE QUEEN

v

WILLIAM SHANE HEREMAIA

Hearing:	11 March 2022
Appearances:	BD Tantrum and EHK Rangamuwa for the Crown S Tait and JM Hudson for the Defendant
Sentenced:	11 March 2022

SENTENCING NOTES OF FITZGERALD J

Solicitors:        Meredith Connell, Auckland

To:                 S Tait, Auckland

J Hudson, Auckland

R v HEREMAIA [2022] NZHC 443 [11 March 2022]

Introduction

[1]                 Mr Heremaia, you appear for sentencing today having been found guilty by a jury of the manslaughter of Angela Smith. I removed the charge of murder from the jury, as I did not consider there was sufficient evidence from which the jury could reasonably find you guilty of that charge.

[2]                 Before going any further, I would first like to acknowledge two groups of persons affected by the tragic events in this case. The first is Ms Smith’s family members. I have received and read a number of victim impact statements written by Ms Smith’s siblings. Each are naturally devastated at the loss of their sister, particularly as it came hard on the heels of the loss of their mother to cancer only a short time earlier. They also speak to the undoubted tragedy of Ms Smith’s 12 year old son losing his mother. Mr Smith has also read his victim impact statement here in court today, and that takes great courage.

[3]                 The sentence I impose on you today will not, I am sure, compensate Ms Smith’s family for their loss. Indeed, nothing I say or do today can do that. But I acknowledge their pain and loss, and I extend the Court’s deepest sympathy to them.

[4]                 The second group of people I want to acknowledge today is your own family Mr Heremaia, and in particular your sisters who attended throughout your trial and some of whom are here today. I am sure that you found their presence at trial, and again today, of great comfort.

[5]                 I have found this a difficult sentencing, both because the precise details of what happened at your unit on the evening of 13 May 2020 will never be fully known, and that there are a number of disputed factual matters between the parties which I have had to consider. For these reasons, there is a fair bit for me to cover in my sentencing remarks today, and it might sound a bit complicated at times. I am sure you just want to know the end result. But sentencing is a public process, and it is therefore important that those here today, and the community more broadly, understand the basis upon which I am sentencing you.

Background/culpability

[6]                 I first turn to the factual background to your offending. In doing so, it will be necessary for me to discuss some of the  more  graphic aspects of  the assault on    Ms Smith.

[7]                 You and Ricky Rafferty had been drinking at your unit during the afternoon of 13 May 2020. Ms Smith, who was a neighbour of yours, joined you in the early evening and also began drinking with you. There seems no doubt that Ms Smith was already, or became, seriously intoxicated over the course of that evening. It appears you all did. You also all smoked some cannabis.

[8]                 Skipping forward in the evening, at about 1.00 am, you went upstairs to get your partner, Cherry Lovatt, telling her that you had found Ms Smith on the floor outside your bathroom, that you had shaken her for several minutes, bent down to her and listened for breathing and at that point realised she might be dead. Ms Lovatt went back with you down to your unit. She described finding Ms Smith lying on her back on the floor, clearly having been assaulted. Ms Lovatt confirmed that Ms Smith’s top was pushed up exposing her bra. Ms Smith’s underwear was off, located a little way from her body. Her jeans were also undone and not fully up, the bottom of the legs still “hooked” over her ankles. The evidence also showed that at some point Ms Smith had defecated, most likely when her jeans and underwear were still on. Three bloody knives were on the kitchen bench, and one was later found near to Ms Smith’s left arm.

[9]                 When Police later arrived, you were observed to have what looked to be dried blood on your face and hands, and photographs of that were produced in evidence.

[10]             Later DNA testing confirmed that you had Ms Smith’s DNA in bloodstains on one of your shoes, and some of your clothes. Your DNA was also found in oral, vaginal and introital swabs taken from Ms Smith. Your DNA was also detected on the inside and outside waistband of Ms Smith’s jeans and underwear, the inside front above the crotch of the underwear, on the opening to the jeans and the inside front of the jeans.

No evidence of semen was found. Your DNA was found in swabs from the left and right side of Ms Smith’s face.

[11]             DNA from each of you and Mr Rafferty was found in Ms Smith’s fingernail clipping samples. Ms Smith’s DNA was found in blood stains on shoes belonging to Mr Rafferty, as well in blood stains on some of his clothes. Mr Rafferty’s DNA was also found on two of the four knives. None of your DNA was found on the knives. Hairs found between Ms Smith’s thumb and forefinger were excluded as having come from you. Forensic evidence suggested that shoe prints found on Ms Smith’s body matched shoes belonging to Mr Rafferty.

