R v Heremaia

[2012] NZHC 3361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-092-016071 [2012] NZHC 3361

THE QUEEN

v

TUWHARE HEREMAIA

Appearances: K A Lummis for the Crown

M J-M Porner for Mr Heremaia

Judgment:      12 December 2012

SENTENCING NOTES OF GILBERT J

Solicitors:           K A Lummis, Auckland:  [email protected]

M J-M Porner, Auckland:  [email protected]

R V HEREMAIA HC AK CRI 2011-092-016071 [12 December 2012]

Introduction

[1]      Mr Heremaia,  you have pleaded guilty to one count of causing grievous bodily harm with intent to cause grievous bodily harm and one of injuring with reckless disregard for the safety of others.  The maximum penalty for the grievous bodily harm charge is 14 years’ imprisonment.  The maximum penalty for the other charge is five years’ imprisonment.

[2]      Following a request for a sentencing indication under the Criminal Procedure

Act 2011, I indicated that these charges would attract a sentence of four years and

10 months’ imprisonment. This indication took no account of your restorative justice initiatives because these had not progressed at that stage.   However, a restorative justice conference has now taken place and I am satisfied on the basis of the report that has been provided that you are truly remorseful for your offending.  This is to your credit and should be taken into account in sentencing you today.  Your victims do not wish you to go to prison.  However, the gravity of your offending is such that imprisonment is the only appropriate response.

Facts

[3]      The   offending   occurred   in   the   early   hours   of   the   morning   of

10 September 2011 at a Manurewa property where a party was taking place. You and your partner arrived at the party at about 4.30 am.  Not long after you arrived, you and one of the complainants, Mr Nepe, became involved in a verbal altercation. Mr Nepe punched you in the face and you then ran off.

[4]      Your partner drove off after you.  Mr Nepe smashed the passenger window of the car as it went past.   After your partner caught up with you, you got into the driver’s seat and drove back towards the party.  You stopped and spoke to someone who was standing nearby and said “I am going to run them over, what do you think?”   You drove the car over the kerb and onto the footpath directly towards Mr Chapman and others who were standing on the footpath.  You then reversed back onto the road before accelerating forward and knocking Mr Chapman to the ground. You reversed and drove forward again, this time over the top of Mr Chapman who

was still lying on the ground.  You then reversed over Mr Chapman back onto the roadway.  You drove forward again over the top of Mr Chapman who was still lying prone on the footpath.

[5]      Mr Chapman was trapped under the car with his head and neck very close to the rear wheels of the car.   At this point, Mr Nepe reached inside the passenger window and tried to remove the keys from the ignition.  He was yelling at you that the car was on top of Mr Chapman and you should stop the car.  You refused to stop and reversed the car back over Mr Chapman again before driving off up the road with Mr Nepe hanging from the window. Mr Nepe fell from the car but you did not stop.

[6]      Mr Chapman suffered life threatening injuries and the incident has had a profound effect on his life.  He spent approximately three months in hospital with broken ribs, punctured lungs, a crushed spleen and injuries to his kidneys and liver. His doctor advises that it could take five years for his liver to heal.  Mr Chapman is still  receiving  medical  treatment  and  is  due  to  have  another  operation  in  the New Year.  He says that the incident has affected his relationship with his wife and children and that there have been times when he has even thought of taking his own life.

[7]      Fortunately, Mr Nepe’s injuries were less serious.  He suffered a wound to his right elbow and abrasions to his right knee, lower leg, chest, left shoulder and hands as a result of falling from the car.  He was taken to hospital but discharged later that morning.

[8]      Despite  the  seriousness  of  your  offending  and  of  the  consequences  to Mr Chapman in particular, both Mr Chapman and Mr Nepe have forgiven you and do not want you to go to prison.   They have asked me to take into account the positive outcomes from the restorative justice conference and to be lenient in sentencing you.   They have both shown commendable compassion in the circumstances.  I take Mr Chapman’s and Mr Nepe’s views into account in allowing a further discount to the indicated sentence.   However, as I have said, I have no choice but to sentence you to imprisonment, given the very serious nature of your

offending.  As you said yourself at the restorative justice conference, your offending could easily have resulted in Mr Chapman’s death.  It is only by good fortune that this did not occur.