[12]             Evidence from Dr Stables, who carried out Ms Smith’s post-mortem, was that the cause of Ms Smith’s death was blood loss, caused by a combination of the significant injuries she suffered. Those injuries included fractured ribs, a broken scapula, swelling to her face, extensive bruising, a head injury, evidence of likely stomping, significant lacerations to the left side of her face and ear, a (non-fatal) stab wound to her neck and a stab wound to her chest.

[13]             You said in your interview with Police that you were either asleep or had been knocked out during the evening, and did not play any part in the assault on Ms Smith. The jury’s verdict means that they rejected that explanation.

[14]             To have found you guilty of Ms Smith’s manslaughter, the jury must have been satisfied beyond reasonable doubt that you took part in the assault on Ms Smith in one or more of the following ways:

(a)together with Mr Rafferty, you intentionally caused any one or more of the injuries which itself was, or themselves were, a substantial operative cause of Ms Smith’s death; or

(b)by intentionally physically assisting Mr Rafferty to inflict the injuries on Ms Smith, including inflicting some lesser injuries yourself; or

(c)by intentionally encouraging Mr Rafferty to inflict  the  injuries  on Ms Smith.

[15]             It was not necessary for the jury to have been unanimous on which scenario was proved on the evidence. So we do not know the precise basis upon which the jury found you guilty.

[16]             For the purposes of your sentencing, I must form my own view of your culpability in relation to Ms Smith’s death. Having seen and heard all the evidence at trial, I conclude that Mr  Rafferty  was  significantly  involved  in  the  assault  on  Ms Smith.1 He was present at your unit that evening, and the forensic evidence confirmed the presence of Ms Smith’s blood on his clothes. Shoeprints of shoes belonging to him were also found in Ms Smith’s blood on the floor. He is a large and by all accounts volatile man, evidenced by his manner of behaviour when confronted by Police the next morning, when he also appeared to have swollen hands. The DNA evidence also suggests that Mr Rafferty used at least two of the knives found with Ms Smith’s blood on them, his DNA was found under the fingernails of Ms Smith’s right hand, and the evidence of likely stomping on Ms Smith was suggestive of being from shoes belonging to him.

[17]             The Crown says that you should be treated as equally culpable, or blameworthy, as Mr Rafferty. There is a legal issue around that, which I will talk about later. But in terms of your physical involvement, I conclude that you participated in the assault, but in a less dominant way than Mr Rafferty. I am satisfied you were involved at least in some way in the physical assault because:

(a)you were obviously at the unit on the night in question;

(b)the amount of blood found on your clothes and body was inconsistent with merely finding Ms Smith when she was already dead;

1      This conclusion obviously does not bind the Judge determining Mr Rafferty’s involvement hearing. Mr Rafferty did not participate in Mr Heremaia’s trial and was thus not able to challenge any of the evidence concerning his involvement.

(c)the collective evidence of some of Ms Smith’s neighbours suggested tension or anger between you and Ms Smith that evening, including hearing your voice after the time that you said you were asleep or knocked unconscious;

(d)there was no evidence to exclude the possibility of you being physically capable of causing any of the injuries;

(e)a bloody footprint was located in the bathroom which matched your shoe, with there being no evidence of you being in the bathroom after you said you had located Ms Smith around 1.00 am; and

(f)some of the DNA evidence,  and  in  particular,  your  DNA  under  Ms Smith’s fingernails, and on the left and right side of her face, indicates contact that was more than normal social contact, and the bruising on your face suggested being involved in an altercation that evening.

[18]             The Crown says that it is appropriate to infer that you used one or more of the four knives on Ms Smith.

[19]             I do not, however, consider that to be a safe inference to be drawn given there is no forensic evidence linking you to any of the knives. I also do not consider it would be safe to infer that you knew Mr Rafferty was involving knives in the assault; I do not consider it safe to infer that you could see a knife or knives being used, rather than perhaps just a more general shape or shade.

[20]             In reaching my conclusion on the respective involvement of Mr Rafferty and you in the assault, I also take into account the very significant physical difference between yourself and Mr Rafferty; Mr Rafferty being a powerfully built man of more than six foot, and yourself relatively small in stature, frail and what I accept on the unchallenged evidence to be blind. Common sense, together with the forensic evidence, suggests Mr Rafferty played the more dominant role.

[21]             I have already mentioned your DNA on the intimate samples taken from     Ms Smith. This suggests contact between yourself and Ms Smith that went beyond merely social contact. How this contact was linked, if at all, to the assault also remains unknown. But it does demonstrate some involvement between yourself and Ms Smith that is inconsistent with your version of events, as told to Police in your video interview.

[22]             I accordingly conclude that you were physically involved in the assault, but in a less dominant way than Mr Rafferty.

[23]             I will now turn to address what we refer to as the “starting point”, which reflects the nature of your offending and your culpability in relation to it. I will then assess factors personal to you, and whether they justify moving that starting point up or down, in order to arrive at a final sentence.

Starting point

Introduction

[24]             As you are aware, the Crown says that a starting point of 12 years’ imprisonment would be appropriate, while your lawyers say a starting point of around eight years would be appropriate. Part of this difference lies in the competing positions on the extent of your physical involvement in the assault on Ms Smith. I have already explained why I consider you were less involved than Mr Rafferty. But part of the difference between the Crown and your lawyers stems from the Crown’s submission that given the nature of the offending, in essence being a group attack, your culpability must reflect the culpability of the group as a whole.

[25]             Now, what I am about to talk about will probably be a bit complicated to follow, but it is important that I explain why I do not accept that submission, at least to the extent that it suggests your culpability should be equated with or really similar to that of Mr Rafferty. So please bear with me while I address this.

[26]             The legal cases which the Crown rely on for this proposition are ultimately drawn from the Court of Appeal’s decision in a case called R v Jamieson.2 In that case, six men had been convicted of manslaughter, following a group attack on the victim. The Judge split them between principal and secondary offenders, and adopted a starting point for the principal offenders of nine years’ imprisonment, and a starting point of six years for the secondary offenders. The Court of Appeal held that the difference between the starting points was too great. The Court did not say, however, that each offender’s culpability must reflect the culpability of the group as a whole (in other words, that there ought not to be any differentiation). The Court in fact said that “the [sentencing] Judge was able to conclude that a different starting-point was appropriate for the different classes of offenders”, with the real issue being that the difference was too big in that case.3

[27]             Many sentencing Judges will adopt different starting points depending on an offender’s individual culpability. Indeed, individual culpability is at the heart of the sentencing exercise. Although not a case of manslaughter, the Court of Appeal in a case called Taueki said that “[w]here there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed”.4 The authorities to which the Crown refers caution about too much differential being injected into certain types of offending, and particularly where it is difficult to assess relative culpabilities.

Aggravating and mitigating factors of the offending

[28]             Turning to the aggravating and mitigating factors of your offending, I accept the following aggravating factors:

(a)the assault was sustained and brutal;

(b)the injuries to Ms Smith were largely focused to her head, face, neck and upper body;

2      R v Jamieson [2009] NZCA 555.

3 At [57].

4      R v Taueki [2005] 3 NZLR 372 (CA) at [42].

(c)there were two attackers; and

(d)Ms Smith was vulnerable, in terms of being extremely intoxicated at the time of the assault.

[29]             The Crown says that a further aggravating factor is the use of knives. There plainly was the use of knives during the attack, but as I have already discussed, I am not satisfied that you used the knives, nor that it can be safely inferred you were aware that knives were being used. I also put aside the suggested “unexplained sexual element to the offending” as an aggravating factor. In the end it is simply not possible to say whether any contact between you and Ms Smith which led to the intimate DNA sample results was connected with the assault, or perhaps occurred considerably earlier in the evening. In this context, I note the evidence suggests that the stab wound to Ms Smith’s chest occurred while her top was still pulled down, and the evidence suggesting that Ms Smith had defecated while still wearing her jeans and underwear may explain why these had been pulled down at a time proximate to the attack.

[30]             In terms of factors mitigating your offending,  I have already discussed why  I consider Mr Rafferty the dominant offender, with you playing a lesser role. That lesser role is a mitigating factor.5

[31]             Your lawyers also point to a report prepared by Ms Sabine Visser, a clinical and neuropsychologist, which suggests that due to reduced mental cognition, you are vulnerable to others’ influence and are motivated in your behaviours to please and agree with others. In order for your mental state to be taken into account at this stage of the sentencing exercise, there must be a link between those factors and your culpability.6 There is no evidential foundation to suggest these matters caused or contributed to your involvement in the assault, and of course your position remains that you were not involved at all, rather than having been involved, but coerced or encouraged by Mr Rafferty. I therefore do not adopt this as a mitigating factor at this stage of my sentencing.