Personal circumstances

[9]      Mr Heremaia, you are 25 years old.  You live in Auckland with your parents and three siblings.  You left school in the fourth form to take a course in carpentry and boat building.  You have been in steady employment since then.  Your employer speaks highly of your work ethic and the positive and supportive way you relate to your work colleagues.  I have received this morning many references from others in support of you and your character.

[10]     You said that you did not remember much of the offending.  Prior to arriving at the party that night you said that you had consumed at least a box of alcohol.  You expressed remorse for your actions to the probation officer and offered to make amends by complying with any sentence you may receive, attending a restorative justice conference, and paying reparation at $50 a week from your salary.

[11]     The probation officer assesses you as having a harmful pattern of drug and alcohol abuse and a tendency to be violent.  You have taken steps to address this by successfully completing a programme run by the Waitemata District Health Board. However, the probation officer considers that you may benefit from further interventions to address your alcohol and drug abuse.

[12]     The probation officer considers you to be at a low risk of reoffending, but at a medium to high risk to others if you do reoffend.  The probation officer recommends a sentence of imprisonment.

Purposes and principles of sentencing

[13]     Mr Heremaia, in sentencing you I must have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. Your conduct must be denounced and you must be held to account for your actions. Your

sentence must contain an element of deterrence to discourage future offending both by you and other members of society. I must assess the gravity of the offending and bear in  mind  the need  to  impose the least  restrictive appropriate outcome. The sentences I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. However, I am required to take into account circumstances unique to you, which might render an otherwise appropriate sentence disproportionately severe. The views of the victims, expressed already, are also relevant.

Starting point

[14]     In sentencing you today, I am first required to fix what is called a starting point. The starting point must reflect the gravity of your offending, including any relevant aggravating and mitigating features. I am then required to adjust the starting point to take into account any personal aggravating and mitigating features.

[15]     The Court of Appeal’s decision in R v Taueki is the guideline judgment in cases of causing grievous bodily harm with intent to cause grievous bodily harm.1 I consider that this case falls within band 3 offending in terms of that judgment with the following aggravating features present: extremity of the violence, the serious injuries caused, and the use of a car as a weapon.

[16]     I consider that there was also some element of premeditation.   However, I accept your counsel’s submission that a lower starting point than might ordinarily be required is appropriate because of the presence of some provocation.

[17]     In considering the appropriate starting point I have had particular regard to two broadly comparable cases which counsel have relied on, one a decision of the Court of Appeal and the other a decision of this Court.2  The present case is more serious than those cases because it involved an element of premeditation and a greater degree of violence.  Taking all matters into account, I set a starting point of six years and six months’ imprisonment.

[18]     I have  considered  whether an  uplift  should  be  added  to  account  for  the totality  of  your  offending  in  committing  the  separate  offence  of  injuring  with reckless disregard for safety.  Your counsel has urged me not to apply any uplift and the Crown does not seek an uplift.  I am satisfied that in the particular circumstances of this case, no uplift need be applied.

Adjustment for personal factors and guilty plea

[19]     You have no previous convictions and have abided by your bail conditions to date. This is to your credit and I allow a discount of six months for this.

[20]     The Supreme Court in Hessell v R stated that where an offender has shown genuine remorse and has done his best to atone financially for his offending by offering reparation, credit may be given as a mitigating factor.3   However, there must be clear evidence of exceptional remorse before a discount can be awarded on this ground.4    Here, you have made a reparation offer and initiated a restorative justice conference.   The facilitators have reported that you made a genuine apology and were clearly emotional and remorseful.  I consider that you should be given a further discount  of  six  months  to  take  into  account  your  remorse.    I  have  regard  to Mr Chapman and Mr Nepe’s views in making this discount.

[21]     I consider that a 20 percent discount is appropriate for your guilty plea.  You are  not  entitled  to  a  full  discount  given  that  the  guilty  plea  was  entered  on

21 August 2012 after you had been arraigned for trial.  In assessing the discount, I

take into account that the charges were only laid in April of this year.

[22]     Taking these discounts into account, I sentence you on the lead offence of causing grievous bodily harm with intent to cause grievous bodily harm to a sentence of four years and five months’ imprisonment.  On the less serious charge I sentence you to a term of 12 months’ imprisonment.   These two sentences will be served

concurrently which means that your effective end sentence is one of four years and

five months’ imprisonment.  I do not impose a minimum term of imprisonment.

M A Gilbert J