5      Sentencing Act 2002, s 9(2)(d).

6      See for example R v FM [2008] NZCA 148 at [33]; and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [43].

Setting the start point7

[32]             The lawyers have referred me to a number of cases which they say assist in setting the starting point.8 I have also reviewed some other cases and taken into account what they say.9

[33]             One of the cases to which the lawyers have referred is called R v Barlow, in which the circumstances were a little similar to those in this case.10 It involved three men drinking together and smoking cannabis, a fight ensuing and one man dying from a severe beating. Mr Barlow was convicted of murder following a guilty plea, and Mr Tukaki was convicted of manslaughter following trial. Mr Barlow accepted responsibility for inflicting most of the severe injuries. Mr Tukaki admitted to punching the victim two or three times and kicking him on the ground once or twice. The Judge thought that Mr Tukaki was probably playing down his involvement, but given his precise role was not clear, adopted a starting point of eight years’ imprisonment.

[34]             The Crown also refers to a case called R v Day.11 Again, Mr Day and the victim had been drinking together and smoking cannabis. After the two got into a disagreement, Mr Day had gone and got a knife, and stabbed the victim multiple times. Mr Day claimed that he had a panic attack which influenced his actions. Taking into account the reduced level of intention due to the panic attack, a starting point of nine years’ imprisonment was adopted. The Judge said that putting aside the panic attack, a higher starting point would have been likely.

[35]             It is difficult to make direct comparisons. Had Mr Rafferty been involved in the trial and found guilty of murder, he would have been sentenced to life imprisonment. Had he, like you, been found guilty of manslaughter, I accept the Crown’s approach that a starting point of around 12 years would have been appropriate. As noted, however, I consider your culpability to be lower, though must

7      Adopting the process suggested in Everett v R [2019] NZCA 68 at [27].

8      Including R v Hughes HC Whangarei CRI-2005-088-4349, 11 May 2007; and R v Wawatai [2014] NZHC 2374.

9      Blackler v R [2019] NZCA 232 and the cases referred to therein.

10     R v Barlow HC Auckland CRI-2003-19-01, 27 April 2007.

11     R v Day [2014] NZHC 3412.

equally recognise that this was a particularly brutal attack on Ms Smith. Based on the cases to which I have been referred, I would adopt a starting point of nine years’ imprisonment.

[36]             I then cross-check this against a case called Taueki, a guideline case for serious violent offending, but not causing death.12 A starting point of nine years falls at the top end of band 2 and the lower end of band 3 in that case. Band 3 is for offending with three or more aggravating factors, which I accept are present here, being serious violence, use of weapons, attacking the head, multiple attackers and a vulnerable victim. The Court in Taueki emphasised, however, that there must be flexibility in the use of the bands, an assessment of the seriousness of each factor and individual culpability. I am satisfied that the starting point of nine years’ imprisonment is appropriate in the context of Taueki.

[37]             I turn now to factors personal to you to see whether this starting point should be increased or decreased.

Prior criminal convictions

[38]             While you have a number of prior convictions, many are dated, most are not particularly serious and appear to have stemmed largely from your alcoholism. The Crown does not suggest any of these justify an uplift to the starting point, and I agree.

Personal circumstances

[39]             I have read the Department of Corrections report submitted for sentencing. Your lawyers have also filed with their sentencing submissions the report by Ms Visser, and a cultural report.

[40]             These reports suggest that you had a simple albeit happy upbringing in a close- knit family. You report to the cultural report writer that you were brought up “pretty well” and had “lovely parents”. You left school at 15 and worked with your father at a recycling plant.

12     R v Taueki, above n 4.

[41]             You have had vision problems since you were young, as well as type 1 diabetes, both conditions running in your family. You eventually had to give up work because of your lack of sight, and it reduced markedly in 2000. Based on the evidence I heard at trial, you have effectively been blind for some time, seeing, at best, only shadows and broad shapes. Understandably, you struggled with the loss of your sight, and this was the catalyst for your descent into alcoholism. This in turn exacerbated your type 1 diabetes.

[42]             There is nothing in the cultural report that suggests to me that any cultural factors, rather than your personal health and associated difficulties, are relevant to the purposes of sentencing. I accept however that the loss of your sight, your loss of employment as a result, and the resulting slide into alcoholism, all contributed to the place and state in which you found yourself at the time of your offending. The fact you were intoxicated on the night in question cannot be a mitigating factor.13 But your loss of vision clearly led to a downward spiral in your life more generally, and I accept there is some, though limited, link between this and your offending. A very modest discount is available for this.

[43]             Your blindness has some relevance, in my view, to the burden that a sentence of imprisonment will have on you, compared to a person in good health. That much is, I think, obvious. But I balance this against the fact that your blindness did not prevent your offending. Your diminished cognitive ability is also relevant for the same reason. Based on the results of her testing, Ms Visser concludes that your cognitive capacity is at the lowest end of the intellectual disability range. She predicts that, in addition to your blindness, this will adversely affect your wellbeing in prison.

[44]             I have also taken into account your recent cancer diagnosis. You have been diagnosed with myeloma cancer and the information before the Court is that it is incurable and it is likely to significantly affect your lifespan. You are currently being treated with ongoing chemotherapy on a weekly basis while in prison, with regular consultations at Auckland Hospital. At least on the materials before the Court, this presently appears to be able to be appropriately managed in custody.

13     Sentencing Act, s 9(3).

[45]             The authorities are clear that ill health and other personal circumstances, including diminished intellectual understanding, can act as mitigating factors where they mean imprisonment will weigh more heavily on the offender than others.14 Your lawyers suggest that your reduced cognitive ability warrants a reduction of up to 20 per cent from the starting point, together with a further 25 per cent discount for the matters raised in the cultural report, and that an additional (though unquantified) discount should apply to reflect your current health condition.

[46]             I am satisfied that your blindness and cognitive difficulties will mean a sentence of imprisonment weighs more heavily on you, and thus ought to attract a discount. I am also conscious that your recent cancer diagnosis is, as noted, likely to lead to a shortened life expectancy. There are no formal reports before me on this, but information provided by your treating clinician to your lawyer suggests that expectancy could be significantly affected, depending on your response to treatment.15 Certain statutory responses to such circumstances are available, such as the Parole Board being able to release a prisoner early if he or she is seriously ill and unlikely to recover.16

[47]             Despite this statutory response, these personal factors remain relevant to the sentencing exercise.17 Discounts given for ill health have ranged from around 14 to 33 per cent, depending on the severity of the health conditions.18 Reflecting that the statutory response that I have discussed will remain available in the future, that your condition appears to be well managed to date while in custody, though reflecting that your current ill health is coupled with your pre-existing blindness and cognitive difficulties, I adopt a global discount for all personal factors of 25 per cent.

[48]             This discount to the starting point of nine years results in a sentence of six years and nine months’ imprisonment.

14     Sentencing Act, s 8(h); and Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf, Thomson Reuters) at [SA8.13] and the cases referred to therein.

15     Mr Heremaia’s treating clinician expects a further lifespan of three to seven years.

16     Parole Act 2002, s 41. See also Department of Corrections “Prison Operations Manual – Release”

< at [R.02].

17     Sentencing Act, s 8(h); and R v Luce [2007] NZCA 476 at [24].

18     Hastie v R [2011] NZCA 498 at [40].

Time spent on restrictive bail conditions

[49]             You were released on bail with a 24 hour (non-monitored) curfew in June 2020. You remained on bail subject to that curfew for almost 14 months, subject to periodic absences from your bail address.

[50]             Considerable time spent on restrictive bail conditions can be taken into account as a mitigating factor.19 Your lawyers suggest a reduction of seven months is appropriate. I do not agree. While you were subject to a 24 hour curfew, that was punctuated by not infrequent absences from the address for the matters I have addressed. You were living with one of your sisters in what I assume to be a comfortable environment. I adopt a discount of two months, reducing the sentence to six years and seven months’ imprisonment.

COVID-19 discount

[51]             Your lawyers suggest that there should be a further discount for the fact that you have not had any in-person contact with any of your whānau since being remanded in custody on 10 August 2021.

[52]             I do not consider it is appropriate to impose a specific “COVID-19 discount”. I appreciate that it will have added to the difficulty of being on remand to not have had in-person contact with family members. However, that will have been the case for all defendants on remand in recent times, and indeed many persons in the community have also not had contact with family members in difficult times because of lockdowns and other restrictions. One would hope that these restrictions will ease in the coming months, and therefore I envisage that for the significant part of your sentence, you will have the opportunity for regular in-person contact with your family.

Result

[53]             As noted, the discounts I have applied result in an end sentence of six years and seven months’ imprisonment.

19     France, above n 14, at [SA9.25(8)]; and Bennett v R [2012] NZCA 173 at [25].

[54]             Mr Tantrum confirmed this morning that a minimum period of imprisonment is not pressed by the Crown and I consider that a responsible approach in all of the circumstances.

[55]             Mr Heremaia, would you please now stand. On the charge of manslaughter, I sentence you to six years and seven months’ imprisonment.

[56]You may stand down.

Fitzgerald J